Prior approval of Govt. necessary before retrenching Private School Employees: SC upholds validity of Section 8(2) of Delhi School Education Act [Read Judgment]

In a significant ruling, the Supreme Court in Raj Kumar vs. Director of Education, has upheld the validity of Section 8(2) of the Delhi School Education Act which requires the managements of the private unaided schools to obtain prior approval for disciplinary proceedings against its employees.

Division Bench of the Apex Court comprising of Justices V. Gopala Gowda and Amitava Roy said that the Delhi High Court judgment in Kathuria Public School vs. Director of Education striking down the said provision is bad in law. The Apex court made this observation while disposing of an appeal filed by a Driver of Private school who had been retrenched from his services by the School.

It was in 2005, when the Division Bench of Delhi High Court had struck down Sections 8(2) and 8(4) of the DSE Act, holding that it would have no application to private unaided schools.

Section 8(2) of the DSE Act says “no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director.”

Placing reliance on the aforesaid judgment of Delhi High Court, the management contended that no requirement on their part to comply with Section 8(2) of the DSE Act as it has been struck down. In this context, the Apex Court observed that the Delhi High Court in that case, erred in striking down Section 8(2) of the DSE Act in the case of Kathuria Public School case by placing reliance on the decision of this Court in the case of TMA Pai Foundation vs. State of Karnataka.

The Court said that the in TMA Pai case, the subject matter in controversy therein was not the security of tenure of the employees of a school, rather, the question was the right of educational institutions to function unfettered. While the functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to be reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management, the Bench said holding that the decision is bad in law.

The Court also said that the Delhi High Court did not correctly apply the law laid down in the case of Katra Educational Society vs. State Of Uttar Pradesh and Frank Anthony Public School Employees Association v. Union of India.

The Apex Court allowing the appeal filed by the Driver, held that since the Managing Committee did not obtain prior approval of the order of termination passed against the appellant from the Director of Education, Govt. of NCT of Delhi as required under Section 8(2) of the DSE Act, the order of termination passed against the appellant is thus, bad in law. Management was also asked to reinstate the employee back to service.

Read the Judgment here.