Approval By DoE Mandatory For Order Of Dismissal Against Teachers In Private Schools, Ex Post Facto Approval Cannot Sustain In Law, Delhi High Court

The Appellant, an Assistant Teacher was serving in a school (Respondent) on a temporary basis in 1988 and continued with the same till June 2013.

A departmental inquiry was initiated against her because she had subjected a Class III student to corporal punishment. Apart from that, she had also been absent from her duties since November 2011, leading in an order of dismissal against her by an order dated November 2011.

Aggrieved by the order, she approached the Delhi School Tribunal, filing an appeal.

The Tribunal quashed the order dismissing her from services observing that there was no substantial evidence to prove any charges against her. The school authorities challenged the order of the Tribunal in the High Court. On 13 February 2018, a Single Bench of the High Court allowed the appeal stating that while passing the order of dismissal, the Tribunal had followed the Principles of Natural Justice and the charge against the Appellant was proved by the evidence of a teacher and a peon. The Single Judge held that the Tribunal had erroneously set aside the order of dismissal.

Finally, the Appellant approached the Division of the High Court by way of a Letters Patent Appeal.

Contentions of the Appellant:

The Counsel for the Appellant contended that the order of dismissal violated Section 8(2) of the Delhi School Education Act, 1973 and Rule 120(2) of the Delhi School Education Rules, 1973 as the approval of DoE had not been obtained before passing the order. Pertinently, this contention was totally different from the one taken in the Tribunal.

Justifying his contentions, the Counsel referred to the decision of the Single Judge of the Delhi High Court in Meena Oberoi v Cambridge Foundation School as well as the judgment of the Supreme Court in Raj Kumar v Director of Education.

It was further submitted by the Counsel that since the matter was related to the jurisdiction of the school authorities in terms of penalising the Appellant, this ground could be taken at any stage of the proceedings.

Contentions of the Respondent:

The Counsel for the Respondent assailed the contention of the Counsel for the Appellant that since the ground pertained to the jurisdiction of the School to penalise the appellant, it could be taken at any stage. He argued that the same ground was neither taken before the Single Judge nor the Tribunal and could not be accepted.

However, this contention was not entertained by the Court, citing the judgements of the Supreme Court in Hindustan Zinc Ltd v Ajmer Vidyut Vitran Nigam Ltd and Chief General Manager, M.P. Power Trading Co Ltd v Narmada Equipments (P) Ltd, wherein it was held that a jurisdictional challenge could be raised for the first time at any stage, even in collateral proceedings.

Furthermore, in response to the contention of the Appellant that the approval for dismissing the Appellant from service was not obtained from the DoE, the Counsel asserted that the DoE had approved the order of dismissal after the Appellant filed the Writ Petition.

Citing the judgements in Abha Pathak v Gyandeep Education Society and Naval Public School v Neera Chopra, it was submitted that ex post facto approvals would sustain legally. Furthermore, the Counsel emphasized that the charge against the Appellant was grave as it involved infliction of punishment concerning a minor child. He held that the seriousness of the issue and the contention around ex post facto approval should be enough grounds to uphold the order of dismissal from service. He asserted that concerning the gravity of the charge, setting aside the order of dismissal on technical basis to an extent of the order not being approved by the DoE shall not be justified.

Additionally, the Counsel drew the attention of the Court to the fact that the dismissal order passed on 6 June 2013, while as the judgement in Raj Kumar v Director of Education was passed on 13 April 2016.

He stated that before the judgement passed in Kathuria Public School and the decision taken in Raj Kumar vs. Directorate of Education, the DoE was not required to grant approval [under Section 8(2) of the DSE Act or Rule 120(2) of the DSE Rules] to any private school in dismissing am employee from service. Justifying his argument, the Counsel made a reference to the judgement of a Single Judge in Sunil Kumar Agarwal v Air Force School, in which the contention taken above was considered and the dismissed teacher was compensated instead of restoring his services.

Findings of the Court:

The Court mentioned the judgment of the Supreme Court in Raj Kumar stating that as per the same, the Appellant cannot be dismissed from service.

Relying on a catena of judgements including Meena Oberoi v Cambridge Foundation School, Mangal Sain Jain v Principal, Balvantray Mehta Vidya Bhawan, Red Roses Public School v Reshmawati, Red Roses Public School v Reshmawati and others., the Court observed that obtaining prior approval of the DoE was mandatory in passing the order of dismissal. Negating the contention of the Counsel for Respondents regarding ex post facto approval of the dismissal order, the Court held that such an argument would not sustain.

The Court further mentioned several judgments of the Supreme Court including State of UP v Singhara Singh which uphold the Principle that, 'where a statute requires a particular act to be done in a particular manner, that act must done in that manner or not done at all, all other modes of doing the act being necessarily forbidden.'

While holding so, the Bench held that Section 8(2) of the DSE Act and Rule 120(2) of the DSE Rules mandate prior approval of the DoE to be obtained before an order dismissing, terminating or removing an employee of a School. It observed further that it would be impermissible to permit ex post facto approval.

With these observations, the Court concluded that the ex post facto approval obtained for passing of the order of dismissal of the appellant could not furnish as a ground to uphold the order of dismissal.

The Court further observed that since the Appellant had superannuated in 2016, she was entitled to back wages for the period during which she was unable to serve the school on account of her dismissal order. While also granting her retirement benefits, the Court allowed the Appeal and quashed the order of dismissal.

Case Title: ASHA RANI GUPTA versus RAVINDERA MEMORIAL PUBLIC SCHOOL & ANR

Counsel for Appellant: Mr. Anuj Aggarwal, Ms. Divya Aggarwal, Mr. Manas Verma, Mr. Pradeep Kumar and Mr. Avinash Kumar, Advs.

Counsel for Respondents: Mr. Ajay Garg, Ms. Tripti Gola, Mr. Ganesh Ojha, Ms. Surbhi Soni and Mr. Uday Garg, Advs, Mrs. Avnish Ahlawat, SC (GNCTD) with Mr. Nitesh Kumar Singh, Ms. Laavanya Kaushik, Ms. Aliza Alam & Mr. Mohnish Sehrawat, Advs. for DOE.

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