Delhi High Court
Asha Rani Gupta vs Ravindera Memorial Public School & Anr on 8 October, 2024
Author: C. Hari Shankar
Bench: C. Hari Shankar, Sudhir Kumar Jain
$~84
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 627/2018
ASHA RANI GUPTA .....Appellant
Through: Mr. Anuj Aggarwal, Ms. Divya
Aggarwal, Mr. Manas Verma, Mr. Pradeep
Kumar and Mr. Avinash Kumar, Advs.
versus
RAVINDERA MEMORIAL PUBLIC SCHOOL
& ANR .....Respondent
Through: Mr. Ajay Garg, Ms. Tripti Gola,
Mr. Ganesh Ojha, Ms. Surbhi Soni and Mr.
Uday Garg, Advs. for R-1.
Mrs. Avnish Ahlawat, SC (GNCTD) with
Mr. Nitesh Kumar Singh, Ms. Laavanya
Kaushik, Ms. Aliza Alam & Mr. Mohnish
Sehrawat, Advs. for DOE.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT (ORAL)
% 08.10.2024
C. HARI SHANKAR, J.
1. This Letters Patent Appeal impugns judgment dated 13
February 2018 passed by a learned Single Judge in WP (C)
11394/20161.
1 Ravindra Memorial Public School v Director of Education
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2. The appellant joined the Respondent 1-School2 as Assistant
Teacher on temporary basis in 1988 and continued to serve the School
without interruption till June 2013. On the charge that she had
inflicted corporal punishment on a Class III student in the School on
17 August 2010 and had abandoned her duties since November 2011,
the appellant was subjected to a departmental inquiry resulting in her
dismissal from service vide order dated 6 June 2013. The appellant
challenged the decision by way of appeal before the learned Delhi
School Tribunal3. By order dated 2 September 2016, the learned
Tribunal held that there was no legally admissible evidence on the
basis of which the charge against the appellant could be sustained.
Accordingly, the learned Tribunal set aside the order of dismissal of
the appellant from service and directed her reinstatement with full
back wages.
3. Aggrieved by the decision of the learned Tribunal, the School
approached this Court by way of WP (C) 11394/2016, which stands
allowed by the impugned judgment dated 13 February 2018. The
learned Single Judge has held that the principles of natural justice
were duly followed before dismissing the appellant from service and
that the charge against the appellant stood proved by the evidence of a
fellow teacher and of a peon.
4. In the circumstances, it was held that the learned Tribunal had
erred in setting aside the order dismissing the appellant from service.
2
“the School”, hereinafter
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Accordingly, the judgment of the learned Tribunal was reversed and
the order dismissing the appellant from service was restored.
5. Aggrieved thereby, the appellant is before this Court by means
of the present Letters Patent Appeal.
6. We have heard Mr. Anuj Aggarwal, learned Counsel for the
appellant, and Mr. Ajay Garg, learned Counsel for the School at
length.
7. Mr. Aggarwal assailed the decision to uphold the appellant’s
dismissal from service on a ground entirely different from those which
were urged before the learned Tribunal. He submitted that the
dismissal of the appellant from service was in violation of Section
8(2)4 of the Delhi School Education Act, 19735 as well as Rule
120(2)6 of the Delhi School Education Rules, 19737, inasmuch as prior
approval of the Directorate of Education8 had not been obtained
before dismissing the appellant from service.
8. Mr. Aggarwal submitted that, as the ground taken pertains to
the jurisdiction of the School to penalise the appellant, it could be
taken at any stage.
3 “the learned Tribunal”, hereinafter
4 (2) Subject to any rule that may be made in this behalf, 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.
5 “the DSE Act”, hereinafter
6 (2) No order with regard to the imposition of a major penalty shall be made by the disciplinary
authority except after the receipt of the approval of the Director.
7 “DSE Rules”, hereinafter
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9. Mr. Garg initially objected to the line of the argument that Mr.
Aggarwal was seeking to adopt, submitting that it was a ground which
had not been urged either before the learned Tribunal or before the
learned Single Judge.
10. The contention of Mr. Garg cannot be accepted because an
issue relating to jurisdiction goes, to employ a time worn cliché “to
the very root of the matter” and can be raised at any time. An action
without jurisdiction is a nullity from its inception. All further
proceedings following on the action stands vitiated. For this reason,
the Supreme Court has held, in Hindustan Zinc Ltd v Ajmer Vidyut
Vitran Nigam Ltd9 and Chief General Manager, M.P. Power
Trading Co Ltd v Narmada Equipments (P) Ltd10 – and in several
other judgements – that a jurisdictional challenge can be raised for the
first time at any stage, even in collateral proceedings.
11. Mr. Garg then sought time to examine the issue, as it had been
raised for the first time before this Court. The matter was adjourned.
On the renotified date, both the learned Counsel have been heard on
the jurisdictional challenge to the order of dismissal of the appellant
from service.
12. Mr. Aggarwal has placed reliance on the judgment of one of us
8
“DOE”, hereinafter
9 (2019) 17 SCC 82
10 (2021) 14 SCC 548
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(C. Hari Shankar, J.), sitting singly in Meena Oberoi v Cambridge
Foundation School11 as well as the judgment of the Supreme Court in
Raj Kumar v Director of Education12 on which Meena Oberoi placed
reliance.
13. As against this, Mr. Garg submits that, after the present writ
petition had been filed, ex post facto approval of the DOE had been
obtained to the passing of the order of dismissal of the appellant from
service. He relies on the judgment of a learned Single Judge of this
Court Abha Pathak v Gyandeep Education Society13, as followed by
another learned Single Judge in Managing Committee, Naval Public
School v Neera Chopra14, to contend that ex post facto approval
would suffice. He further impresses on the seriousness of the charge
against the appellant, i.e., inflicting corporal punishment on a minor
School child, to submit that the facts of the case would not justify
setting aside of the order dismissing the appellant from service on the
technical ground of failure to obtain prior approval of the DOE, and
that, in the facts of the present case, ex post facto approval should be
held to suffice.
14. Mr. Garg further submits that it was only after the order
dismissing the appellant from service had been passed on 6 June 2013
that the judgment of the Supreme Court in Raj Kumar was rendered
on 13 April 2016. Prior thereto, he submits that the law that held the
11 (2019) 265 DLT 401
12 (2016) 6 SCC 541
13 2011 SCC OnLine Del 4115
14 2013 (136) DRJ 601 (DB)
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field was that declared by a Division Bench of this Court in Kathuria
Public School v Director of Education15. Kathuria Public School, it
was submitted, held that the requirement of obtaining prior approval
of the DOE before passing an order of dismissal or removal from
service, as contained in Section 8(2) of the DSE Act and Rule 120(2)
of the DSE Rules, would not apply to private unaided schools. This
position continued to hold the field till the judgment in Raj Kumar
was rendered on 13 April 2016. Between the judgment in Kathuria
Public School and the decision in Raj Kumar, the DOE, submits Mr.
Garg, was not granting approval under Section 8(2) of the DSE Act or
Rule 120(2) of the DSE Rules to any private unaided school for
dismissing or removing an employee from service. Even if the
respondents were to have applied for approval, therefore, it would not
have been possible for the respondents to have obtained approval. In
such circumstances, he submits that it would not be legally correct to
interfere with the order of dismissal of the appellant from service
solely on the ground that prior approval of the DOE had not been
obtained.
15. Mr. Garg submits that a learned Single Judge of this Court has,
in Sunil Kumar Agarwal v Air Force School16, noted this fact and
modulated the relief by directing the dismissed teacher, in that case, to
be awarded compensation of ₹ 2 lakhs, instead of reinstatement in
service.
15 (2005) 123 DLT 89
16 2023 SCC OnLine Del 4348
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Analysis
16. In view of the judgment of the Supreme Court in Raj Kumar, it
is obvious that the order dated 6 June 2013, dismissing the appellant
from service, cannot sustain.
17. The entire gamut of case law has been considered by this Court
in Meena Oberoi, which has subsequently been followed in other
decisions including Mangal Sain Jain v Principal, Balvantray Mehta
Vidya Bhawan17. The submission that, in view of the then existing
law in Kathuria Public School, orders of dismissal and removal of
employee of private unaided school from service without obtaining
prior approval of the DOE, passed before the rendition of the decision
in Raj Kumar, ought not to be reopened, was considered. It was also
noted that a Division Bench of this Court had, in its decision in Red
Roses Public School v Reshmawati18 chosen not to follow Raj Kumar
in respect of decisions rendered prior thereto, on the ground that
applying Raj Kumar from a date prior to its rendition would result in
reopening of claims which stood settled in terms of the then existing
law in the shape of the judgment in Kathuria Public School. The
decision in Red Roses Public School, it was however noted, had been
rendered without the Court having been informed of the judgment of
the Supreme Court in Marwari Balika Vidyalaya v Asha Srivastava19,
in which the Supreme Court had applied Raj Kumar retrospectively,
17 2020 SCC OnLine Del 2608
18 2019 SCC OnLine Del 10937
19 2019 SCC OnLine SC 408
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to invalidate an order of termination of an employee of private
unaided school passed in 2001 without obtaining prior approval of the
DOE.
18. As such, this Court, in Meena Oberoi, adopted the view that the
decision of the Division Bench in Red Roses Public School was
effectively per incuriam, as it was contrary to the prior judgment of
the Supreme Court in Marwari Balika Vidyalaya.
19. There can, therefore, be no manner of doubt that the order dated
6 June 2013, whereby the appellant was dismissed from service, has
necessarily to be set aside, as it was passed without obtaining prior
approval of the DOE.
20. The submission of Mr. Garg that ex post facto approval of the
dismissal order should suffice is obviously untenable, as what is
required by Section 8(2) of the DSE Act and Rule 120(2) of the DSE
Rules is prior approval. From the times of Taylor v Taylor20 through
Nazir Ahmed v King-Emperor21 and a veritable plethora of judgments
of the Supreme Court including State of UP v Singhara Singh22, it is
a well settled 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. Where, therefore, Section 8(2) of the DSE Act and Rule
20 (1875) 1 Ch D 426
21 AIR 1936 PC 253
22 AIR 1964 SC 358
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120(2) of the DSE Rules require prior approval of the DOE to be
obtained before an order dismissing, terminating or removing an
employee of a School can be passed, it is prior approval, and prior
approval alone, which would suffice. Permitting ex post facto
approval would amount to rewriting the statue, which is obviously
impermissible.
21. Mr. Garg’s plea that the decision to the judgment of the learned
Single Judge should be upheld as ex post facto approval had been
obtained for passing of the order of dismissal of the appellant from
service cannot, therefore, be accepted.
Conclusion
22. The submission of Mr. Aggarwal that the order dated 6 June
2013 dismissing the appellant from service is liable to be set aside for
having been passed without obtaining prior approval of the DOE, as
required by Section 8(2) of the DSE Act and Rule 120(2) of the DSE
Rules has, therefore, necessarily to succeed.
23. For the aforesaid reasons, the dismissal of the petitioner from
the services of the respondent school on 6 June 2013 is quashed and
set aside. As we are informed that the petitioner has superannuated in
2016, she is entitled to back wages for the period during which she
was unable to serve the school on account of her dismissal order and
also to whatever retiral benefits she would have been entitled had she
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retired as a serving teacher of the school.
24. The appeal is allowed accordingly.
C. HARI SHANKAR, J.
DR. SUDHIR KUMAR JAIN, J.
OCTOBER 8, 2024/aky
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