TMI Blog1987 (4) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... sad Nagar, a middle school at Janak Puri and another at East of Kailash. The first three of these are recognised by the Director of Education, Delhi Administration and are aided by the Government to the extent of 95%. The Petitioner is thus employed in a government aided school. By the impugned order dated April 23, 1986, the management instituted a departmental inquiry against the Petitioner on certain charges and placed her under suspension in exercise of Rule 115 of the Delhi School Education Rules, 1973 pending the inquiry. A copy of the impugned order of suspension was forwarded on the same day to the Director of Education. On the next day i.e. on April 24, 1986, the management addressed a letter to Deputy Director of Education, District West, New Delhi formally intimating that the Petitioner had been placed under suspension pending inquiry on a charge of misconduct as specified for the reasons mentioned in the statement of charges and of allegations forwarded. On that day, the Petitioner brought a suit for perpetual injunction against the management being Civil Suit No. 213/86 in the Court of the Subordinate Judge, First Class, Delhi She also made an application for grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed its earlier decision in S.S. Jain Sabha's case, (supra), and allowed a batch of Writ Petitions filed by the Andhra Education Society and other linguistic minority educational institutions holding that in view of the protection of Article 30(1) these linguistic minority educational institutions were not governed by Sections 3, 5, Sub-section (4) of Section 8, Sections 16 and 25 of the Act and the relevant rules framed thereunder and therefore no prior approval of the Director of Education was necessary before passing an order of suspension against a teacher pending a departmental inquiry. We were also constrained to entertain the petition because a similar question was raised by the Frank Anthony Public School Employees' Association by a petition under Article 32 of the Constitution. Since then the Court has in Frank Anthony Public Employees' Association v. Union of India (1986) 4 SCC 707 : AIR 1987 SC 311 struck down Section 12 of the Act as being violative of Article 14 of the Constitution insofar as it excludes the teachers and other employees of unaided minority schools from the beneficial provisions of Sections 8 to 11 (except Section 8(2) i.e. except to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naturally contends that the matter is concluded by the recent decision of this Court in Frank Anthony Public School's case AIR 1987 SC 311 and according to the view expressed by the Court in that case the impugned order of suspension passed by the management being without the prior approval of the Director as required by Sub-section (4) of Section 8 of the Act was vitiated. On the other hand Sri Subba Rao, learned Counsel appearing for Respondents Nos. 3, 4 and 5 submits that the view expressed by this Court in the recent decision in Frank Anthony Public School's case based upon the earlier decision in All Saints High School's case AIR 1980 SC 1042 runs counter to the decision of the Constitution Bench in Lilly Kurian v. Sr. Lewina (1979) 1 SCR 820 : AIR 1979 SC 52 and therefore requires reconsideration. Alternatively, he contends that the Court failed to appreciate that Sub-section (4) of Section 8 of the Act requiring the prior approval of the Director for the suspension of a teacher was a flagrant encroachment upon the right of the minorities under Article 30(1) of the Constitution to administer educational institutions established by them. It is argued that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rined in Article 30(1) to administer the educational institutions established by them inasmuch as it conferred a blanket power on the Director to grant or withhold his prior approval where the management intended to place an employee under suspension pending a departmental inquiry, observed that the question was directly covered by the majority decision in All Saints High School's case (AIR 1980 SC 1942) and that, in his view, the provision was eminently reasonable and just designed to afford some measure of protection to the employees, without interfering with the management's right to take disciplinary action. He then stated (Para 19): Section 8(4) would be inapplicable to minority institutions if it had conferred blanket power on the Director to grant or withhold prior approval in every case where a management proposed to suspend an employee but we see that it is not so. The management has the right to order immediate suspension of an employee in case of gross misconduct but in order to prevent an abuse of power by the management a safeguard is provided to the employee that approval should be obtained within 15 days. The Director is also bound to accord his approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of a right of appeal to an external authority like the Vice-Chancellor of the University under Ordinance 33(4) framed by the Syndicate of the University of Kerala under Section 19(j) of the Kerala University Act, 1957 against any order passed by the management of a minority educational institution in respect of penalties including that of suspension was an abridgment of the right of administration conferred on the minorities under Article 30(1). The question was answered in the affirmative and it was held that the conferral of the power of appeal to the Vice-Chancellor under Ordinance 33(4) was not only a grave encroachment on such institution's right to enforce and ensure discipline in its administrative affairs but it was uncanalised and unguided in the sense that no restrictions were placed on the exercise of the power. It was further said that in the absence of any guidelines it could not be held that the power entrusted to the Vice-Chancellor under Ordinance 33(4) was merely a check on maladministration. 9. In Frank Anthony Public School's case (AIR 1987 SC 311), the Court held that Sub-suctions (1), (3) and (4) of Sections 8, 9, 10 and 11 of the Act do not enc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining the excellence thereof can be validly prescribed. For maintaining educational standards of an institution, it is necessary to ensure that it is competently staffed. Conditions of service which prescribe minimum qualifications for the staff, their pay scales, their entitlement to other benefits of service and the laying down of safeguards which must be observed before they are removed or dismissed from service or their services are terminated are all permissible measures of a regulatory character. Chandrachud C.J. and Fazal Ali, J. held that Sections 3(1) and 3(2) which made the prior approval of the competent authority a prerequisite for the dismissal, removal or reduction in rank of a teacher, conferred on the competent authority an appellate power of great magnitude and therefore Sections 3(1) and 3(2) read together were, in their opinion, unconstitutional insofar as they were made applicable to minority institutions inasmuch as they were bound to interfere substantially with their right to administer institutions of their choic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twin formula of adequacy and reasonableness, cannot but constitute an infringement of the right guaranteed by Article 30(1). It is also necessary to mention that all the three. Judges (Chandrachud, C.J., Fazal Ali kailasam, JJ.) agreed that Section 4 of the Act which provided for an appeal, and Section 5 which; was consequential to Section 4, were invalid as violative of Article 30(1). 10. However, there was a difference of opinion as to the applicability of Sections 3(3)(a), 3(3)(b), 6 and 7. We need only notice Sections 3(3)(a) and 3(3)(b) which pertained to the power of suspension. Section 3(3)(a) provided that no teacher employed in any private educational institution shall be placed under suspension except when an inquiry into the gross misconduct of such teacher is contemplated. Section 3(3)(b) provided that no such suspension shall remain in force for more, than a period of two months and if the inquiry was not completed within that period, the teacher shall be deemed to be reinstated. Proviso thereto however conferred power on the competent authority, for reasons to be recorded in writing, to extend the period for a further period not exceeding two months. Chandrach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down to St. Xavier, including that in Lilly Kurian AIR 1979 SC 52. It is therefore difficult to sustain the argument of learned Counsel for the Respondents that the decision in Frank Anthony Public School's case holding that Sub-section (4) of Section 8 of the Act was applicable to such institutions was in conflict with the decision of the Constitution Bench in Lilly Kurian's case and therefore required reconsideration. The contention of learned Counsel for the Respondents that Sub-section (4) of Section 8 of the Act requiring the prior approval of the Director for the suspension of a teacher was a flagrant encroachment upon the right of the minorities under Article 30(1) of the Constitution to administer educational institutions established by them is answered in all the earlier decisions of this Court right from In re The Kerala Education Bill, 1957 down to that in All Saints High School's case which have been referred to by the Court in Frank Anthony Public School's case. These decisions unequivocally lay down that while the right of the minorities, religious or linguistic, to establish and administer educational institutions of their choice cannot be interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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