RAJ KUMAR v. DIRECTOR OF EDUCATION & Ors.

4.1 The respondent-School submitted that there was no requirement on the part of the respondent-Managing Committee to comply with Section 8(2) of the DSE Act. Reliance was placed on the decision of the Delhi High Court in the case of ****Kathuria Public School case, wherein Section 8(2) of the DSE was struck down. It cannot be said that not obtaining prior approval for the termination of the services of the appellant is justified. Section 8(2) is a procedural safeguard in favor of an employee to ensure that an order of termination or dismissal is not passed without the prior approval of the Director of Education. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognized private school. A perusal of the Statement of objects and reasons of the DSE Act would clearly show that the intent of the legislature while enacting the same was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment. [Paras 30, 31, 32, 33) [717- G-H; 718-A; 719-F-H; 720-A; 722-E] The Principal & Ors. v. The Presiding Officer & Ors. 1978 (2) SCR 507: (1978) 1 SCC 498 - referred to.

4.2 The Division Bench of the Delhi High Court, erred in striking down Section 8(2) of the DSE Act in the case of Kathuria Public School by placing reliance on the decision of this Court in the case of TMA Pai as 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. 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 Division Bench of the High Court, while striking down Section 8(2) of the DSE Act in the case of Kathuria Public School has not correctly applied the law laid down in the case of Katra Educational Society wherein a Constitution Bench of this Court, with reference to provision similar to Section 8(2) of the DSE Act and keeping in view the object of regulation of an aided or unaided recognised school, has held that the regulation of the service conditions of the employees of private recognized schools is required to be controlled by educational authorities and the state legislature is empowered to legislate such provision in the DSE Act. The Division Bench wrongly relied RAJ KUMAR v. DIRECTOR OF EDUCATION upou that part of the judgment in the case of Katra Education Society which dealt with Article 14 of the Constitution and aided and unaided educational institutions, which had no bearing on the fact situation therein. Therefore, the decision in the case of Kathuria Public School striking down Section 8(2) of the DSE Act, is bad in law. [Para 33] [722-H; 723-A-H) Kathuria Public School v. Director of Education & Anr. 113(2004) DLT 703 (DB) - disapproved. TMA PAI Foundation v. State of Karnataka 2002 (3) Suppl. SCR 587 :(2002) 8 SCC 481; Katra Educational Society v. State Of Uttar Pradesh & Ors. AIR 1966 SC 1307 : 1966 SCR 328; Frank Anthony Public School Employees Association v. Union Of India & Ors. 1987 (1) SCR 238: (1986) 4 SCC 707 - referred to.

4.4 The notice of retrenchment was served on the appellant on 07 .01.2003 and he was retrenched from service on 25.07 .2003. The decision in the case of Katliuria School striking down Section 8(2) of the DSE Act was rendered almost exactly two years later. Surely, the respondents could not have foreseen that the requirement of prior approval of the order of termination passed against the appellant from Director would be stru.ck down later and hence decided to not comply with it. Section 8(2) was very much a valid provision of the statute as on the date of the retrenchment of the appellant, and there is absolutely no reason why it should not have been complied with. The rights and liabilities of the parties to the suit must be considered in accordance with the law as on the date of the institution of the suit. [Para 34) [724-A-D]