Madras High Court
Rv Thevar Memorial Girls High School, ... vs The Director Of School Education And 4 ... on 26 September, 2002
ORDER K. Govindarajan, J.
1. The above Writ Appeals are directed against the order of the learned Judge passed in W.P.Nos. 3451, 6716 and 6187 of 1996, dated 7.3.2002.
2. The appellant-management appointed Tmt. M.Chinnathai, the 4th respondent in W.A.Nos. 2630 and 2632 of 2002 as B.Ed. Assistant in and by an order dated 4.6.1987. Subsequently, she was removed from service on the basis of inefficiency and disobedience as per the proceedings dated 7.11.1988. The said order has been revoked at the request of the 4th respondent-teacher in the proceedings dated 9.3.1989. Her appointment in the order dated 4.6.1987 was approved by the 2nd respondent in the proceedings dated 31.7.1989, and consequently an order was also passed by the Inspectress of School Education in the proceedings dated 16.9.1989. Subsequently, the appellant-management sent a letter on 9.11.1989 to regularise their order passed on 9.3.1989. The 2nd respondent in the proceedings dated 3.2.1990 rejected the same on the basis that the earlier order of termination was not with the prior permission of the authorities concerned. Aggrieved against the same, the appellant filed an Appeal to the State Government on 3.4.1990. Meanwhile, according to the appellant-management, the 4th respondent did not turn up for duty without assigning any reason. On that basis the Appeal filed by the appellant-management dated 3.4.1990 to the Secretary to the Government, Education Department was withdrawn and the appellant appointed one Selvasundari in the said place and made a request to the 1st respondent, the Director of School Education to approve the said appointment. Since the 1st respondent-director has not passed any order, the appellant-management approached this Court by filing a writ petition in W.P.No. 10994 of 1995 and the learned Judge in the order dated 21.9.1995 directed the 1 st respondent-Director of School Education to consider the representation and pass orders within four months from the date of receipt of the order. The Director, in the order dated 28.2.1996 considered the case of the appellant-management and rejected the request on the basis that the order of termination of Chinnathai was illegal and so it cannot be said that her place had fallen vacant so as to enable the appellant-management to appoint Selvasundari for the said post. Against the rejection of the appellant's request, the appellant-management filed a writ petition in W.P.No.3451 of 1996 seeking to quash the order of the 1st respondent-Director of School Education dated 28.2.1996 and to direct the 1st respondent to approve the appointment of Selvasundari as B.T. Assistant.
3. In the proceedings dated 24.4.1996, the 1st respondent-director, directed the appellant-management to permit the 4th respondent-Chinnathai to discharge her duties as a teacher of the said school on the basis that the appellant-management had prevented her from performing her legitimate duties as B.T. Assistant. Challenging the said order, the appellant-management filed a writ petition in W.P.No. 6187 of 1996 to quash the said order of the 1st respondent dated 24.4.1996 and also to forbear the respondents 1 to 3 from compelling the petitioner therein to appoint the fourth respondent as B.T. Assistant in the petitioner-school.
4. The 4th respondent in W.A.No. 2631 of 2002, was appointed as a Junior Assistant with effect from 29.11.1986 in the appellant-management. Her services were terminated with effect from 7.9.1994 on the basis that she did not attend the school without any reason. In the proceedings dated 20.9.1994, the appellant-management had sent a letter to the 2nd respondent, seeking permission to terminate the 4th respondent. The 4th respondent also sent a letter to the Inspectress of School Education dated 30.9.1994 stating that the 1st respondent has prevented her from discharging her duties as a Junior Assistant. The 1st respondents-Director of School Education in the proceedings dated 30.5.1996 directed the appellant-management to allow the 4th respondent to perform her legitimate duty as a Junior Assistant. Aggrieved against the same, the appellant has filed the writ petition in W.P.No. 6716 of 1996.
5. The learned Judge has dealt with these writ petitions and disposed of the same in the common order dated 7.3.2002 by dismissing these writ petitions filed by the appellant-management. Hence the appellant-management has filed the above Writ Appeals.
6. We heard the learned counsel appearing for the appellant.
7. The issue to be decided in these cases is common, namely, whether the orders of the 1st respondent issuing direction to the appellant to allow the 4th respondent in the respective Writ Appeals to continue the work, as the orders of termination passed against them without prior approval of the competent authority, could not be sustained in law.
8. Before entering into the facts, it is necessary to deal with the scope of the statutory provisions as stipulated under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, hereinafter called 'the Act 1973', and the Rules of 1974 made thereunder. The avowed purpose and object of the Act 1973 is to confer protection to the teachers and other persons employed in recognised private educational institutions, against any arbitrary action or victimisation of the management of such educational institutions. The Act 1973, in effect, protects certain rights granted in favour of the teachers employed in recognised private schools and at the same time it imposes certain duties on the management. The maintenance of educational standard and excellence of the educational institutions would depend directly on the excellence of the teaching staff, in turn, would depend on the quality and contentment of the teachers. The law relating to conditions of service pertaining to their salaries, allowances and other conditions of service which ensure contentment and decent living standard of teachers, and which would consequently enable them to render better service to the institutions and the pupil. So, the Act 1973 enacted to achieve the said purpose cannot be challenged, as it is violative of Article 30(1) of the Constitution of India, by the management.
9. Under the Act 1973, enacted for the above said purpose, Section 22 of the Act deals with the dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private schools. Section 22(1) of the Act is the relevant provision for the present purpose, which reads as follows:-
"(1) Subject to any rule that may be made in this behalf, no teacher or other person employed in any private school shall be dismissed, removed, or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority." (Italics supplied)
10. Rule 17 of the Rules framed in exercising of powers conferred by Section 56 of the Act 1973 deals with the competent authorities who can accord prior approval for dismissal, removal or reduction in rank of a teacher or other person employed in any private school.
11. In the present case, the 4th respondent in W.A.No. 2630 and 2632 of 2002 is a teacher, and the 4th respondent in W.A.No. 2631 of 2002 is a non-teaching staff, namely, Junior Assistant. The Act 1973 will apply for both teaching staff and non-teaching staff. While considering applicability of the provisions of the Tamil Nadu Private Colleges (Regulation) Act 1976 which is similar to the Act 1973, the learned Judge of this Court in the decision in A.Elliot v. The Director of Collegiate Education (W.P.No. 6955 of 1983, order dated 31.1.1984), has held as follows:-
"The petitioner, as stated above, is a watchman and therefore he will come under the category of other persons employed in a private college. There is no definition defining 'other persons'. Chapter IV of the Act deals with terms and conditions of services of teachers and other persons employed in private colleges. Section 15 deals with qualification of teachers and other persons employed in private colleges. Section 16 of the Act deals with appointment of teachers and other persons in private colleges. Section 19 deals with dismissal, removal, or reduction in rank or suspension of teaches or other persons employed in private colleges. A perusal of the provisions of the Act as well as the Rules framed thereunder will show that no distinction is made between a regular non-teaching employee and a contingent non-teaching employee. Mr. Vijaya Kumar, relied on Rule 11 and Form 8-C in support of his contention that the petitioner being a contingent employee will not be entitled to invoke the provisions of the Act. As pointed out earlier, no distinction is made either in the Act or in the Rules between a regular non-teaching employee and a contingent non-teaching employee. Therefore, I am unable to accept the contention put forward by the learned counsel for the 2nd respondent. Consequently, I hold that the petitioner is entitled to invoke the provisions of the Act."
12. Similarly in the decision in Meenakshi College for Women v. T. Mohan, another learned Judge of this Court in the order dated 13.8.1991, in W.P.Nos. 8293 and 8294 of 1987, following the above said decision has held as follows:-
"Further, there is also the judgment of this Court in A. Elliot v. The Director of Collegiate Education, Madras (W.P.No. 6955 of 1983 dated 31.1.1984) in support of the proposition raised on behalf of the gardener. In that case, the services of a watchman were the subject matter of the Writ Petition. After referring to the relevant provisions of the Act, Venkataswami, J., came to the conclusion that the Act will apply to the case of a watchman also. In particular, the learned Judge held that the Act does not make any distinction between a regular non-teaching employee and a contingent non-teaching employee. In these writ petitions also, the stand taken by the College is that the gardeners are paid from the contingency fund. No other point arises in these writ petitions. I am in respectful agreement with Venkataswami, J., and I also hold that the provisions of law are also very clear and unambiguous. Accordingly, the order of the Tribunal is sustained. The writ petitions fail and they are accordingly dismissed."
So there cannot be any doubt now that the 4th respondent in W.A.No. 2631 of 2002 who is a non-teaching staff is also entitled to rely on the provisions of the Act 1973 to defend the case of the appellant.
13. Now we can proceed to decide whether the appellant-management could rely on the order of termination to sustain its case.
14. Though the right to fire its staff is a management right safeguarded under Article 30(1) of the Constitution of India, such a right cannot be exercised contrary to the specific provision, as the provision, viz., Section 22 of the Act 1973, and the Rules 1974 extracted above specifically contemplates such a prior approval to make the order of termination valid. Dismissal, removal etc., of a staff from a school would be done only with the prior approval of the competent authority and should be done only in the manner and it impliedly prohibits doing of the same in any other manner. The authorities contemplated under Rule 17 of the Rules framed under the Act 1973 have power to supervise the functions of the recognised private school in order to ensure that it does normal function and so the functioning of the school including hiring or termination of teachers' services and other staff, does not mal-administered. The purpose of the said approval is to check the misuse of the right to fire an employee. The concerned authority as contemplated under Rule 17 of the Rules while granting, withholding or withdrawing an approval, would act according to reason and justice.
15. While considering the scope of Section 83, proviso 2(a) of Bombay Municipal Corporation Act, 1888 enjoining Commissioner to obtain previous approval of Standing Committee for dismissal of an employee, the learned Judges of the apex Court in the decision in Dattatraya M. Nadkarni v. Municipal Corporation of Greater Bombay, , has held that without such an approval the order passed was illegal.
16. The Apex Court in the decision in Director of Education v. Gajadhar Prasad Verma, , while construing the scope of Section 9 of of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers an Other Employees) Act, 1971, has held that prior approval of the Director or or empowered officer is a condition precedent and mandatory for creation of an additional post of a teacher or other employee, and therefore the failure to obtain prior approval disentitles the Management to obtain reimbursement of the salary of teacher or to her employee, and the Management has to bear the expenditure from its own resources without claiming any reimbursement from the Government.
17. The learned Judge of this Court in the decision in The Ayya Nadar JanakiAmmal College, etc. Sivakasi v. A.Pandian and Ors., 1996 Writ L.R. 521, while construing the provisions of Tamil Nadu Private Colleges (Regulation) Act (1976), which is in pari materia of the provisions in the Act 1973, had held as follows:-
"21. Learned counsel for the petitioner also raised a contention that under Form-7A of the Tamil Nadu Private Colleges (Regulation) Rules, 1976, there is no provisions as that found in Form-7A under Rule 15 of the Tamil Nadu Private Schools (Regulation) Rules which reads as under:-
"Termination of the probationer shall be done only with the previous permission of the competent authority specified in Rule 17."
And for that purpose, learned counsel relied upon as seen earlier, the G.O.Ms.No. 1606 dated 24.8.1983 issued by the Commissioner and Secretary to Government directing the incorporation of the similar agreement in the existing paragraph-2 in Forms 7A and 7C of the Tamil Nadu Private Colleges (Regulation) Rules, 1976. No doubt, the Government has directed the incorporation of a similar clause found in Form-VII-A of Private Schools (Regulation) Act to the Form-7A of the Tamil Nadu Private Colleges (Regulation) Act. The belief or the assumption of the executive about the need to incorporate such a provision in the agreement cannot make the law. It is not known what prompted the government to issue such a direction, but, as already observed, the case `has to be decided on the statutory language employed in the form, as it exists on the date of impugned order, and not on the basis of the views of the executives. Form-7-A deals with form of agreement to be executed by a College Committee of a college in respect of a permanent teacher. This form is prescribed under Rule-11, Sub-rule 2(1) of the relevant Rules. It is seen from the agreement dated 2.1.1979 executed between the College Committee and the first respondent that the petitioner-college has adopted Form 7-A with slight modification, because Form-7A deals with the appointment of a permanent teacher, whereas the first respondent was appointed on probation and taking into account that aspect of the matter, certain minor variations have been made in the agreement executed between the petitioner and the first respondent though there is no clause akin to the clause as found in the Private Schools (Regulation) Rules. But, the absence of such a clause as found in Private Schools (Regulation) Rules in the terms prescribed under the Private Colleges (Regulation) Rules, does not dispense with the statutory requirement of getting prior approval of the competent authority before terminating the services of the first respondent.
23. Learned counsel for the first respondent is well-founded in his submission that the order of termination of the service of the first respondent is void ab initio. As already seen, he relied on following decisions; (1) K. Rajeswari v. T.P. Sankaran and Anr., 1977 T.L.NJ.537; (2) Selvaraj v. Jesudasan, 1983 (II) M.L.J. 406 : 96 L.W.348; 3. R. Jesudasan v. K. Selvaraj and Ors., 1989 (1) L.L.J. 470 : 1989 (2) L.W.86; 4. Rajaji Middle School v. Mariapushpam, 1987 Writ L.R. 333; 5. M.Committee v. S.D. Gupta, 1974 A.L.J. 465 :' 1974 L.I.C.1036; 6. Prabhu Narain v. Dy. Director, Education, Varanasi, 1977 Lab.I.C. 1095 and 7. Rama Bhadoor and Anr., v. Thungabadra Sugar Works (P) Ltd. 1979 S.L.J. 489. In these cases, it has been held that where there is a termination of violation of the provisions of the Act, the order of termination contrary to the provisions of the Act is only a null and void order and it has no effect at all. Consideration of other cases relied upon by the learned counsel for the first respondent on the scope of the termination relating to the industrial disputes or the Shops and Establishments Act need not be made, because as held by this Court in T.Chandrasekaran's case and in Jesudasan's case (cited supra), the scope of industrial adjudication is entirely different as found in the said provisions and as expatiated by the pronouncement, it is not possible to draw any parity between the scope of the provisions of the Act and the scope of the concerned provisions of the Industrial Disputes Act, 1947, and no guidance need be taken with regard to the conferment of the power incurring obligations and consequences of the breach of the prescription of the statute other than the relevant one dealt with by the Court. Respectfully following this view, it is not possible to draw any analogy or sustenance from the cases decided under the Industrial Disputes Act or the Shops and Establishments Act to hold that the order is liable to be struck down.
24. Though I find force in the arguments advanced by the learned senior counsel Mr. Thiagarajan, in the context of the facts and circumstances of the case, I am of the view that Section 19 of the Act would squarely apply to the facts of the case and the prior approval of the competent authority is necessary before putting an end to the services of the first respondent. In this case, admittedly, the prior approval of the competent authority was not obtained by the petitioner-college before terminating the services of the first respondent by the petitioner-college. Consequently, the order of termination of the first respondent does not take effect or become effective unless approved by the competent authority and hence, the order of the third respondent does not require interference by this Court, with the result, the writ petition is liable to be dismissed and it is, accordingly, dismissed, with costs of the first respondent. The cost is Rs.250".
18. The above decision of the learned single Judge has been approved by the Division Bench of this Court in the decision in Ayya Nadar Janakiammal College v. A.Pandian and Ors., 1997 Writ L.R. 629.
19. We have to deal with the facts of this case on the basis of the above decided cases. According to the appellant-management, the said orders are passed on the basis of the complaints made by the 4th respondent in the respective Writ Appeals, without even furnishing such complaints to the appellant and so those orders are liable to be set aside, as they have not complied with the principles of natural justice. Before going into the sustainability of the said statement, it is necessary for us to decide whether the appellant-management can sustain their case that the 4th respondent in the respective writ appeals were terminated from their services and so they cannot continue their work. In the case of Tmt. Chinnathai, though originally termination order was passed on 7.11.1988 terminating her service with effect from 1.10.1988, the same had been withdrawn by an order of the 1st respondent dated 9.3.1989. So, in fact, there is no order of termination of service in her case. Moreover, as found by the 2nd respondent in the proceedings dated 3.2.1990 no prior permission was obtained before passing the order dated 7.11.1988, terminating the services of Tmt.M. Chinnathai. Thereafter, in the proceedings dated 5.4.1989, the appellant sought for permission from the 2nd respondent to fill up the vacancy alleged to have been caused due to the fact that Tmt. M. Chinnathai did not turn up for duty in spite of the order passed by the appellant-management dated 9.3.1989. The 2nd respondent did not accord any approval in his proceedings dated 24.6.1994. Meanwhile the appellant-management appointed one Selvasundari in the said place and sought approval of the said appointment. That was rejected in the impugned order.
20. Even in the case of Tmt. K. Vatsaladevi, on the basis of the complaint made by the 1st respondent, directed the appellant-management to allow her to perform her legitimate duties. The said order was also passed on the basis that she had been terminated without obtaining prior permission from the concerned authorities. Admittedly, the appellant did not obtain necessary prior approval to terminate Tmt. Chinnathai and Tmt. Vatsaladevi. When the appellant does not comply with the statutory requirements and fulfil the condition precedent, its action in dispensing with the services of staff should be held as illegal and ab initio void.
21. The question will arise whether such requirement of getting prior approval is directory or mandatory. An argument to the effect that the requirement contained in Section 22(1) of the Act 1973 is only directory, was made before the learned Judge of this Court in the case in School Committee, Balaguru Vidyasalai v. The State of Tamil Nadu and Ors., the judgment of which is reported in 2000 Writ L.R. 430, on the basis of the decision in Secretary, Sri Ramakrishna Vidhyalayam High School, Thirupparathiturai, Tiruchirapatti District v. The State of Tamil Nadu and Ors., 1990 Writ L.R. 62, in which the learned Judge while considering the fact that the competent authority has not given reply for the request for approval for termination made as contemplated under Section 22(1) of the Act 1973, held as follows:-
"If the competent authority under Section 22 of the Act does not exercise the power combined with duty to pass orders on an application for ... approval of the proposed punishment of a teacher within a reasonable time he loses his jurisdiction over the matter and he shall not exercise the same thereafter to the prejudice of the School management. At any rate, neither he nor the other authorities under the Act will be entitled to find fault with the School management for not getting the prior approval of the competent authority under the provisions of Section 22 of the Act and seek to invalidate the order of termination made by the School Management. If after waiting for a reasonable time the School Management proceeds to exercise its right to terminate the services of the teacher in terms of the agreement of service between the school and the teacher, it is not open to the authorities under the Act contend that such a termination is not valid on the ground of non-compliance with the provisions of Section 22 of the Act. Even, if it can be said that the language of Sub-section (1) is not fully satisfied in such cases,it will be a case of substantial compliance with the provisions of the sub-section which will be sufficient in the eye of law to uphold the validity of the termination, subject of course to other grounds of attack if any against the same. I am of the view that such an order of termination cannot be challenged on the ground that Sub-section (1) of Section 22 of the Act has not been complied with."
22.The learned Judge while considering the said argument on the basis of the said decision in 2000 Writ L.R. 430 (supra) has found that the requirement contained in Section 22(1) of the Act 1973 is nothing but mandatory. The learned Judge has also relied on the Division Bench judgment of this Court in Rukmanidevi M., v. Chief Educational Officer and 2 Ors., , in which the Division Bench of this court has overruled the judgment of the learned single Judge reported in Secretary, Sri Ramakrishna Vidhyalayam High School, Thirupparathiturai, Tiruchirapatti District v. The State of Tamil Nadu and Ors., 1990 Writ L.R. 62 .
23. The above said decision of the Division Bench of this Court in Rukmanidevi M., v. Chief Educational Officer and 2 Ors., held as follows:-
"We have carefully considered the submission of the learned counsel for the 3rd respondent based on the ratio of the above decision. On facts, we find that in the case before the learned Single Judge in the decision reported in Secretary, Sri Ramakrishna Vidhyalayam High School v. The State of Tamil Nadu and Ors., 1990 Writ L.R.62, after a particular time the School Management passed the order of termination itself and served it on the teacher concerned on the view that the management has waited for sufficient time and since the approval was not forthcoming they are entitled to serve the order of termination. On facts, it may be noticed that in the case before us no such final order has been passed and communicated to the appellant in and consequently it cannot be contended that the disciplinary proceedings have been properly concluded culminating in an order of punishment. Even that apart, with great respect to the learned Single Judge, we are unable to either subscribe to or approve the view taken as expressed in paragraph 38 of the decision reported to supra. The statutory power of approval like the one conferred on the competent authority under Section 22(1) of the Act to approve or refuse approval of termination of a teacher or other person has been devised as an essential check on the arbitrary exercise as powers by a School management. The stipulation of obtaining approval before termination has been made to safeguard the rights of a teacher or other person under the management of an aided private school and merely because a statutory conferred with a power of supervision and control commits a lapse or shows some indifference that by itself is no ground to totally deny and deprive the competent authority of the right to exercise such power for all times to come on account of the initial lapse or delay in so exercising the power of approval. The power conferred under Sub-section (1) of Section 22 of the Act is not for the benefit of the competent authority or the department concerned, by the legislature must have thought of such a devise more in order to protect a teacher or other employee of an aided educational institution and while that be the position the lapse or the delay on the part of the competent authority in diligently exercising the power cannot have the effect of denying the protection and safeguard statutorily devised in favour of the teacher or other person employed in an aided educational institution. The reasoning of the learned single Judge that if the competent authority under Section 22 of the Act does not exercise the power combined with the duty to pass orders on an application for approval within reasonable time he loses his jurisdiction over the matter and he shall not exercise the same thereafter to the prejudice of the School management cannot be justified while dealing with the nature purpose and character of the powers conferred upon the competent authority under the said provision which would appear to be meant to protect the teaching or other staff of an aided school. Approving such a ratio merely on the basis of a possible prejudice to the School management would mean totally ignoring the prejudice and damage that may be caused to the teacher of to her person concerned for whose protection such a stipulation has been made providing for prior approval before termination of services. If there is any lapse or indifferent attitude exhibited by the competent authority it is always open to the School Management concerned to move the appellate or revisional authorities or this Court under Article 226 of the Constitution of India to direct the competent authority to discharge his duties expeditiously within a reasonable time. But that is not the same thing as to completely deny the statutory power of approval conferred upon the competent authority so as to efface the statutory stipulation once and for all. Doing so would amount to rewriting a specific statutory provision with a definite purpose in public interest. Further, we are also unable to approve the view expressed by the learned single Judge that though Sub-section (1) is not fully satisfied in cases of the nature dealt with by the learned single Judge, it will be a case of substantial compliance with the provisions of Sub-section (1) which will to sufficient in the eye of law to uphold the validity of termination. The theory or principle of substantial compliance can be applied only in cases or situation which relates to mere observance of certain procedural formalities. The provision contemplated for securing the approval of the competent authority before effecting termination of services of a teacher or other person employed in an aided school is not a mere procedural formality, but really concerns a substantial restriction on the power of the management of an aided school to dispense with the services of a teacher or other person employed therein at its whim and a corresponding right in the teacher or other persons employed in the institution. To put it more crisply it is a condition precedent contemplated by the statute for dispensing with the services of an employee and in respect of such a matter there is no scope for negotiating with rigor of law having recourse to the Principle of substantial compliance. Consequently, we do not approve the ratio contained in paragraph 38 of the decision reported in Secretary, Sri Ramakrishna Vidhyalayam High School v. The State of Tamil Nadu and others, 1990 Writ L.R. 62 and over rule the same."
24. In view of the above, it is clear that the requirement under Section 22 of the Act 1973 to get a prior approval before effecting the termination of service of a teacher or other person employed in a recognised private school is not a mere formality, but it is a substantial restriction of the power on the management and it is mandatory. If such an approval is not obtained before termination, the order of termination has to be construed as illegal and ab initio void. So, such an order cannot have any effect and the management cannot rely on the said orders of termination before the authorities to sustain their case either to approve the appointment of Tmt. Selvasundari in the place of Tmt. M. Chinnathai or to defend the case of Tmt. K. Vatsaladevi saying that she should not be permitted to continue her duty.
25. According to the appellant-management, the orders passed by the 1st respondent in both the cases were passed without following the principles of natural justice and so they have to be set aside and remitted back to the authority concerned for fresh disposal. The learned Judge has rightly rejected the said contention stating that if such submission is accepted it amounts to revival of the illegal orders of termination. When the orders passed by the appellant-management terminating the services of the 4th respondent in the respective Writ Appeals are illegal and ab initio void, there is no illegality in the orders passed by the 1st respondent directing the appellant-management to permit the 4th respondent in the respective Writ Appeals to continue their work.
26. In the decision in Indian Bank v. R.S. Thiruvengadam, 1990 (II) L.L.N. 26, His Lordship, Dr.A.S.Anand, Chief Justice, as he then was, in his separate order, has held as follows:-
"37. Generally speaking, a plea with regard to lack of jurisdiction, it is well settled, can be permitted to be raised at any stage of the proceedings and can be allowed to be raised for the first time in appeal, second appeal or even in special leave petition before the Supreme Court. This general principle, however, cannot be applied in abstract and its application depends upon the nature of the proceedings, conduct of the parties and the facts and circumstances of each case. I do not propose to lay down any principle of universal application as indeed it is not even possible, to show when such a plea cannot be allowed to be raised at a later stage. The question of permitting such a plea to be raised at any stage of the proceedings has necessarily to be looked at from the nature of the proceedings and the attendant circumstances of a case. It is, in the above peculiar facts and circumstances of the case, that I proceed to determine the question. The proceedings in the instant case arise out of a writ petition filed under Article 226 of the Constitution of India. Writ jurisdiction is undoubtedly, an equitable jurisdiction and while balancing the equities between the parties asserting rival claims, the Court examines the conduct of the parties besides nature of the proceedings with a view to render justice. While exercising writ jurisdiction, the Courts generally make an attempt to reach wherever injustice is, so as to render justice. However, the principles of equity must, for ever, remain present to the mind of the Court and those principles are extended to do substantial justice to a party and not get carried away by narrow technicalities which may "legitimate" injustice. In Collector, Land Acquisition, Anantnag v. Katiji, , their Lordships of the Supreme Court observed thus:
"It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
27. While considering the effect of revival of the illegal order in setting aside the impugned order, the Apex Court in the decision in Maharaja Chintamani Saran Nath Skahdeo v. State of Bihar, 1999 (8) SCC 17, which has been relied on by the learned single Judge, following the earlier order of the apex Court, in the decision in Gadde Venkateswara Rao v. Govt. of A.P., , has held that even if an order lacking jurisdiction should not be set aside while exercising jurisdiction under Article 226 of the Constitution of India, if by setting aside such order would result in revival of an illegal order.
28. In view of the foregoing discussion, it is clear that the appellant-management has not obtained any prior approval which is mandatory under the Act 1973 for dispensing with the services of the 4th respondent in the respective Writ Appeals, and so such orders of termination cannot stand in the eye of law and so the 1st respondent is correct in directing the appellant-management to permit the 4th respondent in the respective Writ Appeals to continue in service. Even if the said orders had been passed without following the principles of natural justice, we are not inclined to interfere with the said order, as the 1st respondent has passed the said orders in accordance with law, and if we interfere with the said orders, it amounts to revival of illegal orders of termination passed by the appellant-management.
29. Accordingly, these Writ Appeals are dismissed. No costs. W.A.M.P. Nos. 4443 to 4448 of 2002 are also dismissed.