Delhi High Court
Presiding Officer Delhi School ... vs Govt. Of Nct Of Delhi on 27 August, 2010
Author: Manmohan
Bench: Chief Justice, Manmohan, Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th August, 2010
+ O. REF. 1/2010
PRESIDING OFFICER DELHI SCHOOL TRIBUNAL ..... Petitioner
Through Ms. Rekha Palli, Amicus Curiae.
versus
GOVT. OF NCT OF DELHI
(THROUGH ITS CHIEF SECRETARY) ..... Respondent
Through Mrs. Avnish Ahlawat, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
The present reference under Section 113 read with Order XLVI of the
Code of Civil Procedure, 1908 was made by the Presiding Officer, Delhi
School Tribunal (for short „the tribunal‟) constituted under the Delhi School
Education Act,1973 (for brevity „the Act‟). When this matter was listed
before the Division Bench, two decisions, namely, Kathuria Public School
v. Director of Education & another, 2005 VI A.D. (Del) 893 and Servants
of People Society & others v. Smt. Sudesh Oberoi & another, 2007 L.I.C.
2774 were cited and the Division Bench noticing the conflict of opinion
thought it apt that the controversy should be resolved by a larger Bench and,
accordingly, the matter has been placed before us.
2. The resume of facts which are imperative to be stated are that the
O. Ref. No. 1/2010 Page 1 of 21
tribunal which has been empowered under the Act to deal with certain
grievances of the employees working in Delhi schools thought it seemly to
refer certain issues as regards its jurisdiction and execution/implementation
of its orders. The questions those have been referred by the tribunal are as
follows:
"(i) As to whether this Tribunal has jurisdiction to deal with all the
grievances of school teachers and employees including minor
penalties as defined in Rule 117 (a) of the Delhi School
Education Rules, 1973 in view of the judgment of the Hon‟ble
Supreme Court in "T.M.A. Pai foundation and Others vs. State
of Karnataka" (supra).
(ii) If your Lordships reach to a conclusion that this Tribunal has
the jurisdiction in case of all grievances of the teachers and
employees of recognized schools, then the pending matters
before various Benches of Hon‟ble High Court of Delhi filed by
the aggrieved teachers/employees may please be transferred to
Delhi School Tribunal for their disposal as per law; and
(iii) Either declare Delhi School Tribunal as a „Court‟ under the
Contempt of Courts Act or direct the Administrator to frame
rules for implementation of Section 27 of the Delhi School
Education Act, 1973 or to devolve power of a Civil Court under
Order XXI of Code of Civil Procedure, 1908 on this Tribunal to
enable enforcement of judgments and orders passed by the
O. Ref. No. 1/2010 Page 2 of 21
Tribunal."
3. On a bare reading of the aforesaid questions, it is clear as crystal that
question Nos. 1 and 2 are interlinked and interconnected and if the answer in
respect of 1st question is answered in the affirmative, the 2nd question would
melt into insignificance.
4. To appreciate the controversy, it is necessitous to refer to Section 8 of
the Act. Sub-sections 3 and 4, of the Section being relevant for the present
purpose, are reproduced herein below:-
"8. Terms and conditions of service of employees of
recognised private schools -
(1) & (2) xx xx xx xx
(3) Any employee of a recognised private school who is
dismissed, removed or reduced in rank may, within three
months from the date of communication to him of the order
of such dismissal, removal or reduction in rank, appeal
against such order to the Tribunal constituted under section
11.
(4) Where the managing committee of a recognised private
school intends to suspend any of its employees, such
intention shall be communicated to the Director and no
such suspension shall be made except with the prior
approval of the Director:
Provided that the managing committee may suspend an
employee with immediate effect and without the prior
approval of the Director if it is satisfied that such immediate
suspension is necessary by reason of the gross misconduct
within the meaning of the Code of Conduct prescribed
under section 9, of the employee:
Provided further that no such immediate suspension
shall remain in force for more than a period of fifteen days
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from the date of suspension unless it has been
communicated to the Director and approved by him before
the expiry of the said period.
(5) xx xx xx xx"
5. On a perusal of sub-sections (3) and (4), it is demonstrable that an
employee of a recognised school when visited with the punishment of
dismissal, removal or reduction in rank can approach the tribunal for
redressal of his grievances and if an employee is suspended, there is a
stipulation that prior approval of the Director is to be obtained and no appeal
lies from such orders to the tribunal.
6. The Division Bench in Kathuria Public School (supra) after scanning
the anatomy of the Act and placing reliance on the pronouncement in T.M.A.
Pai Foundation and others v. State of Karnataka and others, (2002) 8 SCC
481 = AIR 2003 SC 355 especially on paragraphs 61, 63 and 64 and further
referring to Rule 120 of the Delhi School Education Rules, 1973 (for short
„the Rules‟) and the decision rendered in Frank Anthony Public School
Employees Association v. Union of India and others, AIR 1989 SC 311
eventually came to hold as follows:-
"42.The Supreme Court had, in fact, directed in T.M.A. Pai
Foundation's case (supra) for constitution of a specialised
Tribunal in respect of any grievance of the teacher. Till such
Tribunal is constituted, power was given to the District
Judge to deal with such matters or an Additional District
Judge as notified by the Government. No restriction has
been placed on the scope and ambit of the consideration of
the grievances of the teacher or employee by the Tribunal.
Under the said Act in question, the Tribunal is already
O. Ref. No. 1/2010 Page 4 of 21
constituted. Thus, all that is to be done is that the Tribunal
should be able to hear all grievances including in respect of
suspension by a teacher or an employee. Taking into
consideration the observations made by the Apex Court in
T.M.A. Pai Foundation's case (supra), we are of the
considered view that pending necessary legislative action by
the State, the Tribunal constituted should be able to hear all
grievances of the staff and teacher and not necessarily as
restricted to in Sub-section (2) of Section 8 of the said Act.
The result would be that if a teacher is aggrieved by a
suspension order or its prolongation, the grievance can be
made before the Tribunal depending upon the facts and
circumstances of the case.
44. The result of the aforesaid is that the provisions of
Sections 8(2) and 8(4) of the said Act, Rules 115(2) and (5)
and 120(1)(d)(iii) and (iv) and 120(2) of the said Rules
requiring prior and ex post facto approval for disciplinary
proceedings would have no application to private unaided
schools. As a sequator to that, Sub-section (5) of Section 8
would also really have no application to such private
unaided schools. Needless to say that these directions are in
respect only of unaided non-minority institutions since the
relevant provisions have been held as inapplicable only to
such institutions and that was the question raised before this
Hon'ble Court. We draw strength for taking such a view
even from the observations of the Supreme Court in Sunil
Batra v. Delhi Administration & Ors., etc., AIR 1978 SC
1675 where Justice V.R. Krishna Iyer, J. had observed that
the interpretation of statutes which preserves and sustains
the validity of the provision should be adopted and the
Courts with functional flexibility should explore the meaning
or meanings to adopt that construction which humanely
constitutionalizes the statute in question. Thus, these
provisions may have application to other institutions, but in
view of the observations of the Supreme Court in T.M.A. Pai
Foundation's case (supra) in respect of unaided non-
minority institutions, these provisions would have no
application to such institutions and such an interpretation
based really on a reading down of the statutory provision
would be the acceptable mode of interpretation of the
statute."
(Emphasis supplied)
O. Ref. No. 1/2010 Page 5 of 21
7. The other Division Bench in Servants of People Society and others
(supra) addressed itself with regard to the Scheme of the Act and the ouster
of jurisdiction of Civil Court as postulated under Section 25 of the Act and
held thus:
"7. Section 3 of the Act deals with the powers of the
Administrator to regulate education in all the schools in
Delhi. Section 10 stipulates, amongst others, that scales of
pay and allowances, medical facilities, pension, retirement
benefits and other prescribed benefits of the employees of a
recognized private school shall not be less than those of the
employees of corresponding status in schools run by the
appropriate authority and in case it is found to be less, the
appropriate authority shall be entitled to direct, in writing,
the managing committee of such a School to bring the same
up to the levels of those employees of the corresponding
status in Schools run by the appropriate authority. Section
25 of the Act stipulates that no Civil Court shall have
jurisdiction in respect of any matter in relation to which the
Administrator or the Director or any other person so
authorised or specified under the Act, is empowered by or
under the Act to exercise any power. Section 28 of the Act
deals with the power of the Administrator to make rules to
carry out the provisions of the Act, with previous approval of
the Central Government and subject to the condition of
previous publication.
8. The plea of lack of jurisdiction in Civil Courts can be
tested on the anvil of the provisions of Section 8 of the Act
which specifies the terms and conditions of service of
employees of recognized private schools and sub-section (3)
thereof provides that any employee of a recognized private
school who is dismissed, removed or reduced in rank may,
within three months from the date of communication of such
order of dismissal to him, appeal against the same to the
Tribunal constituted under Section 11, namely, the Delhi
School Tribunal.
9. In the present case, respondent Nos. 1 and 2 have not
sought redressal in respect of any grievance pertaining to
their dismissal, removal or reduction in rank. Their plea in
the suit was for release of the benefits under the 5 th Pay
O. Ref. No. 1/2010 Page 6 of 21
Commission to them by the appellants. However, the statute
does not provide any machinery for seeking the said relief.
The jurisdiction of Civil Courts is excluded by Section 25
only in respect of any matter in relation to which the
Administrator or the Director or such other person as
mentioned therein is empowered to exercise any power.
With regard to the matters where the aforesaid authorities
are not empowered to exercise their powers, as in the
present case, the Civil Court shall retain the jurisdiction to
entertain a suit and grant interim orders therein. Section 9
of the Code of Civil Procedure (in short „CPC‟) provides
that the Civil Courts shall have jurisdiction to try all suits of
a civil nature excepting suits of which their cognizance is
either expressly or impliedly barred."
8. Eventually, as is evincible, the Bench opined that when a suit is filed
seeking release of benefits under the 5th Pay Commission, the same would
fall within the domain of the Civil Court being a lis under Section 9 of the
Code of Civil Procedure and there being no machinery provided under the
Act.
9. At this juncture, we may note with profit that a decision rendered in
Sonica Jaggi v. Lt. Governor & others, 152(2008) DLT 601 (DB). In the
said case, the question arose whether a teacher of a private school could
move the tribunal seeking redressal of her grievance relating to fixation of
her salary. It is worth noting that the learned Single Judge relying upon the
observations made by the Division Bench in Kathuria Public School and
others (supra) held that no restriction has been placed on the scope and ambit
of the consideration of the grievances of the teacher or employee by the
tribunal and consequently the tribunal is empowered to hear all the
O. Ref. No. 1/2010 Page 7 of 21
grievances including fixation of the salary and came to hold since an
alternative remedy is available to the appellant therein for the relief claimed,
he declined to entertain the writ petition. The Division Bench referred to
Section 8 of the Act and thereafter the observations made in T.M.A. Pai
Foundation (supra) especially paragraph 64 and thereafter opined that the
Division Bench in Kathuria Public School and others (supra) had taken
note of the fact that if a teacher is aggrieved by a suspension order or its
prolongation, the grievance can be made before the tribunal depending upon
the facts and circumstances of the case but the said decision did not suggest
that the grievances like fixation of salary can be the subject-matter of an
appeal before the tribunal.
11. Ms. Rekha Palli, learned Amicus Curiae, has drawn our attention to
Shashi Gaur v. N.C.T. of Delhi & others, JT 2000 (10) SC 481 wherein the
Apex Court was dealing with Section 8(3) and Section 11 of the Act in
question. While dealing with the concept of otherwise termination, their
Lordships have opined thus:-
"7. This judgment and the interpretation put to the
provisions of Sub-sections (2) and (3) of Section 8
undoubtedly, is of sufficient force. But, the question for our
consideration would be that, would it be appropriate for us
to give a narrow construction to Sub-section (3) of Section 8,
thereby taking the teachers whose services were terminated
not by way of dismissal, removal or reduction in rank but
otherwise, out of the purview of the Tribunal constituted
under Section 11 of the Act. The Statute has provided for a
Tribunal to confer a remedy to the teachers who are often
taken out of service by the caprices and whims of the
management of the private institutions. The Governmental
O. Ref. No. 1/2010 Page 8 of 21
authorities, having been given certain control over the
action of such private management, if an appeal to the
Tribunal is not provided to such an employee, then he has to
knock the doors of the Court under Article 226 of the
Constitution which is a discretionary one. The remedy
provided by way of an appeal to the Tribunal is undoubtedly
a more efficacious remedy to an employee whose services
stand terminated after serving the institution for a number of
years, as in the present case where the services are
terminated after 14 years."
12. After so stating, the two-Judge Bench proceeded to rule as follows:-
"8. In this view of the matter, we are persuaded to take the
view that under Sub-section (3) of Section 8 of the Act, an
appeal is provided against an order not only of dismissal,
removal or reduction in rank, which obviously is a major
penalty in a disciplinary proceeding, but also against a
termination otherwise except where the service itself comes
to an end by efflux of time for which the employee was
initially appointed...."
13. The submission of the learned Amicus Curiae is that the law laid
down in Kathuria Public School (supra) is not correct inasmuch as the
Bench has placed heavy reliance on T.M.A. Pai Foundation and others
(supra) though the Apex Court had observed that the controversies relating
to certain categories of employees and teachers should be adjudicated by the
tribunal. The submission of the learned friend of the Court is that till such a
tribunal is constituted and vested with the power, the power endowed/
conferred on the existing tribunal by the statute has to be strictly construed
as appeal is a creature of the statute. The learned counsel would submit that
the decision in Servants of People Society and others (supra) lays down the
law correctly as the same is in accord with the statutory provisions and the
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Division Bench has categorically held that the tribunal cannot address to any
grievance which does not find enumeration in the provision. It is also
canvassed by her that the decision in Sonica Jaggi (supra) does not lay
down the law correctly as it also observes that the grievance relating to
suspension order or its prolongation can be made before the tribunal though
the same is not provided under the Act.
14. Mrs. Avnish Ahluwalia, learned counsel for the State, submitted that
the tribunal has jurisdiction to deal with appeals which pertain to the
imposition of major as well as minor penalties. To buttress the aforesaid
submission, the learned counsel for the State has drawn inspiration from
sub-rule 3 of Rule 120 of the Rules to which we shall refer afterwards.
15. To have a complete and correct picture of jurisdictional facet of the
tribunal more so after the decision rendered in T.M.A. Pai Foundation and
others (supra) it is apposite to refer to para 64 of the said decision. It reads
as follows:
"64...Where allegations of misconduct are made, it is
imperative that a disciplinary enquiry is conducted, and that a
decision is taken. In the case of a private institution, the
relationship between the Management and the employees is
contractual in nature. A teacher, if the contract so provides,
can be proceeded against, and appropriate disciplinary action
can be taken if the misconduct of the teacher is proved.
Considering the nature of the duties and keeping the principle
of natural justice in mind for the purposes of establishing
misconduct and taking action thereon, it is imperative that a
fair domestic enquiry is conducted. It is only on the basis of
the result of the disciplinary enquiry that the management will
be entitled to take appropriate action. We see no reason why
the Management of a private unaided educational institution
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should seek the consent or approval of any governmental
authority before taking any such action. In the ordinary
relationship of master and servant, governed by the terms of a
contract of employment, anyone who is guilty of breach of the
terms can be proceeded against and appropriate relief can be
sought. Normally, the aggrieved party would approach a
Court of law and seek redress. In the case of educational
institutions, however, we are of the opinion that requiring a
teacher or a member of the staff to go to a Civil Court for the
purpose of seeking redress is not in the interest of general
education. Disputes between the management and the staff of
educational institutions must be decided speedily, and without
the excessive incurring of costs. It would, therefore, be
appropriate that an educational Tribunal be set up in each
district in a State, to enable the aggrieved teacher to file an
appeal, unless there already exists such an educational
Tribunal in a State - the object being that the teacher should
not suffer through the substantial costs that arise because of
the location of the tribunal; if the tribunals are limited in
number, they can hold circuit/camp sittings in different
districts to achieve this objective. Till a specialized tribunal is
set up, the right of filing the appeal would lie before the
District Judge or Additional District Judge as notified by the
Government. It will not be necessary for the institution to get
prior permission or ex post facto approval of a governmental
authority while taking disciplinary action against a teacher or
any other employee. The State Government shall determine, in
consultation with the High Court, the judicial forum in which
an aggrieved teacher can file an appeal against the decision
of the management concerning disciplinary action or
termination of service."
16. The said paragraph has been dealt in detail in the case of Sonica Jaggi
(supra) in paragraphs 7 and 8 of the said decision which are reproduced
hereinbelow:
"7. In TMA Pai Foundation the Court emphasized the need
for establishing a Tribunal to deal with the grievances of the
teachers aggrieved by such disciplinary action. The Court
further directed that till a specialized Tribunal is set up, the
right of filing the appeal would lie before the District Judge
or Additional District Judge as notified by the Government.
O. Ref. No. 1/2010 Page 11 of 21
It was nowhere suggested by the Supreme Court for
formation of a Tribunal to deal with each and every
grievance of the employees. In a subsequent judgment in
Modern School v. Union of India and Ors. 111 (2004) DLT
317 (SC) = III (2004) SLT 364 = (2004) 5 SCC 583, the
Supreme Court has clarified that the principles for fixing fee
structure of particular institutions have been illustrated in
T.M.A. Pai Foundation (supra) and Islamic Academy of
Education v. State of Karnataka, (2003) 6 SCC 697, but it
must be borne in mind that those principles were laid down
in absence of any statute operating in the field. Where,
however, a statute operates in the field, regulation of
education would be governed thereby. Where the regulation
of education is governed by a legislative Act, the Court
cannot impose any other or further restrictions by travelling
beyond the scope, object and purport thereof.
8. We may mention that way back in 1978, the Supreme
Court in the case of The Principal and Ors. v. The
Presiding Officer and Ors. 1978 SCC (L&S) 70, held that
under Section 8(3) of the Act it is only an employee of a
recognised private school against whom an order of
dismissal, removal or reduction in rank is passed who is
entitled to file an appeal against such an order to the
Tribunal. It was held that as the school in that case was not
a recognised private school on the relevant date and the
impugned order was not one of dismissal, removal or
reduction in rank but an order simplicitor of termination of
service, the appeal to the Tribunal was manifestly
incompetent. In a subsequent decision in the case of Shashi
Gaur v. NCT of Delhi and Ors. (2001)10 SCC 445 , it has
been held that Section 8(3) of the Act provides for an appeal
not only against the order of dismissal, removal or reduction
in rank, which is a major penalty in a disciplinary
proceeding, but also against termination, otherwise except,
where the service itself comes to an end by efflux of time for
which employee was appointed."
In our considered opinion, the Division Bench in Sonica Jaggi (supra)
has correctly appreciated the observations in T.M.A. Pai Foundation and
others (supra) and as far as the said aspect is concerned we concur with the
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same.
17. At this stage, we may notice few citations with regard to the ambit and
scope of a provision relating to appeal in a statute. In Kundur Rudrappa v.
The Mysore Revenue Appellate Tribunal and others, AIR 1975 SC 1805, a
three-Judge Bench of the Apex Court was dealing with the power of the
appellate authority under the Motor Vehicles Act (1939). The question that
arose for consideration was whether an appeal would lie against an order
granting permit. In that context, their Lordships held as follows:-
"5. Appeal is a creature of the statute. There is no dispute
that Section 64 of the Act is the only section creating rights of
appeal against the grant of permit and other matters with
which we are not concerned here. There is no appeal
provided for under Section 64 against an order issuing a
permit in pursuance of the order granting the permit.
Issuance of the permit is only a ministerial act necessarily
following the grant of the permit. The appeals before the
State Transport Appellate Tribunal and the further appeal to
the Mysore Revenue Appellate Tribunal are, therefore, not
competent under Section 64 of the Act and both the Tribunals
had no jurisdiction to entertain the appeals and to interfere
with the order of the Regional Transport Authority granting
the permit which had already been affirmed in appeal by the
State Transport Appellate Tribunal and further in second
appeal by the Mysore Revenue Appellate Tribunal."
18. In Smt. Ganga Bai v. Vijay Kumar and others, AIR 1974 SC 1126,
while dealing with the distinction between a suit and appeal, their Lordships
have ruled that the right of appeal inheres in no one and, therefore, an appeal
for its maintainability must have the clear authority of law and that explains
why the right of appeal is described as a creature of the statute.
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19. In Anant Mills Co. Ltd. v. State of Gujarat, AIR 1975 SC 1234 it has
been held as under:
"The right of appeal is the creature of a statute. Without a
statutory provision creating such a right the person
aggrieved is not entitled to file an appeal."
20. In Vijay Prakash D. Mehta and Jawahar D. Mehta v. Collector of
Customs (Preventive), Bombay, AIR 1988 SC 2010, it has been held thus:
"Right to appeal is neither an absolute right nor an
ingredient of natural justice the principles of which must be
followed in all judicial and quasi-judicial adjudications. The
right to appeal is a statutory right and it can be
circumscribed by the conditions in the grant. It is not the law
that adjudication by itself following the rules of natural
justice would be violative of any right - Constitutional or
statutory - without any right of appeal, as such. If the Statute
gives a right to appeal upon certain conditions, it is upon
fulfillment of those conditions that the right becomes vested
and exercisable to the appellant."
(quoted from the placitum)
21. Similar view was taken in Shyam Kishore and others v. Municipal
Corporation of Delhi and another, AIR 1992 SC 2279 and The Gujarat
Agro Industries Co. Ltd. v. The Municipal Corporation of the City of
Ahmedabad & Ors. AIR 1999 SC 1818.
22. In V.C. Shukla v. State through C.B.I., AIR 1980 SC 962, the
Constitution Bench of the Apex Court, while dealing with an appeal against
an interlocutory order under the Special Courts Act, 1979, came to hold that
the appeal against an interlocutory order is incompetent.
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23. We have referred to the aforesaid authorities for two purposes, first,
that unless an appeal is provided by a statute, no one has right to prefer an
appeal as the said right is not inherent in a litigant and secondly, the
legislature has the power to circumscribe the nature of appeal. In this
context, we may profitably refer to another decision in Bijoy Kumar Dugar
v. Bidyadhar Dutta and others, AIR 2006 SC 1255. In the said case, the
two-Judge Bench of the Apex Court was dealing with the limited defence
that is carved out in Motor Vehicles Act, 1988 and in that context, their
Lordships held that when an appeal is not permitted, the scope cannot be
enlarged by filing a writ petition. Be it noted, we have referred to the said
decision for the simon-pure reason that the insurer could have availed the
benefit of preferring an appeal after obtaining leave under Section 170 of the
1988 Act from the tribunal, failing that no appeal could be preferred. To
elaborate, the right to prefer an appeal can be restricted.
24. In the case at hand, if the provisions under Sections 8(3) and 8(4) are
scanned, it is luminously clear that the provision of appeal is a restricted and
constricted one. The legislature has laid down that an employee can prefer
an appeal if he is dismissed, removed or reduced in rank. The Apex Court in
Shashi Gaur (supra) after analysing the subtle facets of sub-sections 2 and 3
of Section 8 expressed the view that the statute has provided for a tribunal to
confer a remedy to the teachers who are often taken out of service by the
caprices and whims of the management of the private institutions. Their
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Lordships ruled that an appeal would lie against an order not only of
dismissal, removal or reduction in rank which obviously is a major penalty
in a disciplinary proceeding, but also against a termination otherwise except
where the service itself comes to an end by efflux of time for which the
employee was initially appointed.
25. In view of the restricted provision, the right to prefer an appeal by the
particular categories of employees and relating to the particular lis its
spectrum cannot be enlarged as that would cause violence to the provision.
It is well settled in law that where the language of the Statute is plain and
clear and does not permit any other kind of interpretation, the same has to be
strictly interpreted and we are disposed to think that the said principle is
attracted to the case at hand.
26. We will be failing in our duty if we do not take note of the submission
of Mrs. Avnish Ahlawat, learned counsel for the State, who has drawn our
attention to Rule 120(3). The said Rule reads as follows:
"120(3)Any employee of a recognised private school who is
aggrieved by any order imposing on him the penalty of
compulsory retirement or any minor penalty may prefer an
appeal to the Tribunal."
In the said rule, there is a stipulation with regard to minor penalties.
27. A rule, as is well known, can only supplement the statutory provision
but it cannot supplant or travel beyond the statutory enactment. As the
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provision relating to appeal is a restricted and circumscribed one, the same
cannot be enlarged or its scope cannot be broadened by a rule making
authority.
28. In this context, we may refer with profit to the decision in Smt. Sunita
Bugga v. Director of Education and Others, WP(C) No. 8663/2008 decided
on 30th July, 2010, wherein it has been held as follows:
20. The basic test is to determine whether a rule to have
effect must have its source of power which is relatable to the
rule making authority. Similarly, a notification must be in
accord with the rules, if there is a provision in the rule, as it
cannot travel beyond it. In this context, we may refer with
profit to the decision in General Officer Commanding-in-
Chief v. Dr. Subhash Chandra Yadav, AIR 1988 SC 876
wherein it has been held as follows:-
"......Before a rule can have the effect of a statutory
provision, two conditions must be fulfilled, namely
(1) it must conform to the provisions of the statute
under which it is framed; and (2) it must also come
within the scope and purview of the rule making
power of the authority framing the rule. If either of
these two conditions is not fulfilled, the rule so
framed would be void."
21. In Additional District Magistrate (Rev.), Delhi
Administration v. Shri Ram, AIR 2000 SC 2143, it has been
held that it is a well recognized principle that conferment of
rule making power by an Act does not enable the rule making
authority to make a rule which travels beyond the scope of the
enabling Act or which is inconsistent therewith or repugnant
thereto.
22. From the aforesaid enunciation of law, it is manifest
that a rule has to conform to the provisions of the statute and
it should not travel beyond the rule making power of the
authority framing the rule. There cannot be inconsistency
between the Act and the Rules. Repugnancy is inconceivable.
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29. In this context, we may fruitfully refer to the decision in
Bharathidasan University and another v. All India Council for Technical
Education and others, AIR 2001 SC 2861 wherein the Apex Court has held
thus:
"14. The fact that the regulations may have the force of law
or when made have to be laid down before the legislature
concerned do not confer any more sanctity or immunity as
though they are statutory provisions themselves.
Consequently, when the power to make regulations are
confined to certain limits and made to flow in a well defined
canal within stipulated banks, those actually made or shown
and found to be not made within its confines but outside them,
the Courts are bound to ignore them when the question of
their enforcement arise and the mere fact that there was no
specific relief sought for to strike down or declare them ultra
vires, particularly when the party in sufferance is a
respondent to the lis or proceedings cannot confer any
further sanctity or authority and validity which it is shown
and found to obviously and patently lack. It would, therefore,
be a myth to state that regulations made under Section 23 of
the Act have "Constitutional" and legal status, even
unmindful of the fact that anyone or more of them are found
to be not consistent with specific provisions of the Act itself."
30. In the case at hand, what has been given to the Rule making authority,
a delegated authority, is a limited one. Thus, reliance placed on the said rule
is of no help and we have no hesitation in saying that the said rule runs
counter to the statute and, therefore, cannot hold the field. It cannot enable
the tribunal to entertain an appeal which has not been provided for in the
main enactment.
31. In view of our preceding analysis, we answer the question No.(i) that
O. Ref. No. 1/2010 Page 18 of 21
Delhi School Tribunal has no jurisdiction to deal with all the grievances of
the school teachers and employees including minor penalties as defined in
Rule 120(3) of the Rules. That apart a matter of suspension or a prolonged
suspension cannot be a matter of challenge before the tribunal as that has not
been so envisaged or in the provision of appeal. In the absence of such
engrafting, it is difficult to clothe the appellate tribunal with such
jurisdiction.
32. In view of the aforesaid analysis, we are disposed to think that the
decision in Kathuria Public School (supra) does not lay down the law
correctly and the observations made in Sonica Jaggi (supra) explaining the
decision in Kathuria Public School (supra) is also not correct. We are
disposed to think that the decision in Servants of People Society and others
(supra) correctly states the law.
33. The second question is a sequitur or the fallout of the first question
and, therefore, we conclude and hold that the pending matters before various
Benches of this Court pertaining to aggrieved teachers/employees in relation
to other grievances need not be transferred to the tribunal.
34. Now we shall advert to the third question. The tribunal has sought
that this Court should declare it as a „Court‟ under the Contempt of Courts
Act or direct the Administrator to frame rules for implementation of Section
27 of the Act or to devolve power of a Civil Court under Order XXI of the
O. Ref. No. 1/2010 Page 19 of 21
Code of Civil Procedure, 1908 for enforcement of judgments and orders
passed by it. Section 27 deals with liability of manager to punishment. The
said provision is as follows:-
"27. Liability of manager to punishment - If the manager of
any recognised private school -
(a) omits or fails, without any reasonable excuse,
too carry out any orders made by the Tribunal,
or
(b) presents any student for any public examination
without complying with the provisions of section
19, or
(c) omits or fails to deliver any school property to
the Administrator or any officer authorised by
him under sub-section (2) of section 20,
he shall be punished with imprisonment for a term which
may extend to three months, or with fine which may extent to
one thousand rupees, or with both."
35. The submission of the learned Amicus Curiae is that the tribunal has
felt that the said provision is not sufficient enough to get the orders passed
by it executed. It is urged by her that the Manager may be punished because
of criminal liability but that would not confer any benefit to the employees
or a teacher who has fought before the tribunal and obtained the relief.
36. On a query being made from Mrs. Avnish Ahlawat, learned counsel
for the State, she fairly stated that the State Government is contemplating to
frame a set of rules for execution of the orders passed by the tribunal.
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37. Therefore, we would only suggest that a set of rules should be framed
as expeditiously as possible so that the orders passed by the tribunal are
executed.
38. In view of the aforesaid premised reasons, we record our conclusion
in seriatim as under:
I. The decision rendered in Kathuria Public School (supra) does not lay
down the law correctly.
II. The observations made in Sonica Jaggi (supra) while explaining the
decision in Kathuria Public School (supra) are not correct.
III. The decision in Servants of People Society and others (supra)
correctly states the law.
IV. The tribunal under the Delhi Education Act, 1973 does not have
jurisdiction to deal with all the grievances of school teachers and
employees including minor penalties as defined in Rule 117(a) of
Delhi School Education Rules, 1973.
39. The reference is answered accordingly.
CHIEF JUSTICE
MANMOHAN,J.
MUKTA GUPTA, J. AUGUST 27, 2010 vk O. Ref. No. 1/2010 Page 21 of 21