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 The Division Bench finally declared that Section 12 of the Act insofar as it restricts the applicability of the Act to unaided minority institutions is ultra vires and set aside the order passed by the Tribunal.

6. Shri P.P. Rao, learned senior counsel appearing for the appellant argued that negative declaration made by the High Court on the constitutionality of Section 12 was totally uncalled for because this Court has already held in Frank Anthony Public School Employees' Association's case that Section 12, which excludes the applicability of Chapter IV of the Act to unaided minority institutions except Section 8(2), is violative of Article 14 of the Constitution. Learned senior counsel submitted that even though in Frank Anthony Public School Employees' Association's case, the two-Judge Bench did not notice an earlier Constitution Bench judgment in Lily Kurian's case, the legal position has been clarified in Y. Theclamma's case. Shri P.P. Rao submitted that in view of the law laid down in Frank Anthony Public School Employees' Association's case and Y. Theclamma's case, it was neither necessary nor there was any justification for the Division Bench of the High Court to have pronounced upon the vires of Section 12 of the Act. Learned senior counsel extensively referred to the provisions of the Act and the Rules as also the judgment of the larger Bench in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 and submitted that when the ratio of the judgment in Frank Anthony Public School Employees' Association's case has been approved by the larger Bench, the Division Bench of the High Court was not justified in nullifying Section 12 of the Act. Learned counsel submitted that even though Section 8(3) does not, in terms provide for an appeal by the management of the recognized private school, the same should be read as implicit in the language of that section, else it may be argued that the provision is discriminatory and violative of doctrine of equality. Shri P.P. Rao then argued that the High Court committed serious error by setting aside the reinstatement of the appellant without even adverting to the issue relating to legality of the action taken by the management of respondent Nos.1 and 2. Learned senior counsel also invoked the doctrine of proportionality and submitted that the extreme penalty of removal from service imposed upon the appellant may be substituted with a lesser penalty. In support of this argument, Shri P.P. Rao relied upon the judgments of this Court in Ashok Kumar v. Union of India 1988 (2) L.L.J. 344, Union of India v. M.B. Patnaik 1981 (2) SCC 159, Dev Singh v. Punjab Tourism Corporation Limited and another 2003 (8) SCC 9, Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and others 2004 (4) SCC 560.