http://judis.nic.in petitioner: mrs. y. theclamma vs. respondent:

8/14/2019 Http://Judis.nic.in Petitioner: Mrs. y. Theclamma vs. Respondent:

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PETITIONER:MRS. Y. THECLAMMA

Vs.

RESPONDENT:UNION OF INDIA & ORS.

DATE OF JUDGMENT15/04/1987

BENCH:SEN, A.P. (J)BENCH:SEN, A.P. (J)SINGH, K.N. (J)

CITATION:1987 AIR 1210 1987 SCR (2) 9741987 SCC (2) 516 JT 1987 (2) 1651987 SCALE (1)781CITATOR INFO :R 1988 SC 37 (16,18)RF 1988 SC 305 (15)

R 1990 SC1147 (7)R 1991 SC2230 (4)

ACT:Delhi School Education Act, 1973: S. 8(4)--Minority

educational institution--Suspension of teacher--Order wheth-er vitiated for want of approval by Director of Education,Sub-section whether ultra vires the Constitution.

Constitution of India, Article 30: Minority educationalinstitution-Regulations can be made for ensuring fair proce-dure in matters of disciplinary action.

HEADNOTE:Sub-section (4) of s. 8 of the Delhi School Education

Act, 1973 interdicts the management of a recognised privateschool from suspending any of its employees except with theprior approval of the Director of Education. However, incases of gross misconduct the first proviso to that sub-section provides for suspension of the employee with immedi-ate effect, while the second proviso limits the period ofsuch suspension to fifteen days, unless it has been communi-cated to the Director and approved of by him before theexpiry of the said period.

The petitioner, a teacher in a recognised private schoolrun by a linguistic minority educational society, was placed

under suspension by the management by its order dated April23, 1986 on charges of diversion of funds, pending depart-mental inquiry and the fact intimated to the Director ofEducation, without formally seeking his approval under s.8(4) of the Act. She filed a suit assailing the order asviolative of s. 8(4) of the Act and also an application forthe grant of a temporary injunction which was dismissed bythe trial court following the decision of the High Court inS.S. Jain Sabha v. Union of India, [ILR (1976) 2 Del. 61]taking the view that the educational institution having beenestablished and administered by a linguistic minority, itwas protected under Art. 30(1) of the Constitution, andtherefore, the provisions of the Act and in particular, s.8(4) were not applicable.


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Her special leave petition having been dismissed aswithdrawn by this Court, she filed the present writ petitionin this Court and thereafter withdrew the suit.975

Relying upon the decision in Frank Anthony Public SchoolEmployees Association v. Union of India, [1986] 4 SCC 707 itwas contended for the petitioner that the impugned order ofsuspension being without prior approval of the Director, asrequired under s. 8(4) of the Act, was vitiated. For therespondents it was contended that the decision of the Courtin Frank Anthony Public Schools case being contrary to thedecision of the Constitution Bench in Lilly Kurian v. Sr.Lewina & Ors., [1979] 1 SCR 820 required reconsideration andthat s. 8(4) of the Act was violative of Article 30(1).Disposing of the writ petition, the Court,

HELD: 1. The exercise of the power of management of theaided schools run by the linguistic minority educationalinstitutions in Delhi to suspend a teacher is subject tO therequirement of prior approval of the Director of Educationunder sub-s. (4) of s. 8 of the Delhi School Education Act,1973. [979EF]

2.1 While the right of the minorities, religious orlinguistic, to establish and administer educational institu-

tions of their choice cannot be interfered with, restric-tions by way of regulations for the purpose of ensuringeducational standards and maintaining excellence thereof canvalidly be prescribed. [987B]

2.2 Sub-section (4) of s. 8 of the Act requiring theprior approval of the Director of Education for the suspen-sion of a teacher was regulatory in character and did not,therefore, offend against the fundamental right of theminorities under Art. 30(1) of the Constitution to adminis-ter educational institutions established by them. [986H-987A]

Frank Anthony Public School Employees Association v.Union of India & Ors., [1986] 4 SCC 707; All Saints HighSchool v. Government of Andhra Pradesh, [1980] 2 SCC 478; In

re. the Kerala Education Bill, 1957, [1959] SCR 995; Ahmeda-bad St. Xaviers College Society v. State of Gujarat, [1975]1 SCR 173 and Lilly Kurian v. Sr. Lewina & Ors., [1979] 1SCR 820; applied.

State of Kerala v. Very Rev. Mother Provincial, [1971] 1SCR 734 and D.A.V. College v. State of Punjab, [1971] Suppl.SCR 688, referred to.

3.1 The decision in Frank Anthony Public Schools caseholding that sub-s. (4) of s. 8 of the Act was applicable tothe unaided minority976educational institutions proceeds upon the view taken by themajority in All Saints High Schools case that the rightguaranteed to religious and linguistic minorities by Art.

30(1) to establish and to administer educational institu-tions of their choice was subject to the regulatory power ofthe State, which in its turn was based on several decisionsright from In re. the Kerala Education Bill, 1957 down toSt. Xaviers case including that in Lilly Kurians case. Itcould not, therefore, be said to be in conflict with thedecision of the Constitution Bench in Lilly Kurians caseand required reconsideration. [983BC-986FG]

3.2 The endeavour of the Court in all the above caseshas been to strike a balance between the constitutionalobligation to protect what is secured to the minoritiesunder Art. 30(1) with the social necessity to protect themembers of the staff against arbitrariness and victimisa-tion. The provision contained in sub-s.(4) of s. 8 of the


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Act is designed to afford some measure of protection to theteachers of such institutions without interfering with themanagements right to take disciplinary action. [987E, D]

4.1 In a case like the present one where the managementof an educational institution governed by sub-s. (4) of s. 8of the Act charged the petitioner with diversion of fundsand communicated the impugned order of suspension pendingdepartmental inquiry to the Director, a duty was cast on himto come to a decision whether such immediate suspension wasnecessary by reason of the gross misconduct of the petition-er as required by sub-s. (5) ors. 8 of the Act. [987F, 988A]

4.2 Since there was no response from the Director withinthe period of 15 days, as envisaged by the second proviso toa. 8(4), the impugned order of suspension had lapsed. Howev-er, the management could yet move the Director for his priorapproval under sub-s. (4) of s. 8 of the Act, who would thendeal with such an application, if made, in accordance withthe principle laid down in the Frank Anthony Public Schoolscase. [988BC]

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 1232 of 1986.(Under Article 32 of the Constitution of India).C.S. Vaidayanathan and S.R. Sethia for the Petitioner.A. Subba Rao for the Respondents.The Judgment of the Court was delivered by977

SEN, J. The short point involved in this petition underArt. 32 of the Constitution is whether linguistic minorityeducational institutions like the Andhra Education Societyare governed by sub-s. (4) of s. 8 of the Delhi SchoolEducation Act, 1973. The petitioner Smt. Y. Theclamma,Vice-Principal, Andhra Education Society Secondary School,Prasad Nagar, New Delhi challenges the legality of an orderpassed by the managing committee of the Andhra Education

Society, New Delhi dated April 23, 1986 placing her undersuspension pending a departmental inquiry against her.The facts lie within a narrow compass. The Andhra Educa-

tion Society is a society formed under the Societies Regis-tration Act, 1860 with a view to imparting education to thechildren belonging to the Andhra community and others inDelhi. It runs as many as four schools--a senior secondaryschool at Deen Dayal Upadhyaya Marg, a secondary school atPrasad Nagar, a middle school at Janak Puri and another atEast of Kailash. The first three of these are recognised bythe Director of Education, Delhi Administration and areaided by the Government to the extent of 95%. The petitioneris thus employed in a government aided school. By the im-pugned order dated April 23. 1986, the management instituted

a departmental inquiry against the petitioner on certaincharges and placed her under suspension in exercise of r.115 of the Delhi School Education Rules, 1973 pending theinquiry. A copy of the impugned order of suspension wasforwarded on the same day to the Director of Education. Onthe next day i.e. on April 24, 1986, the management ad-dressed a letter to Deputy Director of Education, DistrictWest, New Delhi formally intimating that the petitioner hadbeen placed under suspension pending inquiry on a charge ofmisconduct as specified for the reasons mentioned in thestatements of charges and of allegations forwarded. On thatday, the petitioner brought a suit for perpetual injunctionagainst the management being Civil Suit No. 213/86 in theCourt of the Subordinate Judge, First Class, Delhi. She also


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made an application for grant of temporary injunction underOrder XXXIX, r. 1 of the Civil Procedure Code, 1908 forrestraining the managing committee from proceeding with thedepartmental inquiry. The temporary injunction was sought onthe ground that the managing committee was not duly consti-tuted and besides, the impugned order of suspension wasviolative of sub-s. (4) of s. 8 of the Act. On the same day.the learned Subordinate Judge passed an order for maintain-ing the status quo. However, the management entered appear-ance and applied for vacating the injunction on the groundthat the petitioner had already been suspended on April 23,1986. It also pleaded that the school was being establishedand978administered by the Andhra Education Society which being alinguistic minority educational institution was protectedunder Art. 30(1) of the Constitution and therefore theprovisions of the Act and in particular of sub-s. (4) of s.8 were not applicable. The learned Subordinate Judge by hisorder dated August 20, 1986 following the decision of theDelhi High Court in S.S. Jain Sabha (of Rawalpindi) Delhi v.Union of India & Ors., ILR (1976) 2 Del. 61 held that theAndhra Education Society was protected under Art. 30(1) and

was therefore not governed by sub-s. (4) of s. 8 of the Actand accordingly dismissed the application for grant oftemporary injunction. Instead of moving the High Court, thepetitioner straightaway filed a Special Leave Petition underArt. 136 of the Constitution in this Court which was obvi-ously not maintainable. On September 10, 1986 learned coun-sel for the petitioner finding that it was difficult tosupport the petition for grant of special leave, sought anadjournment to take further instructions, and the matter wasaccordingly adjourned to September 22, 1986. In the mean-while, the petitioner moved this petition under Art. 32 ofthe Constitution and thereafter withdrew the suit. On theadjourned date, the learned counsel also withdrew the Spe-cial Leave Petition. The Special Leave Petition was accord-

ingly dismissed as withdrawn.Ordinarily, the Court would have directed the petitionerto avail of her alternative remedy under Art. 226 of theConstitution before the High Court but we were constrainedto issue notice inasmuch as the High Court had in the year1979 by its judgment in Andhra Education Society v. Union ofIndia & Anr., followed its earlier decision in S.S. JainSabhas case, (supra), and allowed a batch of Writ Petitionsfiled by the Andhra Education Society and other linguisticminority educational institutions holding that in view ofthe protection of Art. 30(1) these linguistic minorityeducational institutions were not governed by ss. 3, 5,sub-s. (4) of s. 8, ss. 16 and 25 of the Act and the rele-vant rules framed thereunder and therefore no prior approval

of the Director of Education was necessary before passing anorder of suspension against a teacher pending a departmentalinquiry. We were also constrained to entertain the petitionbecause a similar question was raised by the Frank AnthonyPublic School Employees Association by a petition underArt. 32 of the Constitution. Since then the Court has inFrank Anthony Public School Employees Association v. Unionof India & Ors., [1986] 4 SCC 707 struck down s. 12 of theAct as being violative of Art. 14 of the Constitution inso-laf as it excludes the teachers and other employees ofunaided minority schools from the beneficial provisions ofss. 8 to 11 [except s. 8 (2)]i.e. except to the979extent that it makes s. 8(2) inapplicable to unaided minori-


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ty educational institutions.The Court following the long line of decisions starting

from In re. the Kerala Education Bill, 1957, [1959] SCR 995down to All Saints High School v. Government of AndhraPradesh. [1980] 2 SCC 478 held. that the provisions con-tained in Chapter IV of the Act (except s. 8(2)) were regu-latory measures and did not offend against Art. 30(1) of theConstitution, enacted with the purpose of ensuring properconditions of service of the teachers and other employees ofunaided minority educational institutions and for securing afair procedure in the matter of disciplinary action asagainst them. These provisions, according to the Court, werepermissible restrictions and were intended and meant toprevent maladministration. The view proceeds upon the basisthat the right to administer cannot obviously include theright to maladminister. A regulation which is designed toprevent maladministration of an educational institutioncannot be said to infringe Art. 30(1). The Court accordinglygranted a declaration to the effect that s. 12 of the Actwas void and unconstitutional except to the extent that itmakes s. 8(2) inapplicable to unaided minority educationalinstitutions, and directed the Union of India, Delhi Admin-istration and its officers to enforce the provisions of

Chapter IV [except s. 8(2)] against the Frank Anthony PublicSchool, an unaided minority school. It has further directedthe management of the school not to give effect to theimpugned orders of suspension passed against the members ofthe staff. Such being the law declared by the Court in FrankAnthony Public Schools case with regard to unaided minorityeducational institutions, it stands to reason that the aidedminority schools run by the Andhra Education Society andother linguistic minority educational institutions in Delhiwill also be governed by the provisions of Chapter IV[except s. 8(2)], that is to say, the exercise of the powerof the management of such schools to suspend a teacher wouldnecessarily be subject to the requirement of prior approvalof the Director of Education under sub-s. (4) of s. 8 of the

Act. In support of the petition Sri Vaidyanathan, learnedcounsel for the petitioner naturally contends that thematter is concluded by the recent decision of this Court inFrank Anthony Public Schools case and according to the viewexpressed by the Court in that case the impugned order ofsuspension passed by the management being without the priorapproval of the Director as required by sub-s. (4) of s. 8of the Act was vitiated. On the other hand Sri Subba Rao,learned counsel appearing for respondents Nos. 3, 4 and 5submits that the980view expressed by this Court in the recent decision in FrankAnthony Public Schools case based upon the earlier decision

in All Saints High Schools case runs counter to the deci-sion of the Constitution Bench in Lilly Kurian v. Sr. Lewina& Ors., [1979] 1 SCR 820 and therefore requires reconsidera-tion. Alternatively, he contends that the Court failed toappreciate that sub-s. (4) of s. 8 of the Act requiring theprior approval of the Director for the suspension of ateacher was a flagrant encroachment upon the right of theminorities under Art. 30(1) of the Constitution to adminis-ter educational institutions established by them. It isargued that if no prior approval of the Director is neededunder s. 8(2) for the dismissal, removal or reduction inrank of a teacher as held by this Court in Frank AnthonyPublic Schools case, there is no reason why the exercise ofpower of suspension being an integral part of the power to


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take disciplinary action could not be made subject to anysuch restriction as imposed by sub-s. (4) of s. 8 of theAct.

In order to appreciate the rival contentions, it isnecessary to set out the relevant provisions. Sub-s. (2) ofs. 8 interdicts that subject to any rule that may be made,no employee of a recognised private school shall be dis-missed, removed or reduced in rank, nor shall his service beotherwise terminated except with the prior approval of theDirector. S. 8(3) confers upon such an employee the right ofan appeal to the Tribunal constituted under s. 11 againsthis dismissal, removal or reduction in rank. Sub-s. (4)relates to the power of suspension and it is in these terms:

"(4). Where the managing committee of a recog-nised private school intends to suspend any ofits employees, such intention shall be commu-nicated to the Director and no such suspensionshall be made except with the prior approvalof the Director:

Provided that the managing committeemay suspend an employee with immediate effectand without the prior approval of the Directorif it is satisfied that such immediate suspen-

sion is necessary by reason of the grossmisconduct, within the meaning of the Code ofConduct prescribed under section 9, of theemployee:

Provided further that no such immedi-ate suspension shall remain in force for morethan a period of fifteen days from the date ofsuspension unless it has been communi-981cated to the Director and approved by himbefore the expiry of the said period."

Sub-s.(5) of s. 8 provides that where intention to suspend,or the immediate suspension of an employee is communicatedto the Director, he may, if he is satisfied that there are

adequate and reasonable grounds for such suspension, accordhis approval to such suspension.In Frank Anthony Public Schools case, Chinnappa Reddy,

J. speaking for himself and G.L. Oza, J. while repelling thecontention that sub-s. (4) of s. 8 of the Act was an en-croachment upon the fundamental right of the minoritiesenshrined in Art. 30(1) to administer the educational insti-tutions established by them inasmuch as it conferred ablanket power on the Director to grant or withhold his priorapproval where the management intended to place an employeeunder suspension pending a departmental inquiry, observedthat the question was directly covered by the majoritydecision in All Saints High Schools case and that, in hisview, the provision was eminently reasonable and just de-

signed to afford some measure of protection to the employ-ees, without interfering with the managements right to takedisciplinary action. He then stated:

"Section 8(4) would be inapplicable to minori-ty institutions if it had conferred blanketpower on the Director to grant or withholdprior approval in every case where a manage-ment proposed to suspend an employee but wesee that it is not so. The management has theright to order immediate suspension of anemployee in case of gross misconduct but inorder to prevent an abuse of power by themanagement a safeguard is provided to theemployee that approval should be obtained


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within 15 days. The Director is also bound toaccord his approval if there are adequate andreasonable grounds for such suspension. Theprovision appears to be eminently reasonableand sound and the answer to the question inregard to this provision is directly coveredby the decision in All Saints High School,where Chandrachud, CJ. and Kailasam, J. upheldSection 3(3)(a) of the Act impugned therein."(Emphasis supplied)

It is not necessary to go through all the cases relied uponby the982Court in Frank Anthony Public Schools case for the viewtaken that the provisions of Chapter IV of the Act were of aregulatory nature and therefore did not have the effect ofabridging the fundamental right guaranteed to the minoritiesunder Art. 30(1). It is enough to say that although there isno reference in the judgment to Lilly Kurians case, theobservations made by the Court with regard to the applica-bility of sub-s.(4) of s. 8 of the Act which relates to theexercise of the power of suspension by the management, fallin line with the view expressed by the majority in All

Saints High Schools case where such power was held to be onconsideration of all the decisions starting from In re. theKerala Education Bill, 1957, permissible restriction beingregulatory in character. Presumably the Court in FrankAnthony Public Schools case felt that it was not necessaryto refer to Lilly Kurians case as the extent of the regula-tory power of the State had been dealt with by the Court Inre. the Kerala Education Bill, 1957 and reaffirmed in thesubsequent decisions, including that in All Saints HighSchools case. In Lilly Kurians case, one of us (Sen, J.)speaking for a Constitution Bench had occasion to observe:.lm"Protection of the minorities is an article of faith in theConstitution of India. The right to the administration of

institutions of minoritys choice enshrined in Article 30(1)means management of the affairs of the institution. Thisright is, however, subject to the regulatory power of theState. Article 30(1) is not a charter for mal-administra-tion; however regulation, so that the right to administermay be better exercised for the benefit of the institution,is permissible;"(Emphasis supplied)In that case, the question was whether the conferment of aright of appeal to an external authority like the Vice-Chancellor of the University under Ordinance 33(4) framed bythe Syndicate of the University of Kerala under s. 19(j) ofthe Kerala University Act, 1957 against any order passed bythe management of a minority educational institution in

respect of penalties including that of suspension was anabridgement of the right of administration conferred on theminorities under Art. 30(1). The question was answered inthe affirmative and it was held that the conferral of thepower of appeal to the ViceChancellor under Ordinance 33(4)was not only a grave encroachment on such institutionsright to enforce and ensure discipline in its administrativeaffairs but it was uncanalised and unguided in the sensethat no restrictions were placed on the exercise of thepower. It was further said that in the absence of any guide-lines it could not be held983that the power entrusted to the Vice-Chancellor under Ordi-nance 33(4) was merely a check on maladministration.


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In Frank Anthony Public Schools case, the Court heldthat subss. (1), (3) and (4) of s. 8, and ss. 9, 10 and 11of the Act do not encroach upon the right of administrationconferred on the minorities under Art. 30(1) to administereducational institutions of their choice, but that s. 8(2),in view of the authorities referred to, must be held tointerfere with such right and therefore inapplicable tominority institutions. It would therefore appear that thedecision in Frank Anthony Public Schools case proceeds uponthe view that the right guaranteed to religious and linguis-tic minorities by Art. 30(1) which is two-fold i.e. toestablish and to administer educational institutions oftheir choice, is subject to the regulatory power of theState. The Court has referred to the three decisions inAhmedabad St. Xaviers College Society v. State of Gujarat,[1975] 1 SCR 173; State of Kerala v. Very Rev. Mother Pro-vincial, [1971] 1 SCR 734 and All Saints High School v.Govt. of A.P. (supra) in coming to the conclusion that s. 12of the Act insofar as it made inapplicable the beneficentprovisions of Chapter IV to unaided minority institution wasdiscriminatory and offended against Art. 14, i.e. except tothe extent that it made s. 8(2) inapplicable to such insti-tutions. The view taken in Frank Anthony Public Schools

case is in consonance with the decision of the majority inAll Saints High Schools case. In that case, the applicabil-ity of several sections of the A.P. Recognised PrivateEducational Institutions (Control) Act, 1975 was questionedas being violative of Art. 30(1). Chandrachud, CJ. whiledelivering the majority judgment held after referring to allthe earlier decisions, that it must be regarded as wellset-tled especially after the 9-Judge Bench decision in St.Xaviers case and the subsequent decision in Lilly Kurianthat the State was competent to enact regulatory measuresfor the purpose of ensuring educational standards and main-taining the excellence thereof and such regulations whichwere permissible did not impinge upon the minorities funda-mental right to administer educational institutions of their

choice under Art. 30(1). The reason for this conclusion canbest be stated in the words of Chandrachud, CJ.:"These decisions show that while the right ofthe religious and linguistic minorities toestablish and administer educational institu-tions of their choice cannot be interferedwith, restrictions by way of regulations forthe purpose of ensuring educational standardsand maintaining the excellence thereof can bevalidly prescribed. For maintaining educa-984tional standards of an institution, it isnecessary to ensure. that it is competentlystaffed. Conditions of service which prescribe

minimum qualifications for the staff, theirpay scales, their entitlement to other bene-fits of service and the laying down of safe-guards which must be observed before they areremoved or dismissed from service or theirservices are terminated are all permissiblemeasures of a regulatory character."

Chandrachud, CJ. and Fazal Ali, J. held that ss. 3(1) and3(2) which made the prior approval of the competent authori-ty a prerequisite for the dismissal, removal or reduction inrank of a teacher, conferred on the competent authority anappellate power of great magnitude and therefore ss. 3(1)and 3(2) read together were, in their opinion, unconstitu-tional insofar as they were made applicable to minority


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notice ss. 3(3)(a) and 3(3)(b) which pertained to the powerof suspension. S. 3(3)(a) provided that no teacher employedin any private educational institution shall be placed undersuspension except when an inquiry into the gross misconductof such teacher is contemplated. S. 3(3)(b) provided that nosuch suspension shall remain in force for more than a periodof two months and if the inquiry was not completed withinthat period, the teacher shall be deemed to be reinstated.Proviso thereto however conferred power on the competentauthority, for reasons to be recorded in writing, to extendthe period for a further period not exceeding two months.Chandrachud, CJ. found it difficult to agree with Fazal Ali,J. that these provisions were violative of Art. 30(1),thereby agreeing with Kailasam, J. that they were indeedregulatory. S. 3(3)(a), in his own words, contained but anelementary guarantee of freedom from arbitrariness to theteachers. The provision was regulatory in character since itneither denied to the management the right to proceedagainst an erring teacher nor indeed did it place an unrea-son-986able restraint on its power to do so. It assumed the rightof the management to suspend a teacher but regulated that

right by directing that a teacher should not be suspendedfor more than a period of two months unless the inquiry wasin respect of a charge of gross misconduct. In dealing withs. 3(3)(a), the learned Chief Justice observed:

"Fortunately, suspension of teachers is notthe order of the day, for which reason I donot think that these restraints which bear areasonable nexus with the attainment of educa-tional excellence can be considered to beviolative of the right given by Art. 30(1)."He then stated:"The limitation of the period of suspensioninitially to two months, which can in appro-priate cases be extended by another two

months, partakes of the same character as theprovision contained in s. 3(3)(a). In thegenerality of cases, a domestic inquiryagainst a teacher ought to be completed withina period of two months or say, within anothertwo months. A provision founded so patently onplain reason is difficult to construe as aninvasion of the fight to administer an insti-tution, unless that right carried with it theright to maladminister."

He accordingly agreed with Kailasam, J. that ss. 3(3)(a) and3(3)(b) which put restraints on the arbitrary power ofsuspension of teachers were regulatory in character and didnot offend against the fundamental right of minorities under

Art. 30(1).It would be seen that the decision of the Court in Frank

Anthony Public Schools case with regard to the applicabili-ty of sub-s. (4) of s. 8 of the Act to the unaided minorityeducational institutions is based on the view taken by themajority in All Saints High Schools case which, on itsturn, was based on several decisions right from In re. theKerala Education Bill, 1957 down to St. Xavier, includingthat in Lilly Kurian. It is therefore difficult to sustainthe argument of learned counsel for the respondents that thedecision in Frank Anthony Public Schools case holding thatsub-s. (4) of s. 8 of the Act was applicable to such insti-tutions was in conflict with the decision of the Constitu-tion Bench in Lilly Kurians case and therefore required


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reconsideration. The contention of learned counsel for therespondents that sub-s. (4) of s. 8 of the Act requiting theprior approval of the Director for the suspen-987sion of a teacher was a flagrant encroachment upon the rightof the minorities under Art. 30(1) of the Constitution toadminister educational institutions established by them isanswered in all the earlier decisions of this Court rightfrom In re. the Kerala Education Bill, 1957 down to that inAll Saints High Schools case which have been referred to bythe Court in Frank Anthony Public Schools case. Thesedecisions unequivocally lay down that while the right of theminorities, religious or linguistic, to establish and admin-ister educational institutions of their choice cannot beinterfered with, restrictions by way of regulations for thepurpose of ensuring educational standards and maintainingexcellence thereof can validly be prescribed.

It cannot be doubted that although disciplinary controlover the teachers of a minority educational institution iswith the management, regulations can be made for ensuringproper conditions of service for the teachers and also forensuring a fair procedure in the matter of disciplinaryaction. As the Court laid down in Frank Anthony Public

Schools case, the provision contained in sub-s. (4) of s. 8of the Act is designed to afford some measure of protectionto the teachers of such institutions without interferingwith the managements right to take disciplinary action.Although the Court in that case had no occasion to deal withthe different ramifications arising out of sub-s. (4) of s.8 of the Act, it struck a note of caution that in a casewhere the management charged the employee with gross miscon-duct, the Director is bound to accord his approval to thesuspension. It would be seen that the endeavour of the Courtin all the cases has been to strike a balance between theconstitutional obligation to protect what is secured to theminorities under Art. 30(1) with the social necessity toprotect the members of the staff against arbitrariness and

victimisation.One should have thought that in a case like the presentwhere the management charged the petitioner with diversionof funds and communicated the impugned order of suspensionpending departmental inquiry to the Director, there would besome response from him. The management did not formallyapply for his prior approval in terms of sub-s. (4) of s. 8of the Act in view of the declaration by the High Court thatit being a linguistic minority educational institution, itwas protected under Art. 30(1) and no prior approval of theDirector was required. Nevertheless, it took the precautionof communicating the impugned order of suspension to theDirector. Presumably, the Director refrained from passingany order according or refusing approval having regard to

the judgment of the High Court. In view of the recent deci-sion in Frank Anthony Public Schools case, it must be988held that the institution was governed by sub-s, (4) of s. 8of the Act and therefore there was a duty cast on the Direc-tor to come to a decision whether such immediate suspensionwas necessary by reason of the gross misconduct of thepetitioner as required by sub=s (5) of s.8. We refrain fromexpressing any opinion as to the seriousness otherwise ofthe charge as that is a matter to be enquired into by de-partmental proceeding. The fact however remains that therewas no response from the Director within the period of 15days as envisaged by the second proviso to s. 8(4). As aresult of this, the impugned order of suspension has lapsed


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and it is so declared. Although the impugned order of sus-pension has lapsed, the management may yet move the Directorfor his prior approval under sub-s (4) of s. 8 of the DelhiSchool Education Act, 1973, and the Director shall deal withsuch application, if made, in accordance with the principleslaid down in Frank Anthony Public Schools case,

Subject to this observation, the writ petition fails andis dismissed. There shall be no order as to costs,P.S.S. Petition dismissed.989

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