Raju, J.:— The above writ appeal has been filed against the order of a learned Single Judge of this Court, dated 2 March, 1990, in W.P No. 3061 of 1989 whereunder the learned Single Judge was pleased to allow the writ petition on the following terms:
“63. In the result, the writ petition is allowed and the order of the first respondent, dated 7 February, 1989, and the order of the second respondent, dated 4 February, 1988, are quashed. The order of the third respondent, dated 3 September, 1987, is declared to be null and void. The order of the petitioner, dated 17 October, 1986, terminating the services of the fourth respondent is upheld and restored. Respondents 1 to 3 shall pay costs of this writ petition to the petitioner. Counsel's fee Rs. 2,000.”
2. The appellant herein was the fourth respondent before the learned Single Judge and he was employed as a teacher under the first respondent-management. Having regard to the nature of disposal this writ petition deserves and the orders we are going to pass on the same, it would be unnecessary and inappropriate to advert to the factual details or claims asserted and projected by both sides on the merits or otherwise of the charges before the authorities below as also before the learned Single Judge. Suffice it to notice that the first respondent initiated disciplinary proceedings against the appellant and provisionally concluded to put an end to the services of the appellant and sought for the approval of the competent authority to dismiss the appellant from service. After waiting for certain time and on finding that no approval was forthcoming from the competent authority, viz., the Chief Educational Officer, Tiruchirapalli, the first respondent by his proceedings, dated 17 October, 1986, ordered dismissal of the appellant from service with immediate effect and also ordered to hand over the charge to the headmaster on receiving three months' salary in lieu of three months' notice. Aggrieved against the said proceedings of the first respondent, the appellant, approached the appellate authority, viz., Joint Director of School Education (Secondary Education) on 10 November, 1986. When the said appeal was pending, it appears that the Chief Educational Officer, the competent authority has passed an order on 3 September, 1987, declining to grant approval sought for by the first respondent for the dismissal of the appellant. Ultimately, the appellate authority came to pass an order on 4 February, 1988 allowing the appeal both on the ground that the first respondent could not have passed such an order of dismissal without obtaining the prior approval for such dismissal and also on the ground that subsequently on 3 September, 1987 an order has been passed declining to accord approval. Aggrieved, the first respondent pursued the matter on revision before the State Government. The revisional authority by its proceedings, dated 7 February, 1989, rejected the revision on the ground that mandatory requirement of prior approval envisaged under S. 22 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, not having been obtained, the revision was devoid of merits. The first respondent at that stage approached this Court by filing W.P No. 3061 of 1989 for a writ of certiorari to call for title records and quash the proceedings of the second respondent, dated 4 February, 1988, passed on appeal as confirmed by the first respondent in their communication, dated 7 February, 1989. The learned Single Judge was of the view that if within a reasonable time the competent authority, viz., the Chief Educational Officer, Tiruchirapalli, in this case, has not passed or communicated any orders either according approval or denying such approval, it may be deemed to have been granted since substantial rights of the management flows from passing of such orders and the delay would cause great prejudice to the institution. The learned Judge also chose to make some observations on the merits of the charges also which we find, is only uncalled for, in the view that has been taken on the other issues noticed above. It is in such circumstances that the learned Judge came to pass an order with certain consequential direction as notice above. Hence the above appeal.
3. Sri R. Singaravelan, learned counsel appearing for the appellant, has challenged the order of the learned Single Judge questioning the conclusions arrived at by the learned Judge on the scope of S. 23 and also certain observations made on the merits of the charges and the desirability or otherwise of the action taken and the ultimate order of termination passed. As pointed out earlier, we do not propose to enter into the merits of the charges or desirability or otherwise of the need to grant approval or deny such approval by the competent authority. In support of his stand that the learned Single Judge could not have come to the conclusion that the approval of the competent authority must be deemed to have been accorded in this case after a reasonable time, learned counsel strongly placed reliance upon a Division Bench judgment of this Court to which one of us (Raju, J.), was a party, reported in M. Rukmani Devi v. Chief Educational Officer [1998 (4) L.L.N 856]. In the context of the said decision, learned counsel appearing on either side invited our attention to some other decisions also of some of the learned Single Judges of this Court and we consider it appropriate to advert to them.
4. The decision in 1998 (4) L.L.N 856 (vide supra), also arose under the Act which is under our consideration and the respondent before the Division Bench appears to have placed a strong reliance upon the decision of the learned Single Judge which is under challenge in this appeal before us. The judgment which is the subject-matter of appeal before us has also been reported in Secretary, Sri Ramakrishna Vidhyalayam High School, Tiruparaithurai v. State of Tamil Nadu [1990 W.L.R 62]. In such circumstances, the Division Bench was obliged to consider the legality and propriety of the conclusions arrived at by the learned Single Judge and ultimately came to the conclusion not only to disapprove the view taken but also to over-rule the same in following terms:
“10. We have carefully considered the submission of the learned counsel for the third respondent based on the ratio of the above decision. On the facts, we find that in the case before the learned Single Judge in the decision reported in Secretary, Sri Ramakrishna Vidhyalayam High School v. State of Tamil Nadu (vide supra), 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 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 Para. 38 of the decision referred to supra. The statutory power of approval like the one conferred on the competent authority under S. 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 of 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 authority 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-sec. (1) of S. 22 of the Act which 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 education institution. The reasoning of the learned Single Judge that if the competent authority under S. 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 more 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 or other person concerned for whose protection such 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 Art. 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-sec. (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-sec. (1) which will be 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 more 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 person employed in the institution. To put it more crisply it is a condition precedent contemplate 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 Para. 38 of the decision reported in Secretary, Sri Ramakrishna Vidhyalayam High School v. State of Tamil Nadu (vide supra), and over rule the same.”
5. Our attention has also been brought to the decision of N.V Balasubramanian, J., reported in Ayya Nadar Janaki Ammal College (represented by its Secretary), Sivakasi v. A. Pandian [1996 (3) L.L.N 275]. That was a case which arose under the Tamil Nadu Private Colleges (Regulation) Act, 1976, and the corresponding provision in S. 19 came up for consideration by the learned Single Judge, though the actual question that looms large for consideration before the learned Single Judge was in the context of the nature of termination brought about in that case and the scope of words “otherwise terminated” in S. 19. The learned Single Judge even without adverting to the Division Bench judgment noticed above, came to the conclusion that without complying with the mandatory requirement of S 19(1) which postulates the obtaining prior approval of the competent authority before the termination of service of a person employed in the college termination as such could not be brought about. In the decision reported in A.B Narasimhan v. Olcott Memorial High School (represented by its Secretary) [1996 W.L.R 543], S.M Abdul Wahab, J., appears to have taken the view that lack of prior approval being only a matter of incompetence and where the misconduct alleged is very serious and it is also necessary only where the dismissal is based on serious misconduct alone and not otherwise We may even at this stage point out that if the learned Single Judge meant to lay down as a principle that in respect of dismissal of a teacher or an employee of the school, an order could be passed without securing the prior approval of the competent authority, the same could not have our approval and to that extent, the decision could not be considered to lay down the correct position of law. Our attention was also invited to a decision reported in Smt. Y. Theclamma v. Union of India [(1987) 2 SCC 516 : A.I.R 1987 S.C 1210], wherein the Apex Court, while dealing with S. 8(4) of the Delhi School Education Act 18 of 1973, expressed the view that even if the educational institution is a minority institution, they must seek prior permission of the competent authority before terminating the service or dismissing an employee of the school. This decision only fortifies the view taken by the Division Bench in M. Rukmani Devi v. Chief Educational Officer [1998 (4) L.L.N 856] cited supra.
6. We have carefully considered the submissions of the learned counsel appearing on either side on the basis of the above decisions. We are of the view that the view taken by the Division Bench in the decision reported in 1998 (4) L.L.N 856 (vide supra), is the correct and proper view that should and ought to be taken in a matter like this, as could be seen even from the decision of the Apex Court reported in (1987) 2 SCC 516 : A.I.R 1987 S.C 1210 cited supra, and nothing concrete was brought to our notice on behalf of the (sic) appellant (respondent?) warranting any rethinking or reconsideration of the issue in a different manner or to arrive at a different conclusion. The decision of the learned Single Judge which is the subject-matter of appeal before us, is liable to be set aside on the basis of the principles laid down by the Division Bench reported in 1998 (4) L.L.N 856 (vide supra), alone which squarely governed this case against the management. In addition to the reason already assigned therein, we may also add that if the statutory provision enacted by the Legislature prescribed a particular mode for terminating the service or dismissing the teaching or a non-teaching staff of a school, it can and has to be done not only in that manner alone, but it cannot be done in any other manner too. This principle that where a power is given to do a certain thing in a certain way, things must be done in that way and not otherwise and that other method of performance is necessarily precluded, is not only well settled, but squarely applies to this case also in construing the scope of the power as also its exercise by the management by under S. 22 of the Act.
7. Sri G. Subramaniam, learned Senior Counsel for the first respondent-management attempted to submit that where a charge levelled against a teacher is so grave the Court will not lend its assistance to such a person merely on account of non-compliance with certain requirements to be observed in the matter of dismissal or termination of his services. Reliance has been placed by the learned senior counsel on the decision reported in Avinash Nagra v. Navodaya Vidyalaya Samiti [1998 (4) L.L.N 977], in support of the said claim. We have carefully gone through the decision of the Apex Court. That was a case where the disciplinary authority has taken a decision in the exercise of his power under relevant rules to dispense with a regular enquiry which may involve the girl concerned therein being exposed in respect of her modesty and it is only in that context, the Apex Court held that it is not necessary to interfere at the instance of the teacher concerned who was charged with serious misconduct unbecoming of a teacher therein involving the modesty of a girl student. We find hardly any relevance of the principles laid down therein to the case on and where the question which looms large for our consideration about compliance with a condition precedent statutorily stipulated to bring about a termination or dismissal of the service of the teacher. We find, therefore, no justification whatsoever to sustain the order of the learned Single Judge on such grounds or for reasons urged by the learned senior counsel relying upon the decision reported in 1998 (4) L.L.N 977 cited supra.
8. Learned senior counsel for the first respondent next tried to draw inspiration from the decision reported in Bangalore Water Supply and Sewerage Board v. A. Rajappa [1978 (1) L.L.N 376 and 657], and reiterate the said stand taken before the learned Single Judge by relying upon certain passage therefrom which has been quoted also by the learned Single Judge from the decision of the then learned Chief Justice of the Apex Court who rendered a concurring but a separate opinion observing that it was permissible for the Courts to supply omissions, and Courts have necessarily to make the law to work reasonably and harmonize the same with an ultimate object of the enactment. That was a case wherein the Apex Court was concerned with interpretation to be placed on the terms “industry” in S. 2(i) of the Industrial Disputes Act and the allied words in the context of the claim that even an undertaking owned and managed and run by the Government or a local authority has to come within the definition “industry.” It was in this context, the learned Judges of the Apex Court held that Courts can and also at times ought to construe the provisions adopting an approach to make the law march abreast and in conformity with growing trends and needs, if need be, deviating from certain ordinary common parlance understanding of the words. We fail once again to understand the relevance of the said decision to the context of the issue before us. As pointed out earlier, there is no vacuum or gaps to be filled in the provisions contained in S. 22(1) which, in unmistakable terms, stipulate that 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. There is no scope for dispensing with the requirement of prior approval, of the competent authority under any pretext except by mutilating or re-enacting the provision which is not the course permissible for the Court to do. The issue before us involves not with any filling up of gaps but as to the necessity to comply with a mandatory requirement of law which has been imposed as a precondition for getting rid of an employee of the school and there can be no compromise with such an obligation to comply with the same. Even if there was any grievance based on any indifference or lethargy or inordinate delay for according approval by the appellate authority as sought for Courts can be justified only to the extent of issuing directions if need be, to compel performance of duty within any stipulated time, but cannot, for that reason alone, dispense with the very requirement incorporated in the statute with definite purpose and also a safeguard in favour of the teacher, in public interest. Consequently, we have no hesitation to hold that the learned Single Judge was not right in holding that on the facts and circumstances of the case, having regard to the delay on the part of the competent authority exercising his powers, the approval must be deemed to have been accorded or that the school management can terminate the services even without such prior approval. The judgment of the learned Single Judge is, therefore, hereby set aside. At the same time, we also set aside all the observations made and conclusions expressed and arrived at by the learned Single Judge touching on the merits of the charges and the other incidental observations pertaining to the claim on merits.
9. Learned counsel for the appellant invited our attention to the conclusion of the learned Single Judge about the legality and validity of rule 16(3) of the Tamil Nadu Private Schools (Regulation) Rules, 1974. In the light of the view taken by us on the scope of S. 21 and the orders passed, we are of the view that it would be unnecessary for the learned Single Judge to have pronounced upon the validity of the rule 16(3) holding that it is contrary to the terms of S. 21. The reasons assigned by the learned Single Judge in Para. 48 of his judgment do not justify such a conclusion that rule 16(3) is contrary to S. 21. In our view, the rule has not been shown to be in any manner inconsistent with S. 21 and we set aside the finding of the learned Single Judge in this regard also both on the ground that those conclusions are unwarranted and uncalled for.
10. It becomes necessary now for us to consider as to the final order that must be passed as a consequence of our interfering with the order of the learned Single Judge and setting aside the same.
11. Sri R. Singaravelan, learned counsel would vehemently contend that inasmuch as the competent authority has passed an order declining approval on 3 September, 1987, nothing survives further for the first respondent to claim in the appeal and inasmuch as the said order has not been challenged, there was no scope for seeking any relief for consideration afresh by the competent authority on the facts and circumstances of this case. Learned senior counsel for the first respondent pointed out that immediately after the order of dismissal came to be passed by the first respondent on 17 October, 1986, the appellant herein filed a statutory appeal before the third respondent on 10 November, 1986 and at such stage of the proceedings, the competent authority could not have legitimately passed an order on 3 September, 1987, when the appeal against the order of termination was very much pending against the order of the management, dismissal declining to grant approval and therefore, the proceedings, dated 3 September, 1987, has to be considered to be non est and at any rate, cannot be put against the first respondent-management when they have been effectively contesting the matter on appeal and also further pursued the matter by means of a revision and a writ petition before this Court taking the stand that approval must be deemed to have been accorded on the facts and circumstances of the case. On going through the orders of the appellate authority as also the revisional authority, we find that the orders by those authorities came to be passed mainly on the ground that the order of dismissal could not have been passed by the first respondent-management without obtaining prior approval, though the first appellate authority chose to make an additional observation that approval sought for was also rejected and consequently, we are of the view that there should be a fresh consideration of the matter by the competent authority once this Court came to the conclusion that the theory or principle of deemed approval projected does not ensure to the benefit of the first respondent.
12. On a careful consideration of the respective submissions of the learned counsel on either side, we are of the view that the proceeding, dated 3 September, 1987, must be taken to be non est in law. With the filing of the appeal against the order of dismissal by the appellant before the first appellate authority and pendency of the same, when the main challenge was on the ground that the dismissal order came to be passed without and even before an approval could be obtained, the competent authority could not have thereafter assumed for itself the jurisdiction to pass an order on the question of approval at that point of time without awaiting for orders on the statutory appeal filed. As rightly contended by the first respondent, they have been throughout contesting the claim against the appellant and also against the department based on deemed approval and in the context of the stand of the parties on either side, we are of the view that it is necessary and just to direct the fourth respondent who is the competent authority to pass orders on the proposals seeking for approval which was pending as on the date when the first respondent passed an order of dismissal on 17 October, 1986, afresh on merits and in accordance with law. Learned counsel for the appellant brought to our notice that the appellant has to retire on attaining the age of superannuation in November 1997 and therefore, in any event, there should be a direction for expeditious disposal of the matter failing winch irreparable loss and damage would be caused to the appellant. We quite appreciate the genuineness of the grievance expressed in this regard. Taking into account this aspect, we direct the fourth respondent to consider the matter relating to the according of approval and pass appropriate orders thereon within four weeks from today without fail and without seeking any further indulgence, taking into account the extraordinary situation that has been brought about in this case on account of long lapse of time. The rights of parties will abide by the orders that may be passed by the fourth respondent.
13. The writ appeal shall stand allowed on the above terms. No costs.
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