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In a landmark judgment that will provide “security” net for thousands of schoolteachers and employees, the Supreme Court has ruled that private schools recognised by the Delhi Government will be required to take prior sanction from the  Government to terminate them from service.

The court held that sanction will be required in compliance of Section 8(2) of Delhi School Education (DSE) Act 1973. The private schools were not following this under the impression that they have full autonomy to run their institutions without Government’s interference. They banked on an 11-judge Constitution Bench decision of Supreme Court in the TMA Pai case (2002) which held that private educational institutions will enjoy full autonomy even to remove their employees.

But the Bench of Justices V Gopala Gowda and Amitava Roy said that the TMA Pai case decided the issue of right of educational institutions to function unfettered, but it did not deal with security of tenure of employees protected under Section 8(2) of DSE Act.

“Section 8(2) of the DSE Act is a procedural safeguard in favour of an employee to ensure that an order of termination or dismissal (from job) is not passed without the prior approval of the Director of Education. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognised private school,” the Bench said.

The judgment came in an appeal filed by a driver who enjoyed permanent employment with one of the schools run by the DAV Management Society.

The school retrenched him after seven years of service on July 25, 2003. He approached the Delhi School Tribunal and Delhi High Court but lost in both forums. Reversing his fortune, the apex court held his retrenchment to be “bad in law” and ordered the school to reinstate him with back wages and all consequent benefits. During the 13-year period since he was removed, he remained unemployed.

Rejecting that the schools enjoyed power to retrench the employees under the TMA Pai judgment, the Bench said, “While the functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to be reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests.”

Section 8(2) contemplated that no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall their services be otherwise terminated except with the prior approval of the Director of Education, Delhi. The school faulted on two counts as it neither sought sanction under DSE Act nor intimidated the Delhi administration about its decision as required under Section 25F of Industrial Disputes Act.

The decision has come as a huge setback for private schools which are already fighting the AAP Government in Court over their autonomy to hike fees. The Wednesday’s decision by apex court has added to their woes.

The school had relied on a decision of Delhi High Court in Kathuria Public School case decided in 2005 which quashed Section 8(2) of DSE Act. But the apex court found that this decision contradicted the law on termination of employees decided by a Constitution Bench in Katra Education Society v State of UP (1966). Moreover, the Kathuria School case came two years after the DAV school had sacked the driver.


Autonomy contretemps
The University Grants Commission’s decision to grant autonomy to more colleges will be generally welcomed by students and faculties, unless politically affiliated teachers raise objections out of happened in Presidency College despite then West Bengal Chief Minister Buddhadeb Bhattacharjee’s decision ignoring the party’s education cell. That said, the UGC appears to be presumptuous when it imagines that all universities will readily agree or that they will concur with any diminution of authority. There are certain inbuilt contretemps. Of course the autonomous colleges will have a free hand in drawing up the syllabi, holding of examinations and declaration of results. Yet this is a thus far-and-no further matrix not least because the degrees will continue to be awarded by the universities. Kolkata’s St Xavier’s College, for example, which was granted autonomy a decade ago, still has to contend with so fundamental a disconnect despite its stellar performance. Universities across the country will have to award degrees for a multiplicity of examination modules and also set the terms for examinations in its affiliated colleges. While the free hand will theoretically be a considerable morale-booster for colleges, the truncated authority of universities does signify a contradiction in terms in the overall construct. With a stroke of the bureaucratic pen, the UGC has accorded short shrift to the certitudes of affiliation, notably a no-objection certificate from the state government and an inspection of the colleges by an expert committee. Both conditions were hitherto mandatory. Indeed, the criteria for autonomy have been left delightfully vague, specifically whether the proposed college has the wherewithal in terms of faculties, libraries, laboratories, and examination results over a period of time to deserve autonomy. Such parameters make inspection obligatory. The reasons for the waiver are yet to be spelt out, just as there is no clue in the matter of UGC funds and funding.
How does it expect colleges to generate funds on their own? The salaries are based on the UGC scale; but will the state governments continue pump-priming in matters relating to DA and pension if their approval is not required for the grant of autonomy? Answers to these queries may not be available quite yet. Suffice it to register that the waiver of conditions has raised a welter of issues that need to be sorted out before any “forward movement” takes place. By its very nature, autonomy for the colleges is a deft balancing act. While it entails more powers for autonomous colleges, it almost inevitably leads to truncated authority of the universities. Despite the inherent dichotomy, the UGC will remain the overarching regulatory authority in matters academic. The issue calls for greater reflection than has been in evidence.


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