The central legal point established in the judgment is the interpretation and applicability of Section 8(4) of the Delhi School Education Act, 1973, regarding the requirement for obtaining prior permission in writing of the Director of Education for suspension in unaided Educational Institutions.

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 30.10.2012 of the learned Single Judge to the extent it, while issuing notice of W.P.(C) No.6646/2012 preferred by the respondent No.1, staying till the next date of hearing i.e. 19.12.2012, the order of the Disciplinary Authority of the appellant School of placing the respondent under suspension.

2. The respondent No.1 impugned the order of suspension inter alia on the ground that the same had been made without obtaining the prior permission in writing of the Director of Education as required under Section 8(4) of the Delhi School Education Act, 1973. It was the contention of the counsel for the appellant appearing on advance notice before the learned Single Judge that no such approval was required, the appellant being an unaided School. Reliance in this regard was placed on the judgment of the Division Bench of this Court in Kathuria Public School Vs. Director of Education 123 (2005) DLT 89. On the contrary, the counsel for the respondent No.1 had relied on judgment of a Full Bench of this Court in Presiding Officer Delhi School Tribunal Vs. Government of NCT of Delhi 180 (2011) DLT 551. The learned Single Judge however, after noticing the said contentions, granted ad-interim stay observing as under:

“7. Heard ld. Counsel for the parties. Admittedly, Section 8 of Delhi School Education Act, 1973 has been complied, which is mandatory. Para 44 of Kathuria Public School (supra) has bearing in case of disciplinary proceedings not in case of suspension.

8. Therefore, till the next date of hearing, the operation of the impugned order dated 03.10.2012 shall remain stayed. I here make it clear that the respondent/school may continue with the departmental enquiry, if any, against the petitioner. 9. The respondents shall file their response to the instant application within a period of four weeks with an advance copy to the other side. Rejoinder thereto, if any, shall be filed within two weeks thereafter.” The counsels admit the typographical error, and the learned Single Judge to have held “Admittedly, Section 8 of Delhi School Education Act, 1973 has “not” been complied, which is mandatory”.

3. The senior counsel for the appellants has contended that the learned Single Judge has wrongly held that the judgment of the Division Bench in Kathuria Public School supra, has bearing in the case of disciplinary proceedings and not in the case of suspension. It is argued that not only does the said judgment specifically refer to suspension but even otherwise suspension is a part of disciplinary proceedings and once the learned Single Judge held the judgment of the Division Bench in Kathuria Public School to be applicable in the case of disciplinary proceedings, he erred in holding the same to be having no application in case of suspension.

4. The senior counsel for the respondent No.1 on the contrary has i) challenged the very maintainability of the present appeal; ii) contended that the judgment of the Division Bench in Kathuria Public School stands overruled by Presiding Officer Delhi School Tribunal supra, of the Full Bench; and iii) contended that the judgment of the Division Bench in Kathuria Public School is contrary to Section 8(4) supra and is solely based on the judgment of the Supreme Court in T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481 and has misread the judgment of the Supreme Court.

5. However, the learned Single Judge, as will be obvious from the aforesaid, has neither held the judgment of the Division Bench to have been overruled by the Full Bench nor could the learned Single Judge have held the Division Bench to be not laying down the correct law. We are however not inclined to enter into the said controversy if at all open to be urged, in this appeal. This appeal, as aforesaid is against the ad-interim order of stay of the order of the Disciplinary Authority of suspension, made on the very first date of hearing even before the