JUDGEMENT

JYOTI SINGH, J. (ORAL)

1. Present writ petition lays a challenge to the impugned order dated 15.07.2022, whereby a major penalty of compulsory retirement from service has been imposed on the Petitioner under Rule 117(b)(ii)

of the Delhi School Education Rules, 1973.

2. Preliminary objection is taken by learned counsel appearing on behalf of Respondents No. 1 and 2 to the maintainability of the writ petition on the ground that the penalty of compulsory retirement can only be challenged by the Petitioner by way of an appeal before the Delhi School Tribunal (hereinafter referred to as ‘Tribunal’) constituted under Section 11 of the Delhi School Education Act, 1973 (hereinafter referred to as ‘the Act’).

3. In response to the said objection, learned counsel for the Petitioner submits that the Petitioner has not been dismissed or removed or reduced in rank and has been compulsorily retired and therefore, an appeal shall not lie before the Tribunal which is evident from a plain reading of Section 8(3) of the Act. Reliance is placed in support of the said plea on the judgment of a Division Bench of this Court in Smt. Leela Sharma v. GNCT of Delhi & Ors., 2012 SCC OnLine Del 690 as well as the judgments in Pratul Choudhury v. Air Force Golden Jubilee Institute and Ors., W.P.(C) No. 2348/2020 decided on 15.03.2022 and Ajit Singh v. Directorate of Education &

Ors., 2005 SCC OnLine Del 134.

4. Having examined the contentions of the parties with respect to the preliminary objection on maintainability of the writ petition, this Court finds merit in the arguments of Respondents No.1 and 2. The Supreme Court in Shashi Gaur v. NCT of Delhi and Others, (2001) 10 SCC 445, was examining the scope of Section 8(3) of the Act. In the said matter, Petitioner who was a Teacher was terminated for lack of requisite qualification for appointment to the post in question. The question that arose for consideration before the Supreme Court was whether a Teacher of a private school whose services stood terminated not as a penalty but due to lack of requisite qualifications, could file an appeal before the Tribunal, constituted under Section 11 of the Act. After examining the provisions of Section 8(3), the Supreme Court held as follows:-

“5. Mr Das, the learned Senior Counsel appearing for the appellant contends that Section 8(3) provides for an appeal against an order of dismissal, removal or reduction in rank and not against any order of termination as is apparent from the provisions contained in sub-section (2) of Section 8, which provides for obtaining prior approval of the Director before dismissal, removal or reduction in rank or otherwise terminating the services of an employee of a recognised private school. The very fact of absence of the expression “otherwise termination” available in sub-section (2) from the provisions of sub-section (3) clearly demonstrates that against an order of termination which does not come within the expression “dismissal, removal or reduction in rank”, the legislature have not provided for an appeal to the Tribunal constituted under Section 11 of the Act.

6. In support of this contention, the counsel also placed reliance on Rule 117 — explanation which indicates that replacement of a teacher who was not qualified on the date of his appointment by a qualified one will not amount to a penalty within the meaning of the said Rule [see Explanation (c)]. The learned counsel also placed before us the observations made by this Court in the case of Principal v. Presiding Officer [(1978) 1 SCC 498 : 1978 SCC (L&S) 70] wherein this Court had observed that for applicability of the provisions of Section 11 two conditions must coexist, namely, (i) that the employee should be an employee of a recognised private school, and (ii) that he should be visited with either of the three major penalties, i.e., dismissal, removal or reduction in rank.

7. This judgment and the interpretation put to the provisions of sub-sections (2) and (3) of Sec