Hema Bajaj vs Rao Mehar Chand Saraswati Vidya Mandir School And Ors.

Court
Delhi High Court

$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 12327/2021 and CM APPLs. 38764/2021 and
38765/2021

HEMA BAJAJ .....Petitioner
Through: Mr. Khagesh B Jha, Ms. Shikha
Sharma Bagga and Ms. Shivani, Advs.

versus

RAO MEHAR CHAND SARASWATI
VIDYA MANDIR SCHOOL AND ORS. .....Respondents
Through: Mr. Rajesh Gupta and Mr.
Harpreet Singh, Advs. for R-1 & 2
Mr. V. Balaji and Mr. Nizamuddin, Advs.
for DOE

CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT(ORAL)
% 03.07.2026


C. HARI SHANKAR, J.


1. This matter was listed before this Full Bench pursuant to an
order dated 28 March 2026 passed by a learned Single Judge of this
Court as, in the opinion of the learned Single Judge, there was a
conflict in views between two Division Benches of this Court in
1
Sharda Devi Sanskrit Vidyapeeth v. Director of Education and

1
2016 SCC OnLine Del 3950
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2
Delhi Public School Dwarka v. Sarika Prasad .

2. The issue in controversy is short.

3. Section 8(4) of the Delhi School Education Act, 1973 reads
thus:

“ 8. Terms and conditions of service of employees of
recognised private schools.

*

(4) Where the managing committee of a recognised
private school intends to suspend any of its employees,
such intention shall be communicated to the Director and
no such suspension shall be made except with the prior
approval of the Director:

Provided that the managing committee may suspend an
employee with immediate effect and without the prior
approval of the Director if it is satisfied that such
immediate suspension is necessary by reason of the gross
misconduct, within the meaning of the Code of Conduct
prescribed under section 9, of the employee:

Provided further that no such immediate suspension shall
remain in force for more than a period of fifteen days from
the date of suspension unless it has been communicated to
the Director and approved by him before the expiry of the
said period .”

4. The referred issue pertains only to the second proviso to Section
8(4). The learned Single Judge observes that there is a divergence of
opinion between the two Division Benches regarding the consequence
which would result if approval under the second proviso is granted
after the expiry of 15 days from the placement of the employee under
suspension in exercise of the power conferred by the first proviso.

2
2022 SCC OnLine Del 3374
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5. We have heard Mr. Khagesh B Jha, learned Counsel for the
petitioner and Mr. Rajesh Gupta, learned Counsel for the respondents,
at length.

6. Mr. Gupta has drawn our attention to para 16 of the judgment of
this Court in Sharda Devi Sanskrit Vidyapeeth , which holds that,
even if the suspension order would not continue after the period of 15
days envisaged in the second proviso of Section 8(4) expires, it would
stand revived if approval is granted thereafter. The paragraph reads
thus:

“16. It could be urged that sub-section 4 to section 8 refers to
prior approval before an order of suspension is passed, and in the
present case Ganesh Ram Bhatt had throughout remained under
th
suspension post 30 April, 2011 and a formal order of suspension
th
after the approval of the Director dated 13 January, 2012, was
never passed. We would not like to read Section 8(4) of the Act in a
narrow and technical manner and would rather refer and rely on
the intent behind the provision . Issuing a new or confirmatory
th
letter of suspension on or after 13 January, 2012 would have been
a ministerial act and a redundant formality. It is not that Ganesh
Ram Bhatt was not suspended and had not remained under
th
suspension post 13 January, 2012. He had not worked . We are
examining whether the continued suspension of Ganesh Ram Bhatt
would be legal and valid. The appellant-school had always treated
and considered Ganesh Ram Bhatt as suspended. Once the
approval was granted it can be held that there was compliance
with Section 8(4) of the Act and henceforth the suspension was as
per the law and valid. The suspension thereafter would be as per
the mandate and requirement of the section 8(4) for the approval
of the Director exists and is on record . When approval/sanction is
granted after more than 15 days, the approval/sanction is not non
est and a nullity. The Full Bench of the Delhi High Court in
3
the Delhi Public School (supra) had observed that the Managing
Committee in the event of non grant of approval by the Director
may find it expedient not to take work, but would have to pay the
entire salary. Thus Ganesh Ram Bhatt though under suspension,

3
Delhi Public School v. Director of Education, 2003 (67) DRJ 419 (FB)
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would be entitled to full salary and allowances for the period when
the suspension was unapproved. Post the approval, Ganesh Ram
Bhatt would be paid the suspension or subsistence allowance.”
(Emphasis supplied)

7. With great respect to the learned Authors of the decision in
Sharda Devi Sanskrit Vidyapeeth , we are not able to subscribe to this
view. The statute, to our mind, is clear in its terms. In a case where
the managing committee decides to suspend an employee with
immediate effect without prior approval of the director and, therefore,
invokes the first proviso to Section 8(4), that suspension can only
extend up to a period of 15 days from the date of passing of the order.
In case no approval of the director is received within a period of 15
days, the second proviso to Section 8(4) is categorical that the
suspension would come to an end. Any approval granted to the
suspension thereafter would, therefore, be of no consequence, as there
was no suspension in existence. It is not possible to breathe life into a
dead body.

8. We are also not, with respect, able to bring ourselves to agree
with the italicized observations in para 16 of Sharda Devi Sanskrit
Vidyapeeth , as extracted supra .

9. The Division Bench notes that the petitioner before it had not
remained under suspension post the expiry of 15 days from the
issuance of the suspension order, and had not worked. That factor, to
our mind, is irrelevant. The issue of whether the suspension could be
revived after 15 days from the date of its issuance under the first
proviso to Section 8(4), or not, is agnostic of the issue of whether, in
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fact, the employee worked, or did not work, beyond the said period.
In fact, the employee was clearly entitled to be allotted work, as his
suspension had expired by efflux of time, and, if he was not allotted
work, the fault, in that regard, would lie with the establishment, which
could not be permitted to earn capital thereby.

10. We are also not in agreement with the observation that the
th
employee had remained under suspension post 13 January 2012,
when the period of 15 days envisaged by the second proviso to
Section 8(4) expired. He was not under suspension any longer. The
default of the employer in allowing him to rejoin work cannot result in
continuance of the suspension of the employee, contrary to the clear
mandate of the second proviso to the sub-section. If “the appellant-
school had always treated and considered Ganesh Ram Bhatt as
suspended”, that was clearly illegal, and in the teeth of the statute.

11. The Division Bench also holds that, “once the approval was
granted, it can be held that there was compliance with Section 8(4) of
the Act”. Again, we respectfully differ. Grant of approval within 15
days of the suspension would comply with the second proviso to
Section 8(4). Grant of approval after 15 days would certainly not.

12. For the same reason, we are unable to subscribe to the further
observation, in para 16 of Sharda Devi Sanskrit Vidyapeeth , that “the
suspension thereafter would be as per the mandate and requirement of
Section 8(4)”.

13. Mr. Gupta has also drawn our attention to the judgment of the
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Full Bench of this Court in Delhi Public School. Para 30 of the said
judgment reads thus:

“30. In fairness to Mr V.P. Singh, we may state that the main
ground on which he wanted reading down of the provisions of
Section 8 of the Act was his apprehension to the effect that even in
a case where the alleged misconduct committed by an employee of
the school is serious warranting immediate suspension and further
even when the circumstances of the case justify the approval by the
Director of Education, the Director of Education and/or his
subordinate functionaries may defeat the objective by intentionally
delaying the matter and thereby ensuring that no decision is taken
within 15 days from the date of communication of the order of
suspension. We have already stated that the petitioner has not
challenged the vires of Section 8 of the Act. That apart, in such a
situation the Managing Committee of the school would not be
remediless. Illegal and/or arbitrary exercise of jurisdiction by the
Director of Education in a given case canalways be subject-matter
of judicial review and in such a case it would always be open to the
Managing Committee of the school to challenge the inaction and/or
wrong decision of the Director of Education. We may observe here
that it is the statutory duty cast upon the Director to take
appropriate decision within 15 days as to whether approval is to be
given or not. He cannot, by delaying the matter beyond 15 days,
make it a fait accompli. No doubt, if no decision is taken within 15
days from the days of communication pf the order of suspension,
the necessary consequence thereof is that the suspension order
lapses. However, that does not mean that if no decision is taken at
all or the matter is unnecessarily delayed, it would not be
permissible for the Managing Committee of the school to insist the
Director of Education to take a decision even after 15 days of the
communication of the order of suspension. If such a decision is
taken, though belatedly, the fresh order of suspension can always
be passed. Further, if the Director of Education takes a decision
and refuses to accord his approval to the order of suspension and
if the Managing Committee in such a case feels aggrieved by that
decision, it is always open for the Managing Committee to
challenge the decision of the Director of Education by appropriate
proceedings on well-established grounds of judicial review that
would be available to the Managing Committee in a given case. ”
[Emphasis supplied]

14. To our mind, the legal position elucidated in the italicised part
of para 30 of the decision in Delhi Public School lays down the
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correct principle. In case the order of suspension passed in exercise of
the first proviso to Section 8(4) has not received the approval of the
Director within 15 days of its passing, the order comes to an end.
Thereafter, it is certainly open to the authorities to take a view that the
employee is required to be again suspended, in which case they would
have to pass a fresh order of suspension . That is the mandate of the
law, and, to our mind, cannot be regarded as either “redundant” or a
mere ministerial act, as held in Sharda Devi Sanskrit Vidyapeeth .

15. As Mr. Jha correctly points out, the Full Bench has placed
reliance on the judgment of the Supreme Court in Mrs. Y. Theclamma
4
v. UOI . We may reproduce the following words from the said
decision:

“13. One should have thought that in a case like the present
where the management charged the petitioner with diversion of
funds and communicated the impugned order of suspension
pending departmental inquiry to the Director, there would be some
response from him. The management did not formally apply for his
prior approval in terms of sub-s. (4) of s. 8 of the Act in view of the
declaration by the High Court that it being a linguistic minority
educational institution, it was protected under Art. 30(1) and no
prior approval of the Director was required. Nevertheless, it took
the precaution of communicating the impugned order of suspension
to the Director. Presumably, the Director refrained from passing
any order according or refusing approval having regard to the
judgment of the High Court. In view of the recent decision in
5
Frank Anthony Public School case, it must be held that the
institution was governed by sub-s. (4) of s. 8 of the Act and
therefore there was a duty cast on the Director to come to a
decision whether such immediate suspension was necessary by
reason of the gross misconduct of the petitioner as required by sub-
s. (5) of s. 8. We refrain from expressing any opinion as to the
seriousness or otherwise of the charge as that is a matter to be
enquired into by a departmental proceeding. The fact however
remains that there was no response from the Director within the

4
(1987) 2 SCC 516
5
Frank Anthony Public School Employees' Assn. v. Union of India, (1986) 4 SCC 707

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period of 15 days as envisaged by the second proviso to s. 8(4). As
a result of this, the impugned order of suspension has lapsed and it
is so declared. Although the impugned order of suspension has
lapsed, the management may yet move the Director for his prior
approval under sub-s. (4) of s. 8 of the Delhi School Education Act,
1973, and the Director shall deal with such application, if made, in
accordance with the principles laid down in Frank Anthony
Public School's case. ”
[Emphasis supplied]

16. Thus, the Supreme Court has also clearly held that, on the
expiry of 15 days from the passing of the order of suspension in
exercise of the first proviso to Section 8(4), in the absence of any
approval from the Director of Education, the order of suspension
lapses. In case any fresh order of suspension has to be passed, fresh
prior approval from the Director of Education has to be obtained under
Section 8(4). This also indicates that there is no question of any
subsequent approval reviving the suspension order which had already
lapsed.

17. In fact, the decision of the Division Bench in Sharda Devi
Sanskrit Vidyapeeth is, with respect, contrary both to the judgment of
the Supreme Court in Y. Theclamma as well as the decision of the
Full Bench in Delhi Public School.

18. Accordingly, we answer the question referred to us by holding
that, if no approval is received to the order of suspension passed in
exercise of the power conferred by the first proviso to Section 8(4) of
the Delhi School Education Act within 15 days of the passing of the
order of suspension, the suspension would automatically come to an
end. Any later order of approval passed by the Director of Education
would not revive the said suspension. We, therefore, agree, in
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principle, to the view expressed in Sarika Prasad and express our
respectful disagreement with the view expressed by the Division
Bench in Sharda Devi Sanskrit Vidyapeeth . The question referred to
us stands answered accordingly.

19. List the main writ petition before the concerned Bench as per
roster on 31 July 2026, subject to orders of Hon’ble the Chief Justice.



C. HARI SHANKAR, J.


OM PRAKASH SHUKLA, J.


RENU BHATNAGAR, J.

AR
JULY 3, 2026/
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