The Secretary, Ulagappar Higher Secondary School Vs. the Joint Director of School Education (Higher Secondary) and ors. - Court Judgment

Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. orders.s. subramani, j.1. secretary, ulagappar higher secondary school, ramachandrapuram, pudukottai district, is the petitioner in all the revision petitions and writ petition.2. facts which are common to all these cases may be stated as follows:the school represented by secretary stated that the same was started as a high school and later upgraded as a higher secondary school in the year 1986. origi-nally the school was a fee-levying school, receiving twothird grand upto the year 1964, but subsequently it became 100% government aided school from 1964-65 on the introduction of free education system. the school was governed by the madras educational rules till the tamil nadu recognised private schools (regulation) act, 1973 and rules, 1974 were enacted. it is further stated that on 23.10.1991, four teaches of the school committed grave acts of misconduct and, therefore, enquiry was conducted by a duly constituted school committee, and based on its report, to terminate the services of the four teachers, petitioner submitted an application dated 13.5.1982 under section 22(2) of the tamil nadu private school (regulation) act to the chief educational officer, pudukkottai seeking approval for the termination of the services of the four teachers. records pertaining to misconduct and the entire records pertaining to enquiry were also submitted to the chief educational officer. the c.e.o., by proceedings dated 26.8.1992, granted approval for the termination of the services of the four teachers. in pursuance of the approved granted by the c.e.o., petitioner also terminated the services of the four teachers with effect from 1.9.1992.3. the dismissed teachers preferred appeals under section 23 of the tamil nadu private school (regulation) act, challenging the termination of the services. the appellate authority granted stay of the termination. the order of stay was challenged before this court in w.p. nos. 17191 to 17194 of 1992. this court allowed the writ petitions and directed the appellate authority to dispose of the appeals within four weeks.4. after direction by this court, as per orders dated 29.4.1993 and 4.5.1993, the appellate authority allowed the appeals on a technical ground. the matter was again challenged before this court in w.p. nos. 9613 to 9616 of 1993. in the meanwhile, the teachers, with the help of certain anti-social elements and political parties, pressurised the school or their reinstatement. they also caused extensive damage to the school and its properties. therefore, the petitioner filed an application before this court seeking police protection. the same was granted by this court. thereafter, writ petition nos. 9613 to 9616 of 1993 were heard by this court. the direction to the appellate authority was set aside and the matter was remanded for fresh consideration by the appellate authority. even after subsequent remand, the appellate authority, by order dated 5.5.1994 and 11.7.1994 allowed the appeals again and directed re-instatement of the teachers. aggrieved by the order, the petitioners again filed before this court w.p. nos. 10193, 13841, 13853 and 13854 of 1994. when these writ petitions came for arguments, this court observed that the proper remedy of the petitioners is to file appeal under section 24 of the tamil nadu private school regulation act. pursuant to the send, petitioner filed appeals before the tribunal constituted under section 42 of the act. the appeals were numbered as e.a.t.c.m.a. nos. 7 of 1994, 1 of 1995, 2 of 1995, 2 of 1995 and 3 of 1995.5. while preferring the appeals, the petitioner also sought dispensation of deposit of arrears of salary of the four teachers, who had been dismissed, and the which was approved by the c.e.o. the tribunal, by order dated 16.8.1995, dismissed those applications and directed the petitioner to deposit the amount within 15 days. the matter was taken to this court in c.r.p. nos. 2183 to 2190 of 1995. in the civil revision petitions also, c.m. ps. were filed as 12129 to 12137 of 1995 seeking stay of order of the tribunal. this court, by order dated 30.8.1995, granted stay of order of the tribunal, however, subject to the condition that the petitioner should deposit 50% of the arrears of salary before the tribunal on or before 15.9.1995. the petitioner was aggrieved by the order and, therefore, moved a special leave petition before the supreme court as s.l.p. (civil) nos. 20402 to 20409 of 1995. the supreme court passed the following order on 22.9.1995:since the petitioner claims that the entire salary of their staff was being reimbursed by the state government, the petitioner may approach the state government for providing it funds and whenever they are made available to the petitioner, the orders of the high court may be complied with.the petitioner to approach the government within two weeks and the government is required to examine the matter most expeditiously and pass appropriate orders thereon.the s.l. ps. stand dismissed with these directions.pursuant to the direction of the supreme court, petitioner filed a representation before the government on 30.9.1995. in that representation, they said that necessary funds be provided for depositing the arrears of salary before the tribunal.6. by the impugned order, dated 11.4.1996, the government rejected the request relying on section 44 of the act. in that order, the government further said that it is the management and not the government that is liable to pay all the arrears of pay and allowances. according to the government, the entire responsibility is only on the management to pay all the arrears of pay and allowances. the legality of the order is challenged in the writ petition.7. it will first consider the writ petition wherein the legality of the order of the government is questioned. before going to the facts, certain provisions of the tamil nadu recognised private schools (regulation) act, 1973 may be considered. section 2(3) defines 'edu-cational agency. ' it reads thus:2. in this act, unless the context otherwise requires-(1)&(2)...(3) 'educational agency' in relation to(a) any minority school, means any person who, or body of persons which, has established and is administering or proposes to establish and admin-ister such minority school; and(b) any other private school, means any person or body persons permitted or deemed to be permitted under this act to establish and maintain such other private school.in this connection, it may be noted that the petitioner is not a minority school.7. section 2(5) defines 'grant' which means any sum of money paid as aid out of state funds to any private school,' 'private school' is also defined in section 2(7) of that act. (the same is not incorporated). chapter iii of the act deals with 'recognition of private school', and chapter v deals with 'terms and conditions of service of teachers and other persons employed in private schools. ' chapter iii which deals with 'recognition of private school' also deals with payment of grants by government. that is provided in section 14(1) of the act. it says: 'notwithstanding anything contained in this act or in any other law for the time being in force, or in any decree, order or direction of any court or other authority,--(i) no private school shall, only on the ground of having been granted recognition under this act, be entitled to any grant or other financial assistance from the government; (ii) the government may, subject to, (a) the availability of funds; (b) the norms and conditions specified in the grant-in-aid code of tamil nadu education department; (c) the condition that every private school receiving any grant or financial assistance from the government levies and collects from the pupils only such fee, charge or other payment as may be specified by the competent authority, which shall not be in excess of the fee, charge or other payment, levied and collected from the pupils studying in the schools or institutions established and admin-istered or maintained by the state government, or any local authority in the locality'. the relevant portion of that section further says thus: (d) the rules, orders and notifications issued by the government, from time to time; and (e) such other conditions as may be prescribed, pay to the private school grant or other financial assistance at such rate and for such purposes as may be prescribed). (2) the government may withhold permanently or for any specified period the whole or part of any grant referred to in seb-section (1) in respect of any private school,--(i) which does not comply with any of the provisions of this act or any rules made or directions issued thereunder in so far as such provisions, rules or directions are applicable to such private school, or (ii) in respect of which the pay and allowances payable to any teacher or other person employed in such private school are not paid to such teacher or other person in accordance with the provisions of this act or the rules made thereunder, or (iii) which contravenes or fails to comply with any such condition as may be prescribed. (3) before withholding the grant under seb-section (2), the government shall give the educational agency an opportunity of making its representation.8. chapter viii deals with 'general provisions regarding appeal and revision'. section 42 deals with tribunal, and now appeal to be preferred. section 44 deals with 'deposit with the tribunal of pay and allowances of teachers and other persons employed in private schools in certain cases'. it reads thus:44. (1) if the appellate authority referred to in section 23 has, in any appeal under that section against the dismissed or removal or reduction in rank or the termination otherwise of the appointment of any teacher or other person employed in any private school, made an order restoring such teacher or other employee as such, no appeal against the order of such restoration shall be preferred to the tribunal and no appeal (against the order of such restoration), which, under section 25, stands transferred to the tribunal shall be proceeded with by the tribunal unless the educational agency deposits with the tribunal all arrears of pay and allowances due to such teacher or other person from the date of his dismissal or removal or reduction in rank or termination otherwise of his appointment upto the date of deposit, and continues to deposit the pay and allowances due to such teacher or other person until the termination of the proceedings before the tribunal.(2) the deposit under seb-section (1) shall be made within such time and in such manner as may be prescribed.(3) where there is any dispute as to the amount to be deposited under sub-section (1), the tribunal shall, on application made to it either by the edu-cational agency or by such teacher or other per-son, and after making such inquiry as it deems fit, determine summarily the amount to be so depos-ited.(4) if the educational agency fails to deposit the amount as aforesaid, the tribunal shall, unless the educational agency shows sufficient cause to the contrary, stop all further proceedings and make an order directing the educational agency to restore such teacher or other employee as such.(italics supplied)9. learned counsel for the petitioner submitted that in view of the provision of section 44(4)(extracted above), the tribunal is empowered to exempt the educational agency from depositing the pay and allowances of the teachers and also continues deposit if sufficient cause is shown. learned counsel for the petitioner also relied on the decision reported in vivekananda middle school, m.k. puram v. state of tamil nadu : (1983)2mlj280 . in paragraph 5 of the judgment, a division bench of this court considered a similar question and held thus:it is no doubt true that seb-section (4) of section 44 of the act proceeds to say that if the deposit is not made as per seb-section (1) of section 44, the tribunal shall, unless the educational agency shows sufficient cause to the contrary, stop all further proceedings and make an order directing the educational agency to restore such teacher or other employee as such. thus, the aforesaid sub-section contemplates an educational agency showing sufficient cause for not deposition the arrears, in which case the tribunal may permit the said education agency to continue the appeal without the requisite deposit contemplated by section 44(1). this is the interpretation placed on this section by another division bench in the decision in w.a. no. 496 of 1978 referred to already.in that case, the division bench has observed as follows:it may therefore be seen that the legislature it-self has provided that the prescription in section 44(1) regarding the deposit of arrears of salary, allowances, etc., is not a sine qua non of universal application. under seb-section (4) the tribunal has been conferred power to exercise its discretion in the matter of insisting upon the management making of insisting upon the management making the deposit before its appeal under section 24 is barred on merits. 'the bench was of the view that the mandate contained in section 44(1) of the act was not inflexible in nature and that it was open to the tribunal to waive the deposit contemplated by section 44(1) of the act in exercise of its discretion in appropriate cases. 'on the basis of the above decision, learned counsel submitted that in this case proper reasons have been mentioned. at any rate, since it is a fully aided school, it is the duty of the government to pay the arrears of salary. counsel also brought to my notice the directions of the supreme court.10. learned counsel states that since it is a fully aided school, it is the duty of the government to pay the salary and that is why it is not collecting the fees, except as provided under the act. it is further said that when the educational authority approved dis-missal of the four teachers of the school, the grant was also proportionstely reduced. if that be so, it is the duty of the government to pay that amount in case reinstatement is ordered. even if no appeal in filed before the tribunal, and the teacher are reinstated, the obligation is only on the part of the government to pay salary. if that be so, there cannot to any change when a stay is moved, and the act provided for deposit of arrears of salary. the obligation is only on the state and, therefore, the petitioner was entitled to compel the state to pay the amount to it. learned counsel also submitted that even though the writ petition has been filed in the year 1996, till date government has not cared to file any counter. it is further said that section 44(1) compelling the private school to deposit the amount will apply only to schools which pay salary to the teachers and not to schools which are not paying salary.11. one of the teachers whose services were termi-nated also got impleaded at his own request, as second respondent in the writ petition. his counsel was also heard. on going through the relevant provisions of the statute, i find that there is some substance in what the learned counsel for the petitioner says. before the termination, the liability was on the state to pay salary to the teachers. they were terminated from service and it was also approved by the chief educational officer. consequently, the grant was also reduced in proportion to the salary payable to the four teachers. their termination of service was set aside in appeal and they were directed to be reinstated. that means, the earlier order of termination was effaced, at least, temporarily and they were deemed to be in service. the obligation in that case also will be only on the state if 100% grant is given by it. interpretation given by the first respondent to section 44 of the act, according to me, is not correct. true, under the statute, educational agency is being directed to deposit the amount before the appeal is proceeded with. but, when the obligation is not on the educational agency to pay salary, it cannot be made liable to pay arrears of salary as well. in case, there is no appeal preferred and the teachers are reinstated, what will be the legal consequence? the liability is only on the state. merely because they preferred an appeal and moved for stay, the agency cannot be in a worse position. that is why the supreme court said in the s.l.p. that the deposit will be made as did when the state funds are made available. so, to that extent section 44(1) to that extent, section 44 (i) will have to be read down and the educational agency must be made liable when the state funds are made available to pay it for deposit.12. the management has got a right of appeal under section 44 of the act. it has got grievance against cer-tain teachers. according to it, it will not be in the best interest of the institution to permit those teachers to continue in that school. when that grievance was put forward before the appellate authority, they should not be burdened with a further obligation to pay the arrears of salary since anterior to the disciplinary proceedings, they did not have that obligation. if no disciplinary proceedings are initiated, the government is bound to pay. because of some mis-conduct, the agency has taken disciplinary proceedings. that should not be taken as a ground to direct the educational agency to deposit the arrears of salary. that is not contemplated under the statute. obli-gation of the state to pay salary to the teachers whose services have been termination pending appeal continues with the state so long as the petitioner is a 100% aided school.13. the state has no case that the petitioner has not complied with any of the directions of the government nor has violated any rules or notifications, nor has taken any action for withdrawing the grant. under the above circumstances, the rejection of the rep-resentation by the government was not proper. the petitioner is entitled to the remedy sought for by it. the order of the 1st respondent dated 11.4.1996 is quashed and 1 direct the first respondent to provide necessary and adequate funds with the petitioner en-abling it to deposit the arrears of salary of the four teachers who were terminated, till the appeal before the tribunal comes to an end. writ petition no. 8268 of 1996 is allowed to the above extent. there will be no order as to costs.14. in the connected revision petitions, the grievance of the petitioner is that the tribunal has not exercised the power under section 44(4) of the act. when power is given to the tribunal to exempt the petitioner from depositing the arrears, if sufficient cause is shown, it has not been exercised by it, is the grievance of the petitioner. while disposing of the writ petition, i have already said that the educational agency cannot be burdened with the liability of depositing the arrears of salary, nor is it under any obligation to pay salary. the government did not provide the necessary funds and that is sufficient cause and the tribunal ought to have dispensed with the petitioner from depositing the salary as contemplated under section 44(4) of the act. now that the government has refused or rejected the representation of the petitioner, there cannot be a further obligation on the part of the educational agency to deposit the arrears of salary. i find that sufficient cause has been made out by the petitioner for not depositing the amount. the exemption petiti6n filed by the petitioner ought to have been allowed. i make it clear that the civil revision petitions are allowed, and the petitioner school is exempted from depositing the arrears of salary and also from contin-ued deposit, till the appeal before the tribunal comes to an end. but i make it clear that if before termination of the appeal before the tribunal, the government provides necessary and adequate funds for deposit of the salary, the petitioner, on receipt of the same, shall deposit the amount before the tribunal. 15. i further make it clear that the order in the c.r.p. will not stand in the way of the tribunal disposing of the appeal on merits. it is in the best interest of both parties, the appeal may be disposed of as early as possible, and i am sure, the tribunal will take such steps for the said purpose. there will be no order as to cost in these revision petition.

Judgment:
ORDER

S.S. Subramani, J.

1. Secretary, Ulagappar Higher Secondary School, Ramachandrapuram, Pudukottai District, is the petitioner in all the revision petitions and writ petition.

2. Facts which are common to all these cases may be stated as follows:

The School represented by Secretary stated that the same was started as a High School and later upgraded as a Higher Secondary School in the year 1986. Origi-nally the School was a fee-levying school, receiving twothird grand upto the year 1964, but subsequently it became 100% Government aided School from 1964-65 on the introduction of Free Education System. The School was governed by the Madras Educational Rules till the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules, 1974 were enacted. It is further stated that on 23.10.1991, four teaches of the School committed grave acts of misconduct and, therefore, enquiry was conducted by a duly constituted School Committee, and based on its Report, to terminate the services of the four teachers, petitioner submitted an application dated 13.5.1982 under Section 22(2) of the Tamil Nadu Private School (Regulation) Act to the Chief Educational Officer, Pudukkottai seeking approval for the termination of the services of the four teachers. Records pertaining to misconduct and the entire records pertaining to enquiry were also submitted to the Chief Educational Officer. The C.E.O., by proceedings dated 26.8.1992, granted approval for the termination of the services of the four teachers. In pursuance of the approved granted by the C.E.O., petitioner also terminated the services of the four teachers with effect from 1.9.1992.

3. The dismissed teachers preferred appeals under Section 23 of the Tamil Nadu Private School (Regulation) Act, challenging the termination of the services. The Appellate Authority granted stay of the termination. The order of stay was challenged before this Court in W.P. Nos. 17191 to 17194 of 1992. this Court allowed the writ petitions and directed the Appellate Authority to dispose of the Appeals within four weeks.

4. After direction by this Court, as per Orders dated 29.4.1993 and 4.5.1993, the Appellate Authority allowed the appeals on a technical ground. The matter was again challenged before this Court in W.P. Nos. 9613 to 9616 of 1993. In the meanwhile, the teachers, with the help of certain anti-social elements and political parties, pressurised the school or their reinstatement. They also caused extensive damage to the school and its properties. Therefore, the petitioner filed an application before this Court seeking police protection. The same was granted by this Court. Thereafter, Writ Petition Nos. 9613 to 9616 of 1993 were heard by this Court. The direction to the Appellate Authority was set aside and the matter was remanded for fresh consideration by the Appellate Authority. Even after subsequent remand, the Appellate Authority, by Order dated 5.5.1994 and 11.7.1994 allowed the appeals again and directed re-instatement of the teachers. Aggrieved by the order, the petitioners again filed before this Court W.P. Nos. 10193, 13841, 13853 and 13854 of 1994. When these writ petitions came for arguments, this Court observed that the proper remedy of the petitioners is to file appeal under Section 24 of the Tamil Nadu Private School Regulation Act. Pursuant to the send, petitioner filed appeals before the Tribunal constituted under Section 42 of the Act. The appeals were numbered as E.A.T.C.M.A. Nos. 7 of 1994, 1 of 1995, 2 of 1995, 2 of 1995 and 3 of 1995.

5. While preferring the appeals, the petitioner also sought dispensation of deposit of arrears of salary of the four teachers, who had been dismissed, and the which was approved by the C.E.O. The Tribunal, by Order dated 16.8.1995, dismissed those applications and directed the petitioner to deposit the amount within 15 days. The matter was taken to this Court in C.R.P. Nos. 2183 to 2190 of 1995. In the civil revision petitions also, C.M. Ps. were filed as 12129 to 12137 of 1995 seeking stay of Order of the Tribunal. this Court, by Order dated 30.8.1995, granted stay of Order of the Tribunal, however, subject to the condition that the petitioner should deposit 50% of the arrears of salary before the Tribunal on or before 15.9.1995. The petitioner was aggrieved by the order and, therefore, moved a special leave petition before the Supreme Court as S.L.P. (Civil) Nos. 20402 to 20409 of 1995. The Supreme Court passed the following Order on 22.9.1995:

Since the petitioner claims that the entire salary of their staff was being reimbursed by the State Government, the petitioner may approach the State Government for providing it funds and whenever they are made available to the petitioner, the orders of the High Court may be complied with.

The petitioner to approach the Government within two weeks and the Government is required to examine the matter most expeditiously and pass appropriate orders thereon.

The S.L. Ps. stand dismissed with these directions.

Pursuant to the direction of the Supreme Court, petitioner filed a representation before the Government on 30.9.1995. In that representation, they said that necessary funds be provided for depositing the arrears of salary before the Tribunal.

6. By the impugned Order, dated 11.4.1996, the Government rejected the request relying on Section 44 of the Act. In that Order, the Government further said that it is the Management and not the Government that is liable to pay all the arrears of pay and allowances. According to the Government, the entire responsibility is only on the management to pay all the arrears of pay and allowances. The legality of the order is challenged in the writ petition.

7. It will first consider the writ petition wherein the legality of the Order of the Government is questioned. Before going to the facts, certain provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 may be considered. Section 2(3) defines 'edu-cational agency. ' It reads thus:

2. In this Act, unless the context otherwise requires-

(1)&(2)...

(3) 'educational agency' in relation to

(a) any minority school, means any person who, or body of persons which, has established and is administering or proposes to establish and admin-ister such minority school; and

(b) any other private school, means any person or body persons permitted or deemed to be permitted under this Act to establish and maintain such other private school.

In this connection, it may be noted that the petitioner is not a minority school.

7. Section 2(5) defines 'grant' which means any sum of money paid as aid out of State Funds to any private school,' 'Private School' is also defined in Section 2(7) of that Act. (The same is not incorporated). Chapter III of the Act deals with 'Recognition of Private School', and Chapter V deals with 'Terms and conditions of service of teachers and other persons employed in Private Schools. ' Chapter III which deals with 'Recognition of Private School' also deals with payment of grants by Government. That is provided in Section 14(1) of the Act. It says: 'Notwithstanding anything contained in this Act or in any other law for the time being in force, or in any decree, order or direction of any court or other authority,--(i) no Private school shall, only on the ground of having been granted recognition under this Act, be entitled to any grant or other financial assistance from the Government; (ii) the Government may, subject to, (a) the availability of funds; (b) the norms and conditions specified in the Grant-in-aid Code of Tamil Nadu Education Department; (c) the condition that every private school receiving any grant or financial assistance from the Government levies and collects from the pupils only such fee, charge or other payment as may be specified by the competent authority, which shall not be in excess of the fee, charge or other payment, levied and collected from the pupils studying in the schools or institutions established and admin-istered or maintained by the State Government, or any local authority in the locality'. The relevant portion of that Section further says thus: (d) the rules, orders and notifications issued by the Government, from time to time; and (e) such other conditions as may be prescribed, pay to the private school grant or other financial assistance at such rate and for such purposes as may be prescribed). (2) The Government may withhold permanently or for any specified period the whole or part of any grant referred to in Seb-section (1) in respect of any private school,--(i) which does not comply with any of the provisions of this Act or any rules made or directions issued thereunder in so far as such provisions, rules or directions are applicable to such private school, or (ii) in respect of which the pay and allowances payable to any teacher or other person employed in such private school are not paid to such teacher or other person in accordance with the provisions of this Act or the rules made thereunder, or (iii) which contravenes or fails to comply with any such condition as may be prescribed. (3) Before withholding the grant under Seb-section (2), the Government shall give the educational agency an opportunity of making its representation.

8. Chapter VIII deals with 'General provisions regarding appeal and revision'. Section 42 deals with tribunal, and now appeal to be preferred. Section 44 deals with 'Deposit with the Tribunal of Pay and Allowances of teachers and other persons employed in Private schools in certain cases'. It reads thus:

44. (1) If the appellate authority referred to in Section 23 has, in any appeal under that section against the dismissed or removal or reduction in rank or the termination otherwise of the appointment of any teacher or other person employed in any private school, made an order restoring such teacher or other employee as such, no appeal against the order of such restoration shall be preferred to the Tribunal and no appeal (against the order of such restoration), which, under Section 25, stands transferred to the Tribunal shall be proceeded with by the Tribunal unless the educational agency deposits with the Tribunal all arrears of pay and allowances due to such teacher or other person from the date of his dismissal or removal or reduction in rank or termination otherwise of his appointment upto the date of deposit, and continues to deposit the pay and allowances due to such teacher or other person until the termination of the proceedings before the Tribunal.

(2) The deposit under Seb-section (1) shall be made within such time and in such manner as may be prescribed.

(3) Where there is any dispute as to the amount to be deposited under Sub-section (1), the Tribunal shall, on application made to it either by the edu-cational agency or by such teacher or other per-son, and after making such inquiry as it deems fit, determine summarily the amount to be so depos-ited.

(4) If the educational agency fails to deposit the amount as aforesaid, the Tribunal shall, unless the educational agency shows sufficient cause to the contrary, stop all further proceedings and make an order directing the educational agency to restore such teacher or other employee as such.

(Italics supplied)

9. Learned Counsel for the petitioner submitted that in view of the provision of Section 44(4)(extracted above), the Tribunal is empowered to exempt the educational agency from depositing the pay and allowances of the teachers and also continues deposit if sufficient cause is shown. Learned Counsel for the petitioner also relied on the decision reported in Vivekananda Middle School, M.K. Puram v. State of Tamil Nadu : (1983)2MLJ280 . In paragraph 5 of the judgment, a Division Bench of this Court considered a similar question and held thus:

It is no doubt true that Seb-section (4) of Section 44 of the Act proceeds to say that if the deposit is not made as per Seb-section (1) of Section 44, the Tribunal shall, unless the educational agency shows sufficient cause to the contrary, stop all further proceedings and make an order directing the educational agency to restore such teacher or other employee as such. Thus, the aforesaid sub-section contemplates an educational agency showing sufficient cause for not deposition the arrears, in which case the Tribunal may permit the said education agency to continue the appeal without the requisite deposit contemplated by Section 44(1). This is the interpretation placed on this section by another Division Bench in the decision in W.A. No. 496 of 1978 referred to already.

In that case, the Division Bench has observed as follows:

It may therefore be seen that the Legislature it-self has provided that the prescription in Section 44

(1) regarding the deposit of arrears of salary, allowances, etc., is not a sine qua non of universal application. Under Seb-section (4) the Tribunal has been conferred power to exercise its discretion in the matter of insisting upon the management making of insisting upon the management making the deposit before its appeal under Section 24 is barred on merits. '

The Bench was of the view that the mandate contained in Section 44(1) of the Act was not inflexible in nature and that it was open to the Tribunal to waive the deposit contemplated by Section 44(1) of the Act in exercise of its discretion in appropriate cases. '

On the basis of the above decision, learned Counsel submitted that in this case proper reasons have been mentioned. At any rate, since it is a fully aided School, it is the duty of the Government to pay the arrears of salary. Counsel also brought to my notice the directions of the Supreme Court.

10. Learned Counsel states that since it is a fully Aided School, it is the duty of the Government to pay the salary and that is why it is not collecting the fees, except as provided under the Act. It is further said that when the educational authority approved dis-missal of the four teachers of the school, the grant was also proportionstely reduced. If that be so, it is the duty of the Government to pay that amount in case reinstatement is ordered. Even if no appeal in filed before the Tribunal, and the teacher are reinstated, the obligation is only on the part of the Government to pay salary. If that be so, there cannot to any change when a stay is moved, and the Act provided for deposit of arrears of salary. The obligation is only on the State and, therefore, the petitioner was entitled to compel the State to pay the amount to it. Learned Counsel also submitted that even though the writ petition has been filed in the year 1996, till date Government has not cared to file any counter. It is further said that Section 44(1) compelling the private school to deposit the amount will apply only to schools which pay salary to the teachers and not to schools which are not paying salary.

11. One of the teachers whose services were termi-nated also got impleaded at his own request, as second respondent in the writ petition. His counsel was also heard. On going through the relevant provisions of the statute, I find that there is some substance in what the learned Counsel for the petitioner says. Before the termination, the liability was on the State to pay salary to the teachers. They were terminated from service and it was also approved by the Chief Educational Officer. Consequently, the grant was also reduced in proportion to the salary payable to the four teachers. Their termination of service was set aside in appeal and they were directed to be reinstated. That means, the earlier order of termination was effaced, at least, temporarily and they were deemed to be in service. The obligation in that case also will be only on the State if 100% grant is given by it. Interpretation given by the first respondent to Section 44 of the Act, according to me, is not correct. True, under the Statute, educational agency is being directed to deposit the amount before the appeal is proceeded with. But, when the obligation is not on the educational agency to pay salary, it cannot be made liable to pay arrears of salary as well. In case, there is no appeal preferred and the teachers are reinstated, what will be the legal consequence? The liability is only on the State. Merely because they preferred an appeal and moved for stay, the agency cannot be in a worse position. That is why the Supreme Court said in the S.L.P. that the deposit will be made as did when the State Funds are made available. So, to that extent Section 44(1) to that extent, Section 44 (i) will have to be read down and the educational agency must be made liable when the State funds are made available to pay it for deposit.

12. The Management has got a right of appeal under Section 44 of the Act. It has got grievance against cer-tain teachers. According to it, it will not be in the best interest of the Institution to permit those teachers to continue in that School. When that grievance was put forward before the Appellate Authority, they should not be burdened with a further obligation to pay the arrears of salary since anterior to the disciplinary proceedings, they did not have that obligation. If no disciplinary proceedings are initiated, the Government is bound to pay. Because of some mis-conduct, the agency has taken disciplinary proceedings. That should not be taken as a ground to direct the educational agency to deposit the arrears of salary. That is not contemplated under the statute. Obli-gation of the State to pay salary to the teachers whose services have been termination pending appeal continues with the state so long as the petitioner is a 100% aided school.

13. The State has no case that the petitioner has not complied with any of the directions of the Government nor has violated any Rules or notifications, nor has taken any action for withdrawing the grant. Under the above circumstances, the rejection of the rep-resentation by the Government was not proper. The petitioner is entitled to the remedy sought for by it. The Order of the 1st respondent dated 11.4.1996 is quashed and 1 direct the first respondent to provide necessary and adequate funds with the petitioner en-abling it to deposit the arrears of salary of the four teachers who were terminated, till the appeal before the Tribunal comes to an end. Writ Petition No. 8268 of 1996 is allowed to the above extent. There will be no order as to costs.

14. In the connected revision petitions, the grievance of the petitioner is that the Tribunal has not exercised the power under Section 44(4) of the Act. When power is given to the Tribunal to exempt the petitioner from depositing the arrears, if sufficient cause is shown, it has not been exercised by it, is the grievance of the petitioner. While disposing of the writ petition, I have already said that the educational agency cannot be burdened with the liability of depositing the arrears of salary, nor is it under any obligation to pay salary. The Government did not provide the necessary funds and that is sufficient cause and the Tribunal ought to have dispensed with the petitioner from depositing the salary as contemplated under Section 44(4) of the Act. Now that the Government has refused or rejected the representation of the petitioner, there cannot be a further obligation on the part of the educational agency to deposit the arrears of salary. I find that sufficient cause has been made out by the petitioner for not depositing the amount. The exemption petiti6n filed by the petitioner ought to have been allowed. I make it clear that the civil revision petitions are allowed, and the petitioner school is exempted from depositing the arrears of salary and also from contin-ued deposit, till the appeal before the Tribunal comes to an end. But I make it clear that if before termination of the appeal before the Tribunal, the Government provides necessary and adequate funds for deposit of the salary, the petitioner, on receipt of the same, shall deposit the amount before the Tribunal. 15. I further make it clear that the order in the C.R.P. will not stand in the way of the Tribunal disposing of the appeal on merits. It is in the best interest of both parties, the appeal may be disposed of as early as possible, and I am sure, the Tribunal will take such steps for the said purpose. There will be no order as to cost in these revision petition.