Statutory protection under Section 8(2) of the DSEA is only available to employees who were legally appointed and fulfilled the requisite eligibility criteria at the time of recruitment.
In a judgment passed in Appeal No. 15/2020 — Anthony BD Costa vs. The Indian School & Ors. — the Delhi School Tribunal decided that the statutory protection under Section 8(2) of the Delhi School Education Act (DSEA), 1973, which mandates prior approval from the Director of Education (DOE) before terminating an employee, is only available to those who were legally and properly appointed and fulfilled the requisite eligibility criteria (such as age and educational qualifications) at the time of recruitment.
The Tribunal held that an appointment made de hors the rules — such as hiring a candidate who is overaged or lacks recognised degrees — is void ab initio, and disengaging such an individual does not require prior DOE sanction because an illegal appointment cannot grant the appointee the right to invoke statutory protection.
Rule 46 and Discontinuance of Subjects
Additionally, the judgment clarifies that Rule 46 of the Delhi School Education Rules (DSER), which requires prior approval for closing a school or a "class", does not apply to the discontinuance of a specific subject or an optional co-curricular activity like Western Music.
Therefore, a school management committee has the prerogative to discontinue a subject due to valid logistical reasons, such as space constraints, and declare the associated staff surplus without seeking prior administrative approval, provided the staff members are unqualified for other regular posts.