Research › Search › Judgment

Delhi High Court · body

2005 DIGILAW 71 (DEL)

SUMANJIT KAUR v. N. C. T. OF DELHI

2005-01-20

VIKRAMAJIT SEN

body2005
VIKRAMAJIT SEN, J. ( 1 ) CM 707/2005 Allowed. W. P. (C) 250-251/2004 ( 2 ) ( 3 ) THE Petitioners have had to eke out a living for the last four years on 5% of their salary as released to them by the School as its contribution. The Petitioners have not been paid their entire salary because the 95% component being the grant-in-aid has not been released to the Khalsa Middle School (hereinafter referred to as the school ) by the Directorate of Education. The Petitioners had appeared before the Selection Committee of the School held on 18. 11. 2000 at which government nominees were present. Uncontrovertedly the School is a recognized aided minority educational institution run by khalsa Educational Society. The signatures of the Vice Principal, GBSS, School No. 2, Sarojini nagar, being the Government nominee, is available on the Minutes of that Meeting as well as on the next one, at which these Minutes had been confirmed. It is presently contended by Ms. Zubeda Begum that this government nominee had been appointed in respect of the Managing Committee and not the Selection Committee, although this submission has not been specifically pleaded in the Counter Affidavit on behalf of the respondent Nos. 1 and 2. Even if this is so, it makes no appreciable difference for the reason that on 16. 02. 2001, the School had duly informed the Directorate of Education by letter of even date dispatched by Registered a. D. post of the appointment of the petitioners, namely, Ms. Sumanjit Kaur and ms. Kawaljit Kaur. At the hearing held in the morning, it had been categorically denied that any such information had been received in the Directorate of Education. The matter had, therefore, been passed over to the post- lunch session. The requisite records of the school have been produced and the asseverations on behalf of the School are correct. It does not behove the Directorate of Education to make false and misleading statements. ( 4 ) HAVING received information of the selection of the two Petitioners on or about 16. 02. 2001, the provisions of Rule 98 (iii) and (iv) of the Delhi School Education Rules, 1973 (hereinafter referred to as the dse Rules ) immediately come into operation. Sub Rule (iii) thereof has been complied with on 16. 2. 2001 by the Management. 02. 2001, the provisions of Rule 98 (iii) and (iv) of the Delhi School Education Rules, 1973 (hereinafter referred to as the dse Rules ) immediately come into operation. Sub Rule (iii) thereof has been complied with on 16. 2. 2001 by the Management. Sub Rule (iv) thereof prescribes that the Director shall be deemed to have approved an appointment made by the Managing committee of an aided school if within 15 days from the date on which the particulars of the appointment are communicated to him under Sub Rule (iii), he does not intimate to the Managing Committee his disapproval of the appointment. The School has repeatedly been reminding and pleading with the Director to clear the grant-in-aid in respect of the salaries of these two teachers but has failed to evoke any response. No reply has been sent by the Directorate. Previously, a civil action had to be initiated by the School because the Directorate of Education had failed to pay the salary of Ms. Amarjit Kaur who was the Head-Mistress of the School. It is common knowledge that educational standards in Government schools do not match with those of schools run by private bodies. The State owes a responsibility and duty to every citizen to provide education. Unfortunately, where public spirited persons get together and form a society with the object of running educational institutions for the public, more often than not the directorate obdurately places obstacles in their avocation. The time that these persons devote not only tests their patience and commitment but dissipates money, time and energy which can be put to other productive pursuits. Mr. Harjinder Singh, who is the president of the School, states that no fees are charged from any of the students and so far as the 5% society contribution is concerned, it is drawn entirely from charitable contribution. ( 5 ) IN these proceedings the Directorate of education has raised the objection that the school is not following the Memorandum dated 07. 12. 2001 and is not complying with the order dated 09. 01. 2001, which enjoins the compliance with the Roster System i. e. appointment of Scheduled Castes and Scheduled tribes Teachers. The Order is reproduced for facility of easy reference. Attention has also been drawn to the Memorandum dated 07. 12. 2001 which is extracted for the same reason. GOVT. 12. 2001 and is not complying with the order dated 09. 01. 2001, which enjoins the compliance with the Roster System i. e. appointment of Scheduled Castes and Scheduled tribes Teachers. The Order is reproduced for facility of easy reference. Attention has also been drawn to the Memorandum dated 07. 12. 2001 which is extracted for the same reason. GOVT. OF NATIONAL CAPITAL territory OF DELHI DIRECTORATE of EDUCATION OLD SECRETARIAT, delhi-54. No. F. DE. 23 (18)/sch/pb (A)/98/34-333 dated 09-01-2001 order subject: Clearance for filling up posts in aided schools. In partial modification of letter NO. F. DE. 23 (18)/sch/pb (A)/98/6178-6487 dated 28. 8. 2000 issued on the subject cited above, it is hereby directed that (i) The directions contained in letter no. F. DE. 23 (18)/sch/pb (A)98/6178 - 6487 dated 28. 8. 2000 shall not (NOT) be applicable for filling up of the posts of Principal and Vice-Principal in the school by promotion. Approval be obtained in individual cases. (ii) Clearance for filling up the vacant posts other than those of Principal and vice-Principal by direct recruitment, shall continue to be granted by the concerned DDE s (District) provided these are incorporated in post fixation for 2000-2001. (iii) Provisions of roster system shall be adhered strictly. These orders came in force with effect from 01. 01. 2001. Sd/- (S. C. PODDAR) director OF EDUCATION govt. OF NATIONAL CAPITAL territory OF DELHI DIRECTORATE of EDUCATION OLD SECRETARIAT, delhi-54. No. F. DE. /act/299/2001/8201-8300 dated 7/12/2001 memorandum attention of all the managers of all aided minority schools, linguistic as well as religious, is invited to rule 64 (l) (b) of the Delhi School Education Rules, 1973 whereunder it is obligatory for all aided schools including minority schools to fill in the posts in the school with the scheduled Caste and Scheduled Tribe candidates in accordance with the instructions issued by the Central government from time to time and maintain the prescribed roster and other connected returns. Attention is also invited to rules 96 (3a) and 98 (2) of DSE Rules, 1973 where under the selection and appointment of e ployees in aided minority schools is solely under the control of the school authorities and the government nominees are to act only as advisors. Attention is also invited to rules 96 (3a) and 98 (2) of DSE Rules, 1973 where under the selection and appointment of e ployees in aided minority schools is solely under the control of the school authorities and the government nominees are to act only as advisors. The School authorities of aided minority schools, therefore, are entirely responsible to ensure that no violation of statutory provisions and instructions of the government in this regard takes place and they have to ensure that the posts in schools are reserved for scheduled Caste/scheduled Tribe and other Backward Classes and filled up according to the instructions on the subject and the prescribed roster and returns are maintained. Sd/- (GYANENDRA SRIVASTAVA) director OF EDUCATION ( 6 ) SO far as the Memorandum is concerned, it takes note of the correct position of law as enunciated in the catena of judgments of the Hon ble Supreme Court and various High courts. Very recently, in Brahmo Samaj education Society Vs. State of W. B. , (2004) 6 Supreme Court Cases 224, it has been reiterated that Government nominees are only advisers in the matter of appointment of employees in aided minority schools is concerned. The opening words in the second paragraph of the Memorandum dated 7. 12. 2001 is in consonance with these observations and thus reflect the correct position. Thereafter, the Directorate has articulated a position which is unsustainable in law, viz. that minority schools must also ensure that the posts in aided minority schools that are reserved for SC/st and other backward classes are filled up by candidates drawn from these categories. 12. 2001 is in consonance with these observations and thus reflect the correct position. Thereafter, the Directorate has articulated a position which is unsustainable in law, viz. that minority schools must also ensure that the posts in aided minority schools that are reserved for SC/st and other backward classes are filled up by candidates drawn from these categories. ( 7 ) AS far back as the rendering of the advisory opinion of the Apex Court in the case reported as In Re The Kerela education Bill, AIR 1958 SC 956 six learned judges of the Hon ble Supreme Court had expressed the view that merely because an institution receives grant in aid, it does not abdicate its minority rights enshrined in Article 30 of the Constitution, which position has been reiterated by the Hon ble Supreme Court in the Brahmo Samaj case (supra) where that case the Hon ble Chief Justice of India has observed as follows:- "6 The question now before us is to decide whether the appointment of teachers in an aided institution by the college Service Commission by restricting the petitioners right to appointment is a reasonable restriction in the interest of general public or not The petitioners have a right to establish and administer educational institution Merely because the petitioners are receiving and, their autonomy of administration cannot be totally restricted and institutions cannot be treated as a government-owned one Of course the State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration It is stated in T M A pal that while giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State The merit may be determined either through a common entrance test conducted by the university or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions-the method to be followed is for the university or the government to decide The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit In the case of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society once aid is granted to a private professional educational institution, the government or the State agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution The State, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the State The state would also be under an obligation to protect the interest of the teaching and non teaching staff In many States, there are various statutory provisions to regulate the functioning of such educational institutions where the states give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non teaching staff It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service conditions The State, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same Ever since in Kerala Education Bill, 1957, this Court has upheld, in the case of aided institutions, those regulations that served the interests of students and teachers Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institutions In other words, rules and regulations that promote good administration and prevent maladministration can be formulated so as to promote the efficiency of teachers, discipline and fairness in administration and to preserve harmony among affiliated institutions At the same time it has to be ensured that even an aided institution does not become a government-owned and controlled institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In addition, the management of the private aided institutions has to incur revenue and capital expenses. Such aided institutions cannot obtain that extent of autonomy in relation to management and administration as would be available to a private unaided institution, but at the same time, it cannot also be treated as an educational institution departmentally run by Government or as a wholly owned and controlled government institution and interfere with constitution of the governing bodies or thrusting the staff without reference to management. 73. There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the State. Although these institutions may have been established by philanthropists or other public-spirited persons, it becomes necessary, in order to provide inexpensive education to the students, to seek aid from the state,. In such cases, as those of the professional aided institutions referred to hereinabove, the Government would be entitled to make regulations relating to the terms and conditions, of employment of the teaching and non- teaching staff whenever the aid for the posts is given by the State as well as admission procedures. Such rules and regulations can also provide for the reasons and the manner in which a teacher or any other member of the staff can be removed. In other words, the autonomy of a private aided institution would be less than that of unaided institution. 7. But that control cannot extend to the day-today administration of the institution. It is categorically stated in T. M. A. Pai that the state can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. The State can very well provide the basic qualification for teachers. Under the University Grants Commission Act, 1956 the University Grants Commission (UGC) had laid down qualifications to a teaching post in a university by passing Regulations. As per these regulations UGC conducts National Eligibility test (NET) for determining teaching eligibility of candidates. UGC has also authorised accredited States to conduct State-Level eligibility TEST (SLET ). Under the University Grants Commission Act, 1956 the University Grants Commission (UGC) had laid down qualifications to a teaching post in a university by passing Regulations. As per these regulations UGC conducts National Eligibility test (NET) for determining teaching eligibility of candidates. UGC has also authorised accredited States to conduct State-Level eligibility TEST (SLET ). Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification for a teacher. The petitioners right to administer includes the right to appoint teachers of their choice among the NET-/ slet-qualified candidates. ( 8 ) IN Re The Kerala Education Bill, 1957, air 1958 SC 956 , was decided by the constitution Bench of the Hon ble Supreme court almost half a century ago. It had been laid down that the minority community has the right to establish and administer educational institutions as also the right to receive State aid. This aid cannot be hedged with the insistence on adherence to conditions which abridge the rights protected by Article 30 of the Constitution. Only such conditions may be imposed as are calculated to maintain educational standards and ensure proper administration. This decision was relied upon by the Constitution Bench in Sidraj Bhai Vs. State of Gujarat, AIR 1963 SC 540 in the following passage: 15. The right established by Art. 30 (1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art. 19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institutions, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art. 30 (1) will be but a "teasing illusion", a promise of unreality. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art. 30 (1) will be but a "teasing illusion", a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual testthe test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. 16. We are, therefore, of the view that the R. 3 (2) of the Rules for Primary training Colleges, and Rr. 11 and 14 for recognition of Private Training institutions, in so far as they relate to reservation of seats therein under orders of government, and directions given pursuant thereto regarding reservation of 80% of the seats and the threat to withhold grant-in-aid and recognition of the College, infringe the fundamental freedom guaranteed to the petitioners under Art. 30 (1 ). ( 9 ) IN Khan Abdul Hamid Abdul Rasak vs. Mohamad Haji Sabbo Saddik polytechnic and others, AIR 1985 Bombay 394, the Bench comprising Justices H. M. Kania and S. P. Kurdukar, as their Lordships then were, held that a Regulation which prescribes a certain percentage of reservation of seats for backward classes or Scheduled Tribes, while it may be in public interest, cannot be regarded as conducive to the improvement of the quality of the education imparted in a minor institution, and was therefore could be unconstitutional. It seems to me that teachers drawn from the SC and ST and OBC categories may not subscribe to or even sympathise with the beliefs of the minority community concerned, and therefore having them on the Faculty would undermine those interests. ( 10 ) THE Full Bench of the Kerala High Court in Aido Maria Patroni and another Vs. It seems to me that teachers drawn from the SC and ST and OBC categories may not subscribe to or even sympathise with the beliefs of the minority community concerned, and therefore having them on the Faculty would undermine those interests. ( 10 ) THE Full Bench of the Kerala High Court in Aido Maria Patroni and another Vs. E. G. Kasavan and others, AIR 1965 Kerala 75 had observed that the right to choose the headmaster was perhaps the most important facet of the right of the minority community to administer a school, and so long as such a person possesses the educational criteria required for a Headmaster the State was not justified to object to the appointment on the grounds that he was junior to others. The Division Bench of that Court in Manager corporate E. Agency Vs. State of Kerala, 1990 (2) KLT 240 has taken the same view, (see also AIR 1990 Kerala 356 ). ( 11 ) THE Hon ble Supreme Court in Miss shainda Hasan Vs. State of Uttar Pradesh and Ors. , JT 1990 (2) SC 178 had given its imprimatur to a Muslim minority institution prescribing that the Principal should be a muslim. The Division Bench of this Court in s. S, Jain Sabha (of Rawalpindi) Delhi and others Vs. Union of India and Others, ILR (1976) II DELHI 61, has recognised that the right of a minority community to administer its own school includes the right to form its own Managing Committee, its own Committee for selection of its employees and its own disciplinary Authority, and the State may orly promulgate regulations in the interests of the efficiency of their functioning. A minority community running an institution is entitled to have as the medium of instruction any language which it deems to be best suited to conserve its culture (see State of bombay Vs. Bombay Education Society and others, AIR, 1954 SC 561 and Shri krishna Rangnath Mudholkar Vs. Gujarat university and others, AIR 1962 Gujarat 88 ). ( 12 ) IN Lilly Kurian Vs. Sr. Lewina and others, AIR 1979 SC 52 , the Constitution bench reiterated the view that - "protection of the minorities is an article of faith in the constitution of India. The right to the administration of institutions of minority s choice enshrined in Article 30 (1) means management of the affairs of the institution. Sr. Lewina and others, AIR 1979 SC 52 , the Constitution bench reiterated the view that - "protection of the minorities is an article of faith in the constitution of India. The right to the administration of institutions of minority s choice enshrined in Article 30 (1) means management of the affairs of the institution. This right is, however, subject to the regulatory power of the State. Article 30 (1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified by pleading the interest of the general public; the interests justifying interference can only be the interests of the minority concerned. " ( 13 ) IN Frank Anthony Public School employees Association Vs. Union of India and others, AIR 1987 SC 311 the Court emphasised that the rights protected under article 30 of the Constitution does not preclude the State from imposing restrictions calculated to eradicating maladministration. The Apex Court had thus indirectly pronounced that there is no justifiable reason to introduce a dichotomy within minority educational institutions viz. aided and unaided ones. In that very judgment, however, the following passage from in Re The Kerala education Bill case (supra) was reproduced- "no educational institution can in actual practice be carried on without aid from the state and if they will not get it unless they surrender their rights they will, by compulsion of financial necessities, be compelled to give up their rights under Art. 30 (1 ). the legislative powers conferred on the legislatures of the states by Arts. 245 and 246 are subject to the other provisions of the Constitution and certainly to the provisions of Part III which confers fundamental rights which are, therefore, binding on the State legislature. The State legislature cannot, it is clear, disregard or override those provisions merely by employing indirect methods of achieving exactly the same result. Even the Legislature cannot do indirectly what it certainly cannot do directly" ( 14 ) THE constitutional validity of the respondents requirement of engaging teachers belonging to Schedule Caste and scheduled Tribes and Other Backward Classes has not been raised in this petition. Even the Legislature cannot do indirectly what it certainly cannot do directly" ( 14 ) THE constitutional validity of the respondents requirement of engaging teachers belonging to Schedule Caste and scheduled Tribes and Other Backward Classes has not been raised in this petition. However, in view of the above discussion such regulation would be unconstitutional since they are likely to interfere with the choice of the medium of instruction as well as the minority character of the institution by compelling the appointment to the teaching faculty of persons who may be inimical towards that minority community. In view of the above observations and aspects mentioned in the numerous Judgment of the hon ble Supreme Court dealing with this issue, the Order dated 09. 01. 2001 stating that the provisions of the Roster System should be adhered strictly and the Memorandum dated 07. 12. 2001 may not be in consonance with the Constitution of India. The Directorate of education ought not to insist on this requirement. This writ petition, however, can be disposed of on the ground that the respondents must be deemed to have granted approval to the appointment of the pet tioners and hence a discussion on the constitutional validity of the insistence of the directorate of Education on engaging scheduled Caste/scheduled Tribe and OBC teachers need not be gone into in any further detail. ( 15 ) KEEPING in view the fact that School had earlier been constrained to file a Civil Suit in respect of the salary of Ms. Amarjit Kaur, no conclusion can be arrived at other than that the Directorate has willfully failed to pay their contribution of 95%. If they had any objections to the appointment of the petitioners, these should have been recorded in writing within fifteen days of the letter dated 16. 02. 2001. Since this has not been done, its approval is deemed to have been accorded. This petition is allowed and the respondent-Directorate is directed to pay their 95% contribution towards the salary of the Petitioners within two weeks from today. The Petitioners shall be entitled to the costs of Rs. 10,000/-, payable by Respondents No 1 and 2. .