Delhi High Court
St. Anthony'S Girls Senior Sec. School ... vs Govt. Of Nct Of Delhi And Ors. on 23 May, 2005
Equivalent citations: 121(2005)DLT230
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT
1. Rule.
2. With the consent of parties the matter is taken up for final disposal.
3. The facts of the case are that the Petitioner had conveyed to the Education Officer the Constitution of a Staff Selection Committee for the purpose of filling up four vacancies, that is, for PGT (Chemistry), TGT (Hindi), TGT (Science) and PET by letter dated 7.1.2004. In response thereto the names of nominees of the Directorate in respect of three of the posts were indicated by the Education Officer by its letter dated 26.2.2004. The fact that there was no nominee for all the four posts is directly borne out from the Order dated 30.1.2004 which reads as follows:
ORDER Consequent upon the approval of Director of Education, Delhi Mr. Mumuthavalli, TGT(Sc) presently working at DTEA Sr. Sec School, Lodhi Estate, New Delhi under zone 26, Distt. Central/N. Delhi is hereby adjusted against the vacant post of TGT(Sc) at St. Anthony's Girls Sr. Sec. School, Paharganj, New Delhi with immediate effect. However, she will draw salary from her present school as usual.
4. The challenge has also been laid to the Order of the Directorate dated 12.1.2004, inter alia, directing its officers to ensure compliance sundry guidelines including that teachers who have been declared surplus in aided institutions should be adjusted against any vacancies which may arise in any other aided institution regardless of whether it was a minority institution.
5. The prayers in the Writ Petition, inter alia, are that the Orders appointing Ms. Mumuthavalli and Ms. Mazomdar should be struck down as an unwarranted and illegal interference in the enjoyment of the rights enshrined in Article 30 of the Constitution. Neither of these teachers, however, has reported for duty at the Petitioner's School and, therefore, to some extent, the prayers in this respect may have become infructuous.
6. During the pendency of the Writ Petition reliance had been placed on Rule 47 of the Delhi School Education Rules, 1973 (DSE Rules in short) and it has been contended that since there has been no challenge to vires of this Rule, the Petition may not be maintainable. In response to this argument an application for amendment to the Petition has been proffered. On hearing detailed arguments I consider it unnecessary that the Petition should be amended. This is for the reason that if the Court is obliged to avoid striking down any particular provision. If it can be given an interpretation which will uphold its vires and/or if the provisions can be read down in a manner as to render the striking down of that provision unnecessary such a course should be adopted by the Court. Rule 47 of DSE Rule reads as follows:
47. Absorption of surplus [employee] etc. (1) Where as a result of --
(a) the closure of an aided school or any class or classes in any aided school; or
(b) withdrawal of recognition from an aided school; or
(c) withdrawal of aid from an aided school, Any student or employee becomes surplus, such student or employee, as the case may be, [may be absorbed] as far as practicable, in such Government school or aided school as the Administrator may specify:
Provided that the absorption in government service of any employee who has become surplus shall be subject to the availability of a vacancy and shall be subject further to the condition that the concerned employee possesses the requisite qualifications for the post and has not been retrenched by the management of the aided school on any ground other than the ground of closure of the school or any class or classes of the school, or withdrawal of recognition or aid from the school:
Provided further that where any such surplus employee is absorbed in a Government school, he shall be treated as junior to all the persons of the same category employed in the Government schools on the date immediately preceding the date on which he is so absorbed, and where such surplus employee is absorbed in an aided school, he shall rank as junior to all the persons of the same category employed in that school on the date immediately preceding the date on which he is so absorbed.
(2) Where any surplus [employee] is absorbed under sub-rule (1):-
(a) the salary and other allowances last drawn by him at the school from which he has become surplus shall be protected;
(b) his provident fund account shall be transferred to the school in which he is so absorbed, and thereupon such provident fund shall be governed in accordance with the rules and regulations in force in that school in relation to provident fund; and
(c) the period of his qualifying service in the school in which he had worked before such absorption and any previous period of qualifying service, if any, in any recognised aided school in Delhi shall be taken into account for the purpose of computing his pension and other retirement benefits.
(3) Without prejudice to the provisions of sub-rules (1) and (2), where an employee becomes surplus by reason of the closure of any class or section thereof or the discontinuance of the teaching of any subject, such employee may be absorbed in the first instance, as far as practicable, in such Government or aided school as the Administrator may specify, and if the class or section which was closed is reopened by the former school or if any new class or section thereof is opened by such school or if the subject, the teaching of which was discontinued, is re-introduced by such school, or the strength of the staff of the former school is increased, such employee be re-absorbed in the former school; but if such re-absorption does not take place within a period of five years from the date of absorption of such employee in the Government or aided school, such employee shall be regularly absorbed in such Government or aided school, as the case may be.
(4) Re-absorption of a employee in a former school shall not affect his continuity of service or his seniority in relation to that school or his emoluments, provident fund, gratuity and other retirement benefits.
Explanation "For the purposes of sub rules (3) and (4), "former school "means the school from which a employee had become surplus.
Emphasis on the underlined words "as far as practicable "has been added and these words are of great importance; their presence will enable the avoidance of striking down the entire Rule.
7. A plethora of precedents is available on the ambit and application of Article 30 of the Constitution. In the present case, whilst the Petitioner is avowedly a minority institution (MEI in brevity) it receives aid from the Education Directorate, which is liable to pay the salaries of all its teachers. The argument is that if surplus teachers are not absorbed in a running school where a vacancy has arisen, the State would have to pay the salary of an idle staff in addition to a freshly recruited one. In re The Kerala Education Bill, 1957, AIR 1958 SC 956, the Supreme Court repelled the argument put forward on behalf of the State of Kerela that the fundamental rights enshrined in Article 30 do not extend to receiving state aid. It spoke in the following words:
"(31) We are thus faced with a problem of considerable complexity apparently difficult of solution. There is, on the one hand, the minority rights under Article 30(1) to establish and administer educational institutions of their choice and the duty of the Government to promote education, there is, on the other side the obligation of the State under Article 45 to endeavor to introduce free and compulsory education. We have to reconcile between these two conflicting interests and to give effect to both if that is possible and bring about a synthesis between the two. The directive principles cannot ignore or override the fundamental rights but must, as we have said, subserve the fundamental rights. We have already observed that Article 30(1) gives two rights to the minorities; (1) to establish and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the state to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institution to be aided. Learned Attorney-General concedes that reasonable regulations may certainly be imposed by the State as a condition for aid or even for recognition. There is no right in any minority, other than Anglo-Indians, to get aid, but, he contends, that if the State chooses to grant aid then it must not say - "I have money and I shall distribute aid but I shall not give you any aid unless you surrender to me your right of administration. " The State must not grant aid in such manner as will take away the fundamental right of the minority community under Article 30. Shri G.S.Pathak, appearing for some of the institutions opposing the Bill, agrees that it is open to the State to lay down conditions for recognition, namely, that an institution must have a particular amount of funds or properties or number of students or standard of education and so forth and it is open to the State to make a law prescribing conditions for such recognition or aid provided, however, that such law is constitutional and does not infringe any fundamental right of the minorities. Recognition and grant of aid, says Shri G.S. Pathak, is the governmental function and, therefore, the State cannot impose terms as conditions precedent to the grant of recognition or aid which will be violative of Article 30. According to the statement of case filed by the State of Kerela, every Christian school in the State is aided by the State. Therefore, the conditions imposed by the said Bill on aided institutions established and administered by minority communities, like the Christians, including the Anglo-Indian community, will lead to the closing down of all these aided schools unless they are agreeable to surrender their fundamental right of management. 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 Article 30. The legislative powers conferred on the legislature of the States by Articles 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 is certainly cannot do directly. Yet that will be the effect of the application of these provisions of the Bill and according to the decisions of this Court already referred to it is the real effect to which regard is to be had in determining the constitutional validity of any measure. .... We, however, find it impossible to support Clauses 14 and 15 of the said Bill as mere regulations. The provisions of those clauses may be totally destructive of the rights under Article 30(1). It is true that the right to aid is not implicit in Article 30 but the provisions of those clauses, if submitted to on account of their factual compulsion as condition of aid, may easily be violative of Article 30(1) of the Constitution. Learned counsel for the State of Kerala recognises that clauses 14 and 15 of the Bill may annihilate the minority communities right to manage educational institutions of their choice, but submits that the validity of those clauses is not the subject matter of Question 2. But, as already explained, all newly established schools seeking aid or recognition are, by clause 3(5), made subject to all the provisions of the Act. Therefore, in a discussion as to the constitutional validity of Cl. 3 (5) a discussion of the validity of the other clauses of the Bill becomes relevant, not as and by way of a separate item but in determining the validity of the provisions of clause 3(5). In our opinion, sub-clause 3 of Clause 8 and Clauses 9, 10, 11,12 and 13 being merely regulatory do not offend Article 30, but the provisions of sub-clause 5 of clause 3 by making the aided educational institutions subject to Clauses 14 and 15 as conditions for the grant of aid do offend against Article 30(1) of the Constitution. "
Similar views were also expressed in the judgment of Shah J on behalf of the Court in Rev. Sidhrajbhai Sabbai and others versus State of Gujarat and another, AIR 1963 SC 540. These are extracted below:
"Unlike Article 19, the fundamental freedom to establish and administer educational institutions by minorities guaranteed under Clause (1) of Article 30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. All minorities, linguistic or religious, have by Article 30(1) an absolute right to establish and administer educational institutions or their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30 would to that extend be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions; it is a right to establish and administer what are in truth educational institutions-institutions which cater to the educational needs of the citizens, or sections thereof. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institutions, in matters educational.
Clause (2) is only a phase of the non-discrimination clause of the Constitution and does not derogate from the provisions made in clause (1). The clause is moulded in terms negative; the state is thereby enjoined not to discriminate in granting aid to educational institutions on the ground that the management of the institution is in the hands of a minority, religious or linguistic, but the form is not susceptible of the inference that the state is competent otherwise to discriminate so as to impose restrictions upon the substance of the right to establish and administer educational institutions by minorities, religious or linguistic.
The right established by Article 30(1) 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 institution, 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 Article 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 retraining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual test the 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.
Rule 5(2) of the Rules made by Bombay Government for Primary Training Colleges, and Rules 11 and 14 for recognition of Private Training institution, in so far as they relate to reservation of seats therein under orders of Bombay 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 Article 30(1) and are unconstitutional. "
The Hon'ble Supreme Court again recognized the unfettered right of the minority schools to receive aid in the following concise words in the Frank Anthony Public School Employees Association Versus UOI, AIR 1987 SC 311, which is of specific relevance to the DSE Act.
"If one thing is clear, it is that the fundamental rights guaranteed by Article 30(1) cannot be surrendered, wholly or partly, and the authorities cannot make the grant of aid conditional on the surrender of a part of the Fundamental Rights. (310) ".
These decisions leave no room for doubt that financial constraints or considerations cannot act as inroads into the rights conferred and protected by Article 30 of the Constitution.
8. Reference to the decision of the Hon'ble Supreme Court in T.M.A. Pai Foundation and Others vs. State of Karnataka and Others, (2002) 8 SCC 481 is also of advantage. Learned counsel for the Respondent relies on paragraph 73 of T.M.A. Pai (Supra). In a recent case of Brahmo Samaj Education Society & Ors. vs. State of West Bengal & Ors., 2004(5) Scale 794 this very paragraph has been reproduced and thereafter commented upon:
7. There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support or 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 case, 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 an unaided institution.
8. But that control cannot extend to the day-to-day administration of the institution. It is categorically stated in TMA Pai (cited supra at page 551, paragraph 27) 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) has laid down qualifications to a teaching post in a University by passing Regulations. As per this Regulations UGC conducts National Educational Testing (NET) for determining teaching eligibility of candidates. UGC has also authorized 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 institutions. This is the required basic qualification of a teacher. Petitioner's right to administer includes the right to appoint teachers of its choice among the NET/SLET qualified candidates.
9. Argument on behalf of the State that the appointment through College Service Commission is to maintain the equal standard of education all throughout the state of West Bengal does not impress us. The equal standard of teachers are already maintained by the NET/SLET. Similarly, receiving aid from State coffers can also not be treated as a justification for imposition of any restrictions that cannot be imposed otherwise.
9. It will only lead to verbosity to comment on this paragraph. My attention, however, is drawn on the following paragraphs in T.M.A. Pai's case (supra) :
116. While considering the right of the religious and linguistic minorities to administer their educational institutions, it was observed by Ray, C.J., at SCR p. 194, as follows : (SCC pp. 745-46, para 19) The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.
....
122. The learned Judge then observed that the right of the minorities to administer educational institutions did not prevent the making of reasonable regulations in respect of these institutions. Recognizing that the right to administer educational institutions could not include the right to maladminister, it was held that regulations could be lawfully imposed, for the receiving of grants and recognition, while permitting the institution to retain its character as a minority institution. The regulation "must satisfy a dual test the 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 ". (SCC p. 783, para 92). It was permissible for the authorities to prescribe regulations, which must be complied with, before a minority institution could seek or retain affiliation and recognition. But it was also stated that the regulations made by the authority should not impinge upon the minority character of the institution. Therefore, a balance has to be kept between the two objectives that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This, in our view, is the correct approach to the problem.
.....
141. The grant of aid is not a constitutional imperative. Article 337 only gives the right to assistance by way of grant to the Anglo-Indian community for a specified period of time. If no aid is granted to anyone, Article 30(1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1) illusory. The founding fathers have not incorporated the right to grants in Article 30, whereas they have done so under Article 337; what, then, is the meaning, scope and effect of Article 30(2) ? Article 30(2) only means what it states viz. that a minority institutions shall not be discriminated against where aid to educational institutions is granted. In other words, the State cannot, when it chooses to grant aid to educational institutions, deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority. We would, however, like to clarify that if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30. However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some facet of administration. If, however, aid were denied on the ground that the educational institution is under the management of a minority, then such a denial would be completely invalid.
142. The implication of Article 30(2) is also that it recognizes that the minority nature of the institution should continue, notwithstanding the grant of aid. In other words, when a grant is given to all institutions for imparting secular education, a minority institution is also entitled to receive it, subject to the fulfilllment of the requisite criteria, and the State gives the grant knowing that a linguistic or minority educational institution will also receive the same. Of course, the State cannot be compelled to grant aid, but the receipt of it cannot be a reason for altering the nature or character of the recipient educational institution.
143. This means that the right under Article 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institutions to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfilllment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant.
10. Chapter VIII of the DSE Rule commences with the caveat that nothing contained in the Chapter shall apply to an unaided minority school. In other words there may be some provision which would apply to recruitment in aided minority school, such as the Petitioner although in my view conditions not calculated for achieving a high standard of education cannot be imposed on MEIs merely because state aid is being given to them. This is the consistent view of the Hon'ble Supreme Court. In this context Sub-Rule 3(a), introduced in 1990, is of great significance, since it specifies that the Nominee of the Directorate shall only act as an advisor and will not have the power to vote or actually control the selection of an employee even in an aided minority school. Thereafter, Rule 98 states that the Managing Committee shall be the Appointing Authority of that School. Sub-Rule(2) states that every appointment shall be provisional and shall require the approval of the Director, provided that the approval will not be necessary if the Director's nominee was present in the Selection Committee or if there was unanimity amongst the Selection Committee. Even this provision contains a restriction from applicability so far as minority aided schools are concerned. It will, therefore, not be correct to contend that so far as aided minority schools are concerned the Directorate would have a pivotal role to play in the appointment of teachers or other employees. After stating that Chapter-VIII would not apply to unaided minority schools, the provisions mentioned above carve out a rather limited role for the Directorate, restricted to that of an advisor, even in case of aided minority schools. In these circumstances it is unnecessary for any challenge to be laid to the vires of Rule 47. It is clear that if an employee becomes surplus it would not be "practicable "for the Directorate to insist on absorption, whether temporary or otherwise, of such employee if the School in question is an aided minority school.
11. What has happened in the present case is that the Directorate has passed a peremptory Order directing in a MEI the employment of a teacher who has been declared surplus in another school. It may have been a different situation had the Directorate recommended the candidature of the surplus teacher to the Selection Committee. One should not lose sight of the fact if there are large number of surplus teachers (or employees for that matter), who have no assignments, they would be a burden on the public exchequer. Therefore, even for a minority school receiving aid from the State, it would be irresponsible conduct if the candidature of a surplus teacher is obdurately not considered or accepted, keeping in mind the fact that if a surplus teacher is accepted by the Selection Committee, it would have direct result of saving public funds. If the surplus teacher is not inimical towards the MEI, and his/her absorption does not dilute the functioning of the MEI the engagement should not be declined. However, since no option has been given to the Petitioner so far as the absorption of the teacher is concerned these considerations do not arise in the present case.
12. Rule 64(e) has next been relied upon by learned counsel for the Respondent. It has been explained that the Petitioner had been receiving aid even prior to the commencement of the Delhi School Education Act and Rules, 1973 and, therefore, the furnishing of an undertaking in terms of Rule 64(e) was never called for. Had it arisen, or had been insisted upon, perhaps the challenge would have been laid to those provisions. I, therefore, need not to venture into the vires of that Rule. Furthermore, since this sub-clause itself relies on Rule 47, it must be construed in a like manner and, therefore, would be saved from jural destruction. The law of the land, beyond the parameters of which the DSE Act and Rules cannot traverse, has been perspicuously laid down in the Frank Anthony case. The Respondents cannot transgress it.
13. Mr. Andley has also stated that there ought to be no difficulty in permitting the temporary absorption of a surplus teacher. Again, if the Order is reverted to, it will be evident that it does not indicate that it is for a short duration. Five years can scarcely be considered a short duration.
14. In this analysis the Petition deserves to be allowed. The Directorate shall convey to the Petitioner the name of its nominee for the post of TGT (Science) within fifteen days from today in compliance with its responsibilities/statutory duties under Rule 96(3)(a). The Directorate is not empowered to insist upon the appointment of any teacher including a surplus teacher so far as the Petitioner School is concerned. The Order dated 12.1.2004, contrary to this direction, is struck down.
15. No further orders are called for in this Petition. Writ Petitions stand disposed of. All the pending applications are also disposed of. Parties to bear their respective costs.