IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) 7568/1999 & CM APPL 14179/1999 lY Reserved on: July 28, 2010 Decision on: August 13, 2010 MOUNT CARMEL SCHOOL SOCIETY & ANR Petitioners Through: Mr. K.K. Rai, Senior Advocate with Mr. A.K. Sakhuja and Mr. S.K. Pandey, Advocates. versus THE GOVT. OF NCT OF DELHI & ANR Respondents Through: Ms. SujataKashyap with Mr. Pramod K; Tiwary, Advocate forR-l/GNCTD. Mr. Atul Kumar, Advocate for R-2/CBSE. And W.P.(C) 8710/2007 & CM APPL 16416/2007 MOUNT CARMEL SCHOOL SOCIETY & ANR Petitioners Through:Mr. K.K. Rai, Senior Advocatewith Mr. A.K. Sakhuja and Mr. S.K. Pandey, Advocates. versus TITE GOVT. OF NCT OF DELFII & ANR Respondents Through: Ms. Sujata Kashyap with Mr. Pramod K. Tiwary, Advocate forR-l/GNCTD. Mr. Atul Kumar, Advocate for R-2/CBSE. COI^M: JUSTICE S. MURALIDHAR 1. Whether reporters of local paper may be allowed to see the judgment? f. 2. To be referred to the reporter or not? 3. Whetherthe judgment shouldbe referred in the digest? JUDGMENT 13.08.2010 WP (Civil)Nos. 7568/1999&8710/2007 Page1 of26 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified % > The Questions ofLaw 1. These two petitions involve the following questions of law: i) Notwithstanding the fundamental right guaranteed to minority institutions under Article 30(1) of the Constitution, can the Government of the National Capital Territory of Delhi ('GNCTD') insist that the retirement age of the Principal of an unaided minority school can be no different from that of a Principal of a govermnent school or a private unaided or aided school recognised as such by the GNCTD in terms of the Delhi School Education Act, 1974 ('DSE Act')? (ii) Is the GNCTD right in its stand that Rule 110(1) of the Delhi School Education Rules, 1973 ('DSE Rules'), which, inter alia, governs the retirement age of a Principal of a recognised private aided or unaided recognised school, also applies to a recognised unaided minority school? Both petitions arise out of a similar set of facts and are therefore being disposed of by this common judgment. Facts in W.P. (C) 7568 of1999 2. The Petitioner No. 1 Society established a senior secondary school at Anand Niketan, New Delhi in 1972. It is an unaided minority school recognized by the Director of Education, GNCTD, Respondent No. 1. Petitioner No. 2 Mr. V.K. Williams was the Principal of the school since 1976. Consideringthat PetitionerNo. 2 was completing60 years of age on 15^'' October 1997, the ManagingCommitteeof the PetitionerNo. 1 Societypassed a resolutionon 12^'' July 1997 extendingthe servicesof WP (Civil)Nos. 7568/1999&8710/2007 Page2 of26 Petitioner No. 2 from 15"^ October 1997 to 15^'^ October 1999. It is stated that although as an unaided minority school it was not obligatory for Petitioner No. 1 to seek the approval of Respondent No. 1 for the extension of service granted to Petitioner No. 2, Petitioner No. 1 ^ neverthelessinformedRespondentNo. 1ofit on 3'^ September19'98.By a letterdated 9'^ June 1999,RespondentNo. 1 informedPetitionerNo. 1 that under Rule 110(1) of the DSE Rules the retirement age was sixty years and therefore, no further extension of the tenure of Petitioner No. 2 was permissible. Petitioner No. 1 was asked to make necessary arrangements for the appointment of a new Principal. The Petitioner No. 1 Society wrote to Respondent No. 1 on 18th August 1999 informing it that Rule 110(1) was not applicableto the school as it was under Chapter VIII of the DSE Rules which began with Rule 96 which clearly mentioned that the rules in that chapter were not applicable to unaided minority schools. ^ 3. Meanwhile, in response to the applicationof PetitionerNo. 1 for extension of the affiliation of its school with the Central Board of SecondaryEducation('CBSE'),the latterby a letterdated 15"^ October 1998 informed Petitioner No. 1 that it would grant extension of the affiliation on the pre-condition that Petitioner No. 1 appointed another person in place of PetitionerNo. 2 as Principalof the school. This was reiteratedon July 1999. Succumbingto the pressurebroughtaboutby the CBSE, Petitioner No. 1 appointed Dr. N.M. Williams, who was working as the vice-Principalsince 1976, as Principalof the school at AnandNiketanon 7"' July 1999.AfterDr. Williamswas appointedas the WP (Civil)Nos. 7568/1999&8710/2007 Page3of26 Principal,the CBSE granted affiliationto the school on 1®' November 1999. But by then Petitioner No.l had started another school at Dwarka. Dr. N.M. Williams was appointed as Principal of that school and Mr. V.K. Williams, Petitioner No. 2 was re-appointed as Principal of the . school at Anand Niketan. 4. It is stated that on 26'^ October 1999 a decision was taken by Respondent No. 1, without informing Petitioner No. 1, declaring the resolutiondated 12"^ April 1997 ofthe managingcommitteeofPetitioner No. 1 Society extending the services of Petitioner No. 2 by two years as ultra vires the DSE Rules. By an order dated 11November 1999, Respondent No. 1 directed Petitioner No. 1 Society to relieve Petitioner No. 2 immediately and appoint a fresh Principal in accordance with the provisionsof the DSE Rules, failing which appropriateaction would be initiated under Section 24(4) of the DSE Act. Aggrieved by the above order dated 26"' October 1999 conveyed to the Petitioners on 11^' November 1999, the Petitioners filed Writ Petition (Civil) No. 7568 of 1999 seeking the quashing of the said order. 5. While directing notice to be issued in this petition by an order dated 20'*^ December 1999, this Court directed that the impugned order dated ,11'*"November 1999 shallremainstayed. Facts in W.P. (C) 8710 of2007 6. The Petitioner No. 1 Society established another senior secondary school at Dwarka in 1997. This was also an unaided minority school WP (Civil)Nos. 7568/1999&8710/2007 4of26 recognised by the Director of Education, GNCTD and affihated to the CBSE. Dr. N.M. Wilhams, Petitioner No. 2 in W.P. (C) 8710 of 2007, was appointed as Principal of the school at Dwarka since its inception. 7. By a resolutiondated ll'*" August 2001, the PetitionerNo. 1 Society extended the tenure of Petitioner No. 2 for a period of five years, i.e., till 31^' August 2006. Dr. N.M. Williams completed sixty years of age on 30^'^ August2001. By a letterdated 13^'^ September2005,RespondentNo. 2 CBSE sought removal of Petitioner No. 2 from the post of the Principal on the ground that she had superannuated. The Petitioner No. 1 Society complied with the direction and one Dr. M.V. Sarathy was appointed as the acting Principal on 22"^* September 2005. By a letter dated 17^"^ October 2005, the CBSE insisted that a regular Principal should be appointed.Aftertakinglegal advice,on 3"^^ December2005 the Chairman of Petitioner No. 1 Society permitted Petitioner No. 2 to resume her duties as the Principal of the school at Dwarka. On April 2006, the view of the Chairman was endorsed by the Board of the Petitioner No. 1 Society. 8. The CBSE on 12*^ April 2006 granted permissionto the Petitioner No.l for introduction of additional subjects in the school but insisted that no superannuated teacher/Principal should be working at the school. PetitionerNo. 1 replied on 7"^ July 2006 statingthat ChapterIV of the DSE Act was not applicable to unaided minority schools like that of the PetitionerNo. 1. On 29^^ July 2006, PetitionerNo. 1in its Boardmeeting extended the services of PetitionerNo. 2 as the Principal up to 31^.^ WP(Civil)Nos. 7568/1999 &8710/2007 Page 5 of 26 17 T- August 2009. On 2r' May 2007, RespondentNo. 1 issueda show cause notice to the Manager of the school about the continuance of Petitioner No. 2 as the Principalbeyondthe age ofsixty years. On 30^'^ July 2007, the CBSE rejected the Petitioner's applicationfor approval of additional subjects on various grounds,one of them being the age of PetitionerNo. 2. On ll"' September2007 RespondentNo. 1 passed an order directing the Managerof the PetitionerNo. 1 Societyto dispensewith the services ofPetitionerNo. 2by December2007. By a letterdated 12"' October 2007, Petitioner No. 2 protested against this move. The present writ petitionwas filed thereafterseekingthe quashingof the letterdated 30^' July 2007 of the CBSE rejectingthe Petitioner's applicationfor approval of two additional subjects and the order dated ll"' September 2007 passed by Respondent No. 1. 9. While directingnoticeto be issuedin this petitionon 23'^'' November 2007, this Court stayedthe operationofthe order dated 11^'' September 2007. Submissions of Counsel 10. Mr. K.K. Rai, learned Senior counsel appearing for the Petitioners submitted that the Petitioner No. 1 Society-run-schools are unaided minority institutions which receive no grants from the GNCTD or any other governmentauthority. The right of minority establishedand run institutions was one of the fundamentalrights guaranteed by Article 30 of the Constitution. He further submitted that the Supreme Court has, in a large number of its decisions,reiteratedthe settledpositionin law that WP (Civil)Nos. 7568/1999&8710/2007 Page6of26 % the post of the Principalor the headmasterof an unaidedminorityschool, being a key position, was outside the regulatory ambit of the state. It is submitted that notwithstanding the decision of the Supreme Court in Frank Anthony Public School Employees' Association v. Union of India (1986) 4 SCC 707, the position as regards the post of the Principal of the Petitioner No. 1 Society would not be altered. He distinguished the judgmentin Frank Anthonyon facts. He pointedout that the issue there was that the terms and conditions of employment of the staff and teachers of the minority school were adverse as compared to those governing governmentschoolemployees.It was in this contextthat it was held that the terms and conditions of the employees of minority schools must be consistent with those of the employees of government schools and Section 12 was held to be ultra vires the Constitution and struck down^ which meant the provisions of Chapter IV of the DSE Act became applicableto unaidedminorityschools.He submittedthatthe decisionin Secretary, Malankara Syrian Catholic College v. T. Jose (2007) 1 SCC • 386 conclusively settled the legal position. He also placed reliance upon the decisions of the Supreme Court in State of Kerala v. Very Rev. Mother Provincial (1970) 2 SCC 417, N. Ammad v. Manager, Emjay High School 1998 (6) SCC 674, All Bihar Christian Schools Association v. State of Bihar (1988) 1 SCC 206, Gandhi Faiz-E-Am College V. Universityof Agra (1975) 2 SCC 283 and Sindhi Education Societyv. The ChiefSecretary, Govt. ofNCT ofDelhi 2010 (6) SCALE 578. 11. It was submitted by Mr. Atul Kumar, learned counsel appearingfor WP (Civil)Nos. 7568/1999&8710/2007 Page7of26 the CBSE and Ms. Sujata Kashyap, learned counsel appearing for the RespondentNo. 1 GNCTD that after the judgment in Frank Anthony, the entire Chapter VIII of the DSE Rules would automatically become applicable to unaided minority schools. Therefore, notwithstanding Rule 96 which stated that the said Chapter would not apply to unaided minority schools, Rule 110 which prescribed the age of retirement of a Principal of a govermnent school, would nevertheless be applicable even to an unaided minority school. 12. It is further submitted by the counsel for the Respondents that the right of minority institutions to administer is a qualified one. With a view to maintain standards of education it was permissible for the state to place restrictions on unaided minority schools. It was submitted that the minority schools could not provide better service conditions than government run schools as their service conditions were to be consistent with those of the government schools. Therefore, if the Principal of an unaided minority school was asked to retire at the same age by which the Principal of a government school was asked to, there would be no discrimination. If it was higher, then that was not permitted under Rule 110 of the DSE Rules interpreted in light of the decision of the Supreme Court in Frank Anthony. The decision in the Frank Anthony Public School Case 13. Since the Respondents placed considerable reliance upon the decision of the Supreme Court in the Frank Anthony case, this Court first WP (Civil)Nos. 7568/1999 &8710/2007 Page 8 of26 proposes to discuss the said judgment. The Supreme Court was deciding a writ petition brought before it under Aiticle 32 of the Constitution by the Frank Anthony Public School Employees' Association. The grievance was that the scales of pay and other conditions of service of the teachers and other employees of Frank Anthony Public School compared unfavourably with their counterparts in the schools run by the Delhi Administration. However, Section 12 of the DSE Act made inapplicable the provisions of Sections 8 to 12 occurring in Chapter IV of the DSE Act to unaided minority institutions. The inapplicability of Chapter IV of y the DSE Act meant that the terms and conditions of service of employees of recognised unaided minority schools could be less than what was offered to their counterparts of government run. schools. This was held to be discriminatory. It was held that the staff and teachers of unaided minority schools could not be worse off than their counterparts in government schools. 14. A reading of the decision in Frank Anthony makes it clear that the said case did not deal with the question of the retirement age or even the terms and conditions of service of a person holding a 'key post', like that of the headmaster or Principal, in an unaided minority institution. Secondly, the decision in Frank Anthony was in the context of terms and conditions of service of teachers and employees of unaided minority schools being worse off than that of their counterparts in government schools. After elaborately discussing the decisions in Ahmedabad St. Xaviers CollegeSociety v. State of Gujarat (1974) 1 SCC 717 and All Saints High School v. Governmentof Andhra Pradesh (1980) 2 SCC WP (Civil)Nos. 7568/1999&8710/2007 Page9of26 478, the SupremeCourtin Frank Anthonyheld as under(SCC,p.731): ^ V "17 We, therefore, hold that Section 10 of the Delhi School Education Act which requires that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority and which further prescribes the procedure of enforcement of the requirement is a permissible regulation aimed at attracting competent staff and consequently at the excellence of the educational institution. It is a permissible regulation which in no way detracts from the fundamental right guaranteed by Article 30(1), to the minority institutions to administer their educational institutions. Therefore, to the extent that Section 12 makes Section 10 inapplicable to unaided minority institutions, it is clearly discriminatory." (emphasis supplied) 15. It was in the above context that it was further held in para 20 as under (SCC, p.734); "20. Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon any right of minorities to administer their educational institutions. Section 8(2), however, must, in view of the authorities, be held to interfere with such right and, therefore, inapplicable to minority institutions. Section 9 is again innocuous since Section 14 which applies to unaided minority schools is virtually on the same lines as Section 9. We have already considered Section 11 while dealing with Section 8(3). We must, therefore, hold that Section 12 which makes the provisions of Chapter IV inapplicable to unaided minority schools is discriminatory not only because it makes Section 10 inapplicable to minority institutions, but also because it makes Sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to WP(Civil)Nos. 7568/1999 &8710/2007 Page 10 of 26 unaided minority institutions. That the Parliament did not understand Sections 8 to 11 as offending the fundamental ^ right guaranteed to the minorities under Article 30(1) is evident from the fact that Chapter IV applies to aided minority institutions and it cannot for a moment be suggested that surrender of the right under Article 30(1) is the price which the aided minority institutions have to pay to obtain aid from the government." (emphasis supplied) 16. Consequently, it was held as under (SCC, p.735): "21. The result of our discussion is that Section 12 of the Delhi School Education Act which makes the provisions of Chapter IV inapplicable to unaided minority institutions is discriminatory and void except to the extent that it makes Section 8(2) inapplicable to unaided minority institutions. We, therefore, grant a declaration to that effect and direct the Union of India and the Delhi Administration and its officers, to enforce the provisions of Chapter IV [except Section 8(2)] in the manner provided in the chapter in the case of Frank Anthony Public School. The management of the school is directed not to give effect to the orders of suspension passed • against the members of the staff." 17. This Court does not find the decision in Frank Anthony to be holding that the entire Chapter VIII of the DSE Rules, which talks of recruitment and terms and conditions of service of employees of private schools other than unaided minority schools, is ipso facto applicable to unaided minority schools. Given the factual context in which the decision in Frank Anthony was delivered, there was no occasion for the Supreme Court to considerthe position with respectto the key post of the Principal in an unaided minority school and whether the provisions of Chapter IV WP (Civil)Nos. 7568/1999 &8710/2007 Page 11 of26 of the DSE Act would continue to apply to such post and consequently /j/ whether Chapter VIII of the DSE Rules would apply. In the considered view of this Court-the judgment in Frank Anthony carmot come to the aid of the Respondents in justifying their impugned orders insisting on the applicabilityof Rule 110 (1) DSE Rules as regards the retirementage of the Principal of the schools run by the Petitioner No.l Society. Power of the State to regulate minority institutions 18. The extent of the power-of the State to regulate the working of minority institutionshas been explainedin a number of decisionssome of which will be discussed hereafter. However, before doing so, the scheme of the DSE Act and the DSE Rules may first be noticed. 19. A perusal of Chapter VIII of the DSE Rules shows that a wide range of matters are covered, including recruitment of teachers and staff,' minimum qualifications for appointment of teachers, fixation of pay, seniority and so on. Rule 110talks of retirement age, and reads as under; "110 Retirement age - (1) Except where an existing employee is entitled to have a higher age of retirement, every employee of a recognized private school, whether aided or not, shall hold office until he attains the age of 58 years: Provided that the managing committee may grant extension to a teacher for a period not exceedingtwo years in the aggregate,if in the opinion of the managingcommitteesuch teacher is fit for such extension and has no mortal or physical incapacity which would disentitle him to get such extension. Provided further that no such extension shall be granted in the WP(Civil)Nos. 7568/1999 &8710/2007 Page 12 of 26 case of a teacher of an aided school except with the previous approval of the Director. (2) Notwithstanding anything contained in sub-rule (1), every teacher, laboratory assistant, Librarian, Principal or Vice Principal employed in such school shall continue to hold office until he attains the age of 60 years Provided that where a teacher, Principal or vice-Principal attains the age of superannuation on or after the day of November of any year such teacher, Principal or Vice- Principalshall be re-employedup to the 30^'' day ofAprilof the year immediately following. (3) Notwithstandinganythingcontainedin sub-rule(1) and sub- rule (2), where a teacher, Principal or Vice-Principal has obtained National or State award for rendering meritorious service as a teacher, Principal or Vice-Principal or where he has received both the National and State awards as aforesaid, the period of service of such teacher. Principal or Vice- Principal may be extended by such period as the Administrator may, by general or special order, specify in this behalf." (emphasis supplied) 20. It may be noticed that in terms of the proviso to Rule 110(2), the services of the Principal, vice-Principalor teacher in an unaided or aided private school recognised by the government (and not an unaided minority school) can be extended beyond 60 years. In terms of Rule 110(3) the servicesof a Principalor vice-Principalof such school who has won a national or state award for rendering meritorious .service can be extendedfor such periodas the Administratormay specify.Therefore even for a privateaidedor unaidedschoolit is not as if theretirementage M/P (Civil)Nos. 7568/1999&8710/2007 Page13of26 4 of 60 for a Principalis sacrosanct.However,by virtueof Rule 96 of the DSE Rules, Rule 110 can have no application to an unaided minority school. 21. It is onlywherethe retirementage for a Principalof a minorityschool has been fixed at an age lowerthan a Principalof a governmentschoolor an aided or unaidedprivate school, can a comparisonbe possiblydrawn with the facts in Frank Anthony to contend that the terms and conditions of the Principalof an unaidedminorityschool cannotpossiblybe worse than that of the Principalof a governmentschool or an unaidedor aided minorityschool.Viewedfrom any angletherefore,the decisionin Frank Anthony caimot come to the aid of the Respondents in seeking to interfere with the decision of the Petitioner No. 1 Society to extend the tenure of Petitioner No. 2. 22. In para 9 of its decisionin All Bihar Christian SchoolsAssociation V. State of Bihar, after examiningthe pmport of Article 30(1) of the Constitution and the earlier decisions of the Court, the Supreme Court observed as under (SCC, p.220): "9.... Minority institutions may be categorized in three classes (1) educational institutions which neither seek aid nor recognition from the State (ii) institutionsthat seek aid from the State, and (iii) educational institutions which seek recognition but not aid. Minority institutionswhich fall in the first categoryare free to administertheir institutionin the manner they like; the State has no power under the Constitution to place any restriction on their right of administration. This does not mean that an unaided minority institution is immune from operation of general laws of the WP (Civil)Nos. 7568/1999&8710/2007 Page14of26 land. A minority institution cannot claim immunity from contract law, tax measures, economic regulations, social welfare legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society. But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose. It is open to the State to prescribe conditions for granting recognition or disbursing aid. These conditions may require a minority institution to follow prescribed syllabus for examination, course of study; they may further regulate conditions of employment of teachers, discipline of students and allied matters. The object and purpose of prescribing regulations is to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the mainstream of the nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State; otherwise the students coming out of such institutions will not be fully equipped to serve the society or the nation. While the State has every right to prescribe conditions for granting recognition or disbursing aid, it \ cannot under the guise of that power prescribe onerous conditions compelling the minority institutions to surrender their rights of administration to the government. On the one hand the State is under an obligation to ensure that educational standards in the recognized institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public funds disbursed to the minority institutions are properly utilized for the given purpose. On the other hand the State has to respect and honour minority rights under Article 30(1) in the matter of establishing and carrying on of administration of WP (Civil)Nos. 7568/1999&8710/2007 Page15 of26 institution of their choice. In order to reconcile these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 30(1) of the Constitution. These principles have to be borne