IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.4382 of 2010 W.Queen Sheeba ..Petitioner Vs. 1. The Joint Director, Directorate of School Education, Chennai-6. 2. The District Educational Officer, Krishnagiri-635 001. 3. The Headmaster & Correspondent, Concordia Higher Secondary School, Bargur 635 104. Krishnagiri District. 4. The Secretary, Education Committee, Ambur District Synod, Ambur, Vellore District. 5. P.Pravin ..Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents 1 to 4 to conduct enquiry with regard to the appointment of the fifth respondent on 31.7.2009 for the post of Physical Education Teacher based on the petitioner's representation dated 15.09.2009 and appoint the petitioner as Physical Education Teacher at Concordia Higher Secondary School, Ambur in the place of 5th respondent. For Petitioner : Mr.R.Govindasamy ORDER The petitioner has filed the present writ petition, seeking for a direction to respondents 1 to 4 to conduct an enquiry in respect of fifth respondent's appointment as Physical Education https://hcservices.ecourts.gov.in/hcservices/ Teacher (for short PET) in the Concordia Higher Secondary School, Ambur run under the control of the third respondent vide appointment, dated 31.7.2009 on the basis of her representation, dated 15.9.2009 and to appoint her as PET in the said school in the place of fifth respondent. 2.It is the case of the petitioner that the third respondent is a Christian minority institution run under the control of the Education Committee of Ambur District Synod. The petitioner possess necessary qualifications to hold the post of PET. She also belonged to the Christian religion. However, the fifth respondent was an Hindu by religion. He had applied for the post by making correction in his Transfer Certificate and he also got the community certificate describing him as Christian Nadar. The said community certificate is not a bona fide one. Therefore, it was stated that the petitioner should be appointed in the post of PET in the place of fifth respondent. 3.The petitioner in her affidavit filed in support of the writ petition stated that the transfer certificate issued by the College at Chitradurga showed that the fifth respondent belonged to Hindu community. But at the time of sending his application, he got his religious status as Christian. The certificate obtained by him, dated 1.9.2009 was a fake certificate. Even after sending a representation, the respondents have not considered the same. It is further stated that the Ambur Synod being a Christian institution give preference to Christian candidates. The members of the Synod had taken bribe from the fifth respondent and had given him appointment. Despite representation being sent to first and second respondents, they were not taking action. Hence the present writ petition. 4.The learned counsel appearing for the petitioner reiterated the same contentions. It is no doubt true that the fourth respondent under whose control the third respondent School is functioning is a Christian Minority Institution and entitled to get protection under Article 30(1) of the Constitution. Therefore, in respect of the appointments made by them for any post in the institution, they enjoy certain autonomy consistent with the "right to establish and administer the educational institution of their choice" as guaranteed by Article 30(1) of the Constitution. So long as appointments made by them are consistent with the qualification prescribed by the Government under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, no exception can be taken. Since it is an aided private minority school, in order to get aid for any sanctioned post, at the time when they seek for grant for the post, the authorities who are empowered to grant approval will also go into the question of qualification of that teacher and find out whether it was in commensurate with Rule 15(6) of the Tamil Nadu Recognised https://hcservices.ecourts.gov.in/hcservices/ Private Schools (Regulation) Rules as well as Tamil Nadu Minority Schools Rules. 5.The petitioner did not allege that the fifth respondent is not in possession of necessary educational qualification including the Teacher Training Certificate as required under the rules. Her only contention was that she being Christian is entitled to get preference in a school run by the very same Christian minority. The fifth respondent is a fake Christian and in effect, is only an Hindu. Therefore, to the exclusion of an Hindu candidate, the petitioner being Christian should be preferred. The petitioner had applied under the Right to Information Act to the Public Information Officer, (i.e. the first respondent) attached to the Directorate of School Education, seeking for a list of teachers working in the third respondent School, who were appointed upto 1.9.2009 and the religion to which they belong. In response to her query, dated 2.10.2009, the third respondent school had furnished information giving the list of staff working in the school. The name of the fifth respondent finds place as Sl.No.10 and he is described as Christian. All the other teachers are Christians. But, whatever may be the circumstances, under which the fifth respondent had been appointed, the claim of the petitioner that only because she is a Christian, she must get preference over the fifth respondent cannot be accepted. 6.Even in respect of Christian minority school, since right to manage the school vest with the management, it is open to them to appoint any candidate, who has the necessary qualifications. The Supreme Court has held that if a minority institution acts like a secular institution, that can be welcomed. There is no bar for a minority institution by admitting even a non minority student in the school or appointing teachers belonging to other religions for teaching their candidates. 7.As to the content and sweep of the right guaranteed under Article 30(1), the Supreme Court in Ahmedabad St. Xavier's College Society v. State of Gujarat, reported in (1974) 1 SCC 717 had observed as follows: "103. Another conclusion which follows from what has been discussed above is that a law which interferes with a minority’s choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of https://hcservices.ecourts.gov.in/hcservices/ those teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1). In the case of Rev. Father W. Proost this Court while dealing with Section 48-A of the Bihar Universities Act observed that the said provision completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service Commission. The petitioners in that case were, therefore, held entitled to the protection of Article 30(1) of the Constitution. The provisions of that section have been referred to earlier. According to the section, subject to the approval of University appointment, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government would have to be made by the governing body of the college on the recommendation of the University Service Commission. The section further provided that the said Commission would be consulted by the governing body of a college in all disciplinary matters affecting teachers of the college and no action would be taken against or any punishment imposed upon a teacher of a college otherwise than in conformity with the findings of the Commission." (Emphasis added) 8.Further while dealing with the freedom of such institutions being run as secular institutions and admitting students of different religions, the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 referred to the earlier Kerala Education Bill case and quoted it with approval. The following passages found in paras 114, 127, 196 and 197 will make it explicitly clear. It may be usefully extracted below: "114. Elaborating on the meaning and intent of Article 30, the learned Chief Justice further observed as follows: (SCC p.744, para 12) “12. The real reason embodied in Article 30(1) of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their https://hcservices.ecourts.gov.in/hcservices/ children the best general education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole.” 127.....It further held that, as pointed out in Kerala Education Bill, 1957 case2 the minorities could not establish educational institutions for the benefit of their own community alone. For if such was the aim, Article 30(1) would have been differently worded and it would have contained the words “for their own community”. In this regard, it would be useful to bear in mind that the Court at SCC p.607, para 81, noticed that: “81. Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have a relatively homogeneous society. It may lead to religious bigotry which is the bane of mankind. In the nation building with secular character sectarian schools or colleges, segregated faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational institution irrespective of community to which it belongs is a ‘melting pot’ in our national life. The students and teachers are the critical ingredients. It is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of https://hcservices.ecourts.gov.in/hcservices/ different communities in all educational institutions.” 196. The first decision in the second category of cases is in Rev. Father W. Proost v. State of Bihar (AIR 1969 SC 465). It was held therein that the right of minorities to establish educational institutions of their choice under Article 30(1) is not so limited as not to admit members of other communities. Such minority institutions while admitting members from their own community are free to admit members of non-minority communities. The expression “choice” includes to admit members from other communities. In State of Kerala v. Very Rev. Mother Provincial (1970 (2) SCC 417) it was held that it is permissible that a minority institution while admitting students from its community may also admit students from the majority community. Admission of such non-minority students would bring income and the institution need not be turned away to enjoy the protection. 197.The legal principle that emerges from the aforesaid decisions is that a minority institution while admitting members from its own community is free to admit students from the non-minority community also." 9.If the fourth respondent Church has any policy of giving preference that is entirely a private matter. The forum in which the petitioner can raise such issue should be her Church forum and not by filing the writ petition claiming to enforce her Church Policy. It is not open to the petitioner to question the appointment of the fifth respondent solely on the ground that he was an Hindu or that the certificate of religion produced by him is not genuine. In the absence of any legal or enforceable right on the part of the petitioner, this court is not inclined to entertain the writ petition. 10.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Joint Director, Directorate of School Education, Chennai-6. 2. The District Educational Officer, Krishnagiri-635 001. 3. The Headmaster & Correspondent, Concordia Higher Secondary School, Bargur 635 104. Krishnagiri District. 4. The Secretary, Education Committee, Ambur District Synod, Ambur, Vellore District. + 1 c.c. to Mr. R. Govindasamy, Advocate, S.R.No.14965. + 1 c.c. to The Government Pleader. S.R.o.15323. W.P.NO.4382 of 2010 GG (CO) GSK 19.03.2010. https://hcservices.ecourts.gov.in/hcservices/