THE MANAGER , HIRA LAL JAIN SENIOR SECONDARY SCHOOL vs KIRAN JAIN & ORS

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 13.09.2023

% Judgment delivered on: 10.10.2023

+ LPA 691/2019 & CM APPL. 47943/2019

KIRAN JAIN ….. Appellant

Through: Mr. Romy Chacko, Mr. Prashant Kumar and Mr. Sachin Singh Dalal, Advocates.

Versus

GOVT OF NCT OF DELHI & ORS. ….. Respondents

Through: Mrs. Avnish Ahlawat, Standing Counsel with Mrs. Taniya Ahlawat, Mr. Nitesh Kumar Singh, Ms. Laavanya Kaushik, Ms. Aliza Alam and Mr. Mohnish Sehrawat, Advocates for R-1 & 2.
Mr. Asheesh Jain, CGSC with Mr. Prajesh Kumar Srivastava, GP.
Ms. Meenakshi Midha and Mr. Garv Singh, Advocates for R-3.

+ LPA 709/2019 & CM APPL. 48578/2019, CM APPL. 48579/2019

THE MANAGER, HIRA LAL JAIN SENIOR SECONDARY SCHOOL ….. Appellant

Through: Ms. Meenakshi Midha and Mr. Garv Singh, Advocates

Versus

KIRAN JAIN & ORS. ….. Respondents

Through: Mr. Romy Chacko, Mr. Prashant Kumar and Mr. Sachin Singh Dalal, Advocates for R-1.
Mrs. Avnish Ahlawat, Standing Counsel with Mrs. Taniya Ahlawat, Mr. Nitesh Kumar Singh, Ms. Laavanya Kaushik, Ms. Aliza Alam and Mr. Mohnish Sehrawat, Advocates for R-2 & 3.
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE SANJEEV NARULA

J U D G M E N T

SATISH CHANDRA SHARMA, C.J.

1. The present appeal(s) arise out of a common judgment dated 01.10.2019, passed by the learned Single Judge in W.P.(C.) No. 10549/2018 (the “Impugned Judgement”).
2. The facts of the case reveal that the Appellant in LPA 691/2019 holds the requisite qualification for the post of Trained Graduate Teacher (“TGT”) in Hindi (hereinafter referred to as “TGT (Hindi)”) i.e., (i) a B.Ed obtained in 2013-14; (ii) successfully cleared the Central Teacher Eligibility Test (“CTET”) in 01.04.2015; and (iii) served as a guest teacher in Rajkiya Sarvodaya Kanya Vidyalaya between 2014 and 2017. The facts of the case further reveal that an advertisement dated 26.08.2017 was issued by the Respondent No. 3 / Manager, Hira Lal Senior Secondary School i.e., a minority institution having been granted minority status by the National Commission for Minority Educational Institutions, New Delhi inviting applications for inter alia the post of TGT (Hindi) (the “Advertisement”). The Appellant, in response to the Advertisement submitted an application for the post of TGT (Hindi).
3. A total of 20 (twenty) candidates were shortlisted for an interview to be conducted by Respondent No. 3’s Selection Committee (the “SC”) wherein the candidates were to be evaluated on the basis of a marking scheme which was formulated on the basis of the Recruitment Rules (defined below) and approved by Respondent No. 3’s Executive Committee (the “EC”). For ease of reference the key parameters of the marking scheme qua appointment of teachers as TGT (Hindi) are reproduced as under (the “Evaluation Matrix”):
XII
Graduate/
B.A./ B.Com/ B.Sc
B.Ed.
Addl. Qualifications M.A., M.Com/ M.Sc./ M.Phil/ Ph.D.
Exp.
CTET
Total
Interview
Total
10
20
20
10
10
10
80
20
100

4. Thereafter, the Appellant’s candidature for appointment to the post of TGT (Hindi) was accepted and the Appellant was called to appear before the SC for inter alia (i) verification of documents; and (ii) a personal interview (the “Evaluation”).
5. On the basis of the Evaluation, the Appellant was recommended by the SC for the post of TGT (Hindi). Subsequently, Respondent No. 3’s Managing Committee (the “MC”) in a meeting dated 13.12.2017, affirmed the recommendation made by the SC. Accordingly, the Appellant was issued a letter of appointment on 18.12.2017, appointing the Appellant on the post of TGT (Hindi) (the “Appointment Letter”).
6. In response to the Appointment Letter, the Appellant conveyed her acceptance vide a letter dated 28.12.2017 and, thereafter, reported on duty on 16.01.2018 i.e, the date of appointment under the Appointment Letter. On 16.08.2018, Respondent No. 3 issued an office order appointing the Appellant as a TGT (Hindi); and on the same day, intimated Respondent No. 2 about the appointment of the Appellant in compliance with Rule 98(3) of the Delhi School Education Rules, 1973 (the “DSE Rules”) framed under the provisions of the Delhi School Education Act, 1973 (the “DSE Act”); and sought sanction of grant-in-aid in view of the appointment.
7. The Respondent No. 2 / Deputy Director, Directorate of Education, vide a letter dated 31.01.2018 raised certain queries; and sought clarifications in respect of the appointment of the Appellant. It is stated that the queries raised by Respondent No. 2 were satisfactorily answered by Respondent No. 3 / The Manager, Hira Lal Jain Senior Secondary School vide a letter dated 05.02.2018. Thereafter, Respondent No. 2 vide a letter dated 28.04.2018 informed Respondent No. 3 that inter alia the Appellant was wrongly awarded marks in the category of ‘additional qualifications’ under the Evaluation Matrix as although the Appellant had obtained a M.A (English) degree, the post sought to be filled was that of a TGT (Hindi) accordingly, Respondent No. 2 held that the award of marks under the ‘additional qualifications’ was improper, and therefore the selection process must stand vitiated.
8. The Respondent No. 3 on 07.05.2018, promptly informed the Respondent No. 2 that the Recruitment Rules (defined below) for TGT (Hindi) did not specify whether inter alia the ‘M.A Degree’ under the ‘additional qualifications’ criteria under the Evaluation Matrix had to be in the same subject. Furthermore, it is stated that the circulars issued on the subject by Respondent No. 2 does not envisage the grant of additional marks only in case the candidate possesses a ‘M.A Degree’ in the concerned subject. In this context, on 10.08.2018, Respondent No. 2 directed Respondent No. 3 to take immediate action vis-à-vis the appointment of the Appellant and, accordingly, vide an order dated 18.08.2018, the services of the Appellant as a TGT (Hindi) were discontinued on account of the Appellant’s appointment being rejected by Respondent No. 2.
9. Aggrieved, the Appellant immediately sought recourse before this Court by way of a Writ Petition i.e., W.P.(C.) No. 10549/2018 (the “Writ Petition”). Pertinently, the Ld. Single Judge dismissed the Writ Petition vide the Impugned Judgement observing inter alia that (a) aspects such as ascribing a minimum qualification; (b) a standards of prior experience; and (c) other criteria for making appointments etc are the matters which will fall squarely within the power of the State to frame regulations; and (ii) that minority institutions cannot either (a) exercise a veto; or (b) command that a particular person be appointed in teeth of such regulatory framework under the garb that disallowing such an action would impinge on a minority institutions’ rights under Article 30(1) of the constitution of India. The relevant extracts of the Impugned Judgement are reproduced as under:
“34. The Respondent No. 3 sent communication dated 16.01.2018 to Account’s Officer of the Respondent No. 2 for sanctioning grant-in-aid towards salary of petitioner for the month of January & February, 2018. However, upon scrutiny, the illegality committed by Respondent No. 3 in collusion with petitioner was exposed whereupon Respondent No. 2 promptly informed Respondent No. 3, about the illegality in constituting Selection Committee being in violation to above said Rules and not following the marking scheme provided in Circular dated 26.02.2014. No formal communication was ever served upon the Directorate of Education about the appointment of petitioner as TGT (Hindi) by school management/ Respondent No. 3.
35. Further, the appointment of petitioner was as TGT (Hindi) while her higher qualification was M.A. (English). Benefit of additional qualification was not admissible as per Circular No.F. DE/15/Act-II/2014/372-391 dated 26.02.2014. Serial No.2 of the circular dated 26.02.2014 states that “marks for additional qualification would be given for next immediate higher education above the essential one and that too in concerned subject relevant to the concerned post. No marks would be awarded for additional qualification of M. Ed.”
36. The selection committee constituted by Respondent No. 3 undeservingly granted ‘additional marks for next immediate higher qualification above the essential one? to the petitioner which could not have been granted to her being inadmissible in terms of serial no.2 of circular dated 26.02.2014.
37. It is emphatically denied that Respondent No. 3 has unfettered right to choose and appoint teacher of its own choice by flouting the Recruitment Rules and other general norms, to the extent that they prescribe qualifications, experience, age and all other criteria for appointment. Further Rule 64(a) of the Delhi School Education Rules, 1973 explicitly provides:
“No school shall be granted aid unless its managing committee gives an undertaking in writing that it shall comply with the provisions of the Act and Rules.”
38. Selection Committee constituted by Respondent No. 3 undeservingly granted ‘additional marks for next immediate higher qualification above the essential one? to the petitioner which could not have been granted to her being inadmissible in terms of serial no.2 of circular dated 26.02.2014. Additional marks could be given for higher qualification provided the teacher was being appointed for the subject in which the candidate attained higher qualification. Petitioner is M.A.(English) and had she been M.A. (Hindi) only then she could be granted additional marks for higher qualification. Thus, illegally constituted Selection Committee which committed further illegality in granting additional marks, which were not admissible to the petitioner.
39. Deputy Director Education vide letter dated 28.04.2018 informed Respondent No. 3, that on examination it was found that the marks given for additional qualification was for M.A.(Eng) whereas the applicant is selected for the post of TGT (Hindi), on the contrary, the marks given for the additional qualification should be in concerned subject i.e. M.A. (Hindi).
40. Since Respondent No. 3 brazenly flouted Recruitment Rules and other general norms, for appointment which they were required to adhere in terms of judgment of this Hon’ble Court in Queen Mary’s School (supra), the grant in aid cannot be accorded to the petitioner & it is the responsibility of the Respondent No. 3 school, to pay the salary to the petitioner for the period it took work from her, since her selection was dehors the relevant rules, hence non-est and bad in law, as such it does not visit the Respondent No. 2 with any liability to bear towards grant in aid for illegal appointment of the petitioner by Respondent No. 3. Said respondent must bear the consequences of committing deliberate illegality in appointing the petitioner while tracking on the wrong side of law, in conflict therewith.
41. In addition, Hon’ble Supreme Court and this Court have held in a catena of judgments that the right to administer educational institutions would not include the right to mal-administer. It has been 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. It is permissible for the authorities to prescribe regulations, which must be complied with, before a minority institution could seek or retain affiliation and recognition. Directorate of Education issued Circular No.F.DE/1S/Act- II/2014/37-2-391 dated 26.02.2014 prescribing the marking scheme for recruitment of teachers in aided school as a secular condition and the same is applicable across all the schools and the same would not dilute its force and vigor for the minority run educational institutions. Conditions provided in Circular dated 26.02.2014 are applicable to all the educational institutions receiving grant and it is meant to safeguard and maintain teaching standards. Circular dated 26.02.2014 is not aimed at making any in roads into the managerial powers of the minority institutions.
42. Reliance was further placed on the judgment of eleven judges Constitution Bench of the Hon’ble Supreme Court in TMA Pai vs. State of Karnataka: 2002 (8) SCC 481 whereby it was held:
“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 utilization of the grant and fulfillment of the objective 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. ”
43. The circular dated 26.02.2014 does not take away the right to appoint teachers and other personnel as per the choice of the institution, as safeguarded under Article 30(1) of the Constitution of India, but such right is not unfettered. Hon’ble Supreme Court has recognized the State’s regulatory power to prescribe basic qualifications for filing the posts and the same was spelt out by the nine judges bench judgment in Ahmadabad St. Xavier’s College Society vs. State of Gujarat: 1974 (1) SCC 717 .
44. In Pramati Educational & Cultural Trust vs. Union of India: (2014) 8 SCC 1, the Hon’ble Supreme Court, considering judgment in TMA Pai (supra) held:
“92. In T.M.A. Pai, the dual test is summed up as: ….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 upon 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 …”
93. It is submitted with respect that dual test applies to (a) unaided and aided minority institutions, (b) unaided non-minority institutions. But the principle will apply to the aided institutions.”
45. In Sindhi Education Society vs. Govt. (NCT of Delhi): 2010 (8) SCC 49, the Hon’ble Supreme Court held:
“91. In T.M.A. Pai case the right to establish an institution is provided. The Court held that the right to establish an institution is provided in Article 19(1 )(g) of the Constitution. Such right, however, is subject to reasonable restriction, which may be brought about in terms of clause (6) thereof. Further, that minority, whether based on religion or language, however, has a fundamental right to establish and administer educational institution of its own choice under Article 30(1).
92. The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions which, inter alia, may be framed having regard to the public Interest and national interest of the country. Regulation can also be framed to prevent maladministration as well as for laying down standards of education, teaching, maintenance of discipline, public order, health, morality, etc. It is also well settled that a minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and, at the same time, would be required to admit a reasonable extent of non-minority students, to the extent, that the right In Article 30(1) Is not substantially Impaired and further, the citizen’s right under Article 29(2) is not infringed.
93. A minority institution may have its own procedure and method of admission as well as the selection of students but it has to be a fair and transparent method. The State has the power to frame regulations which are reasonable and do not impinge upon the basic character of the minority institutions’. This Court, in some of the decisions, has taken the view that the width of the rights and limitations thereof of even unaided institutions, whether run by a majority or by a minority, must conform to the maintenance of excellence and with a view to achieve the said goal indisputably, the regulations can be made by the State.
94. It is also equally true that the right to administer does not amount to the right to maladminister and the right is not free from regulations. The regulatory measures are necessary for ensuring orderly. efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions. The right of the State is to be exercised primarily to prevent maladministration and such regulations are permissible regulations. These regulations could relate to guidelines for the efficiency and excellence of educational standards. ensuring the security of the services of the teachers or other employees, framing rules and regulations governing the conditions of service of teachers and employees and their pay and allowances and prescribing course of study or syllabi of the nature of books. etc. Some of the impermissible regulations are refusal to affiliation without sufficient reasons, such conditions as would completely destroy the autonomous status of the educational institution, by introduction of outside authority either directly or through its nominees in the governing body or the managing committee of a minority institution to conduct its affairs, etc. These have been illustrated by this Court in State of Kerala v. Very Rev. Mother Provincia, All Saints High School v. Govt. of A.P. and T. M.A. Pai case.
97. It is not necessary for us to examine the extent of power to make regulations, which can be enforced against linguistic minority institutions, as we have already discussed the same in the earlier part of the judgment. No doubt, right conferred on minorities under Article 30 is only to ensure equality with the majority but, at the same time, what protection is available to them and what right is granted to them under Article 30 of the Constitution cannot be diluted or impaired on the pretext of framing of regulations in exercise of its statutory powers by the State. The permissible regulations, as afore-indicated, can always be framed and where there is a maladministration or even where a minority linguistic or religious school is being run against the public or national interest, appropriate steps can be taken by the authorities including closure but in accordance with law. The minimum qualifications, experience, other criteria for making appointments, etc. are the matters which will fall squarely within the power of the State to frame regulations but power to veto or command that a particular person or class of persons ought to be appointed to the school failing which the grant-in-aid will be withdrawn, will apparently be a subject which would be arbitrary and unenforceable.
46. The present writ petition filed by the petitioner is devoid of any cause of action and is arising out of complete misconceived interpretation of settled proposition of law as laid down by the Hon’ble Supreme Court and by this Court.
47. The writ petition is dismissed, accordingly, with no order as to costs. ”
10. Aggrieved by the Impugned Judgement, the Appellant(s) preferred this LPA challenging the Impugned Judgement.
11. Mr. Romy Chacko, Ld. Counsel appearing on behalf of the Appellant in LPA 691/2019 has vehemently argued before this Court that pursuant to the Advertisement, the SC was constituted under the provisions of the DSE Act read with the DSE Rules. Thereafter, the SC interviewed the Appellant and other candidates as per the Evaluation Matrix in furtherance of the Evaluation. Further, Mr. Chacko submits that in accordance with the Appointment Letter, Respondent No. 3 issued an office order for the appointment of the Appellant on 16.01.2018 i.e., the date of joining. Thereafter, vide a letter dated 16.01.2018 intimated Respondent No. 2 of the appointment of the Appellant in compliance with the statutory provisions governing the field; and sought sanction of grant-in-aid vis-à-vis the appointment of the Appellant.
12. It has been brought to the attention of this Court that sanction of grant-in-aid was sought, as Respondent No. 3 was receiving the said grant from the State Government. Therefore, Respondent No. 2 was intimated about the appointment of the Appellant under Sub-Rule (3) of Rule 98 of the DSE Rules. In response, Respondent No. 2 raised certain queries in relation to the Evaluation including but not limited to the procedure adopted and the requirement to conform to certain identified provisions of the DSE Act; and DSE Rules. The aforementioned queries were addressed by Respondent No. 3. However, on 10.08.2018, Respondent No. 2 informed Respondent No. 3 that the grant-in-aid vis-à-vis the appointment of the Appellant cannot be released as she had been wrongly awarded additional marks under the Evaluation Matrix. Consequently, on 18.08.2018, Respondent No. 3 informed the Appellant that her services were terminated.
13. The Ld. Counsel for the Appellant has further argued that Rule 96 of the DSE Rules does not apply to minority aided schools in view of the judgment of this Court in Queen’s Mary’s School Thru Its Principal v. U.O.I, W.P.(C.) No. 2845/1992 wherein it was held inter alia that the Rules 47, 64(1)(b),(e) and 96 of the DSE Rules, 1973 are in applicable to aided minority institution.
14. Mr. Chacko has further contended that the Ld. Single Judge has erroneously observed that the Directorate of Education (“DoE”) circular dated 26.02.2014 (the “Circular”) does not dilute the rights enshrined under Article 30(1) of the Constitution of India. In this regard, he places reliance on Queen’s Mary’s School (Supra) wherein he contends that this Hon’ble Court has held that minority schools enjoy full autonomy in appointing the teachers of their choice which cannot be interfered with; and accordingly, Rule(s) 47, 64(1)(b),(e) and 96 of the DSE Rules do not apply to the minority aided schools. It is his contention that the rules identified above can only be made applicable in respect of prescription of minimum qualifications pertaining to standards of education.
15. Ld. Counsel for the Appellant has vehemently argued before this Court that the judgment delivered by the Ld. Single Judge is contrary to the law laid down by the Hon’ble Supreme Court of India (the “Supreme Court”) in Chandana Das (Malakar) v. The State of West Bengal & Ors., (2020) 13 SCC 411; Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) (1) SCC 717; and T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
16. Mr. Chacko has contended that a minority education institute is free to appoint any qualified person as a teacher subject to such person satisfying the minimum qualification prescribed by the State in relation to such a post. He has further argued that the Circular does not apply to aided minority schools; and that under Article 30(1) of the Constitution of India, minority schools are free to choose any qualified person as teacher for their institution subject to the limited criteria outlined above. In this context, it is submitted that the Appellant was appointed by a duly constituted SC in consonance with the Evaluation Matrix and, therefore, the Ld. Single Judge has erred in law and facts by holding that the Respondent No. 3 could not have granted the Appellant additional marks for next immediate higher qualification i.e. a ‘M.A Degree’.
17. The Ld. Counsel for the Appellant has reiterated that Respondent No. 3 is a minority aided schools within the meaning of Section 2(o) of the DSE Act read with Rule 2(d) of the DSE Rules. Accordingly, he has contended that the Second Proviso to Rule 98 of the DSE Rules clarified that that the rigors of Rule 98(2) of the DSE Rules i.e., prior approval of the DoE qua appointment of teachers, does not apply to minority aided schools. Therefore, as Respondent No. 3 is admittedly a minority aided school, the approval of the DoE cannot be insisted upon vis-à-vis appointment of staff and / or teachers. Reliance in this regard has been placed upon a judgment of this Court in Tabita Chand v. Director of Education & Ors., LPA 165/2013, dated 21.03.2013.
18. The Ld. Counsel has vehemently argued before this Court that the Ld. Single Judges’ observation qua the Appellant’s selection not being in accordance with the procedure provided under Rule 96 of the DSE Rules is contrary to the documents on record and contrary to the decision of this Court in Queen’s Mary’s School (Supra) wherein it was categorically observed that Rule(s) 47, 64(1)(b), (e) & 96 of the DSE Rules do not apply to the minority aided schools, and accordingly, minority institutions are free to appoint teachers of its own choice.
19. Mr. Chacko further argues that keeping in view Rule 98(4) of the DSE Rules, the DoE was deemed to have approved an appointment made by the MC of an aided school within 15 (fifteen) days from the date on which the particulars of such appointment are communicated to DoE under Rule 98(3). Therefore, it is submitted that as the DoE did not communicate its disapproval within the stipulated period of 15 (fifteen) days from 16.01.2018, the appointment of the Appellant is a case of deemed approval.
20. The Ld. Counsel for the Appellant has drawn the attention of this Court to Rule 127(3) of the DSE Rules, whereunder the SC is accorded with the ability to regulate its own procedure and, more importantly in case, a difference of opinion arises amongst the members of the SC on any matter, the same has to be decided by the trust or society running the school. In the case herein, it is the MC that has approved the appointment which is analogous to an appellate decision making authority as envisaged under Rule 127(3) of the DSE Rules.
21. The Ld. Counsel for the Appellant has also contended that as many as 20 (twenty) TGTs were appointed by way of the same Evaluation process following the same Evaluation Matrix. In this regard, he has drawn the attention of this Court to the case of one Ms. Sonal Bhardwaj who was appointed as a Post Graduate Teacher in Economic. Pertinently, in her case, she was awarded additional marks for a ‘Masters in Education’ which is evidently not related to Economics, however her appointment has not been interfered with by the DoE.
22. On the other hand, Respondent No. 3 has preferred LPA No. 709 of 2019 which is being disposed of by this common judgement. Pertinently, Respondent No. 3 has unreservedly supported the case of the Appellant and has adopted the arguments canvassed by Ld. Counsel appearing on behalf of the Appellant. The Ld. Counsel appearing on behalf of Respondent No. 3 has reiterated that it a minority institution and accordingly, has the right to select a teacher of its own choice, subject to fulfillment of the minimum qualifications prescribed by the DoE in respect of the said post. It has been argued that the Appellant before this Court fulfilled the requisite qualification for the post of TGT (Hindi) and was selected by a duly constituted SC and subsequently confirmed by the MC. Therefore, the DoE could not have set aside the Appellant’s appointment in light of the provisions of the DSE Act and DSE Rules (as applicable to a minority institution). In this regard, the Ld. Counsel for respondent No. 3 has also relied upon Chandana Das (Malakar) (Supra), Ahmedabad St. Xavier’s College Society (Supra) and T.M.A Pai Foundation (Supra).
23. The Ld. Counsel appearing on behalf of the Government of NCT of Delhi (“GNCTD”) and the DoE has vehemently argued before this Court that, that Respondent No.3 could not have awarded the Appellant additional marks in respect of her ‘M.A. Degree’ in English in relation to her appointment as a TGT (Hindi) as per the Evaluation Matrix as the same would be contrary to the Circular. Accordingly, it is submitted that the Appellant’s selection was not proper; hence, the DoE was left with no other choice except to disapprove the appointment made by the MC.
24. Furthermore, it has been argued before that the DSE Act read with DSE Rules specifies a procedure in relation to appointment of persons. Therefore, it has been submitted that the Ld. Single Judge was justified in upholding the order passed by the DoE in the light of Respondent No.3’s departure from the specified procedure under the DSE Act read with the DSE Rules.
25. The Ld. Counsel has contended that Respondent No. 3 school does not have an unfettered right to select and appoint a person of its own choice as a teacher in disregard to the Recruitment Rules (defined below) and other general norms. Moreover, it has been submitted that Rule 64(a) of the DSE Rules categorically states that no school shall be granted aid unless its managing committee undertakes in writing that it shall comply with the provisions of the DSE Act and the DSE Rules. Accordingly, as the Circular issued under the provisions of the DSE Act and / or DSE Rules was flouted by Respondent No. 3 as it awarded additional marks in respect of higher qualification i.e., ‘M.A. Degree’ in English even though the Appellant was seeking appointment as a TGT (Hindi), the SC erred in law and in fact in awarded such additional marks, hence, the DoE was justified in disapproving the appointment of the Appellant as a TGT (Hindi); and withholding the sanction of grant-in-aid in respect of Appellant’s appointment.
26. In this regard, the Ld. Counsel for the Appellant has also placed reliance upon a judgment delivered in the case of T.M.A Pai Foundation (Supra) and has specifically drawn the attention of this Court to Paragraph 143 of the aforesaid judgment which reads as under:
“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 institution 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 fulfilment 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.”
27. Accordingly, the Ld. Counsel for Respondent Nos 1 and 2 submitted that in light of T.M.A Pai Foundation (Supra) read with the Circular, the rights of Respondent No. 3 under Article 30(1) of the Constitution of India were although not infringed upon, but subjected to the GNCTD’s regulatory powers to prescribe minimum qualifications for the persons to be appointed as teachers which has been held to be proper by the Supreme Court Ahmedabad St. Xavier’s College Society (Supra).
28. Furthermore the Ld. Counsel for Respondent Nos 1 and 2 has placed reliance upon judgments delivered by the Supreme Court in Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1; and Sindhi Education Society vs. Govt. (NCT of Delhi), 2010 (8) SCC 49 and reiterated that the award of additional marks to the Appellant in furtherance of the Evaluation was contrary to the DSE Act, DSE Rules and the Circular.
29. We have heard the Ld. Counsel(s) for the parties at length and perused the record. The matter is being disposed of at the admission stage itself with consent of the parties.
30. The undisputed facts of the case reveal that the Respondent No. 3 is a government recognized minority aided institution managed and controlled by Jain Siksha Pracharak Society. Furthermore, it would be pertinent to note that the minority status of Respondent No. 3 is not in question.
31. Admittedly, the appointment of teachers is governed under the provisions of the DSE Act read with the DSE Rules. Furthermore, the recruitment rules notified by the DoE vide a notification dated 17.07.2017 bearing no: F.No. DE.3(36)/ DR/ Notification/ 2017/4525 (the “Recruitment Rules”) is reproduced as under:
These posts are identified suitable for PH (OH-OA,OL, BL & VH-B.LV) candidate as per requisition of user department.
R.No.
F.No.DE.3(36)/DR/Notification/2017/4525
Post Code:-
Name of the post:-
Vacancies in Dte. Of Education
69/17
TGT (Bengali)-Female
(Total- 1) (UR-1)
70/17
TGT (Hindi)-Male
(Total-271) (UR-143, OBC-87, SC-24, ST-17) including PH-8 (VH-4, OH-4)
71/17
TGT (Hindi)-Female
(Total-151 ) (UR-93, OBC-14, SC-26, ST-18) including PH-5 (VH-2, OH-3)
72/17
TGT (Punjabi)-Male
(Total-88) (UR-45, OBC-24, SC-12, ST-7) including PH-3 (VH-1, OH-2)
73/17
TGT (Punjabi)-Female
(Total- 126) (UR-59, OBC-38, SC-18, ST-11) including PH-4 (VH-2, OH-2)
74/17
TGT (Sanskrit)-Male
(Total-114) (UR-57, OBC-39, SC-10, ST-8) including PH-3 (VH-1, OH-2)
75/17
TGT (Sanskrit)-Female
(Total-140 ) (UR-51, OBC-69, SC-12, ST-8) including PH-4 (VH-2, OH-2)
76/17
TGT (Urdu)-Male
(Total-78) (UR-39, OBC-20, SC-13, ST-6) including PH-2 (VH-1, OH-1)
77/17
TGT (Urdu)-Female
(Total-135 ) (UR-63, OBC-38, SC-24, ST-10) including PH-4 (VH-2, OH-2)
Educational Qualification:-
Essential:-
(i) B.A. (Honours) in one of the Modern Indian Languages (MIL) concerned or BA with MIL concerned as one of the Elective subjects from a recognized University having 45% marks in aggregate with one additional language or one school subject at Degree Level.
OR
Equivalent Oriental Degree in MIL concerned from a recognized University having 45% marks in aggregate.
OR
(For appointment as Hindi Teachers only) Sahitya Rattan of Hindi Sahitya Sammelan Prayaga having secured at least 45% marks in aggregate with English in Matriculation provided further that the requirement as to the minimum of 45% marks in the aggregate shall be relaxable in the case of (a) Candidate who posses a Post Graduate Qualification in MIL concerned from a recognized University (b) candidates belonging to SC/ST (c) Physically handicapped candidates.
(ii) Degree/ Diploma in teaching
OR
Senior Anglo Vernacular Certificate
(iii) “Knowledge of Hindi is essential”. (iv) Should have qualified CTET from CBSE.
N.B :- “The candidate should have studied the subject concerned as mentioned in the RR’s for atleast 02 years during the Graduation course. The elective word may also include main subject as practiced in different Universities”

Experience:-
Desirable
NA

Essential
NA

Desirable
NA
Pay Scale:-
9300-34800 + Grade Pay 4600 Group: ‘B’ Non-gazetted
Age Limit:-
Below 32 years, Age Relaxable to SC/ST/OBC/Exsm/PH in accordance with the instructions / orders issued by Govt. of India from time to time.
Women Candidates & Departmental employees of Delhi Administration:- Relaxable upto 40 years.
Kashmiri Migrant Teachers:- One time relaxation in the upper age limit for the numbers of years served as teacher in Dte. Of Education.
Guest/Contract teachers:-Relaxation in upper age as a onetime measure upto the actual time spent as guest/contract teacher in Dte. Of Education, subject to a maximum of 5 years provided they have worked for atleast 120 working days in that particular year (this would be applicable to those guest/contract teachers who have worked for the academic years 2012-13, 2013-14,2014-15, 2015-16 & 2016- 17).

32. The Respondent No. 3 issued the Advertisement inviting applications for various teaching and non-teaching positions including inter alia the post of TGT (Hindi). As the Appellant fulfilled the requisite qualifications for the post of TGT (Hindi) i.e., the Appellant possessed (i) a B.A. Degree; (ii) B.Ed. Degree; and had successfully cleared the CTET, she applied for the position of a TGT (Hindi) while categorically disclosing that she is holding a post-graduate degree in English i.e., M.A Degree (English). Pertinently, under the DSE Act, DSE Rules or Recruitment Rules having a post-graduate degree is not an essential pre-requisite for eligibility of appointment as a TGT.
33. Furthermore, DoE issued a circular dated 07.02.2014 for implementation of order(s) dated 21.11.2021 passed by this Court in W.P.(C) No. 2845 of 1992; and W.P.(C) No. 4291/1993 in the matter titled ‘Queen Mary’s School Vs. Union of India’; and ‘B.M. Gange Girls Sr. Sec. School Vs. Union of India & Anr.’ (the “2014 Notification”). The 2014 Notification is reproduced as under:
“ CIRCULAR
Sub: Implementation of Hon’ble High Court of Delhi order passed on 21.11.2011 in W.P.(C) No. 2845 of 1992 and W.P.(C) No. 4291/1993 in the matter of Queen Mary’s School Vs. UOI and B.M. Gange Girls Sr. Sec. School Vs. Union of India & Anr. Respectively.
WHEREAS, the operative part of the order dated 21.11.2011 passed by Hon’ble High Court of Delhi in Writ Petition (Civil) No.2845 of 1992 and Writ Petition (Civil) No.4201/1993 in the matter of Queen Mary’s School Vs. UOI and B.M. Gange Girls Sr. Sec. School Vs. Union of India & Anr. Respectively reads as under:-
“we hold and declare that Rules 47, 64 (1) (b), (e) and 96 of the Delhi School Education Rules, are inapplicable to aided minority schools. Rule 64 (1) (g) is held inapplicable to the extent that it mandates such schools to fill the posts “without any discrimination or delay as per the Recruitment Rules prescribed for such posts”; it is clarified that the managements of such aided minority schools shall adhere to the Recruitment Rules, and other general norms, to the extent they prescribe qualifications, experience, age, and other such criteria, for appointment (as they are regulatory). ”
NOW, THEREFORE, all the Deputy Directors of Education of Districts are directed to ensure the compliance of the aforesaid directions of the Hon’ble High Court of Delhi, subject to the outcome of the Review Petition, if any, and also to ensure that henceforth no surplus employee/ employees of Govt. Aided Non-Minority Schools rendered surplus due to closure of a school/ institution change in post fixation due to revised enrolment shall be absorbed in Govt. Aided Minority School.
Sd/-
(Padmini Singla)
Director (Education)
To
The Deputy Director of Education,
All the Districts under Directorate of Education,
Govt. of NCT of Delhi,
Delhi/ New Delhi.”
34. In this background, the MC through the EC in a meeting dated 18.11.2017 constituted a SC and formulated the Evaluation Matrix for recruitment of inter alia TGTs and assistant teachers. The minutes of the EC meeting dated 18.11.2017 reads as under:
“MINUTES OF THE MEETING OF THE EXECUTIVE COMMITTEE
The Executive Committee constituted by the School Managing Committee at its meeting held on 09.11.2016 to take decision on its behalf, held its meeting on 18.11.2017 in the school premises of Hira Lal Jain Sr. Sec. School, Sardar Bazar, Delhi-110006. The following were present:
01 Dr. Shugan Chand Jain Chairman
02 Shri S.P. Jain Vice-Chairman
03 Shri O.P. Bansal Manager
04. Miss Kanak Mala Jain Joint Manager
(i) Constitution of Selection Committee for the post of TGTs and Assistant Teachers
It was noted that applications received for various vacant posts against advertisement, during August, 2017 last date of submission of applications being 16.09.2017, are under process. The Executive Committee noted that as per order No. F.DE 15(Misc.) Act-II/2014/224-239 dated 07.02.2014 rule 96 of DSEA&R-1973 is inapplicable to Minority Aided Schools. In this background, the Selection Committee, as under was, constituted for TGTs and Assistant Teachers:-
01. Dr. Shugan Chand Jain Chairman
02. Shri SP. Jain Vice-Chairman
03. Shri O.P. Bansal Manager
04. Miss Kanak Mala Jain Joint Manager
05. Shri Padam Prasad Jain Member
06. Prof. Mrs. Vibha Jain Member
07. Principal/ In-charge of the School Head of the School
The Executive Committee further desired that to be more transparent DDE, Zone XXVII be invited to associate with the Selection Committee for TGTs and Assistant Teachers. For teacher’s subject matters specialist, be decided in consultation with, Dr. Shugan Chand Jain, Chairman of the Selection Committee.
(ii) For TGTs and Assistant Teachers
The Executive Committee took note of the various circulars mentioned on the subject in the clearance letter No. DDE/N/PB-462-466 dated 18.07.2017 and the fact that ours being a Minority School and decided the marking scheme as under:-
For TGT’s
XII
Graduate BA/B.com/ B.Sc.
B.Ed
Addl. Qualification M.A. M.Com/ M.Sc/ M. Phil/ Ph.D.
EXP
CTET
Total
Interview
Total
10
20
20
10
10
10
80
20
100

For Assistant Teachers
X
XII
JBT/E TT
Addl. Qualification BA/B.Com/B.Sc./M.A./M.Sc/M.Phil/Ph.D
EXP
CTET
Total
Interview
Total
10
20
20
10
10
10
80
20
100
(iii) Minimum of 10 candidates by called for interview”
35. Thereafter, Respondent No. 3 addressed a letter dated 23.11.2017 to the Deputy Director of Education, Zone-XXVII i.e., a government nominee (the “Deputy Director”), communicating the proposed dates of interview to be conducted for the purpose of recruitment of inter alia a TGT (Hindi) and sought participation of the Deputy Director in the selection / recruitment process.
36. The interviews pursuant to the Advertisement took place on 04.12.2017 wherein candidates were evaluated on the basis of the Evaluation Matrix. The Appellant was awarded the highest marks for the post of TGT (Hindi) by the SC. Subsequently, in a meeting dated 13.12.2017, the MC confirmed the decision of the SC qua the recommendation to appoint the Appellant as TGT (Hindi). Thereafter, the Appellant was issued the Appointment Letter which substantiated the terms of appointment, including inter alia a probationary period extending to 2 (two) years from the date of joining, i.e., 16.01.2018. Pertinently, Respondent No.2 was also intimated about the appointment on the date of joining. Vide a letter dated 31.01.2018 raised certain queries; and sought clarifications in respect of the appointment of the Appellant. The said queries were responded to by Respondent No. 3 vide a letter dated 05.02.2018. Thereafter vide a letter dated 28.04.2018, Respondent No.2 informed Respondent No. 3 that inter alia the Appellant was wrongly awarded marks in the category of ‘Additional Qualifications’ under the Evaluation Matrix as the Appellant did not possess a post-graduate degree in the underlying subject for which she was being appointed and accordingly, refused sanction of grant-in-aid qua the appointment of the Appellant. Nonetheless, the letter called upon Respondent No. 3 to clarify its position qua the appointment of the Appellant. In this regard, Respondent No. 3, vide a letter dated 07.05.2018 clarified that the Evaluation Matrix and / or the Recruitment Rules did not envisage the grant of additional marks only in case of a post-graduate degree in the concerned subject, thus the marks awarded in the category of ‘Additional Qualifications’ was proper. The relevant extracts of the letter dated 07.05.2018 are reproduced as under:
“The Dy. Director of Education,
Distt. North, Lucknow Road
Delhi 110054
Through; The Dy. Director of Education, Zone VIII, Pratap Nagar, Delhi-110007
Sub: Regarding grant in aid case of Smt. Kiran Jain, TGT (Hindi)
Madam/Sir,
With reference to your letter No. P.B./DDE (N)243/2018 dated 27.04.2018 received on 03.05.2018 on the subject cited above, I am to inform that the marks was given for additional qualification in M.A. to Mrs. Kiran Jain, TGT (Hindi). There is no mention in recruitment rule of TGT (Hindi), the mark given for additional qualification in the concerned subject.
It is requested to kindly release the grant-in-aid at an early date.
Yours faithfully
Sd/-
(Jaswant Singh Jain)
Hony. Manager”
37. Respondent No. 2 vide a letter dated 10.08.2018, directed Respondent No. 3 to take immediate action vis-à-vis the appointment of the Appellant and, accordingly, vide an order dated 18.08.2018, the services of the Appellant as a TGT (Hindi) were discontinued on account of the Appellant’s appointment being rejected by Respondent No. 2 (“Termination Order”). Thereafter, the Appellant unsuccessfully challenged the Termination Order by way of the Writ Petition.
38. For the purpose of the dispute before this Court, it would be imperative to refer to the relevant statutory provisions governing the field enshrined under the DSE Rules. The same read as under:
“96. Recruitment
(1) Nothing contained in this Chapter shall apply to an unaided minority school.
(2) Recruitment of employees in each recognised private school shall be made on the recommendation of the Selection Committee.
(3) The Selection Committee shall consist of:—
(a) in the case of recruitment of the head of the school,:-
(i) the Chairman of the managing committee;
(ii) in the case of an unaided school, an educationist is nominated by the managing committee, and an educationist nominated by the Director;
(iii) in the case of an aided school, two educationists nominated by the Director, out of whom at least one shall be a person having experience of school education;
(iv) a person having experience of the administration of schools, to be nominated, in the case of an unaided school by the managing committee, or in the case of an aided school, by the Director;
(b) in the case of an appointment of a teacher (other than the head of the school),:—
(i) the Chairman of the managing committee or a member of the managing committee nominated by the Chairman;
(ii) the head of the school;
(iii) in the case of a primary school, a female educationist having experience of school education;
(iv) in the case of an aided school, one educationist to be nominated by the Director, and one representative of the Director;
(v) in the case of appointment of a teacher for any class in the middle stage or any class in the higher secondary stage, an expert on the subject in relation to which the teacher is proposed to be appointed, to be nominated, in the case of an unaided school by the managing committee, or in the case of an aided school, by the Director.
(c) in the case of an appointment of any other employee, not being an employee belonging to 1 [“Group D”].
(i) the Chairman of the managing committee or a member of the managing committee, to be nominated by the Chairman;
(ii) head of the school;
(iii) a nominee of the Director;
(iv) in the case of an aided school, two officers having experience of the administration of school, to be nominated by the Director;
2 [(d) in the case of an appointment of a Group ‘D’ employee:—
(i) the Chairman of the Managing Committee or a member of the Managing Committee nominated by the Chairman;
(ii) the head of the school;]
3 [(3-A) Notwithstanding anything contained in sub-rule (3), in the case of an aided minority school, the educationists nominated under paragraph (iii) of clause (a) of sub-rule (3), persons nominated by the Director under paragraph (iv) of clause (a) of sub-rule (3), educationists nominated under paragraph (iv) of clause (b) of sub-rule (3), an expert nominated under paragraph (v) of clause (b) of sub-rule (3), a person nominated under paragraph (iii) of clause (c) of sub-rule (3), officers nominated under paragraph (iv) of clause (c) of sub-rule (3), a person nominated under paragraph (iii) of clause (b) of sub-rule (3), shall act only as advisers and will not have the power to vote or actually control the selection of an employee.
(3-B) Notwithstanding anything contained in sub-rule (3), the selection committee of a minority school shall not be limited by the number specified in the said sub-rule and its managing committee may fix such number.]
(4) Nomination of any educationist or expert as a member of the Selection Committee shall be made out of a panel prepared for the purpose by the Advisory Board.
(5) The Chairman of the managing committee, or, where he is not a member of the Selection Committee, the member of the managing committee who is nominated by the Chairman to be a member of the Selection Committee, shall be the Chairman to the Selection Committee.
(6) The Selection Committee shall regulate its own procedure.
(7) Where any selection made by the Selection Committee is not acceptable to the managing committee of the school, the managing committee shall record its reasons for such non-acceptance and refer the matter to the Director for his decision and the Director shall decide the same.
(8) Where a candidate for recruitment to any post in a recognised school is related to any member of the Selection Committee, the member to whom he is related shall not participate in the selection and a new member shall be nominated, in the case of any aided school, by the Director, and in the case of any other school, by the managing committee, in place of such member.
(9) No managing committee shall entertain any application for employment from a person who is already serving as teacher in a recognised school, whether aided or not, unless the application from such person is duly forwarded by the manager of the school in which such applicant is serving:
Provided that every application from such person shall be forwarded by the manager, but any application in excess of three in a year shall not be forwarded unless the managing committee, for reasons to be recorded by it in writing, so directs:
Provided further that no such teacher shall be relieved of his duties except after the expiry of a period of:—
(i) three months, in the case of a permanent teacher, from the date on which notice of intimation to leave the school is given; and
(ii) one month, in the case of a teacher who is not permanent, from the date on which notice of intimation to leave the school is given:
Provided also where the managing committee is in a position to provide for a substitute for such teacher earlier than the respective period specified in the foregoing proviso, the managing committee may relieve the teacher of his duties on the expiry of such earlier period.
Footnote: 1. Subs. by DSE(A)R, 1990, R.21(1)(a) 2. Subs. by DSE(A)R, 1990, R. 21(1)(b). 3. Ins. by DSE(A)R, 1990, R. 21(2).
97. Relaxation to be made with the approval of the director
Where the relaxation of any essential qualification for the recruitment of any employee is recommended by the appropriate selection committee, the managing committee of the school shall not give effect to such recommendation unless such recommendation has been previously approved by the Director.
98. Appointing authority
(i) The appointment of every employee of a school shall be made by its managing committee.
1 [(2) Every appointment made by the managing committee of an aided school shall, initially, be provisional and shall require the approval of the Director:
Provided that the approval of the Director will be required only where Director’s nominee was not present in the Selection Committee/DPC or in case there is difference of opinion among the members of the Selection Committee:—
Provided further that the provision of this sub-rule shall not apply to a minority aided school].
(3) The particulars of every appointment made by the managing committee of an aided school shall be communicated by such committee to the Director (either by registered post acknowledgment due or by messenger who will obtain an acknowledgment of the receipt thereof), within seven days from the date on which the appointment is made.
(4) The Director shall be deemed to have approved an appointment made by the managing committee of an aided school if within fifteen days from the date on which the particulars of the appointment are communicated to him under sub-rule (3), he does not intimate to the managing committee his disapproval of the appointment, 2 [and the person so appointed shall be entitled for his salary and allowance from the date of his appointment.]
(5) Where any appointment made by the managing committee of an aided school is not approved by the Director, such appointment may (pending the regular appointment to the post) be continued on an adhoc basis for a period not exceeding three months and the salary and allowances of the person so continued on an adhoc basis shall qualify for the computation of the aid to be given to such school.
Footnote: 1. Subs. by DSE (A)R, 1990, R. 22(a). 2. Added by DSE(A)R, 1990, R.22(b).”
39. Upon a perusal of the aforesaid statutory provision of law, it is amply clear that no marking scheme / evaluation matrix has been specified under Rule(s) 96, 97 or 98 of the DSE Rules. Thus, in the absence of any statutorily prescribed marking scheme / evaluation matrix to be followed in furtherance of recruitment, Respondent No. 3 was only mandated to ensure that a prospective candidate fulfilled the eligibility criteria corresponding to the post as per the Recruitment Rules. Traversing beyond the aforementioned position must be tested against the anvil of the rights bestowed upon a minority institution under Article 30(1) of the Constitution of India.
40. This Court is cognizant of the role of the DoE which undoubtedly includes the power to prescribe a minimum qualifications and mandate the constitution of a SC under the Recruitment Rules. The DoE cannot however test the sufficiency and / or propriety of the selection process which was undertaken by a duly constituted SC and thereafter recommend the termination of the services of the Appellant only on account of an interpretational dispute vis-à-vis the evaluation criteria / marking scheme.
41. In this regard, it would be pertinent to refer to a decision of a coordinate bench of this Court in Queens Mary’s School (Supra) wherein this Court has held that Rule 47, 64(1)(b) and (e) and 96 of the DSE Rules do not apply to minority aided schools. Accordingly, the decision of the DoE to (i) object to the appointment of the Appellant as a TGT (Hindi); and (ii) withhold / reject the sanction of grant-in-aid in relation qua the Appointment of the Appellant is improper and contrary to the position laid down in Queens Mary’s School (Supra) as undisputedly, the Appellant fulfilled the requisite eligibility criteria specified under the Recruitment Rules.
42. The marking scheme issued by the DoE vide the Circular cannot apply to an aided minority school as the latitude of rights enshrined under Article 30(1) of the Constitution of India entitle a minority school to choose any person satisfying the minimum eligibility criteria specified by the Government. Furthermore, in the present case, the dispute does not pertain to the eligibility of the Appellant in relation to the minimum standards prescribed by the Government, but the dispute is limited to whether Respondent No. 2 could have recommended the termination of the appointment of the Appellant on the sole ground that the SC wrongly awarded marks to the Appellant on the basis of the Evaluation Matrix i.e., a marking scheme evolved by the management of Respondent No.3 as the Appellant herein obtained a post-graduate degree in a subject that was not corresponding to the post of TGT (Hindi).
43. Pertinently, Rule 98 of the DSE Rules prescribes the framework of authority for the appointment of an employee of the school by its managing committee. Sub-rule (2) of Rule 98 of the DSE Rules states that that every appointment made by the managing committee of an aided school shall be provisional and require the approval of the DoE. Although, under the proviso to Sub-rule (2) of Rule 98 of the DSE Rules, the approval of the DoE may be dispensed with in the event that (i) the DoE’s nominee was present in the selection committee / departmental promotion committee (as the case may be); or (ii) the decision in respect of the appointment sought to be made was unanimous, however, the second proviso to Sub-rule (2) of Rule 98 of the DSE Rules categorically states that the rigors of Sub-rule (2) of Rule 98 of the DSE Rules shall not apply to a minority aided school.
44. Accordingly, in the considered opinion of this Court, on account of the exception provided under the second proviso to Sub-rule (2) of Rule 98 of the DSE Rules , the issue qua concurrent approval of the DoE in respect of the appointment of the Appellant is not worthy of further consideration and could not have been agitated as a ground to withhold or reject the sanction of sanction of grant-in-aid in respect of the Appellant’s appointment.
45. Furthermore, Rule 96 of the DSE Rules prescribes inter alia the composition of a selection committee constituted for the purpose of recruitment. In the present case, the SC was constituted as per Sub-rule (3) of Rule 96 of the DSE Rules however at the time of selection, the nominee of the DoE was not present in the SC. Furthermore, sub-rule (3A) of Rule 96 of the DSE Rules delineates the role of the DoE’s nominee in a selection committee of an aided minority school wherein it is clarified that such nominees shall only act as advisors and have no power to vote or actually control the selection of an employee.
46. At this juncture, it would be relevant to refer to the decision of this Court in in the case of Queen Mary’s School (Supra) wherein this Court has reiterated the observations of the Supreme Court in Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SCC 224 vis-à-vis the degree of interference by the State including inter alia the right of a minority aided institution to maintain autonomy qua selection and appointment of teachers amongst candidate who are qualified i.e., who have satisfied the requisite eligibility criteria laid down by the State. The relevant extracts of Queen Mary’s School (Supra) are reproduced as under:
“9. The essential or core management right to appoint teachers and other personnel of their choice, even while preserving the state’s regulatory power to prescribe basic qualifications, for filling the post, was spelt out in the nine-Judge Bench in The Ahmedabad St. Xavier?s College Society case 1974 (1) SCC 717. The decision highlighted the importance of the role of the Principal of a college, and other teachers. In support of majority view in that decision K.K. Mathew, J. observed that:
“182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution.”
H.R. Khanna, J. adopted a still broader view that even selection of teachers is of great importance in the right to manage a school. Learned Judge stated that:
“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).”
The judgment in Sindhi Education Society v. Chief Secretary, Government of NCT of Delhi, (2010) 8 SCC 49, again interpreting various provisions of the Act, after exhaustively surveying the previous decisions on the interpretation of Article 30, stated that:
“100. The power to regulate, undisputedly, is not unlimited. It has more restriction than freedom particularly, in relation to the management of linguistic minority institutions. The rules, which were expected to be framed in terms of Section 28 of the DSE Act, were for the purpose of carrying out the provisions of the Act. Even, otherwise, it is a settled principle of law that rules must fall within the ambit and scope of the principal legislation. Section 21 is sufficiently indicative of the inbuilt restrictions that the framers of the law intended to impose upon the State while exercising its power in relation to a linguistic minority school.
101. To appoint a teacher is part of the regular administration and management of the school. Of course, what should be the qualification or eligibility criteria for a teacher to be appointed can be defined and, in fact, has been defined by the Government of NCT of Delhi and within those specified parameters, the right of a linguistic minority institution to appoint a teacher cannot be interfered with. The paramount feature of the above laws was to bring efficiency and excellence in the field of school education and, therefore, it is expected of the minority institutions to select the best teacher to the faculty. To provide and enforce any regulation, which will practically defeat this purpose would have to be avoided. A linguistic minority is entitled to conserve its language and culture by a constitutional mandate. Thus, it must select people who satisfy the prescribed criteria, qualification and eligibility and at the same time ensure better cultural and linguistic compatibility to the minority institution.
102. At this stage, at the cost of repetition, we may again refer to the judgment of this Court in T.M.A. Pai case8, where in para 123, the Court specifically noticed that while it was permissible for the State and its educational authorities to prescribe qualifications of a teacher, once the teachers possessing the requisite qualifications were selected by the minorities for their educational institutions, the State would have no right to veto the selection of the teachers. Further, the Court specifically noticed the view recorded by Khanna, J. in reference to Kerala Education Bill, 1957 case7, and to Clauses 11 and 12 of the Bill in particular, where the learned Judge had declared that, it is the law declared by the Supreme Court in subsequently contested cases as opposed to the Presidential Reference, which would have a binding effect and said: (T.M.A. Pai case8, SCC p. 571, para 123)
“123. … „… The words “as at present advised” as well as the preceding sentence indicate that the view expressed by this Court in Kerala Education Bill, 19577, in this respect was hesitant and tentative and not a final view in the matter.?*”
What the Court had expressed in para 123 above, appears to have found favour with the Bench dealing with T.M.A. Pai8. In any case, nothing to the contrary was observed or held in the subsequent judgment by the larger Bench.
Although the court’s observations were in the context of autonomy of a linguistic minority educational institution, the same principles would apply in the cases of institutions established and administered by religious minorities, i.e the state’s effort to enforce regulations which would directly or indirectly give a decisive role or say (or even a veto) in the appointment of teachers, would violate the right guaranteed under Article 30 (1). This court notices that a previous single judge decision, in St. Anthony’s Girls Senior Sec. School v. Govt. of NCT of Delhi, ILR (2005) 2 Del 52 did make observations about applicability of Rule 47, the judgment stopped short of pronouncing on the invalidity or inapplicability of the rule.
X x x x x x x x x
14. In the year 1975, immediately after the decision in The Ahmedabad St. Xavier (supra) a Division Bench of this court, had occasion to consider the (pre-amended) Rule 96. The relevant portion of the discussion, in the judgment S.S. Jain Sabha (of Rawalpindi) Delhi v. Union of India, ILR (1976) 2 Del 61 is as follows:
“27. This is also a part of the right of administration. Under rule 96 (3) the number of the members of Selection Committee is limited. Any such limitation may be placed only by the management.
Rule 96 (3) (a) (iii). — The presence of two educationists nominated by the Director will be of great help to the Selection Committee. But we hold that in regard to minority schools they will act only as advisers and will not have the power to vote or actually control the selection of employees. The minority schools are not bound to give preference to persons recommended by the Employment Exchange.
Rule 96 (3) (a) (iv). — The nominee of the Director will also act only as an adviser. The ad