St Martins Diocesan School v. Govt of NCT of Delhi

1. This hearing has been done through hybrid mode. CM APPL. 54918/2022 (for exemption)

2. Allowed, subject to all just exceptions. Application is disposed of. W.P.(C) 17273/2022 & CM APPL. 54917/2022

3. The present petition has been preferred by St. Martin’s Diocesan School/Petitioner No.1 and Somerville School/Petitioner No.3 (hereinafter collectively “Schools”), along with their respective Managers/Petitioner Nos. 2&4. Both these Schools are unaided minority institutions. They are aggrieved by the fact that the qualification for Managers of the schools is being prescribed in an indirect manner by the Directorate of Education, GNCTD (hereinafter “DOE”) by applying Circular No.DDE/Act/15/2004/9012-9062 dated 24th November, 2004 issued by DOE, along with Order No.F.2(162)/Comp/DMC/2022/3580-3583 dated 12th October, 2022 issued by the Delhi Minorities Commission and Circular No.F.No.DE.15(882)/PSB/2022/9391-9396 dated 17th November, 2022, issued by the DOE. By these impugned orders/circulars, the qualification for the post of `Manager’ of a school is being prescribed as under: “A manager is required to have at least 10 years total experience in teaching and educational administration. Out of 10 years, at least 03 years shall be as in-charge of MCD/NDMC/Recognized/Middle/Sec/Sr.Sec.School. This certificate must be duly counter signed by EO/DEO of the concerned zone."

4. Mr. Chacko, ld. Counsel appearing for the Petitioners, relies upon the second Proviso to Section 5 of the Delhi School Education Act, 1973 (hereinafter “Act”), and Rule 59(3) of the Delhi School Education Rules, 1973 (hereinafter “Rules”), which according to him exempt minority institutions from obtaining approval for their scheme of management. The said provisions are set out below: “Section 5. Scheme of management (1) Notwithstanding anything contained in any other law for the time being in force or in any instrument having effect by virtue of any such law, the managing committee of every recognised school shall make, in accordance with the rules made under this Act and with the previous approval of the appropriate authority, a scheme of management for such school: Provided that in the case of a recognised private school which does not receive any aid, the scheme of management shall apply with such variations and modifications as may be prescribed: Provided further that so much of this sub-section as relates to the previous approval of the appropriate authority, shall not apply to a scheme of management for an unaided minority school. (2) A scheme may be made, in like manner, to add, to vary or modify any scheme made under sub-section (1). xxx xxx xxx Rule 59.(3) The managing committee of an existing school shall make the draft of scheme of management after the commencement of these rules and shall, within 90 days from such commencement, submit such draft to the appropriate authority for its approval: Provided that the appropriate authority may, after giving to the managing committee a reasonable opportunity of being head, make such alterations or modifications in the draft scheme of management as the circumstance of the case may require. Provided further that the provisions of this sub-rule relating to the approval and alterations or modifications in the sphere of management by the appropriate authority shall not apply to a minority school in which case such approval and alterations or modifications shall be advisory and the draft scheme of management shall be valid.”

5. It is submitted that contrary to the said provisions, a communication has been issued by the DOE on 8th December, 2022 calling upon all recognized private aided and unaided schools including minority schools to prescribe the qualifications for their Managers as per the circular of the DOE dated 24th November, 2004. This, according to the ld. Counsel for the Petitioners, affects that autonomy of managing unaided minority institutions, contrary to the provisions of the above Act and the Rules, which clearly exclude minority institutions from the applicability of provisions regarding approval of the management scheme.

6. Mr. Gautam Narayan, ld. ASC on behalf of the Respondents, first relies upon the order dated 7th December, 2022 passed in W.P.(C) 8113/2021 titled Kerala Education Society Delhi & Ors. v. Director of Education, GNCTD, wherein this Court had the occasion to consider the same circulars. Additionally, he relies upon the Ahmedabad Saint Xavier College Society v. State of Gujarat, (1974) AIR (SC) 1389, to argue that the Constitution Bench of the Supreme Court in this decision recognizes the position that regulatory measures can be directed even at unaided religious and linguistic minorities institutions. On the strength of this decision, as also the decision of the ld. Division Bench of this Court in Satbharawan Arya Girls Sr. Secondary School v. Union of India & Ors. [LPA 196/2017, decision dated 30th August, 2017], he submits that the prescription of the qualification of a Manager in such schools, cannot be held to be invalid. He further submits that the same does not amount to a requirement upon the said schools to seek approval from the DOE for their management schemes, which is what may be prohibited by the Act and Rules. Mr. Narayan. ld. ASC, has further pointed to this Court that even under the Petitioners’ own management scheme, the qualifications prescribed for a Manager are as under: “13. Duties, terms and conditions of appointment for Manager:

The age of the Manager should not be less than 35 years and he should be at least a graduate from a recognised University.

7. Ld. ASC submits that in addition to the above, some experience in the field of education should also be considered by the Petitioner’s school, as a requirement to be appointed to such a high post as Manager.

8. Heard. The question as to whether unaided minority institutions can be regulated within the scheme of the Act and the Rules framed thereunder would require to be considered by this Court. On a first reading of the provisos to Section 5 as also Rule 59(3), there is prima facie, an exemption granted to minority institutions, especially those which are unaided. Vide the impugned circular dated 17th November, 2022, followed up by the communication dated 8th December, 2022, which are addressed to even unaided minority schools, the qualifications prescribed by the DOE for the post of a Manager are, in effect, being made mandatory.

9. The legal issue which has been raised is of considerable importance and thus this Court after considering the matter, including the orders passed in Satbharawan Arya Girls (supra) in the context of a non-minority institution and in Kerala Education (supra) in the context of an aided minority institution, directs that no coercive steps shall be taken against the Petitioners till the next date of hearing in terms of circular dated 17th November, 2022 or the impugned communication dated 8th December, 2022. If the management of these two Schools, however, wish to consider adopting the qualifications prescribed by DOE for the appointment of their Managers as well, then they may do so voluntarily.

10. Meanwhile, the Schools shall place on record an affidavit giving the details of the qualifications and the eligibility criteria of the Managers appointed in these Schools, over the last ten years, so as to enable the Court to consider the issue comprehensively.

11. Issue notice.

12. Let counter affidavit be filed within a period of six weeks. Rejoinder be filed within a period of four weeks, thereafter.