The Directorate of Education lacks authority to impose mandatory qualifications on Managers of private unaided schools, which may infringe their management autonomy, as affirmed by TMA Pai Foundation.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. The present petition has been filed by the Petitioner - Action Committee Unaided Recognised Private Schools (Regd.,) of Delhi. The said Society has been registered as of 19th May, 1998 and has as its members 671 private unaided schools in Delhi. Since the writ petition is seeking benefit for 671 schools, the Registry shall calculate the Court fee in respect of this writ petition and the Petitioners shall deposit the said Court fee within four weeks.

3. The grievance in this writ petition is against two circulars dated 24th November, 2004 and 17th November, 2022 by which the qualifications for Managers of schools are being made compulsory by the Respondent - Directorate of Education, GNCTD (hereinafter `DoE').

4. The submission of Mr. Gupta, ld. Counsel appearing for the Petitioner is that vide circular dated 24th November, 2004, the guidelines for qualifications for the general body of the Society and the Manager was prescribed in the context of applications to be filed after the said date seeking approval of schemes of management.

5. It is his submission that this particular circular has never been enforced against private unaided schools especially if their respective schemes of management had already been approved by the DoE prior to the said date. It is his further submission that recently, vide circular dated 17th November, 2022, the said circular dated 24th November, 2004 is being sought to be enforced against all private unaided schools as also minority schools in Delhi and thus, the Petitioner is aggrieved by the same.

6. Reference is made by the Petitioner to Section 3 of The Delhi School Education Act, 1973 (hereinafter `DSE Act'), Rules 43 and 50 of The Delhi School Education Rules, 1973 (hereinafter `DSE Rules') as also the scheme of the Act and Rules to argue the following:

i) That the Manager is not an employee of the school.

ii) That in so far as private unaided schools are concerned, the DoE would not have the power to prescribe qualifications for Managers. The said power vests purely with the Managements of the respective schools.

iii) Under the DSE Act and DSE Rules, only the qualifications of teachers can be prescribed by the DoE which is being complied with by all schools.

7. He relies upon the Constitution Bench's decision in TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, paragraphs 55 to 60 in order to buttress his submissions. His overall submission is that in so far as private unaided schools are concerned, since none of the funds for the running of the said schools is received from the Government, the management autonomy is to be recognised and cannot be interfered with in this manner.

8. Mr. Gautam Narayan, ld. ASC appearing for DoE submits that this very circular dated 24th November, 2004 has been upheld by the ld. Single Judge and the Division Bench of this Court in Writ Petition Civil 4608/2013 titled Satbharawan Arya Girls Sr. Sec. School & Anr v. Union of India & Ors. and in the LPA 196/2017 titled Satbharawan Arya Girls Sr. Sec. School & Anr v. Union of India & Ors. However, he concedes that these orders were passed in the context of aided schools.

9. Mr. Narayan, ld. ASC submits that several private unaided schools have been issued notices after 2004 to comply with the qualifications prescribed for the position of Manager and there has been no challenge to the said notices. On a query from the Court in so far as the schemes of management which are approved prior to the issuance of the 2004 circulars are concerned, he submits that this very issue has been framed as a question by a ld. Single Judge of this Court in Writ Petition 11462/2021 titled Delhi Aided School Management Association v. Govt. of NCT of Delhi & Anr.

10. It is his submission that irrespective of whether the Manager is to be considered as an employee of the school or not, the qualifications for the Manager