2010 Supreme(SC) 544

2010 (5) Supreme 267
SUPREME COURT OF INDIA
Dr. B.S. Chauhan and Swatanter Kumar, JJ.
Sindhi Education Society & Anr. — Appellants
versus
The Chief Secretary, Govt. of NCT of Delhi & Ors. — Respondents
Civil Appeal No. 5489 of 2007
Decided on : 8-7-2010

IMPORTANT POINT
Rule 64(1)(b) of the DSE Rules, 1973 and the circular of September, 1989, are not enforceable against the linguistic minority school in the NCT of Delhi.

Headnote:(a) Delhi School Education Act, 1973 – Section 2(o) r/w Article 30(1), Constitution of India – Sindhi Education Society is a linguistic minority society. (Para 14)

       WP 940 of 1975 (Del) – Relied upon

       (b) Delhi School Education Act, 1973 – Section 21 – Power of control and management vested in the authority even on the basis of alleged breach of conditions would not enable the authorities to take over the management of any minority school – Thus Section 21 is an absolute exception to the applicability of Section 20. (Paras 16 and 26)

       (c) Constitution of India – Article 30 – Minority institutions have the freedom to administer their institutions including appointment of teachers of their choice. (Para 32)

       (1959) SCR 995; AIR 1974 SC 1389 – Relied upon

       (d) Delhi School Education Act, 1973 – Section 21 – An institution run by a minority linguistic or religious society would not be controlled exclusively by the provisions of the Act and the Rules framed thereunder – Requirement of approval would tantamount to interfere in the internal management of a minority institution. (Para 33)

       (1993) Supp. 4 SCC 26 – Relied upon

       (e) Constitution of India – Article 30(1) – Any law, rule or regulation putting the minority educational institutions at a disadvantage vis-à-vis other institutions, will have to be struck down – At the same time, there may not be any reverse discrimination. (Para 36)

       (2002) 8 SCC 481 – Relied upon

       (f) Constitution of India – Article 30 – Minority institutions have right to appoint teachers of their choice from among the NET/SLET qualified candidates. (Para 41)

       (2002) 8 SCC 481; (2003) 6 SCC 697; (2005) 6 SCC 537 – Relied upon

       W P (C) No.2426 of 1992; (2004) 6 SCC 224; AIR 1964 SC 179 – Referred

       (g) Constitution of India – Article 30 – It did not contemplate granting of any higher rights to the minority as opposed to majority – It only conferred additional protection. (Para 44)

       (2006) 11 SCC 92 – Relied upon

       (h) Constitution of India – Article 30 – Any regulation attempting to interfere with overall administrative control by the management or right to establish and administer educational institutions would be inapplicable to the minorities to that extent. (Para 44)

       (2007) 1 SCC 386 – Relied upon

       (i) Constitution of India – Article 21-A – In pursuance of (1993) 1 SCC 645 free and compulsory primary education was made constitutional right of every child. (Para 49)

       (1993) 1 SCC 645 – Relied upon

       (j) Constitution of India – Article 30(2) r/w DSE Act and DSE Rules– To receive grant-in-aid is a legitimate right of a school subject to satisfying the requirements of law. (Para 50)

       (k) Constitution of India – Article 30 r/w article 12 – Minority institutions/societies even if aided cannot be termed as ‘State’ unless they fulfill other criteria – Hence the State has no right to frame such laws or provisions or make reservations in the field of employment of those societies – Essential features for determining a ‘state’ restated. (Paras 51 and 53)

       (1981) 1 SCC 722; (2005) 5 SCC 632; (2009) 5 SCC 577; AIR 2007 SC 2885 – Relied upon

       (l) Delhi School Education Rules, 1973 – Rule 64(1)(b) – Once the State lacks basic power of jurisdiction to make special provisions and reservations in relation to minority institutions, which do not form part of service under the State, it cannot be held that Rule 64(1)(b) can be enforced against aided minority institution. (Paras 55 and 61)

       (2002) 8 SCC 481 – Referred

       (1993) Supp. 4 SCC 26 – Impliedly distinguished

       (m) Constitution of India – Article 30(1) – The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions framed having regard to the public interest and national interest of the country. (Paras 56 to 58)

       (1970) 2 SCC 417; (1980) 2 SCC 478; (2002) 8 SCC 481; (1959) SCR 995; (2007) 1 SCC 386; (2005) 6 SCC 537 – Relied upon

       (n) Delhi School Education Act, 1973 – Section 28 r/w 21 – Rules framed in terms of Section 28 must confine within the restrictions indicated in Section 21 – While prescribing qualifications for a teacher is prerogative of the state, selection therefrom is the right of the minority institutions – State cannot control, regulate or veto the selection. (Paras 59 and 60)

       (2002) 8 SCC 481; 1957, (1959) SCR 995 – Relied upon

       (o) Constitution of India – Preamble – While deciding a constitutional matter the Court would not be competent to raise a presumption of inimical attitude of and towards one community or the other. (Para 63)

       2005 III AD (Delhi) 560 – Disapproved

       (p) Constitution of India – Article 16 – As and when the Government changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community rather than a section thereof – Despite a policy exempting the minority institutions from complying with the requirements of the Rule 64(1)(b) of the DSE Rules and judgment of the High Court to that effect, requiring the appellant to comply with rule 64(1)(b) without valid reasons not permissible. (Para 68)

       (2006) 8 SCC 212 – Relied upon

       Facts of the case:

       The questions raised in this Appeal are :

       1.Whether Rule 64(1)(b) of the Delhi School Education Rules 1973 is unconstitutional, and

       2.Even if the relevant provisions of the Delhi School Education Act, 1973 are not unconstitutional, would they still apply with their rigors to the linguistic minority schools receiving grant-in-aid from the Government.

       Finding of the Court:

       Rule 64(1)(b) and the circular of September, 1989, are not enforceable against the linguistic minority school in the NCT of Delhi.

       Result : Appeal allowed.