Govt. Of Nct Of Delhi And Ors. vs Sindhi Education Society And Ors.
2006 Latest Caselaw 2168 Del

JUDGMENT

Mukul Mudgal, J.

1. These appeals have been filed by the Government of National Capital Territory of Delhi ('GNCTD') against the following orders passed by the learned Single Judge:

(a) An Order dated 14.9.2005 allowing Writ Petition (C) No. 2426 of 1992 filed by the Respondents and striking down the instructions contained in the letter dated September 1989 of the Director of Education, GNCTD [Appellant No.2 herein] making it obligatory for all institutions receiving grants-in-aid from the Government (including aided minority educational institutions like that of the Respondents) to make reservation of posts for Scheduled Castes (SCs) and Scheduled Tribes (STs) as a pre-condition for sanction of such grants.

(b) An Order dated 14.9.2005 allowing Writ Petition (C) No. 4005 of 2002 filed by the Respondents and issuing a declaration that the Appellants herein do not have the power to insist that the respondent aided minority institution should follow the roster system in terms of the directions issued under Rule 64(1)(b) of the Delhi School Education Rules, 1983 ('DSE Rules'); and further directing the appellants herein to grant the approval for appointment of teachers and faculty members within 90 days of an application being received in that behalf from the Respondent institution.

2. The central issue that arises in these appeals is whether Rule 64 (1) (b) of the DSE Rules which stipulates that "no school shall be granted aid unless its managing committee gives an undertaking that it shall fill in posts in the school with Scheduled Caste and Scheduled Tribe candidates in accordance with the instructions issued by the central government from time to time" would also apply to an aided minority educational institution which admittedly is in the domain of Article 30(1) of the Constitution of India.

3.The facts leading to the filing of the present appeals are that the Respondent No. 1 Sindhi Education Society is registered under the Societies Registration Act, 1980 and is running a school known as the SES Baba Nebhraj Senior Secondary School (Respondent No.2 herein) in Lajpat Nagar, New Delhi. It is not in dispute that the school is a linguistic minority educational institution within the meaning of Section 2(o) of the Delhi School Education Act, 1973 ('DSE Act') and within the meaning of Article 30 of the Constitution of India.

4. A Division Bench of this Hon'ble Court by a judgment dated 14.7.1982 in Civil Writ Petition No. 940 of 1995 (Sindhi Education Society v. Director of Education) held that the respondent No.2 school was a minority school. The Division Bench in so doing followed an earlier judgment of this Court in S.S. Jain Sabha (of Rawalpindi) Delhi v. Union of India and held that certain provisions of the DSE Rules cannot be applied to a minority school and certain others would apply only in a modified form.

5. It is also not in dispute that the Respondent school is an aided minority school receiving the grants from the GNCTD. In terms of Rule 64 of the DSE Rules, the Managing Committee of an aided minority institution is required to give an undertaking in writing that it shall comply with the provisions of the DSE Act, the DSE Rules and such instructions that may be issued from time to time by the Director of Education regarding grant-in-aid and further that in the event of any breach of the provisions of DSE Act, DSE Rules or instructions such school would be liable to be removed from the grant-in-aid list.

6. By a letter dated 12.3.1985, the Delhi Administration informed Respondent No.2 school that, following the Office Memorandum (OM) dated 7.10.1974 issued by the Government of India, Department of Personnel, it was obligatory for the Respondent No.2 to make reservation for SCs and STs in the posts in the school as a pre-condition to receiving grant-in-aid. This letter dated 12.3.1985 was not challenged by the Respondent school immediately. Instead, the Respondent Society inviting the attention of GNCTD to the aforementioned judgment dated 14.7.1982 of this Court and contended that Rule 64 of the Rules would require to be complied with only if the instructions issued there under were in consonance of the Article 30(1) of the Constitution of India.

7. On 21.3.1986, the appellants wrote to the Respondent Society and the School that the requirement of giving an undertaking in terms of the letter dated 15.4.1985 would not apply to minority institutions and that the management of such institutions were at liberty not to adhere to such instructions. However, in September 1989, the impugned instructions were issued which again referred to the OM dated 7.10.1974 issued by the Government of India. It was emphasised that "the backlog of vacancies in respect of Scheduled Castes and Scheduled Tribes if any, will have to be filled up against future vacancies, no clearance will be issued to any institution for filling up the post by general candidates till all the posts reserved for SC/ST existing in institution are filled up." It was further stated in the letter dated September 1989 "neither the approval of appointment made in contravention of this instruction nor grant-in-aid will be released."

8. In the meanwhile Rule 64(1)(b) of the DSE Rules was further amended with effect from 23.2.1990 to make it obligatory for the managing committee of an aided school to undertake to comply with that Rule as a pre-condition for being granted aid. The respondents' representations against the directive of September 1989 were rejected by Appellant No. 2 herein who, by a letter 24.9.1990 reiterated that the instructions issued in September 1989 would apply and that "the Managing Committee of aided schools shall fill up the vacant posts in schools with the SC/ST candidates in accordance with the instructions issued by the Central Government/Department from time to time" and that "they should also maintain roster and other connected returns in this regard." It was "regretted that no relaxation can be made for schools run and established by the minority community."

9. When further representations did not find favor with the Appellants, the Respondents filed Writ Petition (C) No. 2425 of 1992 in this Court on 29.6.1992 for a declaration that Rule 64(1)(b) of the DSE Rules would not apply to the Respondent Society; that the instructions contained in the letter dated September 1989 should be withdrawn and that all pending cases of appointment of teachers and other staff for clearance by the Appellant No.2 Department should be cleared forthwith. Rule was issued on 25.5.1993 and the interim order earlier issued on 29.3.1993, staying the impugned instructions directing the Respondent (appellants herein) to give to the school their contributions towards the payment of the salary of adhoc/temporary teachers appointed with the school, was made absolute.

10. While the above writ petition was pending, the Respondent Society on 30.4.2002/3.5.2002 filed a further writ petition being Writ Petition (C) No. 4005 of 2002 praying for a mandamus to the appellant herein to clear all pending proposals for filling up vacant posts in the school within a fixed time limit. A reference was made to the pending writ petition. It was averred that in numerous ways the appellants herein were creating obstructions in the effective administration by the Respondents of their school and that this was violative of the rights guaranteed under Article 30(1) of the Constitution. Among the prayers made in this writ petition was for a direction to the appellants herein:

to grant approval for the clearance of a post which falls vacant on any account whatsoever, should be conveyed in writing within one month from the date of request and after conveying the clearance, the date of interview, along with the name of the departmental nominee and the selection committee be informed within 15 days so that prospective teachers are appointed without any delay and the interest of the students of the institution or of the institution does not suffer. The grant with respect to such post be released within one month.

11. In reply to the second writ petition, the stand taken by the Central Government was that the school was not following the roster system as was mandated by the order dated 7.12.2001 passed by the Department. While denying that the government were taking away the autonomy of the minority institution, it was reiterated that "the said institution has to follow the Delhi School Education Act and Rules framed there under."

12. The impugned orders in these appeals are cryptic since the learned Single Judge has proceeded on the basis that the cases were fully covered by an earlier decision dated 20.1.2005 of the learned Single Judge in Sumanjit Kaur v. NCT of Delhi 2005 III AD (Delhi) 560. Consequently, the learned Single Judge has, in the first writ petition (2426 of 1992) struck down the "impugned order calling upon the petitioner to follow the roster system." In the second writ petition (4005 of 2002) the learned Single Judge has issued a mandamus to the appellants herein to grant approval to the respondents herein if they apply in accordance with the rules "and if the teachers and faculty members possess the qualifications mentioned." The appellants have been further directed to pass orders "within ninety days of an application being received" from the respondents herein.

13. To complete this narration it must be mentioned that the appellants herein filed appeal (LPA No.445-446 of 2006) to a Division Bench of this Court against the decision of the learned Single Judge in Sumanjit Kaur. The said appeals were dismissed by a Division Bench of this Court on 1.2.2006 by a reasoned order. The Division Bench noted that in their rejoinder the concerned minority school in that case, i.e. the Khalsa Middle School, had "denied that the vacancies were filled up without following the roster system as per the rules and regulations." The Division Bench followed the order dated 13.8.1993 of the Hon'ble Supreme Court in Khalsa Middle School v. Mohinder Kaur, and held that since the institution was a minority school the provisions of the Delhi School Education Act 1975 ('DSE Act') and the DSE Rules ceased to be applicable to such institution. Further in para 17 of its Order dated 1.2.2006, the Division Bench concurred with the observations of the learned Single Judge and said: "we fully agree with the reasoning which he has given."

14. Ms.Avnish Ahlawat, learned Counsel appearing for the appellant submits that the learned Single Judge erred in following decision of Sumanjit Kaur inasmuch as that the observation made therein did not arise in the facts of that case and ought to be treated as obiter. The fact that the Division Bench affirmed this decision would not change the position. On merits it is submitted that Rule 64(1)(b) of the DSE Rules does not impinge on the minority character of the Respondent society and school and that by being made to comply with such requirements of reserving certain number of posts for SCs and STs, it cannot be said that minority character of the institution is sought to be taken away.

15. On the other hand it is submitted on behalf of the Respondent Society by Mr. Ashok Gurnani, Advocate that as a consequence of the unqualified affirmation of the judgment of the learned Single Judge in Sumanjit Kaur by the Division Bench in appeal, these appeals should also be dismissed. Further he submits that merely because the institution is an aided minority institution that would not denude such institution of its fundamental rights enshrined in Article 30 of the Constitution. It is submitted that the requirement of compliance with Rule 64(1)(b) of the Rules and maintaining of roster on that behalf would not be conducive to the effective administration of the minority institution and to that extent Rule 64(1)(b) as well as the instructions issued there under require to be declared unconstitutional.

16. Since the impugned orders in these cases holds that the decision in Sumanjit Kaur, which has been subsequently affirmed by the Division Bench, covers the cases on all fours, we have to necessarily examine the facts of that case and the decision thereon in order to ascertain whether the said decision can apply to the instant cases as well. If it does, then the further question is whether we are bound to follow the said decision if we are not in agreement with the reasoning of the Division Bench in Sumanjit Kaur's case and in such event whether the matter should be referred to a larger bench for reconsideration of the correctness of the decision in Sumanjit Kaur.

17. The facts in Sumanjit Kaur were that the petitioners therein were teachers employed in the Khalsa Middle School, an aided minority institution of the Sikhs. The salaries of these teachers was not being paid on account of the failure of the Director of Education to release grant-in-aid. It was the case of the Director of Education that the school was not complying with the instructions regarding reservation of posts for SCs and STs and maintaining a roster as per the Rule 64(1)(b) of the DSE Rules. Although the constitutional validity of Rule 64(1)(b) was not challenged in Sumanjit Kaur, the learned Single Judge nevertheless examined the issue from the point of view of Article 30(1) of the Constitution. After referring to the decisions of the Hon'ble Supreme Court in Re: The Kerala Education Bill 1957 AIR 1958 SC 956, Lilly Kurian v. Sr. Lewina , Frank Anthony Public School Employees' Association v. Union of India and Brahmo Samaj Education Society v. State of West Bengal , the learned Single Judge held (DLT para 14 pp. 567-568): "The constitutional validity of the Respondents requirements of engaging teachers belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes has not been raised in this petition. However, in view of the above discussion such Regulation would be unconstitutional since they are likely to interfere with the choice of the medium of instruction as well as minority character of the institution by compelling the appointment to the teaching faculty of persons who may be inimical towards that minority community." It was also held that orders dated 9.1.2001 issued by the appellant herein mandating that the roster system should be followed and the memorandum dated 7.12.2001 issued thereafter "may not be in consonance with the Constitution of India. The Directorate of Education ought not to insist on these requirements."

18. The learned Single Judge nevertheless was conscious that the decision in the case (Sumanjit Kaur) did not turn on the issue of the constitutional validity of the instructions issued by the Director of Education and observed (in para 14) that "this writ petition, however, can be disposed of on the ground that the Respondents must be deemed to have granted approval to the appointment of the petitioners and hence a discussion on the constitutional validity of the insistence of the Directorate of Education on engaging SC/ST and OBC teachers need not be gone into in any further detail."

19. A bare reading of the aforementioned highlighted observations in Sumanjit Kaur would make it appear that the observations regarding the constitutional validity of the instructions requiring an aided minority institution to follow the roster system were only obiter and not central to the decision in that case. Even the learned Single Judge on a matter of seminal importance of constitutional validity has himself stated that the discussion on the constitutional validity was not gone into detail. The issue that directly arises in these petitions, whether the requirement of making reservation in posts for SCs and STs in terms of Rule 64(1)(b) of the DSE Rules applies to aided minority institutions, does not appear to have been addressed except by way of obiter. However, the decision dated 1.2.2006 of the Division Bench affirming the above observations in toto and adding that the DSE Act and the DSE Rules do not apply to minority institutions cannot be termed as obiter. And, if one were to agree with the conclusions of the Division Bench, then the only possible result would be the rejection of these appeals. However, for the reasons that follow, we respectfully find ourselves unable to agree with the decisions of either the learned Single Judge or the Division Bench in Sumanjit Kaur.

20. In order to examine the central issue concerning the validity of Rule 64 (1)(b) of the DSE Rules in its application to an aided minority educational institution, it is necessary to revisit the decisions on the scope of the fundamental right guaranteed under Article 30(1) of the Constitution. The leading decision is that handed down by a seven-judge bench of the Hon'ble Supreme Court in Re: The Kerala Education Bill 1957.

21. In the said case, the Hon'ble Supreme Court was answering a reference under Article 143(1) of the Constitution on the constitutional validity of some of the clauses in the proposed Kerala Education Bill 1957. Interpreting the scope of the right conferred on minority institutions under Article 30(1), the Court said (AIR p. 979):

the article, in terms, gives all minorities, whether based on religion or language, two rights, namely, the right to establish and the right to administer educational institutions of their choice. The key to the understanding of the true meaning and implication of the article under consideration are the words "of their own choice". It is said that the dominant word is "choice" and the content of that article is as wide as the choice of the particular minority community may make it. The ambit of the rights conferred by Article 30(1) has, therefore, to be determined on a consideration of the matter from the points of view of the educational institutions themselves.

22. The Court then classified the educational institutions into three categories, namely, (1) those which do not seek either aid or recognition from the State, (2) those which want aid, and (2) those which want only recognition but not aid. The first category, the Court noted, was outside the purview of the Bill. As regards the second category, the Court further subdivided this into two classes, namely, "(a) those which are by the Constitution itself expressly made eligible for receiving grants, and (b) those which are not entitled to any grant by virtue of any express provision of the Constitution but, nevertheless, seek to get aid." The Bill required such institutions to comply with certain requirements as a pre-condition to the release of grants. It was argued for the State that there was no fundamental right to receive grants-in-aid and therefore the State was justified in imposing such conditions. While dealing with this argument, the court noted (AIR, p. 983):

The conditions imposed by the said Bill on aided institutions established and administered by minority communities, like the Christians, including the Anglo-Indian community, will lead to the closing down of all these aided schools unless they are agreeable to surrender their fundamental right of management. No educational institution can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1).

23. One of the clauses of the said Bill, Clause 11 to be precise, authorised the State Public Service Commission to prepare a list from which teachers would be selected for appointment to the schools. This list was to account for reservations for SCs and STs. The challenge to this provision, among others, was primarily from the minority institutions who saw this as an infringement of their right under Article 30(1). This is apparent from the following observations in the said judgment (AIR, p. 968):

The State Public Service Commission is empowered to select candidates for appointment as teachers in government and aided schools according to the procedure laid down in Clause 11. Shortly put, the procedure is that before the 31st May of each year the Public Service Commission shall select for each district separately candidates with due regard to the probable number of vacancies of teachers that may arise in the course of the year, that the list of candidates so selected shall be published in the Gazette and that the manager shall appoint teachers of aided schools only from the candidates so selected for the district in which the school is located subject to the proviso that the manager may, for sufficient reason, with the permission of the Commission, appoint teachers selected for any other district. Appointment of teachers in government schools are also to be made from the list of candidates so published. In selecting candidates the Commission is to have regard to the provisions made by the Government under Clause (4) of Article 16 of the Constitution, that is to say, give representation in the educational service to persons belonging to the Scheduled Castes or Tribes - a provision which has been severely criticised by learned Counsel appearing for the Anglo-Indian and Muslim communities.

24. However, while some other clauses were held to be unconstitutional, Clause 11 was not. This is clear from the following passage in the majority judgment of Das, CJ (AIR, p. 983):

Some of these provisions e.g. 7, 10, 11(1), 12(1)(2)(3) and (5) may easily be regarded as reasonable regulations or conditions for the grant of aid. Clauses 9, 11(2) and 12(4) are, however, objected to as going much beyond the permissible limit. It is said that by taking over the collections of fees etc. and by undertaking to pay the salaries of the teachers and other staff the Government is in reality confiscating the school fund and taking away the prestige of the school, for none will care for the school authority. Likewise Clause 11 takes away an obvious item of management, for the manager cannot appoint any teacher at all except out of the panel to be prepared by the Public Service Commission, which, apart from the question of its power of taking up such duties, may not be qualified at all to select teachers who will be acceptable to religious denominations and in particular Sub-clause (2) of that clause is objectionable for it thrusts upon educational institutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the tenets of their religion and may be otherwise weak educationally. Power of dismissal, removal, reduction in rank or suspension is an index of the right of management and that is taken away by Clause 12(4). These are, no doubt, serious inroads on the right of administration and appear perilously near violating that right. But considering that those provisions are applicable to all educational institutions and that the impugned parts of Clauses 9, 11 and 12 are designed to give protection and security to the ill paid teachers who are engaged in rendering service to the nation and protect the backward classes, we are prepared, as at present advised, to treat these Clauses 9, 11(2) and 12(4) as permissible regulations which the State may impose on the minorities as a condition for granting aid to their educational institutions. We, however, find it impossible to support Clauses 14 and 15 of the said Bill as mere regulations. The provisions of those clauses may be totally destructive of the rights under Article 30(1). It is true that the right to aid is not implicit in Article 30(1) but the provisions of those clauses, if submitted to on account of their factual compulsion as condition of aid, may easily be violative of Article 30(1) of the Constitution. Learned Counsel for the State of Kerala recognises that Clauses 14 and 15 of the Bill may annihilate the minority communities' right to manage educational institutions of their choice but submits that the validity of those clauses is not the subject-matter of Question 2. But, as already explained, all newly established schools seeking aid or recognition are, by Clause 3(5), made subject to all the provisions of the Act. Therefore, in a discussion as to the constitutional validity of Clause 3(5) a discussion of the validity of the other clauses of the Bill becomes relevant, not as and by way of a separate item but in determining the validity of the provisions of Clause 3(5). In our opinion, Sub-clause 3 of Clause 8 and Clauses 9, 10, 11, 12 and 13 being merely regulatory do not offend Article 30(1), but the provisions of Sub-clause (5) of Clause 3 by making the aided educational institutions subject to Clauses 14 and 15 as conditions for the grant of aid do offend against Article 30(1) of the Constitution.

25. Therefore, Clause 11 of the Kerala Bill which is in essence similar to Rule 64(1)(b) of the DSE Rules was held not to violate Article 30(1) of the Constitution. This decision in Re: The Kerala Education Bill 1957 has been consistently followed in later decisions of the Hon'ble Supreme Court benches, including a that of a larger bench of nine judges in The Ahmedabad St.Xavier's College Society v. State of Gujarat and the recent judgment of eleven judges in T.M.A Pai Foundation v. State of Karnataka (2002) 8 SCC 481. We must add that while these later decisions deal with different aspects of the regulatory framework of State laws vis-a-vis minority institutions, particularly in the context of admission of students to such institutions, they do not directly deal with the issue of imposing a condition for providing reservations for SCs and STs in posts in such institutions. This aspect appears to have been dealt with and answered directly only in The Kerala Education Bill 1957, which still holds the field. We are conscious of the observations of Khanna, J., in St.Xavier's (in para 109, SCC p.792) that in light of later pronouncements, the view in The Kerala Education Bill 1957 "was hesitant and tentative and not a final view in the matter." Nevertheless, in the absence of any authoritative pronouncement of a larger Bench of the Hon'ble Supreme Court to the contrary on the issue involved in these appeals, we are bound by and respectfully choose to follow the binding precedent in The Kerala Education Bill 1957.

26. Reverting to the case on hand, if we were to follow The Kerala Education Bill 1957, which as explained above we believe we are bound to, the validity of Rule 64(1)(b) of the DSE Rules and the impugned instructions issued consistent with the said Rule, has to be upheld. However, we find that neither the learned Single Judge nor the Division Bench that decided the Sumanjit Kaur case, appear to have noticed the above passages in The Kerala Education Bill 1957. The reliance placed on the decision in Sidhajbhai Sabhai v. State of Gujarat also appears misplaced since the majority judgment in T.M.A Pai has distinguished it (see SCC p. 563 f) as has Khare, J., as His Lordship then was, in his concurring judgment (at SCC p.612 e). In any event in that case there was a stipulation of 80% reservation by the government which clearly was excessive and unambiguously infringing of the right of the minority to administer their institution. The decision of the Division Bench of the Bombay High Court in Khan Abdul Hamid v. Mohamad Haji Sabbo Polytechnic AIR 1985 Bom 394 can also not be considered consistent with the decision of the Hon'ble Supreme Court in The Kerala Education Bill 1957.

27. Also, the observation that the DSE Act and the DSE Rules would not apply at all to aided minority institutions appears to be contrary to the decision of the Hon'ble Supreme Court in Frank Anthony Public School Employees' Assn. v. Union of India . Here the question was whether Section 10 of the DSE Act could, by virtue of Section 12 thereof, be made inapplicable to an unaided minority educational institution. After reviewing the entire case law in regard to Article 30(1), the Court observed (at page 730):

It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education cannot be considered to impinge upon the right guaranteed by Article 30(1) of the Constitution. The question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal, without of course nullifying any part of the right of management in substantial measure.

Ultimately, the Court held that Section 10 DSE Act would apply even to an unaided minority institution. It said (SCC page 732):

We, therefore, hold that Section 10 of the Delhi School Education Act which requires that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority and which further prescribes the procedure for enforcement of the requirement is a permissible regulation aimed at attracting competent staff and consequently at the excellence of the educational institution. It is a permissible regulation which in no way detracts from the fundamental right guaranteed by Article 30(1), to the minority institutions to administer their educational institutions. Therefore, to the extent that Section 12 makes Section 10 inapplicable to unaided minority institutions, it is clearly discriminatory.

28. The only ground on which the respondents have based their entire case is that the right to appoint teaching staff is a facet of the right under Article 30(1) of the Constitution and that the condition imposed under Rule 64(1)(b) would infringe such right. The respondents have, however, not been able to make good this ground of challenge. We are unable to agree with this broad attack on Rule 64(1)(b). Even in the earlier decision of this Hon'ble Court in Sindhi Education Society v. Director of Education, as regards Rule 64 as it then stood, it was said that this Rule would apply only if it was "in consonance with the provisions of the Constitution including Article 30(1)." We have not been shown how the right under Article 30(1) would be infringed if Rule 64(1)(b) is required to be complied with by an aided minority institution. The respondents have not been able to discharge their burden of showing that this Rule takes away their minority character or abridges their right under Article 30(1).

29. We fail to understand how by having a "sprinkling" of staff (to borrow the phrase used in The Kerala Education Bill 1957) belonging to the reserved category, the essential minority character of the institution gets altered or the rights under Article 30(1) get infringed. In this context we may add that we do not agree with the following observations of the learned Single Judge in para 9 of Sumanjit Kaur (DLT, p.566):

It seems to me that teachers drawn from the SC and ST and OBC categories may not subscribe to or even sympathise with the beliefs of the minority community concerned, and therefore having them on the faculty would undermine those interests.

And the following observations in para 14 of the same judgment (DLT, p.568):

in view of the above discussion such Regulation would be unconstitutional since they are likely to interfere with the choice of the medium of instruction as well as minority character of the institution by compelling the appointment to the teaching faculty of persons who may be inimical towards that minority community.

While disagreeing with these observations we think that they cannot possibly determine the reasonableness or the constitutional validity of Rule 64(1)(b). We have already noted that the constitutional validity of Rule 64(1)(b) of the DSE Rules was not challenged before the learned Single Judge in Sumanjit Kaur, who declined to go into that question in detail even while holding Rule 64(1)(b) to be unconstitutional. The Division Bench decision expressing its complete agreement with the above reasoning precludes us from overruling the decision of the learned Single Judge in Sumanjit Kaur which, as explained above, is contrary to the binding precedent in The Kerala Education Bill 1957. In doing so, however, we fully concur with and affirm the view of the Division Bench qua the fundamental right to education of children up to the age of 14 years and the status of teachers which needs to be improved urgently.

30. In the circumstances explained above, we are of the considered view that the judgment of the learned Single Judge in Sumanjit Kaur as affirmed by the Division Bench, requires reconsideration. Since we have been unable to subscribe to the correctness of the decision of the Division Bench in Sumanjit Kaur, judicial discipline requires us, as a co-ordinate Bench, to require the matter to be placed before the Hon'ble the Chief Justice for being referred to a larger Bench of three judges. However, we find that the appellant herein has filed a Special Leave Petition [S.L.P (C) No. 16374 of 2006] in the Hon'ble Supreme Court challenging the decision of the Division Bench in Sumanjit Kaur. The Hon'ble Supreme Court has on 18.9.2006 directed notice to issue in the said petition and the matter is pending further consideration.

31. In the circumstances, we consider it appropriate to set aside the impugned orders of the learned Single Judge and allow the present appeals while at the same time granting the respondents herein a certificate of leave to appeal to the Hon'ble Supreme Court in terms of Article 133 read with Article 134A of the Constitution. This we do on our own motion since in our considered view the matter involves substantial questions of law of general importance which need to be decided by the Hon'ble Supreme Court.

32. Accordingly while allowing the appeals, we grant the respondents a certificate under Article 133 read with Article 134A of the Constitution of India of leave to appeal against this judgment to the Hon'ble Supreme Court on the following substantial questions of law of general public importance which, in our view, require to be decided by the Hon'ble Supreme Court:

(a)Whether Rule 64(1)(b) of the Delhi School Education Rules 1975 and the orders/instructions issued there under would, if made applicable to an aided minority educational institution, violate the fundamental right guaranteed under Article 30(1) of the Constitution and are the respondents herein entitled to a declaration and consequential directions to that effect?

(b)Have the judgments of the learned Single Judge of the High Court in Sumanjit Kaur v. NCT of Delhi 2005 III AD (Delhi) 560, as affirmed by the decision dated 1.2.2006 of the Division Bench of the High Court in (LPA No.445-446/2006) GNCTD v. Sumanjit Kaur been correctly decided?

33. With the above certificate of leave to the respondents to appeal to the Hon'ble Supreme Court, the appeals are allowed with no orders as to costs. All the pending applications stand disposed of.