Delhi High Court
Smitha Krishnan vs Directorate Of Education & Ors. on 16 April, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 5990/2010
% 16th April, 2013
SMITHA KRISHNAN ......Petitioner
Through: Mr. Anis Mohammad, Advocate.
VERSUS
DIRECTORATE OF EDUCATION & ORS. ..... Respondents
Through: Mr. Romy Chako and Mr. Varun Mudgal,
Advocates for R-2 & 3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition filed by the petitioner Ms. Smitha Krishnan seeks
the relief of her appointment with the respondent no.2-school after cancelling the
appointment of the respondent no.4. The post in question is of an Assistant
Teacher (OBC).
2. Learned counsel for respondent nos. 2 and 3-Society has drawn my
attention to the judgment of the Supreme Court in the case of Sindhi Education
Society and Anr. Vs. Chief Secretary, Govt. of NCT of Delhi and Ors. (2010) 8
SCC 49 in support of the proposition that since the respondent no.3 is a minority
school, it has a complete right to appoint its teachers, subject of course to the
W.P.(C) 5990/2010. Page 1 of 5
qualifications which are prescribed by the Director of Education. Reliance is
placed upon paras 102, 111 to 113 of the said judgment, which read as under:-
102. At this stage, at the cost of repetition, we may again refer to the
judgment of this Court in T.M.A. Pai's case (supra), 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 case (supra), 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:
"123. ...The words 'as at present advised' as well as the preceding sentence
indicate the view expressed by this Court in relation to Kerala Education
Bill, 1957, 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 the case of T.M.A. Pai (supra). In any
case, nothing to the contrary was observed or held in the subsequent
judgment by the larger Bench
111. A linguistic minority has constitution and character of its own. A
provision of law or a circular, which would be enforced against the general
class, may not be enforceable with the same rigours against the minority
institution, particularly where it relates to establishment and management of
the school. It has been held that founders of the minority institution have
faith and confidence in their own committee of body consisting of the
persons selected by them. Thus, they could choose their managing
committee as well as they have a right to choose its teachers. Minority
institutions have some kind of autonomy in their administration. This
would entail the right to administer effectively and to manage and conduct
the affairs of the institution. There is a fine distinction between a restriction
on the right of administration and a regulation prescribing the manner of
W.P.(C) 5990/2010. Page 2 of 5
administration. What should be prevented is the maladministration. Just as
regulatory measures are necessary for maintaining the educational character
and content of the minority institutions, similarly regulatory measures are
necessary for ensuring orderly, efficient and sound administration.
112. Every linguistic minority may have its own social, economic and
cultural limitations. It has a constitutional right to conserve such culture
and language. Thus , it would have a right to choose teachers, who
possess the eligibility and qualifications, as provided, without really being
impressed by the fact of their religion and community. Its own limitations
may not permit, for cultural, economic or other good reasons, to induct
teachers from a particular class or community. The direction, as
contemplated under Rule 16(1)(b), could be enforced against the general or
majority category of the government-aided schools but, it may not be
appropriate to enforce such condition against linguistic minority schools.
This may amount to interference with their right to choice and, at the same
time, may dilute their character of linguistic minority. It would be
impermissible in law to bring such actions under the cover of equality
which in fact, would diminish the very essence of their character of status.
Linguistic and cultural compatibility can be legitimately claimed as one of
the desirable features of a linguistic minority in relation to selection of
eligible and qualified teachers.
113. A linguistic minority institution is entitled to the protection and
the right of equality enshrined in the provisions of the Constitution. The
power is vested in the State to frame regulations, with an object to ensure
better organization and development of school education and matter
incidental thereto. Such power must operate within its limitation while
ensuring that it does not, in any way, dilutes or impairs the basic character
of linguistic minority. Its right to establish and administer has to be
construed liberally to bring it in alignment with the constitutional
protections available to such communities." (emphasis added)
3. A reading of the aforesaid paras shows that a minority institution has
complete right to choose the teachers it wants to appoint subject of course to the
requirement of qualifications as prescribed by the Director of Education.
W.P.(C) 5990/2010. Page 3 of 5
4. In the present case, it is not an issue that the respondent no.4 does not
meet the educational qualifications as prescribed by the Director of Education.
Once that be so, the respondent nos. 2 and 3 were at complete liberty to appoint
teachers of their choice and therefore the appointments of respondent no.4 cannot
be challenged by the petitioner. Also, as stated hereinafter, even assuming that the
respondent nos. 2 and 3 were not a minority institution, then to the writ petition
does not lie.
5. The only cause of action as pleaded in the present petition is that the
petitioner claim that she was a better person to be appointed for the post in
question than the respondent no.4. In my opinion, whether it was the petitioner
who was a better candidate or it was the respondent no.4, is the sole prerogative of
the selection committee of the school. The selection committee of the school has
taken a decision that the respondent no.4 was better suited to the post than the
petitioner. Once the decision is taken unless the selection committee was not
constituted in accordance with the law, and which is not the case of the petitioner,
or that the action of the selection committee is totally de hors the rules or
malafides, the petitioner cannot challenge the action of the respondent nos. 2 and 3
in appointing the respondent no.4. Since, the writ petition only refers to the
petitioner being better than the respondent no.4, in my opinion, the decision of the
W.P.(C) 5990/2010. Page 4 of 5
selection committee cannot be challenged as per the cause of action as averred in
the writ petition.
6. In view of the above, there is no merit in the writ petition, which is
accordingly dismissed, leaving the parties to bear their own costs.
APRIL 16, 2013 VALMIKI J. MEHTA, J.
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