Lott Carey Baptist Mission & Anr. vs Govt Of Nct Of Delhi & Anr.
2016 Latest Caselaw 350 Del

*        THE HIGH COURT OF DELHI AT NEW DELHI

                                           Pronounced on: 15th January, 2016

+        W.P.(C) 3137/2013

         LOTT CAREY BAPTIST MISSION & ANR.       ..... Petitioners
                      Through: Mr. Romy Chacko, Advocate with
                                Mr. D.P. Mohanty, Advocate

                                Versus

         GOVT OF NCT OF DELHI & ANR.            ..... Respondents
                      Through: Mr. Raman Duggal, Standing Counsel
                                GNCTD with Ms. Aayushi Gupta,
                                Advocate for GNCTD.


         CORAM:
         HON'BLE THE CHIEF JUSTICE
         HON'BLE MR. JUSTICE JAYANT NATH

                                 JUDGMENT

G. ROHINI, CHIEF JUSTICE:

1. The present petition is filed with a prayer to declare Rule 104 of the Delhi School Education Rules, 1973 to the extent it prescribed upper age limit for recruitment to a recognized private school, whether aided or not, is unconstitutional and that the same does not apply to unaided minority educational institutions. The petitioner also seeks to declare the Recruitment Rules issued by the Government of NCTD from time to time prescribing the upper age limit for recruitment of the employees and

teachers employed by the unaided minority institutions as illegal and to quash the same.

2. Petitioner No. 1 is a society established and administered by religious minority of Christians and petitioner No. 2 is an educational institution established and administered by petitioner No. 1. It is pleaded that the petitioner No.2 school which has classes from pre-primary to Class XII is affiliated to Central Board of Secondary Education (CBSE). The school is an unaided institution and recognized under the Delhi School Education Act, 1971.

3. It is pleaded that the Bye-laws of CBSE prescribed the minimum qualifications for Heads of Senior Secondary/Secondary Schools and for teachers to teach various subjects in Classes IX to XII and the petitioner No.2 being an institution affiliated to CBSE has been following the same. It is alleged that though under the Bye-laws of CBSE, no age limit is prescribed for recruitment of teachers, the Government of NCT of Delhi has been insisting compliance of the age limit prescribed under Rule 104 of the Delhi School Education Rules, 1973 and the Notifications issued from time to time. Alleging that because of the upper age limit prescribed under Rule 104 of DSE Rules and the Notifications, the petitioners are unable to recruit efficient teaching staff and contending that Rule 104 cannot be made applicable to unaided minority institutions in view of Rule 96(1) which states that "nothing contained in this Chapter shall apply to an unaided minority school", the present petition is filed with the above- mentioned prayer.

4. It may be mentioned that Rule 104 is included in Chapter VIII of DSE Rules, 1973 which deals with "recruitment and terms and conditions of service of employees of the private schools other than unaided minority schools". Chapter VIII consists of Rule 96 to Rule 121 and Rule 96(1) specifically provides that "nothing contained in the said Chapter shall apply to unaided minority schools".

5. We have heard the learned counsel for both the parties and perused the material available on record.

6. The issue whether the provisions of Chapter VIII of DSE Rules, 1973 are applicable to unaided minority institutions is also the subject matter of LPA No.774/2010 and therefore we have heard the present petition along with LPA No.774/2010. By separate judgment passed today in LPA No.774/2010, we have held that in view of the declaration in Frank Anthony Public School Employees Association v. Union of India & Ors.; (1986) 4 SCC 707, that Section 12 of DSE Act which makes the provisions of Chapter IV inapplicable to unaided minority institutions is discriminatory and void except to the extent that it makes Section 8(2) inapplicable to unaided minority institutions, Chapter VIII of DSE Rules continues to apply to unaided minority institutions. The controversy in issue in the said appeal related to age of retirement prescribed under Rule 110 of DSE Rules, 1973 and we have concluded that the age of retirement prescribed under Rule 110 of DSE Rules is very much applicable to unaided minority institutions. The same analogy is applicable to the issue raised in the present case regarding the upper age limit prescribed under Rule 104 of DSE Rules for recruitment.

7. For the reasons stated in our judgment pronounced today i.e. 15.01.2016 in LPA No.774/2010, the relief as prayed for in the petition cannot be granted.

8. The writ petition is accordingly dismissed. No costs.

CHIEF JUSTICE

JAYANT NATH, J JANUARY 15, 2016 kks