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PETITIONER: VIRENDRA NATH GUPTA AND ANR.

       Vs.

RESPONDENT: DELHI ADMINISTRATION AND ORS.

DATE OF JUDGMENT02/03/1990

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) THOMMEN, T.K. (J) KASLIWAL, N.M. (J)

CITATION:  1990 AIR 1148            1990 SCR  (1) 805  1990 SCC  (2) 307        JT 1990 (1)   403  1990 SCALE  (1)436

ACT:     Constitution Of India--Articles 29 and 30--Delhi  School Education  Act  1973/Delhi School  Education  Rules--Section 8/Rule  100--Kerala  Education  Society--School  authorities providing  that incumbent holding office of  Principal/Vice- Principal to have knowledge of Malayalam --Whether permissi- ble and valid.

HEADNOTE:     The  appellants  are teachers in  the  Kerala  Education Society Senior Secondary School, New Delhi. They  challenged the  appointment  of Respondent No. 5 as  Vice-Principal  by filing a writ petition in the Delhi High Court. The  circum- stances that led to the filing of writ petition are:     The  Kerala Education Society is a recognised and  aided Society.  Its  primary objects are to promote the  study  of Malayalam language and to provide facilities for the  educa- tion of children and to conserve Malayalam language,  script and culture. In furtherance of these objectives, the Society is  running  Senior  Secondary School in  New  Delhi.  Delhi Administration  as  also the  educational  authorities  have recognised the Institution, as a linguistic minority school. The institution is. regulated by the provisions of the Delhi School  Education Act and the rules framed  thereunder.  One post  of  Vice-Principal was created in  the  school  w.e.f. 1.10.80. In March 1981, Departmental Promotion Committee was constituted  to  make selection for the appointment  to  the post  of Vice-Principal in accordance with  the  recruitment rules.  The Departmental Promotion Committee made  selection from amongst the teachers of the institution to fill up  the post  of Vice-Principal by promotion in accordance with  the Rules. The Departmental Promotion Committee recommended  the name of Respondent No. 5 for promotion to the post of  Vice- Principal though he did not fall within the zone of  consid- eration  being junior to the appellants. The  management  of the  school accepted the recommendation of the  Departmental Promotion Committee and forwarded the papers to the Director of  Education  for necessary approval. The  appellants  made representations  to  the Director of Education  against  the selection and appointment of Respondent No. 5. The  Director

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of Education rejected the proposal of the 806 management  and  declined to approve the selection  and  ap- pointment of Respondent No. 5 on the ground that he did  not fail  within the zone of consideration and further  that  he did  not possess the necessary qualification of  five  years experience  as  Post  Graduate Teacher as  required  by  the recruitment rules. The Director of Education however permit- ted  the  management to advertise the post for  filling  the same  by  direct  recruitment. The  management  then  issued advertisement  prescribing the necessary qualifications  for the  post which included Master’s Degree with  second  divi- sion; five years teaching experience as Post Graduate Teach- er  or 10 years experience as trained graduate  teacher  and ability  to speak Malayalam as an  essential  qualification. The  appellants were straightaway not eligible for  appoint- ment  as they were not able to speak or write Malayalam.  On the  recommendation of the selection  committee,  respondent No.  5 was appointed as direct recruit to the post of  Vice- Principal  and  the Director of Education approved  the  ap- pointment. Thereupon the appellants, as stated earlier filed writ petition in the High Court challenging the  appointment of  Respondent  No. 5 and the writ petition  was  dismissed. Hence this appeal by special leave. Dismissing the appeal, this Court,     HELD: An institution set up by the religious or linguis- tic  minority  is  free to manage its  affairs  without  any interference  by the State but it must maintain  educational standards  so that the students coming out of that  institu- tion  do not suffer in their career. But if  the  recognised minority  institution is recipient of Government aid, it  is subject to the regulatory provisions made by the State.  The regulatory provisions however cannot destroy the basic right of  minority institutions as embodied under Articles 29  and 30. [811F-G]     The  Kerala Education Society is a recognised and  aided institution.  It  is subject to  the  reguIatory  provisions contained  in the Delhi School Education Act, 1973  and  the rules made thereunder. [811H]     The  institution is for promotion of Malayalam  language and  as Malayalam is a compulsory subject for students  upto Vth standard and it is an optional subject for Vlth to XIIth standard.  In  the circumstance it is not  only  proper  but desirable that the incumbent holding the office of Principal or Vice-Principal being administrative in nature should have knowledge of speaking and writing Malayalam. [812B] The management of the institution acted within its right  in pre- 807 scribing  an  additional essential  qualification  regarding knowledge  of Malayalam and no exceptional can be  taken  to the same as it is the constitutional right of the linguistic minority to insist on the knowledge of the language, on  the basis of which the linguistic minority is recognised. [812C]     The Kerala Education Bill, 1957 Reference under  Article 143  of the Constitution, [1959] SCR 995; The Ahmedabad  St. Xaviers  College  Society and Anr. v. State of  Gujarat  and Anr., [1975] 1 SCR 173; Lilly Kurian v. Sr. Lewina and Ors., [1979]  1  SCR 820; Frank Anthony Public  School  Employees’ Association  v. Union of India & Ors., [1986] 4,  SCC.  707; Mrs.  Y. Theclamma v. Union of India and Ors., [1987] 2  SCC 516 and All Bihar Christian Schools Association v. State  of Bihar, [1988] 1 SCC 206.

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3678  of 1984.     From The Judgment and Order dated 5.1.1982 of the  Delhi High Court in Civil Writ Petition No. 2923 of 1981. R.B. Dattar, S. Wasim Qadi for the Appellants.     V.C.  Mahajan, K.K. Venugopal, G. Viswanatha lyer,  R.B. Mishra, Ms. A. Subhashini, Mrs. Baby Krishnan, C.B.  Vaidya- nathan,  K.V. Mohan, Dilip Pillai, P. Kesava Pillai  and  N. Sudhakaran for the Respondents. The Judgment of the Court was delivered by     SINGH, J. The two appellants, S/Sh. Virendra Nath  Gupta and Mohammad Aslam Kidwai are teachers in the Kerala  Educa- tion Society Senior Secondary School, New Delhi. They  chal- lenged the appointment of T.N. Vishwanathan Nair, respondent No. 5 as VicePrincipal of the Institution by means of a writ petition  before the Delhi High Court under Article  226  of the Constitution of India. The High Court by its order dated January 5, 1982 dismissed the petition in limine. Hence this appeal by special leave.     The Kerala Education Society (hereinafter referred to as ’the  Society’) is a Society registered under the  Societies Registration  Act, XXI of 1960. The Society is  running  the Kerala  Education  Society Senior Secondary  School  in  New Delhi. The Delhi Administration as 808 well as the Education Authorities have recognised the Insti- tution  as a linguistic minority school. The Institution  is aided  and recognised by the Delhi Administration.  The  ob- jects  of the Society are: (i) to provide facility  for  the education  of  children in the Union Territory of  Delhi  by making provision for suitable institutions; (ii) to  promote the study of Malayalam. A sizable number of persons  belong- ing to State of Kerala who speak Malayalam are residents  in Delhi  and they constitute a linguistic minority..  The  Ma- layalees have their own language, script and culture, and in order to preserve the same they established the  Institution which  is administered by the linguistic minority, with  the primary purpose of promoting the study of Malayalam and also for preserving their culture, dance, music and other  Kerala Arts. Teaching of Malayalam in the aforesaid Institution  is compulsory from Classes I to V, as the medium of instruction is  Malayalam. However, Malayalam is an optional subject  in VI  to XII standard. The school has 1700 students  and  more than 60% of parents and guardians belong to the lower income group of Malayalam speaking community.     The  Institution is regulated by the provisions  of  the Delhi School Education Act 1973 (hereinafter referred to  as the  Act)  and the Rules framed  thereunder,  namely,  Delhi School Education Rules 1973 (hereinafter referred to as  the Rules.) One post of Vice-Principal was created in the Insti- tution  in  the pay scale of Rs.650-1200  with  effect  from 1.10. 1980. In March, 1981 a Departmental Promotion  Commit- tee (hereinafter referred to as DPC) was constituted to make selection  for appointment to the post of Vice-Principal  in accordance  with  the recruitment rules made  under  Section 8(1)  of the Act read with Rule 100 of the Rules  issued  on 25.2. 1980 and published in the Delhi gazette  Extraordinary dated  7.4.  1980. The DPC made selection from  amongst  the teachers  of  the Institution to fill up the post  of  Vice- Principal  by  promotion in accordance  with  the  aforesaid Rules.  The  DPC recommended the name of  T.N.  Vishwanathan Nair,  respondent No. 5 for promotion to the post  of  Vice- Principal  although he did not fall within the zone of  con-

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sideration  as he was junior to the appellants at Sl.No.  10 in  the  seniority list. The Management of  the  Institution accepted the recommendation of the DPC and forwarded  papers to  the Director of Education for approval.  Meanwhile,  the appellants made representation to the Director of  Education against  the selection and appointment of respondent No.  5. The Director of Education rejected the Management’s proposal and  refused  to approve the selection  and  appointment  of respondent  No. 5 on the ground that he did not fall  within the zone of consideration according to the Rules and further he did not possess the essential qualification of five years experience as 809 Post Graduate Teacher as required by the Recruitment  Rules. Since  no  suitable candidate was  available  for  promotion within  the zone of consideration the Director of  education permitted  the Managing Committee to advertise the post  for filling  the same by direct recruitment. Thereafter,  adver- tisement  was published on 24.9.1981  inviting  applications for the post of Vice-Principal. The advertisement stated the essential  qualifications being Master’s Degree with  second division,  five years’ teaching experience as Post  Graduate Teacher or ten years’ teaching experience as Trained  Gradu- ate Teacher, and also ability to speak and write  Malayalam. Since the knowledge of Malayalam was prescribed as an essen- tial  qualification,  the appellants were not  eligible  for selection  or appointment as they could not speak  or  write Malayalam. On the recommendation of the Selection  Committee respondent  No. 5 was appointed as a direct recruit  to  the post  of  Vice-Principal and the Director of  Education  ap- proved his appointment.     Learned counsel for the appellants assailed the validity of the appointment of respondent No. 5 on three grounds; (i) since  under the Rules post of Vice-Principal was  a  promo- tional  post,  no direct recruitment was  permissible;  (ii) respondent No. 5 did not possess the essential qualification of Master’s Degree in second division; (iii) the  Management malafide  introduced knowledge of Malayalam as an  essential qualification with a view to favour respondent No. 5 and  to oust  the  appellants even though the Rules did  not  permit knowledge  of  Malayalam as an essential  qualification.  We will deal with these submissions in seriatim.     There is no dispute that the recruitment/appointment  to the  post of Vice-Principal in the Government aided  schools and  recognised schools in the Union Territory of  Delhi  is regulated  by  the Rules published on 7.4.1980,  a  copy  of which  has been placed before us, farmed under Section  8(1) of  the Act read with Rule 100. Since the Institution is  an aided  and  recognised school the aforesaid Rules  were  ap- plicable  for  the  purpose of recruitment to  the  post  of Vice-Principal.  According to the Rules recruitment  to  the post of Vice-Principal is to be made by selection. The Rules prescribe  educational and other qualifications.  The  Rules provide that the post of Vice-Principal should be filled  by promotion  failing which by direct recruitment as stated  in Col.  8 of Annexure B to the Rules. As noticed  earlier  the Management  made attempt to fill the post of  promotion  and the DPC had con-. sidered the case of teachers of the Insti- tution  for promotion to the post’ of Vice-Principal and  it recommended respondent No. 5, but the same was not  approved by the Director of Education. The selection Com- 810 mittee,  had considered the appellants also but it  did  not find  them  suitable for promotion, instead  it  recommended respondent No. 5 for promotion but the recommendation of the

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Selection  Committee  was not approved by  the  Director  of Education.  The  Director of Education by his  letter  dated 2.5.1981 directed the Management of the Institution to  fill the  post by direct recruitment. Pursuant to that  direction the Management issued advertisement for making the  recruit- ment.  The Rules thus contain express provision  for  direct recruitment  to  the post of Vice-Principal and as  such  we find no merit in the submission made on behalf of the appel- lants.     Admittedly,  respondent No. 5 did not  possess  Master’s Degree in second division, which was an essential qualifica- tion  but  Column  No. 5 to Annexure B to  the  Rules  which prescribes  essential qualifications, states: "Condition  of second division relaxable in case of candidates belonging to the same school and also in case of Scheduled  Castes/Sched- uled  Tribes." The Rules further contain  a  note;"Competent authority  may relax the essential qualifications in  excep- tional  cases  of the candidates of the same  school,  after recording reasons therefor". The Selection Committee as well as the competent authority granted relaxation to  respondent No. 5 as he belonged to the same school. Further he had  ten years’  experience as-.Trained Graduate Teacher and as  such he was eligible for direct recruitment under the Rules.  The appellant’s plea that since the Management was interested in appointing  respondent No. 5 to the post of  Vice-Principal, it manipulated to get his selection made for appointment  to the  said  post, is without any  foundation.  The  Selection Committee  consisted  five members out of which  three  were representatives of the Education Department appointed by the Director  of  Education. The Selection  Committee  made  the selection in accordance with the Rules and found  respondent No.  5  suitable for appointment to the said post.  In  this view  there  is no merit in the second  submission  made  on behalf of the appellants.     The third submission made on behalf of the appellants is that the additional essential qualification regarding knowl- edge  of  Malayalam was prescribed in contravention  of  the Rules  and this was done with a view to oust the  appellants who  were  the  senior teachers fully  equipped  with  other essential  qualifications  for appointment to  the  post  of police-Principal. While considering this question we  cannot over-look     fact  that  the  Institution is  a  linguistic  minority institution, its object , to promote the study of  Malayalam and  to  promote and preserve malayalee dance,  culture  and art. Article 29 of the Constitution of 811 India  guarantees  fight of linguistic minorities  having  a distinct  language, script and culture of their own and,  it also  protects their fight to conserve the same. Article  30 of  the  Constitution  guarantees the  right  of  minorities whether  based  on  religion or language  to  establish  and administer  educational  institutions  of  their  choice.  A linguistic minority has not only the right to establish  and administer  educational  institution of its choice,  but  in addition  to  that it has further  constitutional  right  to conserve  its  language, script and culture.  In  exercising this  fight  a linguistic minority may take  steps  for  the purpose of promoting its language, script or culture and  in that  process it may prescribe additional qualification  for teachers  employed in its institution. The rights  conferred on  linguistic  minority under Artides 29 and 30  cannot  be taken  away  by any law made by the Legislature or  by  rule made by executive authorities. However, the Management of  a minority  institution  has no right  to  mal-administer  the

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institution, and it is permissible to the State to prescribe syllabus,  curriculum of study and to regulate the  appoint- ment  and  terms and conditions of teachers with a  view  to maintain a minimum standard of efficiency in the educational institutions. This is the consistent view of this Court,  as held in a number of decisions where the scope and extent  of minority’s fight to manage its institutions were considered. See "In Re The Kerala Education Bill, 1957. Reference  under Article 143(D of the Constitution of India, [1959] SCR  995; The Ahmedabad St. Xaviers College Society & Anr. v. State of Gujarat & Anr., [1975] 1 SCR 173; Lilly Kurian v. Sr. Lewina and  Ors.,  [1979] 1 SCR 820; Frank  Anthony  Public  School Employees’  Association v. Union of India & Ors.,  [1986]  4 SCC 707; Mrs..Y. Theclamrna v. Union of India & Ors., [1987] 2  SCC  516 and All Bihar Christian Schools  Association  v. State  of Bihar, [1988] 1 SCC 206. Though  minority’s  right under Articles 29 and 30 is subject to the regulatory  power of  the State, but regulatory power cannot be  exercised  to impair the minority’s fight to conserve its language, script or culture while administering the educational institutions. An institution set up by the religious or linguistic minori- ty is free to manage its affairs without any interference by the State but it must maintain educational standards so that the students coming out of that institution do not suffer in their career. But if the recognised minority institution  is recipient of Government aid, it is subject to the regulatory provisions  made by the State. But these  regulatory  provi- sions  cannot destroy the basic fight of  minority  institu- tions as embodied under Article 29 and 30.     The  Kerala Education Society is a recognised and  aided institution,  it  is subject to  the  regulatory  provisions contained in the Delhi 812 School Education Act 1973 and the Rules made thereunder. The question is whether the Management of the Institution  could validly  prescribe  knowledge of Malayalam as  an  essential qualification  for the post of  Vice-Principal.  Admittedly, the  Institution is for promotion of Malayalam language  and as  Malayalam is compulsory for students upto  Vth  standard and  it is one of the optional subjects from VIth  to  XIIth standard,  it  is  not only proper but  desirable  that  the incumbent holding the office of Principal or  Vice-Principal being  administrative  in nature should  have  knowledge  of speaking and writing Malayalam. The requirement of knoweldge of  Malayalam  is closely connected with the  fight  of  the linquistic  minority  to subserve its script,  language  and culture. The Management of the Institution acted within  its fight  in prescribing an additional essential  qualification regarding  knowledge  of Malayalam and no exception  can  be taken  to the same as it is the constitutional right of  the linguistic  minority to insist on the knowledge of the  lan- guage,  on  the basis of which the  linguistic  minority  is recognised.  The  provisions of the Act and  the  Rules  are subject  to the guarantees of constitutional rights  of  the minorities’  institutions.  In our opinion,  the  Management acted  within  its  constitutional right  in  insisting  the knowledge of Malayalam as an essential qualification for the post  of Vice-Principal. The Education Department  of  Delhi Administration  did not raise any objection to  the  Manage- ment’s  action; on the other hand, the  Selection  Committee constituted by the Director of Education made its  recommen- dation on the basis of the qualifications prescribed in  the advertisement  and  the Director of Education  approved  the appointment  of  respondent No. 5. In this view we  find  no merit  in the appellants’ submission that the  knowledge  of

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Malayalam was prescribed mala fide with a view to oust  them from consideration.     In view of the above discussion we find no legal infirm- ity in the appointment of respondent ’No. 5 as  Vice-Princi- pal.  It  appears that during the pendency of the  appeal  a vacancy  arose in the post of Principal to which  respondent No. 5 was promoted. Consequently there was a vacancy in  the post of Vice-Principal to which K.D. Antony, another teacher of the School was appointed. The appellants filed an  appli- cation  for  impleading  K.D. Antony to the  appeal  but  no relief was claimed against him. The application for implead- ing K.D. Antony is accordingly rejected.     The appeal fails and it is accordingly dismissed.  There will be no order as to costs. Y.    Lal                                             Appeal dismissed. 813