MOUNT CARMEL SCHOOL SOCIETY v. THE GOVT. OF NCT OF DELHI

Dr. N.M. Williams was appointed as Principal of that school and Mr. V.K. Williams, Petitioner No. 2 was re-appointed as Principal of the . school at Anand Niketan.

4. It is stated that on 26'^ October 1999 a decision was taken by Respondent No. 1, without informing Petitioner No. 1, declaring the resolutiondated 12"^ April 1997 of the managingcommitteeof Petitioner No. 1 Society extending the services of Petitioner No. 2 by two years as ultra vires the DSE Rules. By an order dated 11November 1999, Respondent No. 1 directed Petitioner No. 1 Society to relieve Petitioner No. 2 immediately and appoint a fresh Principal in accordance with the provisions of the DSE Rules, failing which appropriate action would be initiated under Section 24(4) of the DSE Act. Aggrieved by the above order dated 26"' October 1999 conveyed to the Petitioners on 11^' November 1999, the Petitioners filed Writ Petition (Civil) No. 7568 of 1999 seeking the quashing of the said order.

5. While directing notice to be issued in this petition by an order dated 20'*^ December 1999, this Court directed that the impugned order dated ,11'*" November 1999 shall remain stayed. Facts in W.P. (C) 8710 of2007

6. The Petitioner No. 1 Society established another senior secondary school at Dwarka in 1997. This was also an unaided minority school WP (Civil)Nos. 7568/1999&8710/2007 4of26 recognised by the Director of Education, GNCTD and affihated to the CBSE. Dr. N.M. Wilhams, Petitioner No. 2 in W.P. (C) 8710 of 2007, was appointed as Principal of the school at Dwarka since its inception. 17

7. By a resolutiondated ll'*" August 2001, the PetitionerNo. 1 Society extended the tenure of Petitioner No. 2 for a period of five years, i.e., till 31^' August 2006. Dr. N.M. Williams completed sixty years of age on 30^'^ August2001. By a letterdated 13^'^ September2005, RespondentNo. 2 CBSE sought removal of Petitioner No. 2 from the post of the Principal on the ground that she had superannuated. The Petitioner No. 1 Society complied with the direction and one Dr. M.V. Sarathy was appointed as the acting Principal on 22"^* September 2005. By a letter dated 17^"^ October 2005, the CBSE insisted that a regular Principal should be appointed.Aftertaking legal advice,on 3"^^ December2005 the Chairman of Petitioner No. 1 Society permitted Petitioner No. 2 to resume her duties as the Principal of the school at Dwarka. On April 2006, the view of the Chairman was endorsed by the Board of the Petitioner No. 1 Society.

8. The CBSE on 12*^ April 2006 granted permissionto the Petitioner No.l for introduction of additional subjects in the school but insisted that no superannuated teacher/Principal should be working at the school. PetitionerNo. 1 replied on 7"^ July 2006 stating that Chapter IV of the DSE Act was not applicable to unaided minority schools like that of the PetitionerNo. 1. On 29^^ July 2006, PetitionerNo. 1 in its Board meeting extended the services of Petitioner No. 2 as the Principal up to 31^.^ WP(Civil) Nos. 7568/1999 & 8710/2007 August 2009. On 2r' May 2007, RespondentNo. 1 issued a show cause notice to the Manager of the school about the continuance of Petitioner No. 2 as the Principalbeyond the age of sixty years. On 30^'^ July 2007, the CBSE rejected the Petitioner's applicationfor approval of additional subjects on various grounds, one of them being the age of PetitionerNo.

2. On ll"' September2007 RespondentNo. 1 passed an order directing the Manager of the PetitionerNo. 1 Societyto dispense with the services ofPetitionerNo. 2 by December2007. By a letterdated 12"' October 2007, Petitioner No. 2 protested against this move. The present writ petitionwas filed thereafterseekingthe quashingof the letter dated 30^' July 2007 of the CBSE rejectingthe Petitioner's applicationfor approval of two additional subjects and the order dated ll"' September 2007 passed by Respondent No. 1.

9. While directingnotice to be issued in this petitionon 23'^'' November 2007, this Court stayed the operationof the order dated 11^'' September T-

2007. Submissions of Counsel

10. Mr. K.K. Rai, learned Senior counsel appearing for the Petitioners submitted that the Petitioner No. 1 Society-run-schools are unaided minority institutions which receive no grants from the GNCTD or any other governmentauthority. The right of minority establishedand run institutions was one of the fundamental rights guaranteed by Article 30 of the Constitution. He further submitted that the Supreme Court has, in a large number of its decisions,reiteratedthe settled position in law that WP (Civil) Nos. 7568/1999&8710/2007 Page 6 of26 % the post of the Principalor the headmasterof an unaidedminorityschool, being a key position, was outside the regulatory ambit of the state. It is submitted that notwithstanding the decision of the Supreme Court in Frank Anthony Public School Employees' Association v. Union of India (1986) 4 SCC 707, the position as regards the post of the Principal of the Petitioner No. 1 Society would not be altered. He distinguished the judgmentin Frank Anthony on facts. He pointedout that the issue there was that the terms and conditions of employment of the staff and teachers of the minority school were adverse as compared to those governing governmentschool employees.It was in this contextthat it was held that the terms and conditions of the employees of minority schools must be consistent with those of the employees of government schools and Section 12 was held to be ultra vires the Constitution and struck down^ which meant the provisions of Chapter IV of the DSE Act became applicableto unaidedminorityschools.He submittedthat the decisionin Secretary, Malankara Syrian Catholic College v. T. Jose (2007) 1 SCC • 386 conclusively settled the legal position. He also placed reliance upon the decisions of the Supreme Court in State of Kerala v. Very Rev. Mother Provincial (1970) 2 SCC 417, N. Ammad v. Manager, Emjay High School 1998 (6) SCC 674, All Bihar Christian Schools Association v. State of Bihar (1988) 1 SCC 206, Gandhi Faiz-E-Am College V. Universityof Agra (1975) 2 SCC 283 and Sindhi Education Society v. The Chief Secretary, Govt. of NCT of Delhi 2010 (6) SCALE

11. It was submitted by Mr. Atul Kumar, learned counsel appearingfor WP (Civil) Nos. 7568/1999&8710/2007 the CBSE and Ms. Sujata Kashyap, learned counsel appearing for the RespondentNo. 1 GNCTD that after the judgment in Frank Anthony, the entire Chapter VIII of the DSE Rules would automatically become applicable to unaided minority schools. Therefore, notwithstanding Rule 96 which stated that the said Chapter would not apply to unaided minority schools, Rule 110 which prescribed the age of retirement of a Principal of a govermnent school, would nevertheless be applicable even to an unaided minority school.

12. It is further submitted by the counsel for the Respondents that the right of minority institutions to administer is a qualified one. With a view to maintain standards of education it was permissible for the state to place restrictions on unaided minority schools. It was submitted that the minority schools could not provide better service conditions than government run schools as their service conditions were to be consistent with those of the government schools. Therefore, if the Principal of an unaided minority school was asked to retire at the same age by which the Principal of a government school was asked to, there would be no discrimination. If it was higher, then that was not permitted under Rule 110 of the DSE Rules interpreted in light of the decision of the Supreme Court in Frank Anthony. The decision in the Frank Anthony Public School Case

13. Since the Respondents placed considerable reliance upon the decision of the Supreme Court in the Frank Anthony case, this Court first WP (Civil) Nos. 7568/1999 &8710/2007 proposes to discuss the said judgment. The Supreme Court was deciding a writ petition brought before it under Aiticle 32 of the Constitution by the Frank Anthony Public School Employees' Association. The grievance was that the scales of pay and other conditions of service of the teachers and other employees of Frank Anthony Public School compared unfavourably with their counterparts in the schools run by the Delhi Administration. However, Section 12 of the DSE Act made inapplicable the provisions of Sections 8 to 12 occurring in Chapter IV of the DSE Act to unaided minority institutions. The inapplicability of Chapter IV of y the DSE Act meant that the terms and conditions of service of employees of recognised unaided minority schools could be less than what was offered to their counterparts of government run. schools. This was held to be discriminatory. It was held that the staff and teachers of unaided minority schools could not be worse off than their counterparts in government schools.

14. A reading of the decision in Frank Anthony makes it clear that the said case did not deal with the question of the retirement age or even the terms and conditions of service of a person holding a 'key post', like that of the headmaster or Principal, in an unaided minority institution. Secondly, the decision in Frank Anthony was in the context of terms and conditions of service of teachers and employees of unaided minority schools being worse off than that of their counterparts in government schools. After elaborately discussing the decisions in Ahmedabad St. Xaviers College Society v. State of Gujarat (1974) 1 SCC 717 and All Saints High School v. Governmentof Andhra Pradesh (1980) 2 SCC WP (Civil) Nos. 7568/1999&8710/2007 Page 9of26 ^ V 478, the SupremeCourtin Frank Anthony held as under (SCC, p.731): "17 We, therefore, hold that Section 10 of the Delhi School Education Act which requires that the scales of pay allowances, medical facilities, pension, gratuity, provident other prescribed benefits employees of a recognized 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 of enforcement of the requirement a permissible regulation aimed at attracting competent staff and consequently the excellence of 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 educational institutions. Therefore, to the extent Section 12 makes Section 10 inapplicable to unaided minority institutions, clearly discriminatory." (emphasis supplied)

15. It was in the above context that it was further held in para 20 as under (SCC, p.734); "20. Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon any right of minorities to administer their educational institutions. Section 8(2), however, must, in view of the authorities, be held to interfere with such right and, therefore, inapplicable to minority institutions. Section 9 is innocuous since Section 14 which applies to unaided minority schools is virtually on the same lines as Section 9. We have already considered Section 11 while dealing with Section 8(3). We must, therefore, hold that Section 12 which makes the provisions of Chapter IV inapplicable to unaided minority schools is discriminatory not only because it makes Section 10 inapplicable to minority institutions, but also because it makes Sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to WP (Civil) Nos. 7568/1999 & 8710/2007 unaided minority institutions. That the Parliament did not understand Sections 8 to 11 as offending the fundamental ^ right guaranteed to the minorities under Article 30(1) is evident from the fact that Chapter IV applies to aided minority institutions and it cannot a moment suggested that surrender of the right under Article 30(1) is the price which the aided minority institutions have to pay to obtain aid from the government." (emphasis supplied)

16. Consequently, it was held as under (SCC, p.735): "21. The result of our discussion is that Section 12 of the Delhi School Education Act which makes the provisions of Chapter IV inapplicable unaided minority institutions discriminatory and void except to the extent it makes Section 8(2) inapplicable to unaided minority institutions. We, therefore, grant a declaration to that effect and direct the Union of India and the Delhi Administration and its officers, enforce the provisions of Chapter IV [except Section 8(2)] in the manner provided in the chapter in the case of Frank Anthony Public School. The management of the school directed not to give effect to the orders of suspension passed • against the members of the staff."

17. This Court does not find the decision in Frank Anthony to be holding that the entire Chapter VIII of the DSE Rules, which talks of recruitment and terms and conditions of service of employees of private schools other than unaided minority schools, is ipso facto applicable to unaided minority schools. Given the factual context in which the decision in Frank Anthony was delivered, there was no occasion for the Supreme Court to consider the position with respect to the key post of the Principal in an unaided minority school and whether the provisions of Chapter IV WP (Civil) Nos. 7568/1999 &8710/2007 of the DSE Act would continue to apply to such post and consequently /j/ whether Chapter VIII of the DSE Rules would apply. In the considered view of this Court- the judgment in Frank Anthony carmot come to the aid of the Respondents in justifying their impugned orders insisting on the applicability of Rule 110 (1) DSE Rules as regards the retirement age of the Principal of the schools run by the Petitioner No.l Society. Power of the State to regulate minority institutions

18. The extent of the power-of the State to regulate the working of minority institutions has been explainedin a number of decisions some of which will be discussed hereafter. However, before doing so, the scheme of the DSE Act and the DSE Rules may first be noticed.

19. A perusal of Chapter VIII of the DSE Rules shows that a wide range of matters are covered, including recruitment of teachers and staff,' minimum qualifications for appointment of teachers, fixation of pay, seniority and so on. Rule 110 talks of retirement age, and reads as under; "110 Retirement age - (1) Except where an existing employee is entitled to have a higher age of retirement, every employee of a recognized private school, whether aided or not, shall hold office until he attains the age of 58 years: Provided that the managing committee may grant extension to a teacher for a period not exceedingtwo years in the aggregate, if in the opinion of the managingcommitteesuch teacher is fit for such extension and has no mortal or physical incapacity which would disentitle him to get such extension. Provided further that no such extension shall be granted in the WP(Civil) Nos. 7568/1999 &8710/2007 case of a teacher of an aided school except with the previous approval of the Director. (2) Notwithstanding anything contained in sub-rule (1), every teacher, laboratory assistant, Librarian, Principal or Vice Principal employed in such school shall continue to hold office until he attains the age of 60 years Provided that where a teacher, Principal or vice-Principal attains the age of superannuation on or after the day of November of any year such teacher, Principal or Vice- Principalshall be re-employedup to the 30^'' day ofApril of the year immediately following. (3) Notwithstandinganythingcontainedin sub-rule(1) and sub- rule (2), where a teacher, Principal or Vice-Principal has obtained National or State award for rendering meritorious service as a teacher, Principal or Vice-Principal or where he has received both the National and State awards as aforesaid, the period of service of such teacher. Principal or Vice- Principal may be extended by such period as Administrator may, by general or special order, specify in this behalf." (emphasis supplied)

20. It may be noticed that in terms of the proviso to Rule 110(2), the services of the Principal, vice-Principal or teacher in an unaided or aided private school recognised by the government (and not an unaided minority school) can be extended beyond 60 years. In terms of Rule 110(3) the services of a Principalor vice-Principalof such school who has won a national or state award for rendering meritorious .service can be extendedfor such period as the Administratormay specify.Therefore even for a privateaided or unaidedschoolit is not as if the retirementage M/P (Civil)Nos. 7568/1999&8710/2007 Page13of26 of 60 for a Principalis sacrosanct.However, by virtue of Rule 96 of the DSE Rules, Rule 110 can have no application to an unaided minority school.

21. It is only where the retirementage for a Principalof a minorityschool has been fixed at an age lower than a Principal of a governmentschool or an aided or unaided private school, can a comparisonbe possiblydrawn with the facts in Frank Anthony to contend that the terms and conditions of the Principal of an unaided minority school cannot possiblybe worse than that of the Principal of a governmentschool or an unaidedor aided minorityschool.Viewed from any angle therefore,the decisionin Frank Anthony caimot come to the aid of the Respondents in seeking to interfere with the decision of the Petitioner No. 1 Society to extend the tenure of Petitioner No. 2.

22. In para 9 of its decisionin All Bihar Christian Schools Association 4 V. State of Bihar, after examining the pmport of Article 30(1) of the Constitution and the earlier decisions of the Court, the Supreme Court observed as under (SCC, p.220): "9.... Minority institutions may be categorized in three classes (1) educational institutions which neither seek aid nor recognition from the State (ii) institutionsthat seek aid from the State, and (iii) educational institutions which seek recognition but not aid. Minority institutionswhich fall in the first categoryare free to administertheir institutionin the manner they like; the State has no power under the Constitution to place any restriction on their right of administration. This does not mean that an unaided minority institution is immune from operation of general laws of the WP (Civil) Nos. 7568/1999&8710/2007 Page 14of26 land. A minority institution cannot claim immunity from contract law, tax measures, economic regulations, social welfare legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society. But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose. It is open to the State to prescribe conditions for granting recognition or disbursing aid. These conditions may require a minority institution to follow prescribed syllabus for examination, course of study; they may further regulate conditions of employment of teachers, discipline of students and allied matters. The object and purpose of prescribing regulations is to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the mainstream of the nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State; otherwise the students coming out of such institutions will not be fully equipped to serve the society or the nation. While the State has every right to prescribe conditions for granting recognition or disbursing aid, \ cannot under the guise of that power prescribe onerous conditions compelling the minority institutions surrender rights administration government. On the one hand the State is under an obligation to ensure that educational standards in the recognized institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public funds disbursed to the minority institutions are properly utilized for the given purpose. On the other hand the State has to respect and honour minority rights under Article 30(1) in the matter of establishing carrying on of administration WP (Civil)Nos. 7568/1999&8710/2007 institution of their choice. In order to reconcile these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 30(1) of the Constitution. These principles have to be borne in mind in considering the question of validity of statutory provisions relating to minority educational institutions." (emphasis supplied)

23. As far as the present case is concerned,Petitioner No. 1 falls in the third category identified in the above decision in All Bihar Christian Schools Association i.e. "educational institutions which seek recognition but not aid". Therefore, "while the State has every right to prescribe conditions for granting recognition or disbursing aid, it cannot under the guise of that power prescribeonerousconditionscompellingthe minority institutions to suiTendertheir rights of administration to the government."

24. In T.M.A. Pai Foundation v. State ofKarnataka (2002) 8 SCC 481, the eleven-judge bench of the Supreme Court considered inter alia the position of aided minority institutionsand held "the conditions of aid that do not involve a suiTender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectlyimpinge on some facet of administration.The specific question posed concerning minority institutions and the response in the said judgment were as follows (SCC, p. 588): Q. 5. (c) Whetherthe statutoryprovisionswhich regulatethe facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including WP (Civil)Nos. 7568/1999&8710/2007 Page 16of26 recognition/withdrawal thereof, appointment staff, employees, teachers and principals including service conditions and regulation of fees, etc. would interfere with the right of administration of minorities? A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the ranlc of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff. WP(Civil) Nos. 7568/1999 & 8710/2007 Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee." (emphasis supplied) This was reiterated in P.A. Inamdar v. State of Maharashtra (2005) 6 0 see 537.

25. In Secretary, Malankara Syrian Catholic College v. T. Jose the position was summarized thus (SCC, p. 399): "19. The general principles relating establishment administration of educational institution by minorities may be summarised thus: (z) The right of minorities to establish and administer educational institutions of their choice comprises the following rights: (a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution; {b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees; (c) to admit eligible students of their choice and to set up a reasonable fee structure; {d) to use its properties and assets for the benefit of the institution. (ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority! There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also. {Hi) The rightto establishand administereducationalinstitutionsis not absolute. Nor does it include the right to maladminister. There can be regulatorymeasuresfor ensuringeducationalcharacterand standards and maintaining academic excellence. There can be WP (Civil) Nos. 7568/1999&8710/2007 checks on administration as are necessary to ensure that administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non- teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Aiticle 30(1). (zv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection. (v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)." The position vis-a-vis key posts in unaided minority institutions

26. As regards the position vis-a-vis key posts in unaided minority institutions, the law is again well settled in a number of decisions of the Supreme Court.

27. In St. Xavier's College Society v. State of Gujarat (1974) 1 SCC 717 the validity inter alia of Section 33-A (1) of the Gujarat University Act 1949 which stipulated how the governing body of any non-government institution seeking affiliation should be constituted was challenged by a minority institution. Concurring with the majority in holding the provision to be violative of the fundamental right of minorities under \NP (Civil) Nos. 7568/1999&8710/2007 Page19 of 26 Article 30(1) of the Constitution, Mathew. J., observed (SCC, p.815): "182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We can perceive no reason why a representative of the University nominated by the Vice-Chancellor should be on the Selection Committee for recruiting the Principal of insistence of head of department besides representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them."

28. In Gandhi Faiz-E-Am College v. University of Agra, the Supreme \ Court by a 2:1 majority rejected the contention of the minority institution that Statute 14-A ft-amed by the University of Agra which compelled the institution, as a condition for grant of affiliation, to include the Principal and a teacher to represent the teaching staff on the Governing Body of the institution constituted a violation of Article 30(1) of the Constitution. Speaking for the majority, Krishna Iyer, J. noted (SCC, p. 293): "21. An activist principal is an asset in discharging these duties which are inextricably interlaced with academic functions. The principal is an invaluable insider — the management's own choice — not an outsider answerable to the Vice-Chancellor. He brings into the work of the Managing Committee that intimate acquaintance with educational operations and that necessary expression WP (Civil) Nos. 7568/1999 &8710/2007 student-teacher aspirations complaints which are so essential for the minority institution to achieve a happy marriage between individuality excellence. And the role of the seniormost teacher, less striking and more unobstrusive, a useful managerial skills, representing as he does the teachers being only a seasoned minion chosen by the management itself. After all, two creatures of the society on a 16-member Managing Committee can bring light, not tilt scales. Moreover, the Managing Committee itself is subject to the hierarchical control of the governing body and the General Council." (emphasis supplied) Rejecting the contention that the Agra University Statute was no different from the one that the Supreme Court had struck down in St Xavier's College Society, the majority in para 29 explained that (SCC, p. 298) "the features of the Agra University Act vis-a-vis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group, save in the minimal inclusion of two internal entities, namely the Principal of their own choice and the senior most lecturer independently appointed by them." (Mathew J., \ dissented and held that the provision was no different from the one struck down by the constitution bench in St. Xavier's).

29. In N. Ammad v. Manager, Emjay High School the question considered was: "is the management of a minority school free to choose and appoint any qualified person, as Headmaster of the school or whether such management is hedged by any legislative edict or executive fiat in doing so?" Answering the earlier part of the question in the affirmative and the later part in the negative, the Supreme Court held (SCC, p. 681) "if the management of the school is not given very wide freedom to WP (Civil) Nos. 7568/1999 & 8710/2007 chose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, right to administer the school would get much diminished." Elaborating on the concept of a "key post" the Supreme Court explained (SCC, p. 680): "18. Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years. -V

19. How important is the post of Headmaster of a school has been pithily stated by a Full Bench of the Kerala High Court in Aldo Maria Patroni v. E.C. Kesavan AIR 1965 Ker 75. Chief Justice M.S. Menon has, in a style which is inimitable, stated thus: "The post of the headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of institution; on him depends continuity traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon — except to the extent of prescribing the requisite qualifications and experience — cannot but be considered as a violation of the right guaranteed by Article WP (Civil) Nos. 7568/1999 &8710/2007 30(1) of the Constitution. To hold otherwise will be to make the right 'a teasing illusion, a promise of unreality'." (emphasis supplied)

30. In Secretary, Malankara Syrian Catholic College v. T. Jose the post of the Principal in the Malankara Syrian Catholic College, which was a minorityinstitution,fell vacanton 31^^ March 2000. The Managerpassed an order dated 2?"^ March 2000 giving charge of the post of the Principal to a lecturer in the college. The Vice Chancellor approved the said decisionon 15'^ April 2000. A challengewas raisedto the appointmentof the interim Principal and since there was a stay of such appointment, the management appointed another senior lecturer to discharge the duties of \ the Principal. Thereafter, the High Court modified its interim order and permitted the management to make a regular appointment of the Principal. This was challenged by the senior lecturer who had been asked ^ to take charge the second time, by filing an appeal before the Kerala University Appellate Tribunal. The Tribunal directed the management to \ make a fresh appointment. This order was challenged in the Kerala High Court. The High Court held that the statutory provision, i.e., Section 57(3) of the Kerala University Act, 1974 applied to minority institutions as well, and in accordance with the provisions of the Act, the senior most among the eligible and fit lecturers, had to be appointed as the Principal...

31. Reversing the judgment of the High Court, the Supreme Court held in para 21 as under (SCC, p. 400): "21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority WP (Civil) Nos. 7568/1999 & 8710/2007 educational institutions receiving aid from the State, as clarified and crystallized in TMA Pai. The State can prescribe: (i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments; (ii) the service conditions of employees without interfering with the overall administrative control by the Management over the staff. (iii) a mechanism for redressal of the grievances of the employees; (iv) the conditions for the proper utilization of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions. In other words, all laws made by the State to regulate the administration of educational institutions, and grant of aid, will apply to minority educational institutions also. But if * any such regulationsinterferewith the overalladministrative control the Management staff, abridges/dilutes, in any administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions."

32. Thereafter, the Court examined the question of appointment of Principal or headmaster and noted that such person was responsible for the functional efficiency of the institution, as also for maintaining the philosophy and objects of the institution. After noticing other relevant decisions of the Supreme Court, it was held in para 27 as under (SCC, p. 404): "27. It is thus clear that the freedom' to choose the person to WP (Civil) Nos. 7568/1999 &8710/2007 be appointed as Principal has always been recognized as a facet of the to administer educational institution. This has not been, in any way, diluted or altered by T.M.A. Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid, will make no difference."

33. In St. Stephen's College v. University of Delhi 152 (2008) DLT 228 (DB) this Court declared that Clause 7(2) of the Ordinance XVIII of the Delhi University concerning the appointment of a Principal cannot apply to a minority institution. Conclusion

34. The position in law as is evident from the above decisions is that the post of the Principal or the Headmaster of an unaided minority institution is a 'key post' and therefore apart from mandating that the minimum qualification for such post should not be less than that prescribed for other schools, the State cannot have any say on what should be the terms and conditions of service. The age of retirement of a Principal of an unaided minority institution, being a term of service, cannot be more disadvantageous than that of the Principal of a non-minority or aided or unaided private institution. But the converse is not true. If the age of retirement of the Principal of a unaided minority institution is more advantageous,it will not be held to be discriminatoryor unconstitutional. It would in fact stand protected under Article 30 (1) of the Constitution. WP (Civil) Nos. 7568/1999&8710/2007 Page25 of 26

35. Both the questions posed in para 1 of this judgment are answered in negative. In other words, the GNCTD cannot insist notwithstanding the fundamental right guaranteed to the institutions run by Petitioner No. 1 under Article 30 (1) of the Constitution the retirement age of the Principal of such institutions can be no different from that of a Principal of a government school or a private unaided or aided school recognised as such by the GNCTD in terms of the DSE Act. Further, the stand of the GNCTD that Rule 110 (1) of the DSE Rules also governs the retirement 'age of the Principal of a recognised unaided minority institution is untenable in law. The result is that the Rule 110 of the DSE Rules does not have any application to the schools run by the Petitioner No.l Society.

36. Consequently, the order dated 26"^ October 1999 passed by Respondent No. 1 conveyed to the Petitioners by letter dated 11 November 1999, the letter dated 30'*^ July 2007 issued by the CBSE and the order dated ll'*^ September 2007 passed by RespondentNo. 1 are o unsustainable in law and are accordingly quashed.

37. The writ petitions are allowed in the above terms, with costs Rs. 5,000/- each which will be paid in equal halves by the Respondents to the Petitioners in each petition within a period of four weeks. The pending applications also stand disposed of AUGUST 13, 2010 S. MURALIDHAR, J WP(Civil) Nos. 7568/1999 & 8710/2007