# 8 S.C.R. 81 SINDHI EDUCATION SOCIETY & ANR v. THE CHIEF SECRETARY, GOVT. OF NCT OF DELHI & ORS

- **Citation:** [2010] 8 S.C.R. 81
- **Court:** Supreme Court of India
- **Decided:** 2010-07-08
- **Case number:** Civil Appeal No. 5489 of 2007
- **Bench:** Civil Appeal No. 5489 of 2007) JULY 8, 2010 · [Dr. B.S. Chauhan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-s-c-r-81-sindhi-education-society-anr-v-the-chief-secretary-govt-of-nct-of-27078
- **Pages:** 92

## Headnote

Education/Educational Institutions:
Minority institutions - School run by a linguistic minority
- Receiving grant-in-aid - Circular issued by Education
Department of Delhi Government in September 1989 to all
A
B
c
the schools that appointment of scheduled castes and
schedule Tribes candidates was a precondition for all the
0
institution receiving grant-in-aid from Government in terms of
r.64 of the Delhi School Education Rules, 1973 - HELD: Rule
64(1 )(b) and the Circular of September 1989 are not
enforceable against linguistic minority schools in NCT of
Delhi - Delhi School Education Rules, 1973 - r.64(1)(b) -
E
Delhi School Education Act, 1973 - ss. 20,21, 28(2).
Delhi School Education Rules, 1973:
r.64(1)(b) - Undertaking to be given by a school for grantin-aid to fill in the posts in the school with the Scheduled
F
Castes and Scheduled Tribes candidates - HELD: Is not
enforceable against linguistic minority schools in NCT of
Delhi - The object and purpose of the DSE Act is to improve
the standard and management of school education and
protection to minority schools - Rules must fall within the
G
ambit and scope of principal legislation - If r. 64(1 )(b) is
enforced against minority schools, it would adversely affect
and dilute the protection available to. minority school under
the Act and the Constitution - Delhi School Education Act,
81
H
82
SUPREME COURT REPORTS
(2010] 8 S.C.R.
A 1973 - s.21- Constitution of India, 1950 - Articles 14, 15,
16(2), 29 and 30(2) - Interpretation of Statutes - Purposive
interpretation - Doctrine of purposive advancement.
B
c
Delhi School Education Act, 1973:
s.2(o) -
'Minority school' - School run by Sindhi
Education Society - HELD: Is a linguistic minority school in
NCT of Delhi - Delhi School Education Rules, 1973 -
r.64(1)(b).
CONSTITUTION OF /NOIA, 1950
Articles 14, 15, 29 and 30(2) - Minority Institutions -
Grant-in-aid -
School run by Sindhi Education Society -
HELD: The Society enjoys the status of a linguistic minority
0 and the school being a minority institution is entitled to all
constitutional benefits and protection under Articles 29 and
30 - To receive grant-in-aid is a legitimate right of a school
subject to satisfying the requirement of law - Article 30(2)
requires the State not to discriminate the minority institution
in relation to matters of grant-in-aid - Delhi School Education
E Rules, 1973 - r.64(1)(b).
Articles 15, 29 and 30 - Linguistic minority - Right to
establish and administer school - HELD: Includes right to
appoint teachers - To appoint a teacher is part of the regular
F edministration and management of the school - A linguistic
minority is entitled to conserve its language and culture by a
constitutional mandate - A provision of law or a circular which
would be enforced against the general class may not be
enforceable with the same rigors against minority institutions,
G particularly, where it relates ,to establishment and
management of a school - Rule 64(1)(b) of DSE Rules, if
enforced, would adversely affect and dilute the right and
protection available to minority school under the Constitution
- Delhi School Education Rules, 1973 - r.64(1)(b).
H
Articles 14, 15(5), 16, 29 and 30(1) - Reservation policy
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY,
83
GOVT. OF NCT OF DELHI
- Exception in regard to minority institutions -
HELD:
A
Although State is entitled to make law and reservations in
different fields for Scheduled Castes, Scheduled Tribes and
backward classes in the service under the State, but Article
15(5) carves out an exception for minority educational
institutions in regard to which the said power cannot be
B
exercised.
Articles 12, 14 and 16 - "State" - ReservatiOn in relation
to 'service under the State' - Linguistic minority school run
by a society registered under Societies Registration Act -
C
Receiving grant-in-aid - HELD: The expression 'service
under the State' would include service directly under the State
or its instrumentalities which can be

## Text

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[2010) 8 S.C.R. 81
SINDHI EDUCATION SOCIETY & ANR.
v.
THE CHIEF SECRETARY, GOVT. OF NCT OF DELHI &
ORS.
(Civil Appeal No. 5489 of 2007)
JULY 8, 2010
· [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Education/Educational Institutions:
Minority institutions - School run by a linguistic minority
- Receiving grant-in-aid - Circular issued by Education
Department of Delhi Government in September 1989 to all
A
B
c
the schools that appointment of scheduled castes and
schedule Tribes candidates was a precondition for all the
0
institution receiving grant-in-aid from Government in terms of
r.64 of the Delhi School Education Rules, 1973 - HELD: Rule
64(1 )(b) and the Circular of September 1989 are not
enforceable against linguistic minority schools in NCT of
Delhi - Delhi School Education Rules, 1973 - r.64(1)(b) -
E
Delhi School Education Act, 1973 - ss. 20,21, 28(2).
Delhi School Education Rules, 1973:
r.64(1)(b) - Undertaking to be given by a school for grantin-aid to fill in the posts in the school with the Scheduled
F
Castes and Scheduled Tribes candidates - HELD: Is not
enforceable against linguistic minority schools in NCT of
Delhi - The object and purpose of the DSE Act is to improve
the standard and management of school education and
protection to minority schools - Rules must fall within the
G
ambit and scope of principal legislation - If r. 64(1 )(b) is
enforced against minority schools, it would adversely affect
and dilute the protection available to. minority school under
the Act and the Constitution - Delhi School Education Act,
81
H
82
SUPREME COURT REPORTS
(2010] 8 S.C.R.
A 1973 - s.21- Constitution of India, 1950 - Articles 14, 15,
16(2), 29 and 30(2) - Interpretation of Statutes - Purposive
interpretation - Doctrine of purposive advancement.
B
c
Delhi School Education Act, 1973:
s.2(o) -
'Minority school' - School run by Sindhi
Education Society - HELD: Is a linguistic minority school in
NCT of Delhi - Delhi School Education Rules, 1973 -
r.64(1)(b).
CONSTITUTION OF /NOIA, 1950
Articles 14, 15, 29 and 30(2) - Minority Institutions -
Grant-in-aid -
School run by Sindhi Education Society -
HELD: The Society enjoys the status of a linguistic minority
0 and the school being a minority institution is entitled to all
constitutional benefits and protection under Articles 29 and
30 - To receive grant-in-aid is a legitimate right of a school
subject to satisfying the requirement of law - Article 30(2)
requires the State not to discriminate the minority institution
in relation to matters of grant-in-aid - Delhi School Education
E Rules, 1973 - r.64(1)(b).
Articles 15, 29 and 30 - Linguistic minority - Right to
establish and administer school - HELD: Includes right to
appoint teachers - To appoint a teacher is part of the regular
F edministration and management of the school - A linguistic
minority is entitled to conserve its language and culture by a
constitutional mandate - A provision of law or a circular which
would be enforced against the general class may not be
enforceable with the same rigors against minority institutions,
G particularly, where it relates ,to establishment and
management of a school - Rule 64(1)(b) of DSE Rules, if
enforced, would adversely affect and dilute the right and
protection available to minority school under the Constitution
- Delhi School Education Rules, 1973 - r.64(1)(b).
H
Articles 14, 15(5), 16, 29 and 30(1) - Reservation policy
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY,
83
GOVT. OF NCT OF DELHI
- Exception in regard to minority institutions -
HELD:
A
Although State is entitled to make law and reservations in
different fields for Scheduled Castes, Scheduled Tribes and
backward classes in the service under the State, but Article
15(5) carves out an exception for minority educational
institutions in regard to which the said power cannot be
B
exercised.
Articles 12, 14 and 16 - "State" - ReservatiOn in relation
to 'service under the State' - Linguistic minority school run
by a society registered under Societies Registration Act -
C
Receiving grant-in-aid - HELD: The expression 'service
under the State' would include service directly under the State
or its instrumentalities which can be termed as State within
the meaning of Article 12 - In order to bring a society,
organization or body within the expressions 'State' or 'other
authorities' appearing in Article 12, financial control,
D
managerial and administrative control and functional control
of such institution must be exercised by the State - Merely
receiving grant-in-aid per se would not make a minority school
or institution 'State' within the meaning of Article 12 - Delhi
School Education Rules, 1973 - r.64(1)(b).
E
Administrative Law:
F
Framing of policy -
HELD: Is the domain of the
Government - It must do so within the framework of the
Constitution and the laws - Concept of, reservation has been
provided primarily under Article 16 of the Constitution -
Minority institutions have been excluded under Article 15(5)
from application of reservation policy - State may not be well
within its constitutional duty to compel linguistic minority
institutions to accept a policy decision, enforcement of which
G
will impinge upon their fundamental right and/or protection -
Constitution of India, 1950 - Articles 15(5) and 16 - Delhi
School Education Rules, 1973 - r. 64(1)(b) .
. Policy decision - Change of - Reasons for - HELD:
H
84
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A When Government changes its policy decision, it is expected
to give valid reasons - Absence of reasons and apparent
non-application of mind would give colour of arbitrariness to
State action - Besides, State would not compel a linguistic
minority institution to accept a policy decision, enforcement
B of which will infringe its fundamental rights and/or protection.
c
Judgment -
Reasoning -
HELD: Reasoning is
considered as the soul of the judgment - Various principles
involved in the case need to be analised - Educational
Institutions.
A Senior Secondary School, run by the appellantSindhi Education Society and availing the grant-in-aid,
received a communication in September 1989, addressed
to all the Schools by the Education Directorate that
D appointment of Scheduled Castes and Scheduled Tribes
candidates was a pre-condition for all the agencies
receiving grant-in-aid from the Government in terms of
Rule 64 of the Delhi School Education Rules, 1973. The
appellant-Society filed a writ petition before the High
E Court contending that the school being a minority
institution was outside the purview of the said
communication. The single Judge of the High Court
allowed the writ petition holding that the case was
entirely covered by the decision in Sumanjit Kaur's case1
F rendered by the single Judge, and affirmed by the
Division Bench of the High Court. However, the Division
Bench set aside the judgment of the single Judge, and
expressing a dissent to the earlier Division Bench
decision in Sumanjit Kaur's case, granted the certificate of
G leave to appeal.
Allowing the appeal of the Society, the Court
HELD:1.1. There is no dispute to the fact that the
appellant-Society enjoys the status of a linguistic minority
H
1.
Sumanjit Kaur v. Net of Delhi 2005 Ill AD (Delhi) 560.
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 85
GOVT. OF NCT OF DELHI
and the institution being a minority institution is entitled
A
to all the constitutional be.nefits and protection under
Articles 29 and 30 of the Constitution of'lndia. The High
Court in Sindhi Education Society & Anr. Vs. The Chief
Secretary, Govt. of NCT of Delhi & Ors. (Writ petition No. 940
of 1975) has clearly declared that the appellant is a 8
linguistic minority and that judgment has attained finality.
Once an institution satisfies the ingredients of s.2(o) of
the Delhi School Education Act, 1973, it has to be given
the status of a minority institution. [para 14) [105-G-H; 106A]
c
1.2. It is of great significance to notice that the
legislature in its wisdom by a specific provision u/s 21 of
the DSE Act has kept minority schools outside the ambit
and scope of s.20, i.e. the power of control and
management vested in the authority. Even any of alleged
D
breach of conditions would not enable the authorities to
take over the management of any minority school.
Section 21, thus, is an absolute exception to the
applicability of s.20. The scheme of the DSE Act, in
particular, is to give greater freedom to the aided minority
E
institutions and not to impinge upon their minority status
as granted under Article 30(1) of the Constitution. [para
16 and 25] [107-F-H; 113-0)
Re.: Kera/a Education Bill, 1957 (1959) SCR 995; T.M.A.
Pai Foundation v. State of Karnataka 2002 Suppl.
F
3 SCR 587 = (2002) 8 SCC 481; Kanya Junior High School,
Bal Vidya Mandir v. U.P. Basic Shiksha Parishad 2006
Suppl. 4 SCR 813 = (2006) 11 SCC 92; Secy. Malankara
Syrian Catholic College v. T. Jose 2006 Suppl. 9 SCR 644
= (2007) 1 SCC 386; Brahmo Samaj Education Society v.
G
State of WB. 2004 Suppl. 2 SCR 214 = (2004) 6 SCC 224;
Ahmedabad St. Xaviers College Society v. State of Gujarat
1975 (1) SCR 173 = AIR 1974 SC 1389; Father Thomas
Shingare v. State of Maharashtra 2001 Suppl. 5 SCR 636 =
(2002) 1 SCC 758; T. Devadasan v. Union of India (1964)
H
86
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A SCR 680 = AIR 1964 SC 179; and Lt. Governor of Delhi v.
V.K. Sodhi & Ors. 2007 (8) SCR 1027 =AIR 2007 SC 2885,
referred to.
1.3. The DSE Rules specifically contemplate that the
State Government will not have any strict control over the
B management of the minority institutions. Even the
members, who are nominated by the Director of
Education, would only have a right of limited participation
with no right of voting. The limited extent of control
exercisable by the authorities is demonstrated in DSE
C Rules 44, 59 and 96(3A) an·d (38). Besides these statutory
provisions and the scheme under the DSE Act, various
judgments of this Court have also consistently taken the
view that the State has no right of interference in the
establishment, administration and management of a
D school run by linguistic minority except the power to
regulate as specified. [para 53] [158-A-F]
1.4. The right under clause (1) of Article 30 is not
absolute but subject to reasonable restrictions which,
inter alia, may be framed having regard to the public
E interest and national interest of the country. The right to
administer does not amount to the right to mal-administer
and the right is not free from regulations. The regulatory
measures are necessary for ensuring orderly, efficient
and sound administration, and can be laid down by the
F State in the administration of minority institutions~ The
right of the State is to be exercised primarily to prevent
mal-administration and such regulations are permissible
regulations. These regulations could relate to guidelines
for the efficiency and excellence of educational
G standards, ensuring the security of the services of the
teachers or other employees, framing rules and
regulations governing the conditions of service of
teachers and employees and their pay and allowances
and prescribing course of study or syllabi of the nature
H of books etc. However, the power to regulate,
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 87
GOVT. OF NCT OF DELHI
undisputedly, is not unlimited. It has more restriction than A
freedom particularly, in relation to the management of
linguistic minority institutions. [para 55,56 and 58) [159E-F; 160-C-F; 163-G-H; 164-A]
State of Kera/a v. Very Rev. Mother Provincial 1971 (1)
SCR 734 = (1970) 2 SCC 417; All Saints High School v. Govt. B
of A.P. 1971 (1) SCR 734 = (1980) 2 sec 478; T.M.A. Pai
Foundation v. State of Kamataka 2002 Suppl. 3 SCR 587 =
(2002) 8 SCC 481; and Malankara Syrian Catholic College
v. T. Jose 2006 Suppl. 9 SCR 644 = (2007) 1 SCC 386,
referred to.
C
1.5. Minority institutions could even impart education
in their own language or in any other language, which
choice essentially has to be left to the minority institution.
The constitution itself uses the word 'choice' in Article D
30(1 ), which indicates the extent ·of liberty and freedom,
the framers of the Constitution. intended to grant to the
minority community. Thus, there arises no occasion for
the Court to read restrictions into the freedom of the
minority schools on the ground of policy. It may amount E
to intrusion into the very minority character and
protection available to the community in law. [para 56)
(161-F-H; 162-A]
.
1.6. The right to establish and administer includes a
right to appoint teachers. A linguistic minority has F
constitution and character of its own and is entitled to
conserve its language and culture by a constitutional
mandate. Thus, it must select people who satisfy the
prescribed criteria, qualification and eligibility and at the ·
same time ensure better cultural and linguistic G
compatibility to the minority institution. Of course, what
should be the qualification or eligibility criteria for a
teacher to be appointed can be defined and, in fact, has
been defined by the Government of N.C.T. of Delhi and
within that specified parameters, the ... rfght of the linguistic H
88
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A minority institution to appoint a teacher cannot be
interfered with. The paramount feature of the DSE Act was
to bring efficiency and excellence in the field of school
education and, therefore, it is expected of the minority
institutions to select the best teacher to the faculty. Once
B 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. To provide and enforce any
regulation, which will ;practically defeat this purpose
c would have to be avoided. Besides, a provision of law or
a Circular, which would be enforced against the general
class, may not be enforceable with the same rigors
against the minority institution, particularly where it
relates to establishment and management of the school.
D [para 54, 59 and 63) [158-G; 164-C-G; 168-G-H]
2.1. Under s. 28(2) of the DSE Act, 1973, rules can be
framed in regard to the condition which every existing
school shall be required to comply. It has to be noticed
that such Rules can be framed and have only one
E purpose 'make rules to carry out the provisions of the Act•.
The framing of Rules does not empower the
Administrator to go beyond the purpose or object of the
Act and all the Rules so framed should be intended only
to further the cause of the Act and bring nothing into
F existence, which is specifically or by necessary
implication impermissible under the provisions of the Act,
Even, otherwise, it is a settled principle of law that Rules
must fall within the ambit and scope of the principal
legislation. Section 21 is sufficiently indicative of the
G inbuilt restrictions that the framers of the law intended to
impose upon the State while exercising its power in
relation to a linguistic minority school. DSE Act was
enacted primarily for the purpose of better organization
and development of school education in the Union
H Territory of Delhi and for matters connected therewith or
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 89
GOVT. OF NCT OF DELHI
incidental thereto. Thus, the very object and propose of
A
this enactment was to improve the standard as well as
management of school education. It will be too far fetched
to read into this object that the law was intended to make
inroads into character and privileges of the minority. -
[para 17 and 58) [108-8-F; 164-8; 163-D-F]
B
Islamic Academy of Eduation v. State of Karnataka 2003
(2) Suppl. SCR 474 = (2003) 6 SCC 697; P.A. lnamdar v.
State of Maharashtra 2005 (2) Suppl. SCR 603 = (2005) 6
sec 537, referred to.
2.2. In the case of Kanya Junior High School, Bal Vidya
Mandir the Court has kept a clear line of distinction
between laws made b~· the State to regulate the
administration of educational institutions receiving grantc
i n-a id but if such regulations interfere with overall o
administrative control by the management over the staff
or abridges or dilutes, in any other manner, the right to
establish and administer educational institutions, in that
event, to such extent, the regulations will be inapplicable
to the minorities. [para 43) [144-H; 147-E-F]
Kanya Junior High School, Bal Vidya Mandir v. U.P.
Basic Shiksha Parishad 2006 Suppl. 4 SCR 813 = (2006) 11
sec 92, relied on.
2.3. Under Rule 60, every aided school, which was
receiving aid, will continue to receive such aid, so long
as it fulfills the conditions of receiving the aid, in terms
E
F
of Rule 64. Rule 64 deals with the condition that an .
undertaking in writing has to be filed by the institution to
receive the grant-in-aid allowed by the competent
authority under the provisions of the DSE Act. Sub-rule
G
(1)(b) of r.64 deals with the relevant condition that the
school shall fill in the posts in the school with the
Scheduled Castes and the Scheduled Tribes candidates
in accordance with the instructions issued by the Central
H
90
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A Government from time to time and also maintain the roster
and other connected returns in this behalf. Second
proviso to Rule 10 requires that wherever a linguistic
minority school decides to impart education in a language
other than the language of such linguistic minority, in that
B event the Administrator shall not be under any obligation
to give grant-in-aid to such schools. [para 22 and 49] [111C-F; 151-F]
2.4. Article 30(2) requires the State not to discriminate
against any educational institution on the ground that it
C is under the management of a minority, whether based on
religion or language, while granting aid to the educational
institution. The Government does not enjoy identical
control over the management of the schools belonging
to the minority and/or majority schools. The logical
D impact of Article 30(2) read with the provisions of the DSE
Act and the Rules framed thereunder is that, to receive
grant-in-aid is a legitimate right of a school subject to
satisfying the requirements of law. [para 47 and 49] [150E
C; 152-B]
Unni Krishnan, J.P. V. State of A.P. 1993 (1) SCR 594 =
(1993) 1 sec 645, referred to.
2.5. The purpose of granting protection or privilege
to the minorities in terms of Article 29, and at the same
F time, applying negative language in Article 30(2) in relation
to State action for releasing grant-in-aid, as well as the
provisions of DSE Act, 1973 and the rules framed
thereunder is obvious that the constitutional intent is to
bring the minorities at parity or equality with the majority
G as well as give them right to establish, administer and run
minority educational institutions. With the primary object
of Article 21A of the Constitution in mind, the State was
expected to expand its policy as well as methodology for
imparting education. [para 58] [163-B-D]
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 91
GOVT. OF NCT OF DELHI
2.6. The concept of equality stated under Article 30(2)
A
has to be read in conjunction with the protection under
Article 29 and thus it must then b~ given effect to achieve
excellence in the field of education. Providing of grantin-aid, which travels from Article 30(2) to the provisions
of the DSE Act and Chapter VI of the Rules framed
B
thereunder, is again to be used for the same purpose,
subject to regulations which themselves must fall within
the permissible legislative competence. The purpose of
grant-in-aid cannot be construed so as to destroy, impair
or even dilute the very character of the linguistic minority c
institutions. All these powers must ultimately, stand in
comity to the provisions of the Constitution, which is the
paramount law. [para 60] [165-D-F]
2.7. Besides, in the given facts and circumstances
of the case, the court is also duty bound to advance the
D
cause or the purpose for which the law is enacted.
Different laws relating to these fields, thus, must be read
harmoniously, construed purposively and implemented
to further advancement of the objects, sought to be
achieved by such collective implementation of law. While,
E
keeping the rule of purposive interpretation in mind, one
has also further to add such substantive or ancillary
matters which would advance the purpose of the
enactment still further. To sum up, we will term it as
'doctrine of purposive advancement'. Courts will have to
F
strike the balance between different facets relating to
grant-in-aid, right to education being the fundamental
right, protection available to religious or linguistic
minorities under the Constitution and the primary object
to improve and provide efficiency and excellence in G
school education. In the considered view of the Court, it
will not be permissible to infringe the constitutional
protection in exercise of State policy or by a subordinate
legislation to frame such rules which will impinge upon
the character or in any way substantially dilute the right
H
92
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A of the minority to administer and manage affairs of its
school. State has the right to frame such regulations
which will achieve the object of the Act. Even if it is
assumed that there is no complete eclipse of the DSE Act
in the Rules in the case of minority institutions, still Rule
B 64(1)(b), if enforced, would adversely affect and dilute the
right and protection available to the minority school under
the Constitution. Once the State lacks basic power and
jurisdiction to make special provisions for reservations
in relation to minority institutions, which do not form part
c of service under the State, it will be difficult for the Court
to hold that Rule 64(1)(b) can be enforced against aided
minority institution. [para 54,58 and 60] [159-B; 163-F-G;
165-F-H; 166-C]
3.1. Article 14 of the Constitution commands equality
D before law or the equal protection of laws. Although, the
State is entitled to make law and reservations in different
fields for Scheduled Castes and Scheduled Tribes and
the persons belonging to backward class in the services
under the State, in accordance with law, but the
E Constitution has itself made out certain exceptions to the
general rule of equality in terms of Articles 15 and 16.
Article 15(5) of the Constitution excludes the minority
educational institutions from the power of the State to
make any provision by law for the advancement of any
F
socially and educationally backward classes of citizens
or for Scheduled Castes and Scheduled Tribes in relation
to their admission to educational institutions including
private educational institutions whether aided or unaided.
This Article is capable of very wide interpretation and
G vests the State with power of wide magnitude to achieve
the purpose stated in the Article. But, the framers of the
Constitution have specifically excluded minority
educational institutions from operation of this clause.
[para 45-46 and 50] [148-C; 152-C-D]
H
3.2. Article 16 which ensures equality of opportunity
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 93
GOVT. OF NCT OF DELHI
in matters of public employment prohibits discrimination
A
and, at the same time, vests the State with power to make
provisions, laws and reservations in relation to a
particular class or classes of persons. This power of the
State is in relation to the 'service under the State', which
expression would obviously include service directly
B
under the State Government or its instrumentalities and/
or even the sectors which can be termed as State within
the meaning of Article 12 of the Constitution. Once an
organization or society falls outside the ambit of this
circumference, it will be difficult for the Courts to hold that c
the State has a right to frame such laws or provisions or
make reservations in the field of employment of that
organization/society. [para 50] [152-E-H; 153-A-B]
..
3.3. Merely receiving grant-in-aid per se would not
make a minority school or institution 'State' within the
D
meaning of Article 12 of the Constitution. In order to bring
a society, organization or body within the expression
'State' or 'other authority' appearing in Article 12, financial
control, managerial and administrative control and
fqnctional control of such institution must be exercised
E
by the State. The service in an aided linguistic minority
school cannot be construed as 'a service under the State'
even with the aid of Article 12 of the Constitution.
Resultantly, Rule 64(1 )(b) cannot be enforced against the
linguistic minority school. Rule 64(1)(b) and the circular
F
of September, 1989, are not enforceable against the
linguistic minority school in the NCT of Delhi. [para
51,52,67 and 68) [154-A; 153-D; 172-E-H]
Ajay Hasia v. Khalid Mujib Sehravardi 1981 (2)
SCR 79 = (1981) 1 SCC 722; Zoroastrian Coop. Housing
G
Society Ltd. v. District Registrar, Coop. Societies (Urban)
2005 (3) SCR 592 = (2005) 5 sec 632; State of U.P. v.
Radhey Shyam Rai 2009 (4) SCR 143 = (2009) 5 SCC 577,
referred to.
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94
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
4.1. To frame policy is the domain of the Government.
If, as a matter of policy, the Government has decided to
implement the reservation policy for upliftment of the
socially or otherwise backward classes, then essentially
it must do so within the frame work of the Constitution
B and the laws. The concept of reservation has been
provided, primarily, under Article 16 of the Constitution.
Therefore, it would be the requirement of law that such
policies are framed and enforced within the four corners
of law and to achieve the laudable cause of upliftment of
c a particular section of the society. The framework of
reservation policy should be such, as to fit in within the
constitutional scheme of our democracy. As and when
the Government changes its policy decision, it is
expected to give valid reasons and act in the larger
D interest of the entire community rather than a section
thereof. [para 65-66) [170-E-F; 171-F]
M. Nagaraj v. Union of India 2006 (7 ) Suppl. SCR 336
= (2006) 8 sec 212, referred to.
E
4.2. In its wisdom and apparently in accordance with
law Government had taken a policy decision and issued
the circular dated 21st March, 1986 exempting the
minority institutions from complying with the
requirements of the Rule 64(1 )(b) of the DSE Rules.
Despite this and judgment of the High Court there was a
F change of mind by the State that resulted in issuance of
the subsequent circular of September, 1989. No reasons
have been recorded in support of the decision
superseding the circular dated 21st March, 1986. It is a
settled canon of administrative jurisprudence that State
G action, must be supported by some valid reasons and
should be upon due application of mind. Absence of
reasoning and apparent non-application of mind would
give colour of arbitrariness to the state action. [para 66)
[171-F-H; 172-A-B]
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY,
95
GOVT. OF NCT OF DELHI
4.3. Besides, State actions should be actio quaelibet A
et sua via and every discharge of its duties, functions and
governance should also be within the constitutional
framework. This principle equally applies to the
Government while acting in the field of reservation as
well. It would not be possible for the Courts to permit the
B
State to impinge upon or violate directly or indirectly the
constitutional rights and protections granted to various
classes including the minorities. Thus, the State may not
be well within its constitutional duty to compel the
linguistic minority institution to accept a policy decision, c
enforcement of which will infringe their fundamental right
and/or protection. On the contrary, the minority can
validly question such a decision of the State in law. [para
67) [172-C-FJ
5.1 This Court does not approve the view expressed
D
by the single Judge of the Delhi High Court in the case
of Sumanjit Kaur insofar as it held that the regulation
would compel appointments to the teaching faculty in the
minority schools of the persons, who may be inimical
towards the minority community. The Court is of the
E
considered view that the Single Judge as well as the
Division Bench erred in law in stating this proposition as
it is contra-/egam. While deciding a constitutional matter
in accordance with law, the Court would not be
competent to raise a presumption of inimical attitude of
F
and towards one community or the other. However, to the
extent that it may interfere with the choice of medium of
instructions as well as minority character of the
institution to some extent is a finding recorded in
accordance with law. The Division Bench of the High
G
Court, in the instant matter, was right in not accepting the
said reason given in Sumatjit Kaur's case.
But, it was
expected of the Division Bench to critically analyze other
reasons given by the Single Judge in that case. [para 6162] [167-B-H; 168-A-F]
H
96
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
Sumanjit Kaur v. NCT of Delhi 2005 Ill AD (Delhi) 560
B
- Disapproved to the extent it observed that regulation
would compel appointments to teaching faculty of
persons who may be inimical towards minority
community.
5.2 Reasoning is considered as the soul of the
judgment. The discussion in the impugned judgment
does not analyze the various principles enunciated in
regard to the protection available to the linguistic
minorities under Article 29 and the result of principle of
C equality introduced by Article 30(2) of the Constitution.
D
E
F
G
H
Therefore, the view of the Division Bench in the judgment
under appeal cannot be accepted. [para 62] [168-D-F]
Case Law Reference:
2005 Ill AD (Delhi) 560
Disapproved
para 1
(1959) SCR 995
referred to
para 12
2002 Suppl. 3 SCR 587
referred to
para 27
2006 Suppl. 4 SCR 813
relied on
para 27
2006 Suppl. 9 SCR 644
referred to
para 27
2004 Suppl. 2 SCR 214
referred to
para 27
1975 (1) SCR 173
referred to
para 28
2001 Suppl. 5 SCR 636
referred to
para 28
1964 SCR 680
referred to
para 28
2007 (8) SCR 1027
referred to
para 28
2003 (2) Suppl. SCR474 referred to
para 41
2005 (2) Suppl. SCR603 referred to
para 42
1993 (1) SCR 594
referred to
para 48
1981 (2) SCR 79
referred to
para 51
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY,
97
GOVT. OF NCT OF DELHI
2005 (3) SCR 592
referred to
para 51
2009 (4) SCR 143
referred to
para 51
1971 (1) SCR 734
referred to
para 56
1971 (1) SCR 734
referred to
para 56
2006 (7) Suppl. SCR 336 referred to
para 65
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
5489 of 2007.
A
B
From the Judgment & Order dated 30.11.2006 of the High
C
Court of Delhi at New Delhi in LPA Nos. 33, 34, 35, 36, 40,
41, 42 & 43 of 2006.
P.P. Malhotra, ASG, Madhurima Mridul, Rekha Pandey,
Chetan Chawla (for Anil Katiyar), D.S. Mahra, Ashok Gurnani
D
(for K.L. Janjani), H.K. Puri for the appearing parties.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The Bench hearing the
1.etters patent appeal in the High Court of Delhi at New Delhi,
E
while se~ting aside the judgment/order passed by the learned
Single Judge dated 14th September, 2005 in Writ Petition (C)
No.2426 of 1992, issued a certificate of leave to appeal under
Article 133 read with Article 134-A of the Constitution of India,
1950 (for short 'the Constitution') in its judgment dated 30th
F
November, 2006 and considered it appropriate to frame. the
.following questions to be decided by this Court :-
.. (a)
Whether Rule 64(1)(b) of the Delhi School
Education Rules 1973 and the orders/ G
instructions issued thereunder 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
H
A
B
c
98
SUPREME COURT REPORTS
[2010] 8 S.C.R.
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 Ill AD (Delhi) 560), as
affirmed by the decision dated 1.2.2006 of
the Division Bench of the High Court in (LPA
Nos.445-446/2005) Govt. of National
Capital of Territory of Delhi v. Sumanjit
Kaur been correctly decided ?
2. It is useful to notice at this juncture itself that the Division
Bench doubted the correctness of judgment of another Division
Bench of that Court in the case of Govt. of NCT of Delhi v.
Sumanjit Kaur in LPA Nos. 445-446 of 2006 dated 1.2.2006.
D The Division Bench had affirmed the view taken by the Single
Judge in Sumanjit Kaur (supra). The learned Single Judge had
expressed the view that such circulars and regulations issued
by the Directorate of Education, would be unconstitutional since
they are likely to interfere with the choice of the medium of
E 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. The
Court further held that since the approval in the facts of the case
would be deemed to have been grantee:, the Court was not
F expected to discuss or pass further orders in the writ petition.
The Division Bench, which passed the impugned judgment
expressed the view contra to the view taken by the learned
Single Judge in the Case of Sumanjit Kaur (supra), as affirmed
by the Division Bench. While noticing that the Government of
G NCT of Delhi had filed the Special Leave Petition (C) No.
16374 of 2006 in this Court in that case, the Division Bench in
the present case thought it fit to grant the certificate for leave
to appeal to this Court.
·
3. This is how we have been called upon to examine the
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 99
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
. constitutionality and legality or otherwise of the above questions
A
framed by the High Court of Delhi. We are also of the
considered view that besides the above question, it will have
to be examined that even if the relevant provisions of the Delhi
School Education Act, 1973 (for short the 'DSE Act') are not
unconstitutional, would they still apply with their rigors to the
B
linguistic minority schools receiving grant-in-aid from the
Government. Before we enter upon the aspects relating to law
on the above issues, reference to the basic facts would be
necessary.
Facts:-
c
4. The appellant - Sindhi Educa,tion Society (hereinafter
referred to as 'the Society') is a Society established and duly
registered under the provisions of the Societies Registration
Act. 1860. The Society is rt.inning, inter alia, a school known
D
as S,E.S. Baba Nebhraj Senior Secondary School at Lajpat
Nagar, New Delhi.
·
·
·
.
5. Accqrdif1g to the Society, Sindhi language is one of the
languages included in VIII Schedule of the Constitution and the
E
people speaking Sindhi language are scattered in various parts
of the country. As Sindhi language is not spoken by the majority
of peopie in Delhi, therefore, th'e Sindhi community in Delhi is
and has been held to be a linguistic minority by virtue of Article
30(1) of the Constitution. The Society, therefore, has a
constitutional right to establish and administer educational
F
institutions of its choice. In furtherance of such an object, the
school was established for preservation of Sindhi language and
managing the affairs of the school as per its constitution and
under the provisions of the relevant laws.
6. In the year 1973, the OSE Act came into force with a
view to provide better organization and development of the
school education in Union Territory of Delhi and for matters
connected therewith and incidental thereto. Soon after coming
G
into force of the provisions of the DSE Act, 1973, the Society
H
100
SUPREME COURT REPORTS
[2010) 8 S.C.R.
A felt that certain provisions of the DSE Act infringed the minority
character of the Society, particularly, in matters related to
administration and management of the school.
7. It appears that the society filed a writ petition in the High
8 Court of Delhi being Writ Petition (C) No. 940 of 1975, titled
Sindhi Education Society (Regd.) v. Director of Education and
others, which came to be disposed of by a detailed judgment
of the Delhi High Court dated 14th July, 1982. In that judgment,
the Court specifically held that the Society was a linguistic
minority and the provisions of the DSE Act as specified in the
C judgment would not be applicable to the Society. In order to put
the matters with clarity, it will be useful to refer to the findings
recorded by the Court which read as under:-
D
E
F
G
H
"In the present case the Delhi School Education Act is
applicable only to the Union territory of Delhi. It is with
reference to this Territory that one has to consider as to
whether Sindhi is a language spoken by the majority or
minority of the people. On this there can be no doubt.
Sindhi is not spoken by majority of the people in Delhi and,
therefore, the Sindhi community in Delhi can legitimately
be regarded as a linguistic minority. Just as a religious
minority may be composed of persons whose mothertongue may not be the same, similarly a linguistic minority
may not necessarily be composed of people who belong
to a religious minority of the State. As such, every person,
who is a Sindhi, would be regarded as belonging to a
linguistic minority irrespective of the fact as to whether he
is a Hindu, or a Muslim or a Christian to the effect that
some of the provisions of the Act and the Rules would not
apply to minority institutions, while some other provisions
could be made applicable only with certain modifications
or in accordance with the observations made by the Court.
We may now summarise the decision of this Court with
regard to those provisions of the Act and the Rules which
it held as not being applicable, or being applicable as per
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 101
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
the directions contained therein, because the learned A
counsel for the petitioner states that a similar direction
should be issued in this case also.
)()()(
xxx xxx xxx xxx '
The aforesaid provisions are not to apply to the school but B
the Director of Education, Delhi should be kept informed
of any order of dismissal, removal, reduction in rank or
termination of service of an employee by the management.
If the Administration receives information· that the
disciplinary powers are being abused by the school then C
the Administration will have a right to suspend, reduce or
stop the grant-in-aid to the School after giving a hearing
to the school.
Section 27 A and B :- The said provisions are not to apply D
to the minority school.
The writ petition is accordingly allowed in the aforesaid
terms and, like in Jain Sabha's case (supra), it is directed
that the aforesaid provisions of the Delhi School Education
Act, 1973 and the Rules framed thereunder will not apply E
to the petitioner or would apply only in the manner in which
they have been interpreted by this Court. The petitioner will
be entitled to costs. Counsel's fee Rs.550/-."
8. The aforesaid judgment appears to h~ve attained finality F
and, in fact, was not impugned before this Court. The Division
Bench, while deciding the above case, clearly held that certain
Rules would not be applicable and it specifically noticed the
provisions relating to the constitution of the Managing
Committee under Rule 59, Rule 64, different Clauses under G
Rule 96(3), Rule 98, Rule 105 and Rule 120 of Delhi School
Education Rules, 1973 (for short 'DSE Rules') in that behalf.
The Court held that Rule 64 of the 'DSE Rules is to be construed
in respect of minority schools to require compliance only if
t~ose provisions of the Act and the Rules and instructions H
102
SUPREME COURT REPORTS
(2010) 8 S.C.R.
A thereunder are in consonance with the provisions of the
Constitution, particularly, with Article 30(1) of the Constitution.
9.