New Delhi, February 13 The Delhi High Court on Friday said that the vacancies for the positions of chairperson and members in the National Commission for Minority Educational Institutions cannot remain unfilled since 2023, even though the law does not prescribe any timeline for such appointments.
A bench of Chief Justice D K Upadhyaya and Justice Tejas Karia said that the Centre's stand that the court has no power to direct such appointments since there is no timeline for it in the law is "highly misconceived," "unsustainable," and "contrary to the legislative mandate" in the National Commission for Minority Educational Institutions Act.
Noting that the commission, which works towards safeguarding the fundamental rights of minority institutions, is functioning with just one member, the bench asked the Ministry of Education to file an affidavit detailing the steps taken by it to fill the vacancies in the office of the chairman and members, as well as the timeline for making the appointments.
"Please make your officers aware. It has been two and a half years. Because the Act does not provide for a timeline, will you continue to function with just one member?" the bench asked the Centre's counsel.
"The vacancy in the office of the chairperson of the commission remains unfilled since September 2023. It is true that the Act does not prescribe any timeline mandating the respondent to fill the vacancy on the expiry of the term of the chairperson or a member. However, that does not mean that no steps for such a long period shall be taken by the authorities," the court observed.
The court was dealing with a petition seeking directions to the Centre to fill the vacant posts of chairperson and members in the commission.
The Ministry of Education's Department of Higher Education responded that the existence of the vacancies has not impeded the proceedings of the commission.
It stated that although the Act provides for the creation and operation of the commission, along with the qualifications, duties and powers of its chairperson and members, it is silent on the period within which their appointment must be made after a vacancy.
The court noted that the commission performs judicial, administrative as well as advisory functions, and the stand of the authorities cannot be justified.
It asserted that the legislative mandate cannot be permitted to be "rendered otiose" by taking the "refuge" that the law does not have any timeline to fill the vacancies.
"Currently, the commission is working with only one member, whereas according to the Act, the commission comprises the chairperson and three members," the court remarked.
"We direct that an affidavit shall be filed by the next date of hearing by the Department of Higher Education, stating as to the steps that might have been taken to fill up the vacancies in the office of the chairperson and members of the commission from the date they occurred. It shall also be indicated within which minimum period of time the vacancies shall be filled in," the court ordered while listing the case for hearing on May 4.
It observed that the commission acts as the appellate forum in matters of approval for establishing a minority institution and also takes decisions on conferring or cancelling the minority status of an institution.
"Thus, what we find from the duties and functions entrusted to the commission under the Act is that the commission is established by the parliamentary enactment to fulfil the fundamental rights under Article 30 (right of minorities to establish and administer educational institutions) of the Constitution of India.
"In the light of the aforesaid statutory role, mandate and duties and functions conferred on the commission, to plead that the Act does not prescribe a timeline to fill a vacancy and therefore, a (writ of) mandamus cannot be issued is highly misconceived and unsustainable," the court said.