Case Number

HCJ 144/50

Date Decided

2-8-1951

Decision Type

Original

Document Type

Full Opinion

Abstract

A teacher, Dr. Sheib, applied to the Principal of the Reali Montefiore School, Haifa, for employment as a teacher and was accepted subject to confirmation by the Department of Education in the Ministry of Education and Culture.

Pursuant to a general request contained in a circular sent to the principals of all classes of schools by the Director of the Department of Education, that teachers should not be employed save with the consent of the Inspector of Secondary Schools, the acceptance of Dr. Sheib as a teacher had been made conditional by the Principal upon such consent being obtained. Dr. Sheib in due course received a letter from the Principal according to which the Inspector of the Department of Education had written to him that "The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher." Enquiries by Dr. Sheib elicited that the Principal, acting in accordance with the circular, had approached the Ministry of Education which in turn had consulted the Ministry of Defence, and that that Ministry had objected to his appointment as a teacher because he had urged the use of arms against the Defence Army of Israel and the Government of Israel. There was no evidence that the Director of Education had applied his own mind to the matter.

Held, (Witkon J. dissenting) that the order nisi should be made absolute. Per Cheshin J.:

(a) There was nothing to prevent the Director from seeking advice on questions relating to his Ministry from other Ministries and officials, but he was neither directed nor entitled to carry out the will of others in matters in which he was the final arbiter.

In this case, however, the Director - even assuming that he was authorised by law to object to the employment of Dr. Sheib - had not applied his own mind to the question but had acted solely on the direction of the Ministry of Defence which itself had no authority in the matter. His decision, therefore, was not properly given.

(b) As the Reali Montefiore School was an entirely private school the only power under which the Director could act was that contained in S. 8 (3) of the Education Ordinance, which authorised him in certain cases to dismiss a teacher after the holding of a judicial inquiry. In the present case no such inquiry had been held and even if, as he alleged, Dr. Sheib had begun to work in the school before the objection had been notified - which was not clear - the Director had acted without authority.

(c) Although the Director of Education had no authority to issue the circular or to object to the employment of Dr. Sheib and the Principal was therefore entitled to disregard these acts, in view of the de facto relationship between schools and the Ministry of Education, and having regard to the nature of a writ of mandamus, the court should make the order nisi absolute and set aside the notice of objection.

Per Olshan J. Even if the circular were to be regarded as a simple request, in this case it constituted an interference in the internal affairs of the teaching profession without lawful authority.

Per Witkon J. Even if an order setting aside the Inspector's opposition to the employment of Dr. Sheib as a teacher were to be made, such order would not operate as a consent the giving of which was made a condition (albeit unlawful) to the employment of Dr. Sheib. Notwithstanding, therefore, that the Director had exceeded his authority, the order nisi should be discharged.

Keywords

Administrative Law -- Discretion, Constitutional Law -- Equality Before the Law, Education -- Discrimination

Download

Share

COinS