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Dr. Eldad and the Supreme Court of Israel

5. As I have said, were I able to regard the “reply”” sent to the third respondent in regard to the petitioner as an independent link and not as a consequence of the circular, I should not have been able to find a legal basis for the complaint of the petitioner in this court. In order to clarify my approach to the problem before us, I also wish to point out that had I not found that the circular was legally ineffective by reason of its having been issued without lawful authority, I am not sure that it would have been possible to set aside the letter because of its contents. It is true that had the law conferred upon the second respondent the power of disqualifying teachers at his discretion, he would have had to act according to his discretion and not on instructions of the Minister or any other person. This does not prevent him from consulting or taking the opinion of another person, and accepting that opinion so far as it appeals to him. If the matter is one which involves the question of security, I am prepared to go even further. Had it been known to the second respondent that the Minister of Defence opposes the appointment of the petitioner as a teacher for reasons of security and that the facts forming the basis of such reasons are secret in character, the second respondent might have given weight to the very fact of the opposition of the Minister of Defence, even if the reasons referred to were not clear to him.

    In my opinion, however, all these problems have no relevance here, since in my view the circular was issued without authority.

6. The prayer of the petitioner before us was for an order against the second respondent to show cause why he should not withdraw his opposition to the acceptance of the petitioner as a teacher in the institution of the third respondent.

    We cannot order the second respondent to take back the letter sent to the third respondent, since this letter was sent in reply to a question of the third respondent and merely stated that the Minister of Defence opposes the appointment of the petitioner as a teacher. This fact is correct, as appears from exhibit “E” which was filed by the petitioner. We also cannot order the second respondent to ““withdraw his opposition “, if by withdrawing his opposition he will be taken to have assented, and this court cannot order the second respondent to give his consent to the appointment of the petitioner as a teacher by the third respondent. As far as this letter is a consequence of the circular referred to, and constitutes an objection to the employment of the petitioner by the third respondent, I think that we should follow the view of the majority in Sabo v. Military Governor, Jaffa, (3), and decide that the objection of the second respondent has no he- gal authority, and that he must therefore refrain from interfering in this matter. In this sense we should make the order nisi absolute.

WITKON J. The petitioner is a teacher by profession and has been a teacher in Israel and elsewhere. It is alleged in the petition — and is not denied by the respondent — that the petitioner came to Israel in 1941, and engaged in teaching in Tel Aviv until he was arrested by the British police in April, 1944, on suspicion of belonging to the underground movement of the Freedom Fighters of Israel. He remained in custody in Latrun for two years until he escaped and continued to work in the underground movement.

2. The petitioner alleged further in his affidavit that after the establishment of the State he decided to return to teaching and applied to a number of institutions for a post. He was confronted with difficulties the root of which - as later became evident to him - was to be found in the fact that the Department of Education refused to confirm his employment as a teacher. The petitioner communicated with the third respondent, the principal of the Reali Montefiore School in Tel Aviv, in order to secure employment for the 1951 school year, but the principal made the employment of the petitioner as a teacher conditional upon confirmation by the Department of Education. It would appear that the petitioner started working before receipt of the confirmation, but his work was terminated on September 17, 1950, when a letter was handed to him in which the principal of the school informed him that in accordance with a letter which the principal had received from the Inspector of the Department of Education, the petitioner was not to be accepted as a teacher in the institution. The contents of the Inspector’s letter, a copy of which was attached, were as follows : “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.” The petitioner approached the Ministers of Defence and Education and demanded an explanation of why they had disqualified him and opposed his appointment as a teacher. He received a reply from the Minister of Defence in the following terms :- “The Ministry of Defence objected to your appointment as a teacher because, in your book and your newspaper, you urge the use of arms against the Defence Army of Israel and the Government of Israel in cases where this seems to you desirable.” This reply was annexed to the petition in which the correctness of its contents was denied, and I should point out that no evidence as to the matters stated in this reply was placed before the court either by the petitioner or the respondents. The petitioner received no reply from the Minister of Education. That respondent states in his affidavit that no letter was sent to him by the petitioner and that there was nothing, therefore, which called for a reply on his part.

3.    The petitioner applied to this court for the issue of an order against the Minister of Defence and the Director of the Department of Education to appear and show cause why they should not withdraw their opposition to the acceptance of the petitioner as a teacher in the Montefiore School; and also for an order against the principal of the school that he appear and show cause why lie should not allow the petitioner to return to his teaching duties. The court issued an order nisi against the Director of the Department of Education alone, and he filed an affidavit explaining his attitude. He emphasised that the Montefiore School is a private school, that he has no authority under the law in regard to the acceptance of teachers in that school, that he has no authority in regard to the dismissal of teachers save that conferred upon him by s. 8(3) of the Education Ordinance, and that no such authority was exercised by him in this case. In addition to this, the respondent disclosed in his affidavit that he had in fact approached all secondary schools (including also private schools), and had requested them not to employ teachers save with the consent of the Inspector of Secondary Schools. The relevant paragraph is as follows :-

“(f) In a circular which I sent to the principals of secondary schools in the country on June 13, 1950, I requested them not to employ teachers in their schools, save with the consent of the Inspector of Secondary Schools. My intention, as the official responsible for the organization of education in the State, was to maintain an appropriate professional standard and to ensure that secondary education is suited to the requirements of the State.”

    The affidavit goes on to state that the respondent “is under no legal or other duty to answer the question of the Reali Montefiore School relating to the petitioner with a reply which is dishonest; and that in view of the decision of the Minister of Defence that the petitioner is unsuitable to act as a teacher, he, the Director of the Department of Education, as the one responsible for the education organisation in the State, is obliged to do all in his power to prevent the petitioner from being accepted as a teacher in the school in question, or in any other school in the State.