Gujarat High Court
Nk Mekwan Managing Trustee And vs State Of Gujarat & 3 on 15 September, 2017
Author: A.S. Supehia
Bench: A.S. Supehia
C/SCA/11206/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.11206 of 2005
With
SPECIAL CIVIL APPLICATION NO.17839 of 2006
With
SPECIAL CIVIL APPLICATION NO.17852 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation NO of the Constitution of India or any order made thereunder ?
=================================================== NK MEKWAN MANAGING TRUSTEE AND MANAGER....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) =================================================== Appearance:
DECEASED LITIGANT, ADVOCATE for Petitioner(s) No. 1 MR BIPIN P JASANI, ADVOCATE for Petitioner No. 1.1 MR HS SONI, AGP for the Respondent(s) No. 1 MR VILAS G GOSWAMY, ADVOCATE for Respondent(s) No.4 RULE SERVED for the Respondent(s) No. 2 4 =================================================== CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 15/09/2017 ORAL (COMMON) JUDGMENT (1) Since identical question arises in these petitions, it is desirable to dispose them of by one judgment.Page 1 of 10
HC-NIC Page 1 of 10 Created On Sun Sep 24 10:23:38 IST 2017 C/SCA/11206/2005 JUDGMENT (2) For convenience the facts stated in Special Civil Application No.12206 of 2005 are recorded as under.
(3) The present petition is filed challenging the action of the respondentDistrict Education Officer of withholding the approval and salary of respondent No.4 and further to declare that Government Resolution dated 06.10.1998 is not at all applicable to the minority educational institution and the petitionerSchool.
(4) The petitioner is a Managing Trustee of Jeevan Prakash Education Trust and Manager of Ashish Vidhyalaya, which is registered as religious minority institution, runs and managed the said school as nongovernment minority secondary school, which is recognized under the Gujarat Secondary Education Act, 1972 (the Act of 1972). The petitionerSchool is covered under direct payment of salary scheme as grantinaid educational institution. Ashish Vidhyalaya is registered as Christian Religious Minority NonGovernment Secondary School. In the said school, there are nine divisions in the secondary school and according to norms, Page 2 of 10 HC-NIC Page 2 of 10 Created On Sun Sep 24 10:23:38 IST 2017 C/SCA/11206/2005 JUDGMENT 13 teachers are required but at the relevant point of time, ten posts of the teachers have been filledin.
(5) Due to one Assistant Teacher viz. Shri F.B. Christian retired on attaining the age of superannuation on 31.05.2004, one post of B.A. B.Ed. Gujarati of Shikshan Sahayak was required to be filledin. Hence, the petitionerSchool has submitted a proposal to grant No Objection Certificate (NOC) in Gujarati subject, having qualification of B.A. B.Ed. vide letter dated 04.12.2004. The respondentDistrict Education Officer vide letter dated 13.12.2004 stated that since there was ban of NOC, such approval cannot be granted. The petitionerSchool again requested respondent No.2 vide letter dated 20.12.2004 that according to the provision the minority education institution/school has not to obtain any NOC for the recruitment of teaching and nonteaching staff. The petitionerSchool has also relied upon the list of 13 schools where the advertisements have been appeared in the daily newspapers for the recruitment of Shikshan Sahayaks, those schools were granted NOC by the concerned District Education Officer.
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C/SCA/11206/2005 JUDGMENT
(6) Thereafter, the petitionerSchool issued an advertisement in LoksattaJansatta, Ahmedabad daily newspaper dated 13.01.2005 inviting applications for the post of Shikshan Sahayak in the subject of Gujarati having qualification of B.A. B.Ed. on the fixed pay of Rs.4,000/. In response to the said advertisement, 15 applications were received and an interview had been conducted on 07.02.2005 by the duly constituted selection committee. Pursuant to the selection process, respondent No.4 was offered appointment to the post of Shikshan Sahayak on fixed pay of Rs.4,000/ and he resumed duty on 10.02.2005 and respondent No.4 has been working as Shikshan Sahayak w.e.f. 10.02.2005.
(7) PetitionerSchool thereafter submitted a proposal to the respondentDistrict Education Officer on 17.02.2005 for allotment of employee number for releasing of salary of respondent No.4 under the Direct Payment of Salary Scheme. The respondentDistrict Education Officer rejected the said proposal vide letter dated 21.02.2005 on the ground that according to Government Resolution dated 06.10.1998, the appointment and recruitment and selection of Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Sep 24 10:23:38 IST 2017 C/SCA/11206/2005 JUDGMENT respondent No.4 cannot be approved and employee number cannot be allotted. It was also mentioned that the responsibility of regular payment of respondent No.4 is towards the management. The said action is challenged in the present petitions.
(8) Learned advocate Mr.Jasani appearing on behalf of the petitionerSchool has submitted that the petitionerSchool being a Christian Minority Institution and is registered as nongovernment secondary school and according to the provisions made under the Gujarat Secondary Education Act, 1972 the minority schools are exempted from obtaining prior approval from the District Education Officer for appointment and recruitment of their staff. He has relied upon the provisions of Section 40A of the Act of 1972.
(9) He has stated that Article 30 of the Constitution of India confers the right of minority to establish and administer educational institutions and hence, they are free from any restrictions whatsoever imposed by the State Government. Section 40A of the Act of 1972 also envisages that the minority institution is entitled and Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Sep 24 10:23:38 IST 2017 C/SCA/11206/2005 JUDGMENT eligible for recruitment of teaching staff as per their choice and no restrictions or prohibition can be put directly or indirectly upon the minority institution. Learned advocate for the petitionerSchool submitted that in view of the aforesaid provisions the action of the respondent District Education Officer for not granting the approval of respondent No.4 and withholding the regular salary under the Direct Payment of Salary Scheme as Shikshan Sahayak is required to be quashed and set aside.
(10) Learned advocate for the petitioner has submitted that provisions of Government Resolution dated 06.10.1998 is not at all applicable in the case of the petitioner School and hence, the District Education Officer cannot raise undue objections to the appointment made to respondent No.4. He has stated that Government Resolution dated 06.10.1998 cannot be made applicable as the same is in violation of the provisions of Article 30 of the Constitution of India and has also in violation of Section 40A of the Act of 1972. Learned advocate for the petitionerSchool has also contended that respondent No.4 are appointed after due Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Sep 24 10:23:38 IST 2017 C/SCA/11206/2005 JUDGMENT process of selection on the post of Shikshan Sahayak on the payscale of Rs.4,000/month w.e.f. 10.02.2005 and he has been working continuously with the petitionerSchool on the same post. He has pointed out that because the said post was vacant due to retirement of one Assistant Teacher viz. F.B. Christian w.e.f. 31.05.2004 and, therefore, in the interest of students and education, the petitionerSchool had to appoint respondent No.4 as Shikshan Sahayak after due procedure of selection but only there was ban imposed by respondent No.2 towards granting of NOC, such NOC was not granted to respondent No.4.
(11) By the order dated 20.09.2005, this Court had directed the District Education Officer to grant ad hoc approval to the appointment of respondent No.4 as a teacher in the petitionerSchool for the purpose of salary grant and he is still continued till today.
(12) Learned Assistant Government Pleader Mr.Soni appearing on behalf of the respondent authorities has stated that the Government Resolution dated 06.10.1998 is not in force. Presently, all the respondentemployees are appointed on the basis of their Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Sep 24 10:23:38 IST 2017 C/SCA/11206/2005 JUDGMENT qualifications on the basis of the petitionerSchool.
(13) Learned advocate for the petitioner has also relied upon judgement dated 06.05.2013 passed by this Court in Special Civil Application No.6126 of 2001, in support of his case. He has also relied upon judgement of Division Bench of this Court passed in Special Civil Application No.12875 of 2013 dated 04.10.2013 in view of the aforesaid position of law and change in circumstances. As respondent No.4 of each of the petition are working since so many years, at this stage, it would not be appropriate to set aside their appointment orders, more particularly Government Resolution dated 06.10.1998 is not in force. Learned advocate for the petitionerSchool has also relied upon judgement in the case of Sonalben Vasudev Prasad Jani Vs. Municipal Girls High School, 2001 (2) G.L.H. 783.
(14) The conspectus of the aforesaid judgements would indicate that the educational activities cannot be scuttled down by the action of the State. It is the duty of the State to see that the educational activities are required to be encouraged. In the matter Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Sep 24 10:23:38 IST 2017 C/SCA/11206/2005 JUDGMENT of recruitment of staff/teacher in the school or college, such restriction cannot be imposed and if it is found that the recruitment is genuine, the State Government is bound to accord approval for recruitment of such staff in the educational institution. It cannot be said that the exercised carried out by the petitioner School in appointing the staff on the vacant posts can be said to be an exercise, which is completely de hors the scheme of imparting of education. In wake of the fact that the Government Resolution dated 06.10.1998 is no more operational, there will not be any predicament to fix the salaries of the respondentemployees working in the School.
(15) Learned advocate for the petitionerSchool has stated that the respondents i.e. respondent No.4 in all these group of petitions are working for all these years on fixed pay, and he has requested that the respondent authorities may be directed to fix their salary in accordance with the Rules. Respondents i.e. respondent No.4 in these petitions are working diligently since long in the petitionerSchool and the respondent authorities have also no Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Sep 24 10:23:38 IST 2017 C/SCA/11206/2005 JUDGMENT objection to the same and, therefore, salary of the respondents i.e. respondent No.4 in each petition shall be fixed as per the Rules and if they are entitled to any arrears, the same shall be paid to them within a period of three months from today.
(16) In view of the aforesaid facts and circumstance of the case the present petitions are allowed to the aforesaid extent. RULE is made absolute accordingly.
(17) Registry to place a copy of this order in each of the connected matters.
Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Sep 24 10:23:38 IST 2017