Gujarat High Court
Akhil vs State on 6 September, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
Print
SCA/2877/2011 35/ 35 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2877 of 2011
With
SPECIAL
CIVIL APPLICATION No. 2399 of 2011
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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AKHIL
GUJARAT RAJY SHALA SANCHALAK MANDAL THROUGH TRUSTEES & 6 -
Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH CHIEF SECRETARY & 2 - Respondent(s)
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Appearance
:
MR SN SHELAT SR
COUNSEL WITH MR
GM AMIN & MR BS PATEL for Petitioner(s) : 1 - 7.
MR KAMAL
TRIVEDI AG WITH MS SANGITA VISHEN AGP for Respondent(s) : 1 - 2.
MR
AD OZA for Respondent(s) :
3,
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CORAM:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 06/09/2011
COMMON
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) The petitioner - Akhil Gujarat Rajya Shala Sanchalak Mandal (`Trust' for short) has challenged the validity of Sec.35 of the Gujarat Secondary and Higher Secondary Education Act, 1972, as amended by Gujarat Education Laws (Amendment Act) 2010 (Amending Act No.3 of 2010) and the Rules framed thereunder, namely, the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 (hereinafter referred to as `Rules 2011') notified on 11th February 2011.
The other petitioners - Rajya Shala Sanchalak Mahamandal Trust and another of Special Civil Application No.2399 of 2011 have only challenged the Rules 2011 aforesaid.
2. The institutions run by the petitioners are Government Aided Secondary/Higher Secondary Schools and are governed by the Gujarat Secondary and Higher Secondary Education Act, 1972. They have mainly challenged the substituted Sec.35 and the Rules framed thereunder on the ground that the provisions and the Rules take away the powers of private management of selection of teachers. and thereby, violative of Article 14 and 19(1)(g) of the Constitution of India.
3. According to the petitioners, they have a right to establish educational institutions under Article 19(1)(g) of the Constitution of India, which cannot be treated as an educational institution departmentally run by the Government as a wholly owned and Government controlled institution, and interfere with the constitution of the governing bodies or thrusting the staff without reference to management. Reliance has been placed on the decision of T.M.A. Pai Foundation v. State of Karnataka reported in (2002) 8 SCC 481.
4. Mr. S.N. Shelat, learned Senior Counsel for the petitioners would submit that the State is competent to impose reasonable restrictions in respect of administration and in running of educational institutions. The conditions of grant-in-aid, however, cannot be such as to surrender its right to run an educational institution and maintain its autonomous character under the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India.
5. Earlier, Sec.35 of the Gujarat Secondary Education Act, 1972 was challenged before the Supreme Court in Bharat Sevashram Sangh v. State of Gujarat reported in AIR 1987 SC 494. In the said case while upholding the validity of Sec.35, the Supreme Court held that the constitution of the selection committee for appointment of teaching staff and headmaster is not such so as to silence the voice of the management of the school. Sec.35 did provide for representation of the management of the school on the selection committee.
6. Sec.35 of the Education Act has been substituted by Gujarat Education Laws (Amendment Act) 2010, enabling the State Government to provide for procedure of selection of teachers and headmaster of a registered private secondary and higher secondary schools. The procedure was to be laid down by the State Government by separate Rules. Learned counsel for the petitioners contended that the newly substituted Sec.35 does not provide for any guidelines in the matter of laying down the guidelines for selection of teachers, and provides unfettered powers to the State Government to prescribe procedure for selection of teachers and headmasters, which may result into curtailing the autonomy of any educational institution. Reliance was placed on the Supreme Court decision in the case of T.M.A. Pai Foundation v. State of Karnataka reported in (2002) 8 SCC 481, Brahmo Samaj Education Society vs. West Bengal reported in AIR 2004 SC 3358, Sindhi Education Society v. Chief Secretary, Government of NCT of Delhi reported in (2010) 8 SCC 49. According to the petitioners, in view of the above, Sec.35 if read with the Rules 2011 framed by the State Government, deprives the right to aided institutions guaranteed under Art.19(1)(g) and also violates Article 14 of the Constitution of India.
7. In support of the submission that delegation of power cannot be wide, unlimited and unguided, which is essentially a legislative function, reliance has been placed on the Supreme Court decision in State of Rajasthan v. Basant Nahata reported in AIR 2005 SC 3401, Edward Mills Co. Ltd. Beawar v. State of Ajmer reported in AIR 1955 SC 25 and Kunj Behari Lal Butail v State of Himachal Pradesh reported in AIR 2000 SC 1069.
8. Learned counsel for the petitioners referring to Sec.35 submitted that the State Government can lay down the procedure for selection of teachers, but the word `procedure' means `mode of proceedings by which a legal right is enforced' as defined in Corpus Juris Secundum, Vol. LXXII, Practice and Procedure, page 471.
9. He would further contend that prior to the Amending Act, the Scheme of Gujarat Secondary Education Act, 1972 provided autonomy to the registered schools for the purpose of recruitment of teaching staff. Every registered school had School Staff Section Committee and Special School Committee subject to Sec.34(2) of the Act. The School Staff Selection Committee and Special School Committee can select a person for appointment to the post of headmaster and teacher subject to Sec.34(2). Under Sec.34(2), the Board can frame regulations regarding recruitment and conditions of service. Under Sec.17(11), the Board can frame regulation determining the standards including qualifications for appointment of teachers and headmasters to registered schools. Under Sec.17(26), the Board has power and duty to lay down qualifications, method of selection and condition of appointment. Thus, the Board was competent to frame regulation, laying down the qualifications and service conditions. By the amended Sec.35 read with Rules 2011, the Scheme has been changed affecting the right of petitioners as guaranteed under Article 19(1)(g) of the Constitution of India. It is submitted that unamended Sec.35 provides autonomy to the registered private schools and therefore, while upholding Sec.35, the Supreme Court noticed that there was voice of the management in the composition of the selection committee. The recruitment and selection for appointment was on the recommendations of the Staff Selection Committee with the registered private schools.
10. In the present case, the composition of Selection Committee is different. Rule 5 provides for constitution of Selection Committee. The Gujarat Secondary Board does not have representation. The Vice Chairman of the Board is Government employee. All the Members of the Committee are Government nominees. There is no voice of even of the teachers of the very school where appointment to be effected.
11. Rule 11 provides for preparation of select list, but it does not provide for any personality test. The mechanical merit based on the result of T.A.T (Teachers Aptitude Test) is in breach of Articles 19(1)(g) and Article 14 of the Constitution of India. Reliance was placed on Division Bench decision of this Court in Rajyashala Sanchalak v. State of Government reported in 2009 (1) GLH 365 wherein Gujarat High Court held that:
"Post of Principal is pivotal, around whom the entire wheel of administration revolves around leadership, discipline and smooth functioning of the school vest on the administrative ability and personality of the principal."
No marks were earmarked for the selection of teaching staff, non-teaching staff and headmasters, where also personality, general knowledge and general impression has got extreme importance. High Court declared that in absence thereof, Rule becomes arbitrary, unfair and violative of Article 14 of the Constitution of India.
12. Referring to Rule 13 of the Rules 2011, it is submitted that it is in breach of Article 19(1)(g) and Article 14 of the Constitution of India. A close look at the Rules reflect that the allotment letter is given to the school and posting of the selected candidate is made by the selection committee. Only appointment is to be offered by the school, and if not offered, then to pay penalty. Though there is a choice offered to the candidates for selection, no choice was given to the management to select the best candidate. The object and reasons provided in the Amendment Act do not indicate why such change is brought about by total deprivation of the autonomy of the school management. Right to freedom of choice for making appointment is totally taken away.
13. It is contended that even if amending Sec.3(23) of the Primary Education Act, substantive section provides for appointment for the schools run by the District Education Committee or authorized Municipality, and the Administrative Officer is required to make appointment of the candidates. But, Sec.23 does not govern any private school. According to the petitioners, the delegation to the State has travelled beyond the powers of delegation, arbitrary and unreasonable, and thereby, violative of Articles 14 and 19(1)(g) of the Constitution of India. Reliance was placed on Supreme Court decision in Academy of Nutrition Improvement v. Union of India reported in 2011 JT 8 SC 16, Additional District Magistrate (Rev.) Delhi Administration v. Siri Ram reported in AIR 2000 SC 2143 and I.E. Newspapers (Bombay) P. Ltd. v. Union of India reported in air 1986 SC 515.
While placing reliance on Supreme Court decision in Prafulla Kumar Swain v. Prakash Chandra Misra reported in 1993 (Supp.) 3 SCC 181, it is contended that `appointment', `posting' and `conditions of service' are of different connotation. The term `recruitment' connotes and signifies enlistment, acceptance, selection or approval for appointment, but the term `appointment' means only an act of posting of person to a particular office. The appointment to a service and posting thereof are two different concepts. `Conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it, in matters like pension, etc.
14. Mr. Bharat S. Patel, counsel for the other petitioners also challenged the validity of Rule almost on similar grounds. According to him, Sec.35 is to be read in a manner so that it may not hit Article 19(1)(g) of the Constitution of India. The power of making appointment and taking disciplinary action being with the management of the private aided school, according to him, the total selection and posting cannot be made by the selection committee constituted by the State.
15. Mr. Kamal Trivedi, learned Advocate General appearing on behalf of the State, referring to the object of the Scheme of the Act, submitted that the management's independent right of appointment of teachers on its own choice do not stand curtailed. If any candidate has given first choice for appointment in the petitioner's institution, the management has a right to appoint such teacher, if the teacher comes within the zone of selection.
16. According to the State, with a view to providing centralized and more transparent scheme for selection and recruitment of teachers and headmasters in registered private aided schools, the erstwhile Sec.35 came to be substituted by new Sec.35, which instead of providing in itself the constitution of selection committees, delegated the said task on the rule making authority. Since the aspects relating to constitution of the selection committee and selection of teachers, their posting and allocating them for appointment are not essential legislative functions, such power can always be delegated in exercise of powers conferred on it.
17. He would contend that in exercise of powers conferred by new Sec.35, rules came to be framed, which provide for the constitution of the selection committee for selection of teachers and headmasters in the fully aided private registered secondary and higher secondary schools in the State, and for allocating selected teachers and headmasters in the respective schools for appointment.
18. According to learned Advocate General, the cumulative reading of the object of the Act, recommendations of selection committee and various provisions of the Act, more particularly, those contained in Secs. 31, 34, 36, etc., give sufficient guidelines. The words `procedure for selection' as used in Sec.35 of the Act are required to be interpreted in the widest possible fashion so as to include the aspects relating to `constitution of selection committee, `selection of candidates', `posting of candidates' and `allocating them for appointment', etc., and can very well be taken into aid so as to indicate the characteristic of the subject matter being dealt with by Sec.35 of the Act. The words `procedure of selection' are used in Sec.35 of the Act would not only mean as to the factum of preparation of select list, but all the facets thereof resulting into the end product of procedure for selection.
19. For determination of the issue, it is necessary to notice relevant provisions of the Gujarat Secondary and Higher Secondary Education Act, 1972 (hereinafter referred to as the `Education Act'), the amended Sec.35 and the impugned Rules framed thereunder.
20. Chapter VI of the Education Act deals with `provisions relating to services in the registered private secondary schools'. Sec.34 relating to `recruitment and conditions of service of persons appointed in registered private secondary schools or registered private higher secondary schools' reads as under:-
"34.
Recruitment and conditions of service of persons appointed in registered private secondary schools or registered private higher secondary schools.-
(1) Fifteen per cent of vacancies of the teaching staff of a registered private secondary school and registered private higher secondary school shall be filled up by persons belonging to the Scheduled Castes and the Scheduled Tribes:
Provided that, where a person belonging to a Scheduled Caste or Scheduled Tribe is not available for filling any such vacancy, the vacancy shall be filled up as otherwise provided in this Act.
Explanation.-
In this sub-section, -
(a) "Scheduled Castes" means such castes, races or tribes, or parts of, or groups within, such castes, races or tribes as are deemed to be Scheduled Castes in relation to the State of Gujarat under Article 341 of the Constitution of India.
(b) "Scheduled Tribes" means such tribes or tribal communities or parts of, or groups within, such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under Article 342 of the Constitution of India.
(2) Subject to sub-section (1), the Board shall by regulations regulate the recruitment and conditions of service including conduct and discipline of persons appointed as headmaster, teachers and members of non-teaching staff of registered private secondary schools or registered private higher secondary schools in the State:
Provided that, the conditions of service applicable immediately before the appointed day to the guaranteed staff shall not be varied to their disadvantage except with the previous approval of the State Government:
Provided further that, it shall be lawful for any registered private secondary school or registered private higher secondary school imparting post basic education to make, with the previous approval of the Board, additional regulations, consistent with the basic nature and concept of post basic education and not inconsistent with the regulations made by the Board for regulating the conditions of service of persons appointed as headmaster, teachers and members of non-teaching staff of that school."
Sec.
35 originally related to registered private secondary schools and registered private higher secondary schools to have selection committees. The old Sec.35 constituting selection committee was as follows:
"Sec.35.
(1) For every registered private secondary school there shall be following two committees, namely:
(a) a school staff selection committee for the purpose of recruiting the teaching staff of the school other than the head master,
(b) a special school committee for the purpose of recruiting the headmaster, and for the purpose of the initial recruitment of the headmaster and the teaching staff of a school started after the appointed day.(2)
The school staff selection committee shall consist of the following members, namely:-
(i) Two representatives of the management of the school to be nominated by the management;
(ii) The headmaster of the school;
(iii) In the case of a school the total number of teachers in which is more than six, two teachers to be elected by the teachers of the school from amongst themselves, and in the case of a school the total number of teachers in which is or is less than six, one teacher to be elected by the teachers of the school from amongst themselves; and
(iv) One representative of the Board to be nominated by the Board.(3)
The special school committee shall consist of the following members namely:-
(i) Two representatives of the management of the school to be nominated by the management.
(ii) Two representatives of the Board to be nominated by the Board.(4)
Subject to the provisions of sub-section (1) of section 34, the school staff selection committee or, as the case may be, the special school committee shall select persons for appointment as teachers of the school from amongst the persons who are qualified to be appointed as such in accordance with the regulations made in this behalf.
Provided that for the purpose of such selection preference shall be given to a protected teacher, if he is otherwise eligible.
(5)The special school committee shall select persons for appointment to the post of headmaster of the school from amongst persons referred to in sub-section (4) or from amongst the teachers in the school:
Provided that for the purpose of such selection, preference shall be given to a senior teacher serving in the school or schools under the same management, if he is otherwise eligible and suitable.(6)
Whenever the persons from amongst whom a teacher or a headmaster is to be selected includes a person who is related to any member of the governing body or other body in charge of the management of the school or to any member of the school staff selection committee or, as the case may be, the special school committee, the member concerned of such committee, shall disclose the fact of such relationship to the members of the Committee and if any such person is selected by the Committee, his selection shall be subject to approval by an officer of the Board authorised in that behalf. Such approval shall be sought y the Committee within a week from the date of selection of the persons concerned and the authorised officer of the Board shall communicate his decision within fifteen days from the date of receipt of the reference by him.(7)
Any appointment of a headmaster or a teacher made in contravention of the provisions of this section shall be ineffective.
Explanation.-
For the purpose of sub-section (6), a person shall be said to be related to a member if he is related to him in any of the following capacities, namely:-
Son, grandson, son-in-law, brother, daughter, grand-daughter, wife, nephew, first cousin (paternal or maternal), wife's brother, sister's husband, husband, husband's brother, husband's sister, wife's sister, daughter-in-law, and sister-in-law."
21. After insertion of right to education vide Article 21A of the Constitution of India, the `Right of Children to Free and Compulsory Education Act, 2009' was enacted. Under Sec.3 of the said Act, every child of the age of six to fourteen years shall have a right to free and compulsory education till the completion of eighth class. The said Act provides for detailed scheme for free and compulsory education.
22. In the State of Gujarat, there exists two State Acts, namely, the Bombay Primary Education Act, 1947 and the Gujarat Secondary and Higher Secondary Education Act, 1972, which deal with the subject being imparted in primary education upto to standard VII and secondary education from standard VIII. On being enacted by the Parliament, the said Central Act, the aforesaid two State Acts are now required to bring in conformity with the provisions of the Central Act, and to facilitate to impart free and compulsory education to the children between the age of six to fourteen years. For the said purpose, standard VIII was required to be covered under the Primary Education Act of the State. At the same time, secondary education would require to begin with standard IX. For giving effect to the said object, the State Government considered it necessary to amend the respective State Acts. Therefore, it was considered necessary to constitute the State Level Staff Selection Committee for primary education for recruitment of primary teachers through State level agency so as to avoid delay in recruitment harassment to candidates in applying to various districts and smoothen the process of recruitment, and with the aforesaid `Statement of Objects and Reasons', the Gujarat Education Laws (Amendment) Act 2010 was enacted, making the amendment in the Bombay Primary Education Act, 1947 and Gujarat Secondary and Higher Secondary Education Act, 1972. In the Gujarat Secondary and Higher Secondary Education Act, 1972, for Sec.35, the following Section has been substituted:-
"35.
Selection of teachers and headmasters, etc. - The procedure for selection of teachers and headmasters of registered private secondary and higher secondary schools shall be such as may be notified by the State Government by rules from time to time"
23. The Legislature having delegated power to the State Government to frame Rules relating to procedure for selection of teachers and headmasters of registered primary and secondary and higher secondary schools, in exercise of power conferred by Sec.35 the State Government framed "The Teachers and Headmasters of Registered Private Secondary and Higher Secondary Schools (Procedure and Selection) Rules 2011. The said Rules being under challenge, it is necessary to notice the relevant Rules as reproduced hereunder:-
"NOTIFICATION Education Department Sachivalaya, Gandhinagar.
Dated the 11th February, 2011.
No.GH/SH/2/BMS-1109-1906-G. In exercise of the powers conferred by section 35 of the Gujarat Secondary and Higher Secondary Education Act, 1972 (Guj. 18 of 1973), the Government of Gujarat hereby makes the following rules for the selection of teachers and head masters of registered private secondary and higher secondary schools, namely :-
1. Short title:-
These rules may be called the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011.
2. Definitions:-
In these rules, unless the context otherwise requires -
(a) "Government" means Government of Gujarat;
(b) "Registered private schools" means the non-Government, Secondary and Higher Secondary Schools receiving grant-in-aid from the Government;
(c) "Selection committee" means the committee constituted under rule 3;
(d) "old teacher" means the teacher who is already in the service of the registered private school and possesses five years experience as regular teacher and has applied for new appointment in another registered private school.
(e) "Teachers Aptitude Test (TAT)" means the teachers aptitude test conducted by the Gujarat Secondary and Higher Secondary Education Board, Gandhinagar.
(f) "Appendix" means the Appendix appended to these rules.
3.
Constitution of Selection Committee:-
(1) There shall be constituted a selection committee known as "The Gujarat State Secondary and Higher Secondary School Educational Staff Recruitment Selection Committee".
(2) The Selection Committee shall consist of the following members, namely:-
(i) The Commissioner Mid-day-Meals and School, Gujarat State, Gandhinagar ...
Chairman, ex-officio;
(ii) Vice-Chairman, the Gujarat Secondary and Higher Secondary Education Board, Gandhinagar. ... Member, ex-officio
(iii) A senior Government Officer, not below the rank of Deputy Secretary appointed by the Government. ... Member
(iv) Two eminent educationists nominated by the Government. ... Member
(v) A representative of recognised association of school management, nominated by the Government. ... Member
(vi) The Joint Director of Schools, Gujarat State, Gandhinagar ... Member (3) The Joint Director of Schools, Gujarat State, Gandhinagar, shall be the Member-Secretary of the Selection Committee.
4. Selection of Teachers and Head Masters:-
The Selection Committee shall select persons for appointment on the posts of Teachers and Head Masters in the registered private schools from amongst the persons who are qualified to be appointed as such in accordance with the provisions of these rules.
5. Duties and functions of the Selection Committee:-
(1) The Selection Committee shall -
(a) ascertain from the District Education Officers the number of posts of Head Masters and Teachers for which recruitment is to be made.
However it shall be incumbent upon the District Education Officers to send the requisition for filling up vacant posts of Teachers and Head Masters to the Selection Committee;
(b) invite applications by an advertisement in the widely circulated Gujarati and English news papers in the State;
(c) scrutinise applications received;
(d) recommend the names of the selected candidates for appointment to the concerned District Education Officers and the management of the concerned schools;
(e) maintain records of recommendations;
(f) submit annual reports of the activities undertaken by it to the Government in Education Department;
(g) be responsible for such other functions as may be entrusted by the Government from time to time.
6. Headquarters of Selection Committee:-
The Headquarter of the Committee shall be at Gandhinagar.
7. Eligibility for appointment:-
To be eligible for appointment as Teacher or Head Master, a candidate shall possess -
(a) requisite educational qualifications and age in accordance with the provisions of the Gujarat Secondary Education Regulations, 1974; and
(b) basic knowledge of computer application as prescribed in Gujarat Civil Services Classification and Recruitment (General) Rules 1967 :
Provided that the age limit shall be relaxed in favour of a candidate belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and women in accordance with the provision of the Gujarat Civil Services Classification and Recruitment (General) Rules 1967.
8. Preparation of requisitions:-
(1) The Head Master of secondary school or higher secondary school shall send requisition to the District Education Officer twice in a year before 15th June and 15th November showing total number of vacancies resulted on account of any reason what so ever including the newly created posts and the vacancies likely to occur in next academic years due to retirement, resignation etc. While calculating the number of vacancies the number of posts to be filled up by the transfer of old Teachers or appointment by Vidhya Sahayak shall be considered.
(2) The number of posts to be reserved for the candidates belonging to Scheduled Casts, Scheduled Tribes, Socially and Educationally Backward Class and for women and physically handicapped shall be calculated in accordance with the Government orders.
9. Application for the post of Teacher or Head Master:-
(1) A candidate who intends to apply for the post of a Teacher or Headmaster shall submit an application to the Selection Committee in such form, with such fees and within such time limit as may be specified in the advertisement.
(2) The fees once paid shall not be refunded or held over for the subsequent examinations.
(3) The request for withdrawal of application form and refund of fees shall not be entertained in any circumstances.
10. Scrutiny of the applications:-
The application shall be scrutinized by the selection committee and committee may adopt the procedure for such scrutiny as it deems fit.
11. Preparation of select list:-
(1) (a) The selection committee shall prepare a list on the basis of weightage of 70% marks of the marks secured by the concerned candidate in Teacher's Aptitude Test to be conducted atleast once in a year by Gujarat Secondary and Higher Secondary Education Board, Gandhinagar.
(b) The marks secured by the concerned candidate in TAT will be valid for five years from the date of the result of the TAT.
(c) The candidate who has secured at least 50% marks in TAT shall be considered as qualified candidate for TAT weightage.
(d) A candidate shall be allowed maximum three attempts for TAT. If a candidate after availing the first attempt also avails second or third successive attempt within the period of five years from the date of the result of the first attempt, the average marks obtained by the candidate in such attempts shall be considered for preparation of the select list, as explained in Appendix II.
(2) The Weightage of 30% will be given, out of the marks secured in the prescribed educational qualification for the concerned post.
(Please see the example in Appendix II) (3) The maximum marks for the qualification for the purpose of Weightage of 30% shall be as prescribed in Appendix I. (4) The Selection Committee shall prepare subject-wise and category-wise lists on the basis of marks secured by the concerned candidates as provided in sub-rules (a) and (b) above.
(5) The selection committee shall prepare a list of the successful candidates in the order of merit on the basis of aggregate marks finally awarded to each candidate as provided under sub-rule (d) above limited to the number of posts advertised by the selection committee.
(6) The selection committee shall prepare a separate list of successful candidates belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes and women to the extent of the number of vacancies reserved for such categories.
Provided that where the requisite number of candidates, belonging to Scheduled Casts, Scheduled Tribes, Socially and Educationally Backward Class or, as the case may be Nomadic Tribes and Denotified Tribes, could not qualify on the basis of the qualifying aggregate marks fixed for general category, the selection committee may relax the qualifying aggregate marks to make up the deficiency in these reserved posts.
(7) The selection committee shall prepare subject-wise and category-wise waiting lists, showing the names of the candidates of about 10% of the list of successful candidates so prepared under sub-rules (2) and (3) above.
(8) The waiting lists referred to in sub-rule (7) shall be operative for a period of two years from the date of publication of the result or till the date of publication of the result of the next examination, which ever is earlier."
(9) The waiting list may be operative in the following circumstances:-
(i) `If the post of Headmaster or Secondary teacher or higher secondary teacher is not filled up due to nonjoining of the selected candidate in the prescribed time limit.
(ii) If the selected candidate is disqualified for appointment for any of the reasons.
12. Select list of the qualified candidates: -
(1) The selection committee shall prepare the select list in three parts as under namely:-
Part I. The select list of the qualified candidates shall be arranged in the order of merit specifying their names, application numbers and total marks obtained by the candidates;
Part II. A waiting list in accordance with the provisions of subrule (7) of rule 11 in order of merit specifying their names, application numbers and total marks obtained by the candidates.
Part III. A list of the unqualified candidates who are not included in Part-I and Part-II, specifying their names, application numbers and total marks obtained by them.
(2) The selection committee shall display all the three parts of the result on the Notice Board in the office of the Commissioner of Schools, Gandhinagar, Gujarat Secondary and Higher Secondary Education Board, Gandhinagar and in all offices of district education officers.
(3) The selection committee shall communicate result to the qualified candidates individually in the manner as may be decided by it. The selection committee shall not enter into any further correspondence with any candidate in this regard after communication of the result.
13. Appointment of candidate:-
(1) The selection committee shall call the selected candidates to verify the certificates of educational qualifications, birth date, caste certificate and such other documents. The verification of the certificates shall be completed within two months from the date of declaring of select list.
(2) The Selection Committee shall convey the list of vacant posts to be selected candidate and invite options from such candidate. The Selection Committee shall offer a place of posting to the selected candidate taking into consideration his options and his place in the merit list in a camp held for the purpose.
(3) If the selected candidate fails to appear on the specified date and time for verification of certificates or at the camp held for the purpose of posting, he shall not be eligible for selection and his name shall be deleted from the select list. The selection committee shall not enter into any further correspondence in this regard.
(4) The allotment letter for posting of the selected candidate shall be issued by the selection committee in the camp itself, and a copy thereof shall be sent to the concerned registered private school for appointment of the concerned candidate and a copy of the same shall also be sent to the concerned District Education Officer for monitoring and for appropriate action for implementation of the allotment letter.
(5) The concerned registered private school shall issue a appointment letter within seven days from the date of receipt of the allotment letter from the selection committee.
(6) The selected candidate shall require to join the concerned school within seven days from the date of receipt of the appointment letter.
(7) The concerned management board of the registered private school and the head master of the registered private school and concerned candidate shall intimate to the selection committee and concerned District Education Officer after such candidate has join the duty.
(8) If the concerned management Board of the registered private school does not allow the selected candidate to resume duty within the prescribed time limit, no other candidate shall be allotted for that post up to three years. The Government shall also be at liberty to take necessary actions in accordance with the provisions of Grantin- Aid Code 1964 in such cases.
14. Decision of the selection committee to be final:-
The application of the candidate shall not be considered for the post unless the selection committee is satisfied that the candidate is eligible in all respects and has complied with all the requirements and the decision of the selection committee as to the eligibility of a candidate for candidature shall be final.
15. No right to appointment:-
Mere inclusion in the select list shall not by itself confer upon a candidate any right to appointment and no candidate shall be appointed to the post unless the selection committee is satisfied after such inquiry as may be considered necessary that the candidate is suitable in all respect for appointment to the post.
16. Expenditure and bank account:-
(1) The selection committee shall open a personal ledger account in a nationalized bank.
(2) The chairman of the staff selection committee shall be empowered to incur the expenditure for the purpose of discharging the functions under these rules.
(3) If the total expenditure for selection of the candidates exceeds the amount received by way of application fees then such exceeded amount of expenditure shall be born by the Government.
17. Disqualification for appointment on the ground of plural marriage:-
(1) No person:-
(i) who has entered into or contracted a marriage with a person having spouse living;
(ii) who has a spouse living has entered into or contracted a marriage with any person shall be eligible for appointment to the said post.
Provided that if the Government is satisfied that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and there are other grounds to do so, Government may exempt any person from the operation of this rule.
(2) The candidate shall declare in the application form whether he or she, as the case may be married and, in the case of male candidate he has more than one wife living and in the case of female candidate whether she has married to man who has already another wife living.
18. Disciplinary Action:-
A candidate who is or has been declared by the selection committee to be guilty of:-
(a) obtaining support for his candidature by any means; or
(b) impersonating; or
(c) procuring impersonation by any person, or
(d) submitting fabricated documents or document which have been tempered with or
(e) making statement which are incorrect or false or suppressing material information; or
(f) resorting to any other irregular or improper means in connection with his candidature for his selection; or
(g) misbehaving in any other manner during selection process, or
(h) harassing or doing bodily harm to the staff employed by Selection Committee, or
(i) attempting to commit or, as the case may be abetting the of all or any of the acts specified in the foregoing clauses;
shall be disqualified for the appointment of Teacher or Head Master, as the case may be, for a period which may extend to five years.
19. Probation:-
The selected candidate appointed on the concerned post shall be on probation as specified in rule 22 of the Gujarat Secondary Education Regulations, 1974.
20. Medical examination:-
A candidate selected for appointment shall require to submit a medical certificate of fitness as provided in rule 21 of the Gujarat Secondary Education Regulations, 1974."
24. Under old Sec.35, selection committee was constituted for all the registered private secondary schools and registered private higher secondary schools. As evident from Sec.35, as reproduced earlier, there were two representatives of the management of the school, who were to be nominated by the management. Apart from headmaster of the school, the Special School Committee also consisted of two representatives of the management of the school to be nominated by the management.
25. The validity of old Sec.35 of the Act fell for consideration before the Supreme Court in the case of Bharat Sevashram Sangh and others v. State of Gujarat reported in (1986) 4 SCC 51.
While upholding Sec.35, the Supreme Court observed as follows:-
"...
The Act consists of the representatives of the management and the representatives of the teachers. The presence of the teachers working in the very school and of the representatives of the Board on the committees does not have the effect of silencing the voice of the management."
26. The main thrust of argument advanced by the petitioners is that in absence of any teachers working in the school and/or any teacher nominated by the management, the voice of the management has been silenced, and therefore, it is violative of Article 14 and Article 19(1)(g) of the Constitution of India.
27. The other limb of argument is that in the garb of laying down procedure for selection of teachers and headmaster of registered private secondary and private higher secondary schools, the State Government cannot constitute a selection committee consisting of all the Government or the Government nominated members.
28. It has also been argued that the power of posting, which is vested with the management and can be made only after the appointment, is also being taken away and vested with the selection committee.
29. The Education Act 1972 was enacted for regulation of secondary and higher secondary education in the State of Gujarat by educational institutions under either the State Government or under non-Governmental agencies. The Rules contained in Grant-in-Aid Code being administrative in nature, there is no statutory provision to safeguard the interest of the secondary teachers, and with such object and reasons, the Education Act was enacted.
30. Sec.34, which is not under challenge, relates to recruitment and conditions of service of persons appointed in the registered private secondary schools or registered private higher secondary schools. Under sub-sec.(2) thereof, Gujarat State Secondary and Higher Secondary Board made Regulations to regulate the recruitment and conditions of service including conduct and discipline of persons appointed as headmasters, teachers and members of non-teaching staff of registered private secondary schools or registered private higher secondary schools in the State. Under the second proviso thereunder, the registered private secondary school or registered private higher secondary schools imparting post basic education have been empowered to make, with the previous approval of the Board, additional Regulations consistent with the basic nature and concept of post basic education and not inconsistent with the Regulations made by the Board for regulating the conditions of service of persons appointed as headmasters, teachers and members of the non-teaching staff of the schools.
31. Under Sec.53, the Board is empowered to make Regulations with regard to matters prescribed thereunder, including selection of teaching and non-teaching staff and their conditions of service as prescribed u/Sec.34 of the Education Act.
32. Under Sec.54, the first Regulations have been made by the State Government, which shall continue to be in force until new Regulations are duly made and sanctioned under that Section, as evident from the said provision and quoted hereunder:-
"54.
First Regulation.-
Notwithstanding anything contained in Section 53 the first regulations shall be made by the State Government and they shall continue to be in force until new regulations are duly made and sanctioned under that section."
33. We have noticed that the recruitment and conditions of service of persons appointed in the registered private secondary schools or registered private higher secondary schools including recruitment and conditions of service, conduct and discipline of persons appointed as headmasters, teachers and members of non-teaching staff had to be made by the Board u/Sec.34. Till such Regulation is made, the First Regulation will be made by the State Government as per Sec.54 of the Education Act. The First Regulation having already been framed by the State Government in 1974 vide the Secondary Education Regulations 1974, thereby, the State Government has already framed the Regulations relating to recruitment and conditions of service.
34. Sec.34 and Sec.54 being not under challenge, including the First Regulations, viz. the Secondary Education Regulations, 1974, it cannot be stated that the Legislature cannot empower the State Government to frame procedure for selection as empowered under the amended Sec.35 of the Education Act.
35. In the case of T.M.A. Pai (supra) the Supreme Court observed that once aid is granted to a private professional educational institution, the government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. In the said case, the Supreme Court observed as follows:-
"71. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state. The merit may be determined either through a common entrance test conducted by the University or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions the method to be followed is for the university or the government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society.
72. Once aid is granted to a private professional educational institution, the government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The state, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the state. The state would also be under an obligation to protect the interest of the teaching and non-teaching staff. In many states, there are various statutory provisions to regulate the functioning of such educational institutions where the States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non-teaching staff. It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service conditions. The state, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. Ever since In Re The Kerala Education Bill, 1957 [(1959) SCR 995], this Court has upheld, in the case of aided institutions, those regulations that served the interests of students and teachers. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institutions. In other words, rules and regulations that promote good administration and prevent mal- administration can be formulated so as to promote the efficiency of teachers, discipline and fairness in administration and to preserve harmony among affiliated institutions. At the same time it has to be ensured that even an aided institution does not become a government-owned and controlled institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In addition, the Management of the private aided institutions has to incur revenue and capital expenses. Such aided institutions cannot obtain that extent of autonomy in relation to management and administration as would be available to a private unaided institution, but at the same time, it cannot also be treated as an educational institution departmentally run by government or as a wholly owned and controlled government institution and interfere with Constitution of the governing bodies or thrusting the staff without reference to Management.
73. There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the state. Although these institutions may have been established by philanthropists or other public-spirited persons, it becomes necessary, in order to provide inexpensive education to the students, to seek aid from the state. In such cases, as those of the professional aided institutions referred to hereinabove, the Government would be entitled to make regulations relating to the terms and conditions of employment of the teaching and non-teaching staff whenever the aid for the posts is given by the State as well as admission procedures. Such rules and regulations can also provide for the reasons and the manner in which a teacher or any other member of the staff can be removed. In other words, the autonomy of a private aided institution would be less than that of an unaided institution."
36. A Larger Bench consisting of 11 Judges of the Hon'ble Apex Court in T.M.A. Pai (supra) having declared what is the law on the matter, the same has not yet been diluted. Thus, we find that in case of aided institutions, the State has ample power to regulate the matters of selection and appointment of teachers after prescribing requisite qualifications for the same, though the power of appointment remains with the educational institutions, which is their fundamental right under Article 19(1)(g) of the Constitution of India.
37. Pursuant to a reported dated 12th December 1972 the Gujarat Secondary and Higher Secondary Education Act, 1972 was enacted. In paragraph 42 of the said report it was observed:-
"42.
.. The Bill seeks to introduce a very important measure in prescribing the method and manner of appointment of headmaster, teachers and the non-teaching staff in private secondary schools. This measure has evoked considerable controversy and raised certain misapprehensions. The opinions were sharply divided on this measure and various divergent views were expressed before the Committee. In order to appreciate the necessity for making this provision it is necessary to bear in mind certain factors. It is well known that a large number of complaints are received in connection with the malpractices prevailing in a number of schools regarding the appointments, payments of salaries and resignations, removals and suspensions of teachers. It has also been alleged that some managements resort to adopt malpractices in paying actually less amount to the teachers than shown in the receipts signed by them and the teachers who are appointed by the management and are under their obligation are unable to complain. It has also been alleged that sometimes undated letters of resignations duly signed by the teachers are obtained much in advance and the managements make use of the same when they like. It has also been alleged that some managements remove the teachers from their service if they do not cooperate with them in carrying out the malpractices or sometime for the purpose of saving salaries during vacation periods. It has also been alleged that some teachers of some schools are suspended for flimsy reasons and kept under suspension for unduly long period. It has also been said that teachers for social and economic reasons are not always able to make complaints and, therefore, with a view to protect the interest of the teachers, the State Government has prescribed the pay scales of the teachers and given directions for payment of their salaries through Banks or post offices. These restrictions imposed by the State Government as terms and conditions of grant-in-aid code are not felt to be adequate and, therefore, it was felt necessary to introduce a comprehensive measure for regulating secondary education in the State. One of the purposes for which the measure is introduced is to protect and safeguard the interest of teachers and to minimize the scope for exploitation of teachers under social and economic pressures. It has also been alleged that in selection and appointment of teachers the managements give preference to their own near relatives and even prescribed qualifications are not adhered to. The Committee, therefore, feels that a provision for regulating and exercising adequate control in respect of selection and appointment of teachers is absolutely necessary not only for protecting and safeguarding the interest of teachers but also in the larger interest of education.
38. The relevant scheme of the Act fell for consideration before the Division Bench of this Court in Satsangi Shishuvihar Kelavani Trust vs. P.N. Patel reported in 18 GLR 615. Therein, the Court observed as under:
"Chapter VI makes these provisions relating to services in registered private secondary schools so as to effectively control the right of hire and fire of the management. In Secs.34 and 35 adequate provision is made so that the Board can regulate by statutory regulations fresh recruitment and conditions of service and new appointments can be made only by proper staff selection committees as provided therein, where management's voice is effectively curtailed. Sec.35(7) nullifies any appointment of a headmaster or a teacher made in contravention of the provisions of sec.39. Sec.36(1) then provides a double fetter on termination of service of a head master, a teacher or a member of a non-teaching staff of a registered private secondary school by enacting that no person shall be dismissed or removed or reduced in rank nor shall his service be otherwise terminated by the manager until -
(a) he has been given by the manager a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, and
(b) the action proposed to be taken in regard to him has been approved in writing by an officer authorized in this behalf by the Board."
39. Thus, it is clear that the Education Act, 1972 has been enacted for regulating the secondary and higher secondary education in the State by taking care of service conditions, qualification and selection of teachers and headmasters in fully aided institutions. While doing so, the management's independent right of appointment of teachers of its own choice has not been curtailed. The procedure of selection has mainly been laid down and thus who have applied for appointment in one or other institutions, if they come out successful and opted for such school, the selection committee has no option, but to recommend the name of such person for appointment in that particular school.
40. We have noticed the decision of Bharat Sevashram Sangh (supra) wherein Sec.35 of the Act was upheld. It was held that the said Act do not confer any arbitrary power on the selection committee nor it can be said that there are no guidelines regarding the mode of selection.
41. The newly substituted Sec.35 vide the Gujarat Educational Laws (Amendment) Act, 2010 has been made with a view to provide for a centralised and some transparent scheme for recruitment of teachers and headmasters in registered private aided schools. The object underlying the new Sec.35 is limited to ensuring a centralised process of selection, which would save time and expenses involved in such selections, if the same are made individually for each institution it will take more time and expenses. It is also intended to remove the element of arbitrariness and other malpractices that were noted in the making of such selections and appointments by the institutions, if left to themselves.
42. The Supreme Court in T.M.A. Pai (supra) has already held that the State in the case of aided institutions has ample power to regulate the matters of selection of teachers after prescribing requisite qualifications for the same. By the impugned Rules, 2011 published by notification dated 11th February 2010 the State Government has come out with the procedure for selection of teachers and headmasters of private secondary and higher secondary schools.
43. Rule 3 relates to constitution of selection committee. It is true that the Chairman and members are officers of the State Government, but there will be representatives of school management as prescribed under clause (v) of sub-rule (2) of Rule3. Merely because the representatives of recognised associations of the school management will be nominated by the State Government, it cannot be stated that the State Government intended to silence the voice of the management. The representatives of the school management cannot be termed to be a representative of the State and they will only highlight the need of the management.
44. Rule 4 relates to selection of teachers and headmasters from amongst the qualified persons and Rule 5 stipulates duties and functions of the selection committee. Therefore, it is evident that there is a guideline issued by the State Government stipulating the manner in which the selection committee is required to perform its duties and functions. The eligibility for appointment can be fixed under the Act. Therefore, Rule 7 cannot be invalidated on the ground that the State Government has fixed the eligibility for appointment. It merely stipulates that educational qualifications which should be in accordance with the Gujarat Secondary Education Regulations 1974 and basic knowledge of computer applications as prescribed under the Gujarat Civil Services Classification and Recruitment (General) Rules 1967. Rest are all procedural requirements, including the manner in which applications are to be made, select list to be prepared, the life of wait list, etc. When such power has been delegated to the State Government to frame the procedure of selection, it cannot be held to be without jurisdiction. Rule 13 relates to appointment of candidates. In fact, it does not vest the selection committee with the power to make appointment. The selection committee only makes selection after verification of the educational qualifications and other certificates, in the manner as prescribed under the Rules. The grievance is that the selection committee cannot decide the place of posting. But we find that the words `place of posting' as mentioned is redundant, in fact, it is on the basis of merit-cum-choice of the candidate the allotment is made, which is termed as `place of posting'. If any candidate has given choice for a particular institution and comes within the zone of selection, he cannot be deprived of his right for consideration for appointment in that particular school, provided if no person above him in the merit list gives such choice and is accommodated. Under clause (5) of Rule 13 the private schools have been empowered to issue the letter of appointment; the power of appointment has not been taken away by the State Government, therefore, it cannot be held to be violative of Article 19(1)(g) of the Constitution of India.
45. So far as the power of selection is concerned, we have already noticed that such power is vested with the selection committee and not with the State Government.
46. In the case of State of Punjab v. Devans Modern Breweries Ltd. reported in (2004) 11 SCC 26, the Supreme Court held that statutory provisions must be interpreted and read broadly and not narrowly. It observed as follows:-
"120.
The statutory provision in question must be interpreted and read broadly and not narrowly. The approach must be to uphold the validity of the impugned delegated legislation by a process of fair and broad reading of the statutory mandate. Even if the Act does not specifically provide for the levy in question by name, to provide statutory authority for its imposition by delegated legislation, and the levy is actually imposed by the delegated legislation made under that statute, the same would be valid and not ultra vires. ..."
47. Therefore, the words `procedure for selection' as used in Sec.35 of the Act would not mean only as the factum of preparation of select list but all the facets thereof resulting in the end product of procedure for selection, as submitted by the learned Advocate General. It includes constitution of selection committee, selection of the candidates and allocating them the school for which they applied as per their choice-cum-merit.
48. It is a settled law that process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment and consists of various steps, as held by the Supreme Court in Andhra Pradesh Public Service Commission v. B. Sarat Chandra reported in (1990) 2 SCC 669, wherein the Supreme Court held as follows:-
"...
The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. .... It would be, therefore, unreasonable to con-strue the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the Rule making authority."
49. We have already discussed the issue of selection procedure, which includes beginning of process of selection with issuance of advertisements, inviting applications, scrutiny of applications, rejection of defective applications, elimination of ineligible candidates, conducting examination, calling for interview or viva voce, preparation of selection list of successful candidates, preparation of waiting list, recommendation of appointment. The Legislature having empowered the State to lay down the `procedure of selection', it cannot be alleged that no guideline have been issued by the Legislature. The procedure of selection is itself the guidelines to suggest that what rule to be framed by the State Government for the purpose of selection and appointment.
50. Admittedly, after framing of the First Regulation by the State Government, namely, the Gujarat Education Regulations, 1974, no separate Regulation has been framed by the Board u/Sec.53 of the Education Act and thereby the Regulations framed by the State Government laying down the conditions of service is still in force even as on today. Such power having been already delegated to the State Government and the relevant Sections 34 and 54 having not been under challenge, it cannot be held that the State Government has been delegated with the arbitrary power u/Sec.35 or the selection committee has been delegated with such arbitrary power.
50. In view of the discussions above, while we uphold Sec.35 as substituted by the as amended by Gujarat Education Laws (Amendment Act) 2010 (Amending Act No.3 of 2010), the Rules framed thereunder, namely, the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 as published by Notification dated 11th February 2011 are also upheld for the same reasons. We find no merit in the writ petitions. They are accordingly dismissed, but there shall be no order as to costs.
(S.J. MUKHOPADHAYA, C.J.) (J.B. PARDIWALA, J.) [sn devu] pps In view of the findings given in the judgment and the reasons recorded therein, the prayer for interim relief orally requested by the learned counsel for the petitioners is rejected.
(S.J. MUKHOPADHAYA, C.J.) (J.B. PARDIWALA, J.) mathews/sndevu Top