Gujarat High Court
State Of Gujarat vs H P Kapadia Education Trust on 2 April, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/175/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 175 of 2017
In
SPECIAL CIVIL APPLICATION NO. 3250 of 2001
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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 or any
order made thereunder ?
STATE OF GUJARAT
Versus
H B KAPADIA EDUCATION TRUST
Appearance:
MR ROHAN YAGNIK AGP (1) for the PETITIONER(s) No. 1,2,3
MR AK CLERK(235) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 02/04/2018
Page 1 of 42
C/LPA/175/2017 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 Leave to amend name of respondent No.1.
2 The challenge in this appeal under Clause 15 of the Letters Patent filed by the appellant - State of Gujarat is to the oral judgment dated 24.06.2016 passed by the learned Single Judge in Special Civil Application No.3250 of 2001 whereby the prayers of the writ petitioner, a minority institution came to be allowed by quashing and setting aside the orders dated AnnexureD, AnnexureH and AnnexureL passed by the District Education Officer of stopping the grant as violative of Article 30(1) of the Constitution of India.
3 The writ petitioner in Special Civil Application No.3250 of 2001 made the following prayers:
Page 2 of 42C/LPA/175/2017 JUDGMENT 20a) Declaring that the petitioners are entitled, in their discretion, to continue the employees of the school in service beyond the age of 58 or 60 years, till they are physically and mentally fit to discharge their duties.
20(aa) Quashing and setting aside the office order dated 18/25.06.2001 at AnnexureD to the petition.
20(aaa) Quashing and setting aside order dtd.7.7.01 passed by D.E.O. at Annexure :
H to the petition.
b) Restraining the respondents from interfering with the continuance of the employees of the petitioners school in service beyond the age of 58 or 60 years till they are physically and mentally fit to discharge their duties in any manner whatsoever.
c) Granting any other and further reliefs and passing any other and further orders may be necessary in the fact of the case.
d) Awarding the cost of this petition.
21 During the pendency and final disposal of this petition this Hon'ble Court may be pleased to pass an order:
a) Restraining the respondent authorities from interfering with the discharge of duties by the employees of the petitioners school beyond the age of 58 or 60 years till they are physically and mentally fit to discharge their duties and further restraining the respondents from taking any action against the petitioners for continuing the employees of the school in Page 3 of 42 C/LPA/175/2017 JUDGMENT service beyond the age of 58 or 60 years till they are physically and mentally fit to discharge their duties.
21(aa) staying the operation and implementation of the order dated 18/25.06.2011 at AnnexureD to the petition.
21(aaa) Restraining the respondent authorities from taking any punitive or coercive action against the petitioners.
b) Granting any other and further reliefs and passing any other and further orders as may be necessary in the fact of the case.
21(bb) Staying the operation and implementation of the order dated 7.7.2001 passed by D.E.O. at Ann. L H to the petition".
4 The writ petitioner, a minority institution was established by the Jain Community and further the school was recognized as a `minority institute' by the judgment and order dated 05.07.1997 passed by this Court in Special Civil Application No.7907 of 1995 and by virtue of Articles 29 and 30 of the Constitution of India claimed the protection of its fundamental rights under above articles.
Page 4 of 42C/LPA/175/2017 JUDGMENT 5 By adverting to facts in the context of
statutory provisions viz. Section 40A of the Gujarat Secondary Education Act, 1972 by which minority institute like the petitioner was exempted from the applicability of Sections 17(26), 34 and 35 and Clause (b) of subsection (1) and sub section (2), (3), (4) and (5) of Section 36 visavis regulations framed under Section 34(2) of the Act, which empowered the Gujarat Secondary Education Board to frame regulations regarding recruitment and conditions of service including the conduct and discipline of persons appointed as Head Master, Teachers and member of the nonteaching staff of the registered private secondary school and regulation 36 provides that an employee of a registered secondary school shall compulsorily retire on the date on which he attains age of 58 and in case if it is necessary to retain services of such teacher or Head Master beyond the age of 58 years, then the school can reemploy such Page 5 of 42 C/LPA/175/2017 JUDGMENT Teacher or HeadMaster provided if he or she is physically and mentally found fit. Further clause [c] makes it clear that no management of the school shall extend the period of re employment of a Teacher or Headmaster, if he had attained the age of 60 years, except with the prior permission of the Board and proviso to clause [c][ii] makes it clear that a Teacher or Headmaster, who has attained the age of 65 years, shall not be continued in service under any circumstances. That relevant paras 2.4 to 2.7 of the judgment dated 24.06.2016 summarizing further facts read as under:
"2.4 It is the case of the petitioners that the State of Gujarat framed the Gujarat Secondary Education Regulations, 1974 (for short, the Regulations, 1974). The Regulation 36 therein provides that an employee of a registered secondary school shall be compulsorily retired on the date on which he attains the age of 58 years. The Regulation 36 (b) provides that if the management of the school is of the opinion that in the interest of the school, it is necessary to retain in service a Teacher or a Headmaster beyond the age of 58 years, then it may reemploy such Teacher or Headmaster, if he or she is physically Page 6 of 42 C/LPA/175/2017 JUDGMENT and mentally fit. However, clause (c) makes it clear that no management of the school shall extend the period of re employment of a Teacher or Headmaster, if he had attained the age of 60 years, except with the prior permission of the Board. The proviso to clause (c)(ii) makes it clear that a Teacher or Headmaster, who has attained the age of 65 years, shall not be continued in service under any circumstances.
2.5 The petitioner further points out that the Regulation 42 provides that the regulation shall prevail over the provisions contained in the GrantinAid Code published under the Notification dated 22nd April 1964.
2.6 The Regulation 43 provides that nothing contained in the Regulations 19, 20, 21, 22, 24, 25, 26, 27, 28, 30, 31, 32, 33, 36, 37, 40 and subclause (4), (5) and (6) of the Regulation 41 shall apply to any educational institutions established and administered by the minority whether based on religion or language.
2.7 It is the case of the petitioners that since the regulations prevail over the provisions of the GrantinCode, the provision, if any, in the GrantinAid Code, providing for the age of superannuation for the employment of the secondary school would not apply to the school in question. It is the case of the petitioners that para 81.2 of the Grant inAid Code providing for granting of extension to the Teachers upto the maximum age of 60 years is not applicable to the petitioners".Page 7 of 42
C/LPA/175/2017 JUDGMENT 6 Before the learned Single Judge inter
alia it was contended that provisions of Grant In Aid Code or any executive instructions made thereunder shall have no overriding effect over the statute viz. Gujarat Secondary Education Act, Rules and Regulations made thereunder. It was also relied on that, the management of School, in the interest of the education and overall administration of the school deemed it just and proper to continue Principal / Head Master beyond age of 60 years on the basis of Articles 29 and 30 of the Constitution of India, Secondary Education Act, Rules and Regulations visavis Rule 81 of the Grant in Aid Code and decisions of the Apex Court, more particularly, in the case of Hajinural Hasan Master Charitable Trust & Anr. v.
State of Gujarat [2013(2) GLR 946], in which, challenge was made before the Division Bench of this Court to clause (4)(g) of the Government Resolution dated 21.05.1994 directing the Page 8 of 42 C/LPA/175/2017 JUDGMENT linguistic or minority institution to absorb surplus teaching / nonteaching staff, declared surplus from other minority institutions, as violative of rights guaranteed under Article 30(1) of the Constitution of India and to declare that clause in the Grant In Aid Code, as inapplicable to aided minority institutions, it was held that clause 4(g) of the Government Resolution dated 21.05.1994 was void as violative of rights guaranteed under Article 30(1) of the Constitution of India it was struck down.
7 Learned Single Judge in paras 55 to 66 of the judgment assigned reasons to consider and grant prayer in favour of the petitioner by relying on various decisions of the Apex Court in the cases of [1] The State of Maharashtra and others v. Sakharkheda Education Society, AIR 1973 SC 588]; [2] Haji Musa Ismail v. District Education Officer and others [1993(2) GLH 1150] and [3] Indian Institute of Technology, Kanpur v.Page 9 of 42
C/LPA/175/2017 JUDGMENT Raja Ram Verma and others [2010 AIR SCW 7341].
8 Mr. Rohan Yagnik, learned Assistant Government Pleader appearing for the State would contend that so far as the State of Gujarat and its authorities are concerned, there is no interference, as such in establishing, maintaining or administering minority institutions, but certain provisions of Grant In Aid Code pertaining to financial aid would come into play in a case. It is submitted that minority institutions may have been exempted from provisions of any other regulations framed under law of the State of Gujarat, but with regard to discretion to extend services beyond age of 60 years, Grant in Aid Code would govern the scenario. According to learned A.G.P., guarantee enshrined in Article 30(1)(1A) and (2) of the Constitution of India is to ensure equality for the purpose of establishing and administering educational institutions like minority whether based on religion or language, but at the same Page 10 of 42 C/LPA/175/2017 JUDGMENT time regulatory measures for financial administration containing Grant In Aid Code would apply to minority institutions and will have no effect on certain rights and privileges conferred upon minority institutions in the above Article.
In the case of Hajinural Hassan Master Charitable Trust [supra], the Division Bench of this Court considering the challenge to clause 4(g) of the Government Resolution dated 21.05.1994 whereby directions were issued to the minority institution to absorb surplus / nonteaching staff from other institutions which was held to be violative of Article 30(1) of the Constitution of India and the facts in this appeal are different where discretion is exercised by the management of minority institute for extending / reemployment of the Headmaster beyond the age of 58 years or 60 years, as the case may. Learned AGP further submits that this appeal deserves to be allowed by quashing and setting aside the impugned judgment rendered by the learned Single Page 11 of 42 C/LPA/175/2017 JUDGMENT Judge in Special Civil Application No.3250 of 2001.
8.1 Learned A.G.P. made attempt to persuade us by referring to regulation 36 of the Regulation, 1974, which is pertaining to superannuation of teaching staff upon completion of 58 years to retire and extension can be given or even reemployment in case if teacher or the Headmaster concerned is physical and mentally found fit and such period of extension is not permissible beyond the age of 60 years unless previous permission is granted by the Board. It is the privilege of the Board to grant permission beyond the age of 60 years for a period not exceeding one year at a time, but if satisfied in the interest of school, it is necessary to re employ the teacher or Headmaster if such incumbent is physically and mentally found fit.
9 As against the above, Mr. Abhilash Clerk, learned counsel for the respondent -Page 12 of 42
C/LPA/175/2017 JUDGMENT original petitioner, would contend that the learned Single Judge has placed reliance on various decisions of the Apex Court and that law on the subject appeal is no more res integra and the facts shown in this appeal would apply with equal force as the leaned Single Judge in no uncertain terms held that Articles 29 and 30 of the Constitution of India, provisions of Gujarat Higher Secondary Education Act shall have overriding effect over the Grant In Aid Code for which reasons are assigned and the status of the institution as a minority was never in dispute.
It is further submitted that the learned Single Judge has examined necessity of continuing Principal or Headmaster beyond the age of 60 years based on medical report and declaration that incumbent was physically and mentally fit to perform the duties and in the opinion of the management, it was in the interest of institution and education both. Thus, not only constitutional right so enshrined under Articles 29 and 30 of the Constitution of India, but Page 13 of 42 C/LPA/175/2017 JUDGMENT taking us through various provisions of Gujarat Secondary Education Act, Rules and Regulations made thereunder in juxtaposition to various clauses of the Grant In Aid Code, it is emphatically submitted that the appeal is devoid of merit and deserves to be dismissed.
10 Having regard to the facts and circumstances of the case, submissions made by learned counsel for the parties visavis judgment under challenge rendered by the learned Single Judge in exercise of powers under Article 226 of the Constitution of India, as such the question that is to be considered in this appeal is in a narrow compass in view of law laid down by the Apex Court in various decisions about the right of the minority to establish and administer an educational institution of its choice which requires the presence of a person in whom such institution can repose confidence to carry out various directions so as to maintain the discipline and the efficiency of teaching in Page 14 of 42 C/LPA/175/2017 JUDGMENT consonance with character and tradition of such minority institution. At the same time, learned AGP though made attempts to relevant provisions of the Code, Rule 81 with regard to age of retirement of secondary school teacher was ordinarily at the age of 58, but extension can be given by the management up to the age of 60 years for the reasons to be disclosed and for further extension beyond the age of 60 years the management is to obtain previous permission of the Education Inspector subject to the teacher being physically and mentally found fit and under no circumstances beyond age of 65 years, service of the teacher can be extended or continued.
Thus, the incumbent in present case has completed 60 years on 22.07.2001 and no further extension could have been given as per Rule 81.2 of the Grant In Aid Code in the context of provisions of Gujarat Secondary Education Act, 1972 and Regulations, 1974 made there under.
10.1 Let us deliberate on reasoning of learned Single Judge on this aspect.Page 15 of 42
C/LPA/175/2017 JUDGMENT 10.2 In paras 19, 20 and 21, learned Single
Judge has referred to Section 17, Section 54 and Section 40A of the Gujarat Secondary Education Act and also regulations framed thereunder i.e. Gujarat Secondary Education Regulation, 1974.
Paras 23, 24 and 25 refer to Regulations, 1974 pertaining to superannuation of teaching staff, overriding effect of Regulations, 1974 over the Grant In Aid Code and in para 26 reference is made to Rule 81 of the Grant In Aid Code.
10.3 The provisions of the Secondary Education Act, 1972 and Regulation, 1974 made thereunder and provisions of Grant In Aid Code are interconnected. Paras 19 to 26 of the judgment read as under:
"19 Section 17 of the Act prescribes powers and duties of the Secondary Education Board. It enables the Board to lay down qualifications, methods of selection of employment and the rules for the conduct and discipline of the Headmaster and teaching and nonteaching Page 16 of 42 C/LPA/175/2017 JUDGMENT staff of the registered private secondary schools. For our purpose, Section 17(26) of the Act is relevant, which reads as under:
17(26) to lay down qualifications, methods of selection and conditions of appointment, promotion and termination of employment and rules for conduct and discipline of the headmaster and the teaching & non teaching staff of registered private secondary schools;
20 Section 54 provides for framing of the Regulations by the State Government.
21 Section 40A is with regard to the savings, which reads as under:
40A. Savings Nothing contained in clause (26) of section 17, sections 34 and 35, and clause (b) of subsection (1) and subsections (2), (3), (4) and (5) of section 36 shall apply to any educational institutions established and administered by a minority, whether based on religion or language.
22 The plain reading of Section 40A of the Act, which was introduced into the Act by the Gujarat Act 25 of 1973 provides that nothing contained in Clause (26) of Section 17, Sections 34 and 35 and clause
(b) of subsection (1) and subsection (2), (3), (4) and (5) of Section 36 shall apply to any educational institutions established and administered by a minority whether based on religion or language.
23 The Regulation 36 of the Regulations Page 17 of 42 C/LPA/175/2017 JUDGMENT 1974 reads as under:
36. Superannuation of teaching staff (1)
(a) A teacher or a headmaster of a registered private school shall be compulsorily retired on the date on which he attains the age of 58 years;
(b) Where a management of the school is of opinion that in the interest of the school it is necessary to retain in service a teacher or a headmaster beyond the age of 58 years, it may reemploy such teacher or headmaster if the teacher or the headmaster concerned is physically and mentally fit;
(c) (i) No management of the school shall extent the period of reemployment of a teacher or headmaster after he had attained the age of 60 years, except with the previous permission of the Board;
(ii) The Board may grant permission for such further reemployment for a period not exceeding one year at a time. If it is satisfied that in the interest of the school it is necessary to reemploy the teacher or the headmaster and the teacher or the headmaster is physically and mentally fit:
Provided that a teacher or a headmaster, who has attained the age of 65 years shall not be continued in service under any circumstances,
(d) On reemployment of a person in the manner specified in subclauses (b) or (c) his pay should not exceed the last pay (including special pay or additional pay, if any, drawn by him at the time of his Page 18 of 42 C/LPA/175/2017 JUDGMENT retirement minus pension (including pension equivalent to deathcumretirement gratuity or gratuity in lieu of pension).
Such pay should not, however, exceed the maximum of the time scale of the post in which he is reemployed. Where the pay is fixed according to this regulation the incumbent shall be entitled to receive the benefits of annual increments even though the pension (including pension equivalent to deathcumretirement gratuity or gratuity in lieu of pension) plus pay so fixed exceeds the last pay drawn by him at the time of retirement, but the total shall not exceed the maximum of the time scale of the post in which he is re employed;
(e) Pension may be allowed to be drawn as a separate entity and may be held in abeyance if the pensioner so applies;
(f) A member of the teaching staff shall not be entitled to any notice for his relief after he attains the age of 58 years or after, the expiry of the period for which reemployment has been granted:
Provided that where the period of re employment is not specifically mentioned in the order granting such reemployment the person concerned shall be entitled to one months notice or salary (Pay and allowances, if any) in lieu of such notice.
24 The Regulation 42 makes it clear that the Regulations shall prevail over the GrantinAid Code. It reads as under:
42. Regulations to prevail over Grant inAid Code. The provisions of these Page 19 of 42 C/LPA/175/2017 JUDGMENT regulations shall prevail over those provisions contained in the Grantin Aid Code published under Government Notification Education and Labour Department No.GAC1064C dated the 22nd April, 1964, in so far as they relate to any matters provided in these regulations.
25 The Regulation 43 reads as under:
43. Nothing contained in Regulations 19, 20, 21, 22, 24, 25, 26, 27, 28, 30, 31, 33, 36, 37, 40 & subclauses (4), (5) & (6) of Regulation No.41 shall apply to any educational institution established and administered by a minority, whether based on religion or language.
26 Let me now look into the GrantinAid Code. The relevant provision in the Code is Rule 81, which reads as under:
81.1 A Secondary School Teacher shall ordinarily retire from service at the age of 58.
81.2 The management may grant to teachers extensions upto the age of
60. If the Inspecting Officers report on the basis of their inspection that any teacher beyond the age of 58 is unable to discharge his duties properly, the teacher will be sent for Medical examination and if declared unfit will be compelled to retire.
81.3 If a management for any reasons, desires to give extension to a teacher Page 20 of 42 C/LPA/175/2017 JUDGMENT in its employ, beyond the age of 60, it should obtain the previous permission of the Educational Inspector who may grant such extension for a period not exceeding one year at a time on the merit of the case and subject to the teacher being physically and mentally fit. No teacher who has completed the the age of 65, shall however, be continued in service under any circumstances.
81.4 The case of parttime teachers and special teachers like teachers for Drawing, Music, Craft, etc. and part time nonteaching staff who are treated on par with other teaching and nonteaching staff in respect of service conditions etc. shall also be governed by these rules.
81.5 No person who has already attained the age of 58 years shall be employed as a teacher or on the non teaching staff. Retired persons from Government or nonGovernment Educational Institutions may however, be reemployed by the Educational Institutions provided they are physically and mentally fit. The employment of such retired persons should be subject to the provisions made in clauses 81 2 and 81.3 above and such other terms and conditions not in contravention of these rules and the general service conditions as may be mutually agreed upon between the employer and the employee. Such reemployed persons will not however, be eligible for the departmentally prescribed scales of pay and Page 21 of 42 C/LPA/175/2017 JUDGMENT allowances, etc. and to the Government aided Provident Fund scheme.
10.4 Thereafter, the learned Single Judge in paras 28 onwards referred to the case of T.M.A. Pai Foundation and others v. State of Karnataka [2002 (8) SCC 481] whereby it was held that the right to establish and administer of minority educational institute includes within its ambit the right to appoint teaching and nonteaching staff and further held that the aided institution does not become Government owned and Government controlled institution so as to interfere with the constitution of the governing bodies or thrusting staff without reference to the management of such minority institute. That reference was made to another decision in the case of Secretary, Malankara Syrian Catholic College v. T. Jose and others [2007 (1) SCC 386] in which the Apex Court summarized basic principles emerging with regard to legal position about right of a minority institution to Page 22 of 42 C/LPA/175/2017 JUDGMENT establish and administer education institution.
Para 29 of the judgment read as under:
"19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:
(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
(b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also nonteaching staff, and to take action if there is dereliction of duty on the part of any of its employees;
(c) to admit eligible students of their choice and to set up a reasonable fee structure;
(d) to use its properties and assets for the benefit of the institution.
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position visavis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.Page 23 of 42
C/LPA/175/2017 JUDGMENT
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister.
There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be WP (Civil) Nos. 7568/1999 & 8710/2007 Page 18 of 26 checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)."
21. We may also recapitulate the extent of regulation by the Staff, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A.Pai. Foundation, the State can prescribe:
Page 24 of 42C/LPA/175/2017 JUDGMENT
(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,
(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff.
(iii) a mechanism for redressal of the grievances of the employees.
(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridged or diluting the right to establish and administer educational institutions.
(v) In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But, if any such regulations interfere with the over all administrative control by the management over the staff, or abridges/dilutes in any other manner, the right to establish and administer educational institutions, such regulations, to that extent will be inapplicable to minority institutions".
[emphasis supplied] 10.5 Learned Judge also delved deep into various other decisions to which reference is made in paras 30, 31, 32, 33, 34, 35, 36 and 37 which also included celebrated decisions in the case of St. Xavier's College Society v. State of Page 25 of 42 C/LPA/175/2017 JUDGMENT Gujarat [(1974) 1 SCC 717], Gandhi FaizEAm College v. University of Agra [1975 (2) SCC 283] and Ammad v. Manager Emjay High School [1998 (6) SCC 674], etc. Thus, as per the law laid down by the Apex Court, to a certain extent the State was allowed to recall the conditions of employment of teachers and the health and hygiene of students, but with a rider that in the right of administration, checks and balances are required to be ensured the appointment of good teachers and their conditions of service. Therefore, it emerges that regulations framed to improve education, educational standards and allied matters are permissible but denial of the right of selection and appointment of teachers on unreasonable ground or contrary to the provisions of the statute, rules, regulations made governing the field of education if found infringing the rights of minority institutions under Article 30(1) of the Constitution of India. The said infringement is to be held unconstitutional, and Page 26 of 42 C/LPA/175/2017 JUDGMENT therefore, illegal.
10.6 A careful consideration of Section 17(26), 34, 35, 36, Section 40A of the Gujarat Secondary Education Act, 1972 and regulations 36, 42, 43 of Regulations, 1974 visavis rule 81 of Grant In Aid Code have overriding effect and that is evidence by saving clause under Section 40A of the Act. Even regulation 43 makes it clear that the regulation shall prevail over the Grant In Aid Code. As we have already referred to relevant provisions in earlier part of the judgment, we are not inclined to repeat the same and have been persuaded by the reasoning in the judgment under challenge rendered by the learned Single Judge in exercise of powers under Article 226 of the Constitution of India and inability on the part of the learned A.G.P. for the appellant
- State of Gujarat to persuade us about scope of Regulation in grant In Aid Code or any independent power of the State to regulate and control or to provide such measure in law for the Page 27 of 42 C/LPA/175/2017 JUDGMENT administration of minority institutions we may safely refer to decisions relied on by the learned Single Judge in the context of regulatory measures to be made by the State authorities which have to be reasonable so as to strike balance between the ensuring of the standard of excellence of a school and the safeguarding of the right conferred by Article 30(1) of the Constitution of India. In paras 47, 48, 49, 50, 51 and 52 learned Single Judge has considered this vital aspect and has held as under:
"47 At the same time, any choice of Headmaster, even by the minority, has to satisfy the requirements of qualifications and experience as also the essential qualities necessary for making a good Headmaster. It will always be open to the educational authorities to consider whether the appointee of the minority educational agency is one qualified, competent or experienced to be a Headmaster. Power is vested in the educational authorities, on these limited grounds, to refuse approval to any appointment of Headmaster made by the minority educational agency. All that I propose to hold is that the GrantinCode so far as it prescribes the maximum age of retirement is concerned does not operate in full force against a minority Page 28 of 42 C/LPA/175/2017 JUDGMENT educational agency.
48 The object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality. The right conferred on religious minority to administer educational institutions of their choice is not an absolute right, though no restrictions were imposed on the right conferred under Article 30, like the reasonable restrictions placed on Article
19. Regulatory measures can be made to ensure the appointment of good teachers and their conditions of service, for securing a fair procedure in the matter of disciplinary action against the teachers and for the elimination of a potential cause of insecurity and frustration amongst them. The taking of such measures which safeguard the security of tenure and which consequently attract efficient teachers are permissible and constitutes a reasonable control. A distinction must, however, be drawn between a regulation prescribing the manner of administration and a restriction on the right of administration. The right of administration includes the choice of the personnel of management, the ensuring of orderliness, fairness, soundness and efficiency and discipline in the administration, the appointment of good, efficient and disciplined teachers. A corresponding right exists also to remove teachers for achieving this purpose. Only those measures which aim at regulating these rights and powers of a minority community are permissible. Any measure that seeks to abolish or abridge, even in the slightest way, any of these rights, Page 29 of 42 C/LPA/175/2017 JUDGMENT hits the provision of Article 30(1). The ensuring of proper conditions of service of the teachers, the securing of fairness in the matter of disciplinary action against them, the safeguarding of the interest of the teachers and its consequent security of tenure of service must be brought about through the instrumentality of the existing management and not by displacing it. Therefore, reasonable regulatory measure is that which strikes a balance between the ensuring of the standard of excellence of a school and the safeguarding of the right conferred by Article 30(1). The freedom of control of the school by the management or their nominees must enable them to shape the institution according to their way of thinking, their ideas of how the interest of the minority community and more particularly of the school, will best be served. The choice of the teachers which is best suited and most compatible to carry out the ideals of the minority community must necessarily be left to the management, provided that the teacher has the qualifications prescribed by the Government or it's instrumentality.
49 However, the right conferred on religious minority to administer educational institutions of their choice is not an absolute right, though no restrictions were imposed on the right conferred under Article 30, like the reasonable restrictions placed on Art.19. Regulations governing educational and academic matters with a view to achieving excellence and uniformity in standards are not only permissible but desirable. The right to administer does not include the right to maladminister. The right conferred by Article 30(1) implies a duty Page 30 of 42 C/LPA/175/2017 JUDGMENT to render the very best to the students. Normal standards of the general pattern of education must be maintained not only by the majority but also by the minority community. The instrumentality of the Government entrusted with the responsibility of fostering and guiding education must have the right to control and check the administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority.
50 Regulatory measures can be made to ensure the appointment of good teachers and their conditions of service, for securing a fair procedure in the matter of disciplinary action against the teachers and for the elimination of a potential cause of insecurity and frustration amongst them. The taking of such measures which safeguard the security of tenure and which consequently attract efficient teachers are permissible and constitutes a reasonable control.
51 A distinction must, however, be drawn between a regulation prescribing the manner of administration and a restriction on the right of administration. The right of administration includes the choice of the personnel of management, the ensuring of orderliness, fairness, soundness and efficiency and discipline in the administration, the appointment of good, efficient and disciplined teachers. A corresponding right exists also to remove teachers for achieving this purpose. Only those measures which aim at regulating these rights and powers of a minority community are permissible. Any measure that seeks to abolish or abridge, even in the slightest. way, any of these rights, Page 31 of 42 C/LPA/175/2017 JUDGMENT hits the provision of Article 30(1). The ensuring of proper conditions of service of the teachers, the securing of fairness in the matter of disciplinary action against them, the safeguarding of the interest of the teachers and its consequent security of tenure of service must be brought about through the instrumentality of the existing management and not by displacing it.
52 Therefore, a reasonable regulatory measure is that which strikes a balance, between the ensuring of the standard of excellence of a school and the safeguarding of the right conferred by Article 30(1). The freedom of control of the school by the management or their nominees must enable them to shape the institution according to their way of thinking, their ideas of how the interest of the minority community and more particularly of the school, will best be served. No part of this freedom can be transferred from the management to an outsider, be he an individual or a body, and vested in such individual or body, if the constitutional rights conferred on the minorities are to be kept free from encroachment. The teacher contributes to the setting out of the tone and temper of a school. He is partially responsible for the reputation, the maintenance of discipline and efficiency in teaching. It is the responsibility of the management to choose the teachers after an overall assessment of their outlook in life, their philosophy, their compatibility with the ideals of the minority community. These are the most important aspects of the right to administer a school. The choice of the teachers which is best suited and most compatible to carry out the ideals of Page 32 of 42 C/LPA/175/2017 JUDGMENT the minority community must necessarily be left to the management, provided that the teacher has the qualifications prescribed by the Government or its instrumentality."
10.7 The learned Single Judge in para 53 of the judgment, referred to some other decisions of this Court in the case of Benson Enock Semual v.
State of Gujarat and others [AIR 1984 Gujarat 49], in which, this Court had an occasion to consider rights of minority under Article 30(1) of the Constitution of India and when certain rules framed under Bombay Preliminary Education Rules, 1949 came to be challenged wherein reliance was placed on the decisions of the Apex Court on the subject were referred to and law laid down by the Apex Court and since the decision in the case of State of Bombay vs. Bombay Education Society AIR 1954 SC 561 and State of State of Madras v. S.C. Dorairajan AIR 1951 SC 226 onwards were considered and finally it was held that any regulation which is inconsistent with Section 40A of the Act is not Page 33 of 42 C/LPA/175/2017 JUDGMENT to be allowed to operate.
10.8 Further, in the facts of the case, learned Single Judge, in paras 55 to 66 held as under:
"55 The grantinaid system was first introduced in 1859 and its main object was to promote voluntary efforts and reliance on the local resources in the field of education apart from such contributions as may be available from the funds of the State. After the States reorganisation took place, in order to bring about uniformity in the matter, the State of Bombay appointed in 1958 an Integration Committee for the Secondary Education to examine the different Education Codes and administrative practices in force at the secondary stage in the various regions, which were added to the State of Bombay under the states organisation and to make proposals for a unified system of Secondary Education as well as the assistance to be given to the non government Secondary schools.
56 The provisions of the Code are executive instructions and are in the nature of administrative instructions without any constitutional force. [See: The State of Maharashtra and others v. Sakharkheda Education Society, AIR 1973 SC 588] 57 I am of the view that the argument Page 34 of 42 C/LPA/175/2017 JUDGMENT canvassed on behalf of the State that as the petitioners are receiving aid from the State Government, they are duty bound to comply with the rules of the Code so far as the age of retirement of its employees is concerned, is not tenable in law. If this argument is accepted, it will render Section 40A of the Act and the Regulations 42 and 43 otiose. The insistence on the part of the State Government that the teaching as well as nonteaching staff of a minority institution cannot be continued beyond the age of 60 years even if they are physically and mentally fit, is nothing, but an indirect method of overcoming the provisions of the Act and Regulations. To say that the institution may continue its employees in service beyond the 60 years, but the Government would not pay grant towards the salary of such employees is definitely violative of Article 30(1) of the Constitution of India. The stance of the State Government that it is a matter of policy would also not save the situation as such a policy would definitely be hit by Article 30(1) of the Constitution.
58 Let me now look into the decision of this Court in the case of Haji Musa (supra) on which strong reliance has been placed by the learned Assistant Government Pleader. The petitioner, in the said case, was an educational institution established and administered by religious minority. It granted extension in service to its Principal beyond the age of 58 years. As discussed above, under the Regulation 36, the employees of the Secondary School, are to retire on attaining the age of 58 years. It was argued by the petitioner Page 35 of 42 C/LPA/175/2017 JUDGMENT that the Regulation would not apply to the minority institutions in view of the Regulation 43 and therefore, the matter would be governed by the relevant provisions of the GrantinAid Code providing for continuing in employment upto 60 65 years, subject to certain conditions.
59 The learned Single Judge of this Court, after considering the relevant provisions relating to the appointment and superannuation of the Headmaster and teaching staff of the registered private secondary schools, and also considering the GrantinCode, observed in paras 9, 10 and 11 as under:
9. From the aforesaid discussion, it is evident that a minority institution to which certain provisions of the Act and the regulations do not apply may grant extension to a teacher who has attained the age of 58 years provided he is physically and mentally fit. If such person is unable to discharge his duties properly, he will have to be retired and the management cannot insist for his continuation.
Similarly, if the person has already retired at the age of 58 years and is reappointed by the management, such reappointment must be in accordance with the provisions of the rules and he would not be entitled to claim pay scales prescribed by the department and such reappointment would be subject to the terms and conditions of the agreement mutually arrived at between the parties. Again, the institution cannot claim government aided provident fund scheme.
Page 36 of 42C/LPA/175/2017 JUDGMENT
10. In the instant case, it is clear that the institution is a minority institution and certain provisions of the Act as also the regulations are not applicable to it. It was, therefore, permissible to the management to extend services of Respondent No. 3 after he attained the age of 58 years which was done unanimously by the petitioner. It was the case of the petitioner that Respondent No. 3 was physically fit and the petitioner had also shown its readiness to produce necessary certificate as an when required by the respondent authorities. It was not even the allegation of the authorities that the Respondent No. 3 was physical and/or mentally unfit. Unfortunately, the respondent authorities did not consider the material fact that it was open to the petitioner to adopt such a course and rejected the application. The petition, therefore, requires to be allowed. Since the action of the petitioners in granting extension in favour of Respondent No. 3 was legal, valid and in accordance with law, the petitioners were also entitled to claim grant from the Government. Even at the time of admission, such an order was passed by this Court (Coram : J. N. Bhatt, J.) on April 13, 1991 subject to the result of the petition.
11 Mr. Sompura, learned Assistant Government Pleader for the respondent State placed reliance on resolution passed by the Government of Gujarat on Page 37 of 42 C/LPA/175/2017 JUDGMENT December 2, 1975 making certain alterations in Regulations of 1974 and particularly in Regulation 36 by which earlier Regulation 36 was substituted. I have considered Regulation 36 duly amended as quoted above. But in my opinion, when Regulation 36 is not applicable to a minority institution, any amendment therein is of no consequence whatsoever.
60 In my opinion, the aforesaid decision has no application to the facts of the case in hand, more particularly, the issue which has been raised for my consideration. The minority institution i.e. the petitioner itself relied upon the GrantinAid Code, which provided that an employee in service could be continued utpo 65 years of age, subject to satisfying the authorities that such employee is physically and mentally fit to discharge his duties. The learned Single Judge had no occasion to consider the effect of the Regulation 42 of the Regulations. In my view, the decision in the case of Haji Musa (supra) would not save the situation for the State Government.
61 The Article 30 of the Constitution of India itself incorporates a special provision prohibiting discretion in the matter of financial grants against a minority institution. Articles 30(1) and (2) read as under:
30. Right of minorities to establish and administer educational institutions (1) All minorities, whether based on Page 38 of 42 C/LPA/175/2017 JUDGMENT religion or language, shall have the right to establish and administer educational institutions of their choice.
[(1 A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in Clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.] (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
62 Thus, under clause (1), a minority is given the right to establish and administer the educational institution of its choice. The founding fathers of the Constitution considered the necessity of incorporating clause (2) to exclude the possibility of denying of the grantinaid by the State to an institution established by a minority even when sought for, while extending the grant to nonminority institution. Therefore, it is clear that if a minority institution seeks the grant in terms of the GrantinAid Code, the Government cannot deny the grant on the ground that as the grant is received in accordance with the Code, the provisions of the Act, Rules and Regulations will not apply.
Page 39 of 42C/LPA/175/2017 JUDGMENT 63 All administrative decisions must stand the test of the judicial scrutiny when they are made arbitrarily without application of mind or assigning of proper reasons. More so, when they involve the rights of parties in part III of the Constitution.
64 The GrantinAid Code at times may contain provisions which, in many respects, covers the same field as it covers by the Act and the Rules. If the Code in those respects is to prevail, then the Regulation 42 would also be rendered otiose. The constitutional right cannot be permitted to be defeated by the executive instructions of the State Government. As discussed by me in the earlier part of my judgment that at times, the minority school may find it difficult to find a good Headmaster. If a particular Headmaster has been able to perform exceedingly well and proves to be an asset for the institution, because ultimately, it is the students, who are going to be benefited by such Headmaster, then in such circumstances, the management of a minority institution would be well within its right to continue him in service even beyond the age, which has been prescribed in the GrantinAid Code. At best, the State Authorities can ask the institution to make a declaration that the Headmaster they propose to continue in service beyond the age of 60, is physically and mentally fit. Beyond this, the State Authorities cannot impose any restriction and interference with the discretion of the management in this regard.
65 In the case in hand, although there are certificates on record issued by the Civil Hospital that the Principal is physically Page 40 of 42 C/LPA/175/2017 JUDGMENT fit, yet those were ignored only on the ground that the GrantinAid Code does not permit any Principal even of a minority institution to continue in service beyond the age of 60 years. I am not impressed by the submission of the learned Assistant Government Pleader that prescribing the age of retirement of the teaching and non teaching staff in the GrantinAid Code, neither amounts to interference in the daytoday administration of the minority educational institutes nor does it affect the right of the minority educational institutes to appoint a Principal of its choice, but it is a part of the regulatory regime to maintain standards of the educational institutes. If a hale and hearty Principal of a minority institution performing exceedingly well and has been able to bring the institution to a particular level is forced by the State authorities to retire at the age of 60 years, then it definitely amounts to interference in the daytoday administration of the minority educational institutes. It cannot be termed as a part of the regulatory regime to maintain standards of the educational institutes. In a given case, the authorities concerned may object to the continuance of a Principal or a Headmaster of a minority school beyond the age of 60, if he is, otherwise, found to be unfit both physically and mentally. However, it would all depend on the facts and circumstances of each case."
11 In view of the above factual and legal position, we are in complete agreement with the Page 41 of 42 C/LPA/175/2017 JUDGMENT reasoning, findings and conclusions drawn by the learned Single Judge in exercise of jurisdiction under Article 226 of the Constitution of India and none of the submissions made by the learned A.G.P. persuade us to interfere with the same.
Accordingly, this appeal is dismissed.
Consequently, Civil Application No.1 of 2017 also stands disposed of.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) P. SUBRAHMANYAM Page 42 of 42