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Benson Enock Semual, Ahmedabad and Etc. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 820 of 1978 with 972 and 1323 of 1979
Judge
Reported inAIR1984Guj49; (1984)1GLR691
ActsBombay Primary Education Rules, 1949 - Rule 106(2); Gujarat Primary Education (Amendment) Rules, 1978; Constitution of India - Article 30 and 30(1)
AppellantBenson Enock Semual, Ahmedabad and Etc.
RespondentState of Gujarat and ors.
Appellant Advocate D.D. Vyas, Adv.
Respondent Advocate R.M. Vin, Govt. Pleader, i/b.,; M.M. Jadeja for A. and D.,;
Cases ReferredIn Lilly Kurian v. Sr. Lewina
Excerpt:
constitution - validity - rules 106 (2) and 109 (2) of bombay primary education rules, 1949, gujarat primary education (amendment) rules, 1978 and articles 30 and 30 (1) of constitution of india - whether rules 109 (2) and 106 (2) read with schedule f violative of article 30 - provisions of schedule f trench upon right of management of minority institutions - undertaking to be furnished under rule 106 (2) obliges minority institution managements to abide by such provisions as condition of recognition - such statutory undertaking violative of article 30 - provisions in schedule f prescribing pay scales, leave, retirement benefits, conduct and disciplinary proceedings in nature of regulatory measures not derogatory to right of management - undertaking to abide by these provisions does not.....b.k. mehta, j.1. these three petitions have been separated from the group of petitions, being special civil application no. 305 of 1979 and other companion .matters since the schools concerned in these three petitions are managed by religious minority communities which by these three petitions pray for appropriate writs, orders and directions declaring that rules 106 (3) (e), 107 (3), 109 (2) and (4) and 115 of the bombay primary education rules, 1949, as ultra vires the constitution and for quashing and setting aside the circulars issued by the administrative officer of the school board, ahmedabad fixing the pay scales and dearness allowance for the teachers in the private primary schools in exercise of' the power conferred under schedule 'y' as amended by the bombay primary education.....
Judgment:

B.K. Mehta, J.

1. These three petitions have been separated from the group of petitions, being Special Civil Application No. 305 of 1979 and other companion .matters since the schools concerned in these three petitions are managed by religious minority communities which by these three petitions pray for appropriate writs, orders and directions declaring that Rules 106 (3) (e), 107 (3), 109 (2) and (4) and 115 of the Bombay Primary Education Rules, 1949, as ultra vires the Constitution and for quashing and setting aside the circulars issued by the Administrative Officer of the School Board, Ahmedabad fixing the pay scales and dearness allowance for the teachers in the private primary schools in exercise of' the power conferred under Schedule 'Y' as amended by the Bombay Primary Education (Gujarat Amendment) Rules, 1978, and for injunction restraining the State Government from enforcing the said circulars.

2. In Special Civil Application No. 820/78 a further relief has been prayed for an appropriate writ, order or direction quashing and setting aside the two notices dated April, 1, 1978 and April 11, 1978 issued by the Administrative Officer, School Board, calling upon the school management as to why the recognition of the school should not be cancelled since the management has failed to implement the recommendations of the Desai Pay Commission in the matter of pay and allowances and has thus committed breach of the provisions of Schedule 'F' of the said Rules, and if no cause was shown within a period of seven days from the date of the notice. it would be presumed that the school management has nothing to submit in reply to the show cause notices.

3. The grounds on which the reliefs have been prayed for in these petitions are identical as raised in the group of petitions being Special Civil Application No. 305/79 and other companion matters, besides, the special ground urged in these petitions is that R. 106 (2), in so far as it entailed an obligation on the petitioners to undertake that the conditions of services of the teachers in the schools run by them would be as specified in Sch. 'Y' and consequently the provision in R. 109 (2) for withdrawal or cancellation of recognition for breach of any of the conditions of recognition are ultra vires the Constitution inasmuch as they are violative of Art. 30 of the Constitution enshrining right of minority to establish educational institution of their choice.

4. The grounds on which .the Rules and circulars have been sought to be challenged are, as stated above, identical as those raised in Special Civil Application No. 305/79 and other companion matters, and they are as under

(1) The regulations prescribed in the amended Schedule 'F' by the Gujarat Amendment Rules 1978 seeking to govern the conditions of services of the teachers in private schools, including the pay and allowances, the discipline and conduct and the retirement benefits, are ultra .vires the Bombay Primary Education Act, inasmuch as the Act does not contemplates, much less provide in that behalf.

(2) The aforesaid amended rules, including Sch. 'F' are bad in law and void since they have not been published and/or laid before the State Legislature :as required by the Act.

(3) Inasmuch as the aforesaid amended Sch. 'Y' regulations governing the conditions of services of the teachers, including their pay and allowances have no nexus with the standards, promotion, development and -expansion of primary education, they cannot be said to be in the nature of reasonable restrictions as permissible under Art. 19 of the Constitution and, therefore, the impugned circulars issued in exercise of the powers conferred by the said Regulations are bad in law and void.

(4) Assuming that the aforesaid Schedule 'Y' is ultra vires the Act, the impugned circulars issued by the Administrative Officer under the sanction of the Director of Education prescribing the pay and allowances of teachers working in private schools are bad in law and void inasmuch as the Director of Education being deligate of the State Government, had no jurisdiction, authority or power to prescribe the pay-scales and allowances under Clause 1 of Sch. 'IF',. on the principle that the State Government could not have sub-deligated its power to the Director while enacting the subordinate legislation.

(5) 11. 106, as amended by the Gujarat Amendment Rules, 1978 does not apply to the schools which have been recognized prior to coming into force of -.he amendment, and the schools which have been once recognized as approved schools shall continue to be so recognized unless their recognition is capable of being withdrawn under R. 1.09 (2).

(6) The power conferred on the competent authority under R. 109 ~2) for withdrawal of the recognition is uncontrolled and unfettered since the aggrieved management has no statutory right to prefer appeal against it and, therefore, it, is uncanalised and arbitrary power and, therefore, violative of Art. 14 of the Constitution of India.

5. The special contention which has been raised in these three petitions is as under :

In so far as R. 109 (2) empowers the Government to withdraw the recognition for breach of R. 106 (2) as amended by the Bombay primary Education (Gujarat Third Amendment) Rules, 1970 enjoining the school management to file an undertaking that the conditions of service of the teachers shall be as specified in Schedule 'F' as amended by the Gujarat Primary Education (Gujarat Amendment) Rules, 1978, it impairs and thus infringes substantially the right of the religious minorities to establish and administer educational institutions of their choice as enshrined in Art. 30 of the Constitution and would to that extent be void.

6. So far as the common contentions are concerned, they deserve to be rejected for the reasons recorded in the common judgment by which the group of petitions, being Special Civil Application No. 305/79 and other companion matters, is disposed of. It is only this additional contention about the validity of Rr. 109 (2) and 106 (2) read with Schedule 'F' as violating Art. 30 of the Constitution which survives for our consideration.

7. It should be recalled that only those private primary schools which fulfill the conditions prescribed in this behalf are entitled to recognition as approved schools. Under S. 39(2) the recognition is to be accorded by the School Board or the State Government or by an officer authorised by it in this behalf, and the manner in which grant-in-aid is to be given to such approved schools would be as prescribed by rules. One of the obligations which has been prescribed under R. 106 (2) for a private school management desirous of having 'recognition is to make an application in the prescribed form with an undertaking in writing that the conditions of employment of teachers in the school shall be as specified in Sch. 'F'. Before the 1949 Rules were amended by the Gujarat third Amendment Rules, 1970, the undertaking which was to be furnished was to the effect that the conditions of employment of teachers in the school shall be as near as possible to those specified in Sch. 'F'.It is not necessary to refer as to what were the different clauses in Sch. 'F' before it was substituted by the Gujarat Amendment Rules of 1978. Suffice it to say that the new Sch 'F', as substituted by the 1978 Rules, completely regulated the power of appointment, the conditions of employment including the pay scales, promotions, leave, retirement benefits etc., and also the right of management to, discipline the teachers in the employment of the school management. Clause 1 (2) of the new Sch'F' controls the right of the management to appoint teachers which reads as under

'(2) The managing body of the trust or the Society shall constitute, for the purpose of selecting teachers for appointment in the school, a selection committee consisting of the following persons, namely:_

(i) One representative of the managing body of the trust or the society;

(ii) The head master of the school;

(iii) One representative of the Administrative officer.'

The right of the management to take disciplinary action against the erring members of teaching staff is also regulated by, Clause 13 which reads as under:

'13 (1) Termination of services of a Teacher-

The management of a private school shall not terminate otherwise than as a measure of penalty the services of any permanent trained teachers without the previous permission of an Administrative Officer.

(2) A pei7nanent trained teacher whose servicing are,. terminated with the permission of the Administrative Officer after three years of his service shall be entitled to a compensation-

(a) equal to 6 months salary including allowances if the employee has put in service in the school for a period not exceeding five years, and

(b) equal to six months' salary including allowances for the first five years and a month's salary for every year of the period exceeding five years, if the employee has put in service -in, the school for a period exceeding five years :

Provided that total compensation payable under clause (a) or (b) shall not exceed twelve months' salary including allowances :

Provided further that in the case of a teacher on Inquiry Committee shall be constituted consisting, of the following persons, namely:_

(i) one representative of the management

(it) The Head Master of the School, and

(iii) a representative of the concerned teacher, and accordingly the formal inquiry against the teacher shall be held by the said committee instead of the management or an inquiry officer an if where the context so requires for the words 'the management' or 'inquiry office the word 'Enquiry Committee' had been substituted.'

The scales of pay were also prescribed. under Clause 9 of the Schedule which reads as under :

'9. Scale of salaries- Scales of pay and allowances payable to the teaching and non-teaching staff shall be such as may be approved by the State Government from time to time.'

Clause 15 of Sch. 'Y' provides the procedure to be followed at the inquiry to be held for terminating the services of a permanent employee. Clause 16 provides for the minor and major penalties. Clause 18 prescribes the procedure for imposing major penalties 'of reduction in rank, removal and dismissal from the services, Clause 19 provides for the procedure for imposing minor penalties. Rule 10a provides for the benefit of recognition. Recognition as an approved school entitles the management of the school to send its pupils at any public examination held by the Education Department of the Stat e Government, present its pupil as candidates for scholarships and to claim such other benefits as the Government may, from time to declare. Rule 109 (2) empowers the competent authority to withdraw recognition on the recommendation of the competent officer, if any, that the condition on which the school was recognized is not observed. It is in this context of the Rules that the contention about the viola ion of the rights of the minority community to establish and administer the schools of their choice is advanced.

8. It is firmly established on principle as well as authority that all minorities, linguistic or religious have by Art. 30(1) an absolute right to establish and administer educational institutions of their choice, and any law or executive direc tion which seeks to infringe, the substance of that right under Art. 30(1) would to that extent be void. This, however, does not mean that it is not open to the State to impose regulations in true interest of efficiency of instruction, discipline, health, sanitation , public order and the like. Such , regulations have never been construed as restrictions on the substance of the right which is guaranteed under the Article since they are designed to secure proper functioning of the institutions in the matters which are really educational. Such regulations must satisfy a dual test the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it (see : Sidhrajbhai v, State of Gujarat, AIR 1963 SC 540).

9. It is also firmly established that Art. 30 applies to schools established by minority whether before or after the Constitution, irrespective of its general nature of education or the fact - ' their students being drawn from the communities other than minor communities. It is an absolute right which cannot be controlled by any law or executive direction, and any such attempt would be to that extent violative of Art. 30 and void. Any regulative measure conceived in the interest. not, of the minority educational institution, but of the public or the nation as a whole is also considered as impairing such absolute right (see : A. M. Patroni v. Kesavan, AIR 1W Ker 75 (FB)).

10. In W. Proost v. State of Bihar, AIR 1969 SC 465, S, 4&-A of the Bihar Universities Act providing for establishment of a University Service Commission for private affiliated colleges requiring the governing body of the private college to make appointment, dismissal, removal and termination of services or reduction in rank of teachers of such affiliated colleges on the recommendation of the Commission and subject to the approval of the University was challenged as violative of Art. 30(1) of the Constitution. In that context, the Supreme Court, speak-ink, through Hidayatullah, C. J. (as he then Was), ruled that the said provision completely took away the autonomy of the Governing Body of the College and virtually vested the control of the college in the University Service Commission and, therefore, it was void to that extent.

11. Again in State of Kerala v. Very Rev. Mother Provincial, AIR 1970 SC 2079, the Supreme Court was concerned with the various provisions of Kerala University Act, 1969 out of which some were upheld by the Kerala High Court. The provisions which were under challenge in Mother Provincial's case (AIR 1970 SC 2M) (supra) were the provisions contained to sub-secs, (1), (2) and, (3) of S. 53 conferring on the syndicate of the University the power to veto even the action of the governing body or the managing council in the selection of the principal as well the provisions continued in sub-secs. (Z and (4) of S. 56 which took away the power of taking disciplinary action from the Governing Body and the management council and conferring it on the University. In that context Hidayatullah, C. J. observed as under in paras 9 and 10 :

'9. The next part of the right relates to the administration of such institutions. Administration means management of the affairs' of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can he taken away and vested in another body without an encroachment upon the guarnteed right,

10. There is, however, an exception to this and it is that the standards of education are not a part of management as such, These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if Universities establish the syllabi for examinations, they must be followed subject, however, to special subject which the Institutions may seek to teach and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it, yet the right of the State to regulate education, educational standards and allied matters cannot be denied. 'Me minority institutions cannot be allowed to fall below the standard. of excellence expected of educational institutions, or under the guise of exclusive right of management to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others. These propositions have been firmly established in the State of Bombay v. Bombay Education Society (1955) 1 SCR 568 : (AIR 1954 SC 561); State of Madras v. S. C. Dorairajan, 1'I SCR 525 : (AIR 1951 9C 226); In re the Kerala Education Bill 19577 19' SCR 995 : (AIR 1958 SC 956); Sidharztjbhai v. State of Gujarat. 1963-3 SCR 837: (AIR 1963 SC 540): Katra. Education Society v. St-.31,e of TJ P.,1966-3 SCR326 - (AIR 1966 SC 1907):

Gujarat University Ahmedabad v, Krishna Ranganath Mudholkar, 1963 Supp (1) SCR 112 (AIR 1963 SC 703); and Rev. Father W . Proost v. State of Bihar, 19692 SCR 73 (AIR 1969 SC 465). In the last case it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that must fairly be left to the minority institutions and no more. Applying these principles we now consider the provisions of the Act.'

12. In D. A. V. College, Jullundur v. State of Punjab, AIR 1971 SC 1737, the Supreme Court was concerned with the validity of certain provisions of the Guru Nanak University Amritsar Act (21 of 1969) pertaining, inter alia, to cls. 2 (1) (a), 17 and 18 of Chapter V of the statutes. Clause 2 (1) (a) provided that a college applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the Senate that the college shall have a regularly constituted governing body consisting of not mom than 20 persons approved by the Senate and including among others. 2 representatives of the University and the Principal of the College Ex-officio. Clause 17 provided that the staff initially appointed shall be approved by the Vice-Chancellor, arul all subsequent changes shall be reported to the University for Vice-Chancellor's approval. Clause 18 prescribed that non Government colleges shall -comply with the requirements laid down in the ordinances governing service and conduct of teachers in non-Government colleges as may be framed by the University. The Supreme Court, speaking through Jaganmohan Reddy, J., referred to the decision in Father W. Proost's case (AIR 1%139 SC 465) (supra) and held that the provisions contained in Cls. 2 (1) (a) and 17, which decidedly interfere with the rights of management of the petitioner-colleges were not justified, and they could not be made conditions of affiliation, the non comprahance of which would involve disaffiliation and consequently they will have to be struck down as offending Art. 30(1) of the Constitution, However, as regards Clause 18 which enjoined non Government colleges to comply with the requirements laid down in the ordinances governing service and conduct of teacher's in non-Government colleges. it was held that it, did no+ suffer from the same vice a S Clause 17 since that provision in so far as it was applicable to the minority institutions empowered the University to prescribe be by regulations governing the service and conduct of teachers which was enacted in the larger interests of the institutions to ensure their efficiency and excellence. In that connection, the Supreme Court observed as under in paragraph 38 on page 1749 :

'38 . It may for instance issue an ordinance in respect of age of superannuating or prescribe minimum qualifications for teachers to be employed by such institutions either generally or in particular subjects. Uniformity in the conditions of service and conduct of teachers in all non-Govt. colleges would make for harmony and avoid frustration. Of course while the power to make ordinances in respect of the matters referred to is un exceptional the nature of the infringement of the right, if any, under Art. 30J' will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely taffect the administration of the educational Institution, about which it is not possible. now to predilate.

13. In St. Xavier's College v. State of Gujarat, AIR 1974 SC 1389, a larger Bench of nine Judges of the Supreme Court was confronted with two questions, viz. (1) Can recognition or affiliation be granted on terms involving surrender of the rights conferred by Art. 30(1) and (2) whether the right enshrined in Article- 30(1) would include the right of recognition or affiliation? All the nine Judges agreed that the recognition or 01liation cannot be on such conditions which may result in virtual surrender of the right conferred by Art. 30(1) of the Constitution, A, regards the second question the majority opinion of seven judges affirming the law laid down by the Supreme Court held that this right includes the right to recognition or affilization, Briefly stated, the no.;11jon which emerges from the views of the different Judges expressed in St. Xavier's case (AIR 1974 SC 1389) (supra), by a majority view of eight Judges that Ss. 40 and 41 of the Gujarat University Act which converted affiliated colleges into constituent colleges held to be violative of Articlde 30(1) and could not have any compulsory application to colleges established and administered by religious and linguistic minorities. Similarly, S. 33A(1)(a) which provided that every college shall be under the management of the governing body which shall include amongst its members a representative of the University nominated by the Vice-Chancellor and representatives of teachers, non teaching staff and students of the college was held to be violative of Art. 30(1), in view of the majority judgment of eight Judges. Section 51-A (1) (b) and (2) (b) which controlled the right of the management to terminate or dismiss, reduce in rank or remove the academic and non teaching staff, except after an inquiry as prescribed therein, and after obtaining the approval of the Vice-Chancellor, were found by the majority of seven Judges as violating Art. 30(1) of the Constitution of India and that they could not be applied to minority institutions. Similarly, S. 52A providing for reference to the Tribunal of Arbitration consisting of one member each appointed by the Governing Body and an umpire appointed by the Vice-Chancellor in the matter of dispute between the academic and non-teaching staff of affiliated c6llege and the management was also held to be violative of Art. 30(1) of the Constitution.

14. In Lilly Kurian v. Sr. Lewina AIR 1979 SC 52 the right of appeal conferred by M. 32 (4) of the Ordinance framed under the Kerala University Act. 1957 to the member of teaching staff against the order of penalty to the Vice-Chancellor was held to be violative of Art. 30(1) since it conferred wide unfettered power on the Vice-Chancellor to interfere in disciplinary matters which directly effected the administration of the institution.

15. In All Saints High School V. Govt of Andhra Pradesh, AIR 1980 SC 1042, the Court was concerned with the validity of the provisions contained In S. 3 (1) and (2) of the Andhra Pradesh Recognized Private Educational Control Act, i975. It may be necessary to refer to this decision in detail since the Act the provisions of which were under challenge is some what similar to the provisions contained in the Bombay Primary Education Rules which are under challenge in these petitions. The provisions which were under challenge in All Saints High School's case (AIR 1980 SC 1042) (supra) were contained in different section viz. See. 3 (?) of the Andhra Pradesh Recognized.

Private Educational Institutions Control Act, 1975, which related to suspension in contemplation of an inquiry and duration thereof; S, 4 providing for an appeal against the order of punishment imposed on teachers; S. 5 which was a consequential provision directing the pending appeals to be transferred to the Appellate Authority; S. 6 providing for retrenchment of teachers consequent upon any order of the Government relating to education or course of instruction; S. 7 relating to pay and allowances of teachers; Ss. 10 and 11 providing for inspection or inquiry in respect of school buildings, laboratories etc. and the mode and manner of inspection and inquiry and furnishing returns statistics and other information to the competent authority by the school management: Ss. 12 and 13 relating to penalties for contravention of the provisions of the Act: S. 15 investing the Government with the revisional jurisdiction and the power of the Government to delegate this revisional power; S. 16 providing for ouster of the Civil Court's jurisdiction, and S. 17 providing for indemnity of officers for bona fide act. These sections were assailed on the ground that they were violative of Article 30 of the Constitution of India. In this context Fazal Ali, J., analysed exhaustively the case law on the scope and ambit of the fundamental right enshrined in Art. 30(1) and spelled out the following propositions as emerging from the analysis. It is not necessary to set out in extent so all these Principles, but suffice it to say that he found that the right of minority, linguistic or religious trust or society to manage and administer their educational institutions is absolute though it would not permit any mal administration which may necessarily result in the deterioration of excellence and perfection in the field of education. Though the State has no right to interfere with the administration or management of the minority institutions, it can prescribe regulatory measures to promote the efficiency and excellence of educational standards inter all for ensuring the security of the services of the teachers or other employees of the institution. However the State cannot, under the disguise of regulatory measures, make provisions which tend to destroy the administrative autonomy of the institution or start interfering with the core of the management of the institution so as to render the right of the administration of the management of the institution concerned nugatory or illusory. Article 30 by its very nature implies that the State cannot impose any conditions destructive in their nature of the autonomy of such institution by refusing affiliation without sufficient reasons. Any interference by the State either directly or through its nominees in the Governing Body or Managing Committee to control the conduct of the affairs of the institution would be violative of Art. 30. The following observations of Fazal Ali, J., are instructive (at p. 1067):

' ....It is, therefore, open to the Government or the University to frame rules and regulations governing the conditions of service of teachers in order to secure their tenure of service and to appoint a high authority armed with sufficient guidance to see that the said rules are not violated or the members of the staff are not arbitrarily treated or innocently victimised, In such a case the purpose is not to interfere with the internal administration or autonomy of the institution but it is merely to improve the excellence and efficiency of the education because a really good education can be received only if the tone and temper of the teachers are so framed as to make them teach the students with devotion and dedication and put them above all controversy. But while setting up such an authority care must be taken to see that the said authority is not given blanket and uncanalised and arbitrary powers so as to act at its own sweet will ignoring the very spirit and objective of the institution.It would be better if the authority concerned associates the members of the governing body or its nominee in its deliberation so as to instill confidence in the founders of the institution or the committees constituted by them.................

While there could be no objection in setting up a high authority to supervise the teaching staff so as to keep a strict vigilance on their work and to ensure the security of tenure for them, but the authority concerned must be provided with proper guidelines under the restricted field which they have to cover. Before coming to any decision -which may be binding on the managing committee, the Head of the institution or the senior members of the managing committee must be associated and they should be allowed to have a positive say in the matter. In some cases the outside authorities enjoy absolute powers in taking decisions regarding the minority institutions without hearing them and these orders are binding on the institution. Such a course of action is not constitutionally permissible so far as minority institution is concerned because it directly interferes with the administrative autonomy of the institution. A provision for an appeal or revision against the order of the authority by the aggrieved member of the staff alone or the setting up of an Arbitration Tribunal is also not permissible because Ray C. J. pointed out in AIR 1974 SC 1389 that such a course of action introduces an arena of litigation and would involve the institution in unending litigation, thus imparing educational efficiency of the institution and create a new field for the teachers and thus draw them out of purely educational atmosphere of the minority 'institutions for which they had been established. In other words., nothing should be done which would seek to run counter to the intentions of the founders of such institutions.'

16. The majority view qua different impugned provisions in All Saint High School's case (AIR 1980 SC 1042) (supra), was shortly as under. The majority view of the Supreme Court expressed by Fazal Ali, J., and Chandrachud C. J. was that S. 3 (1) which provides that subject to the rules that may be made in that behalf, the major penalty of dismissal, removal or reduction in rank of a teacher, shall require prior approval of the competent authority and S. 3 (2) empowering the competent authority to grant such approval, if it is satisfied about the adequacy and reasonableness of the ground for action, as violative of Art. 30 of the Constitution since in practice these provisions are bound to interfere substantially with their right to ad-' minister the institutions of their choice. Kailasam J. took the contrary view. As regards Ss. 3 (3) and 3 (4), which provided for suspension in contemplation of an inquiry and the duration thereof, they were held to be valid by the majority view expressed by Chandrachud C. J.and Kailasam J. S. 4, providing for an appeal against the order of major penalty, and S. 5, making consequential provision for transfer of pending appeals, were held to be violative of Art.--30 of the Constitution since the power of the Government in appeal to review the orders passed by the management was unlimited and, therefore, destructive of the right of management. S. 6, which controlled the right of retrenchment was held to be valid by majority decision of Chandrachud C. J. and Kailasam. J. Fulaz Ali J., found it to be arbitrary. S. 7 was held to be regulatory measure in character and, therefore, valid. Ss. 10 and 11 were also found to be regulatory and not violative of Art. 30(1) of the Constitution.

17. It is in the light of the above principles that we have to examine as to whether the challenge of the petitioner school managements is well-founded. It is not capable of much debate that unless a school management of minority character furnishes an undertaking in writing that the conditions of the employment of teachers in the school shall be those specified in Sch. 'Y' as prescribed in R. 106 (2), it will not be entitled to obtain recognition and consequently enjoy the privileges admissible to such recognized approved schools. It is equally not capable of being disputed that under the Bombay Primary Education Rules, as amended by Gujarat Third Amendment Rules, 1970, as well as the Gujarat Amendment Rules, 1978, which substituted a new Sch. 'Y' to the Rules non-compliance of the Sch. 'Y' provisions would expose the minority institution to the possibility of de-recognition with the result that it will be deprived, of the privileges admissible to such recognized schools. The net effect of these amending Rules cumulatively is that the State will grant recognition on terms, which would involve surrender of the Constitution. It is settled on principle as well as authority now in view of the unanimous opinion of nine Judges, Bench of the Supreme Court in St. Zaviers College case (AIR 1974 SC 1389) (supra) that if the recognition is conferred on .

on such conditions which may virtual result in surrender of the rights conferred by Art. 30(1) of the Constitution, such terms and conditions would be ultra vires the Constitution. It is also settled that the right enshrined in Art. 30(1) would include the right of recognition. C1. 1 (2) of Sch. 'F' which provides for Constitution of a Selection Committee for selection of teachers for appointment in a school comprising of one representative of Administrative officer, Head. Master of the School and one representative W the Managing Body of the Trust or the Society, is a provision which makes a deep inroad in the right of the management of the minority institution, and in r-o far as the management is represented on the Selection Committee by its lone representative, it may result into the right of the management of the minority institution completely undermined in cases where the Head Master of the School concurs with the representative of the Administrative Officer which contigency should not be ruled out in majority of cases.

18. Clause 5, which prohibits the Managing Body of a trust or a school from closing down a class or the whole school at any time during the school year, and without giving notice in writing of its intention to do so to the Administrative Officer at least six months before the date with effect from which the class or the school is proposed to be closed down is a provision which is subversive of the right of the management since in effect it obliges the minority institution to run the school during the notice period, which may involve substantial, financial burden. Apart from this, it trenches upon the right to establish which also includes the right to close down' also.

19. Clause 13 (1) which prohibits the management of the private school from terminating the services of a permanent trained teacher without the previous permission of the Administrative Officer otherwise than by way of penalty is clearly violative of the right to manage the school under Art. 30(1) as held in a number of Supreme Court's decisions. Clause 13 (2) enabling the management to terminate services of such teacher with permission of Administrative Officer on payment of compensation cannot survive since it is inextricably linked with clause (1) and therefore not severable from the main enactment. Clause 13 (2) which entitles the teacher whose services are so terminated to compensation as specified in the clause varying according to the number of years' service but not exceeding 12 month's salary including allowances substantially impinges on the right of the management to administer the Institution of its choice. Proviso to the said clause requires an inquiry committee to be constituted before the services could be terminated. Such a committee is again to be composed of one representative of the management, the Head Master of the School and the representative of the teacher. This again is a clear inroad in the right of the management.

20. Similarly Clause 15 which provides for inquiry to be held before termination of the services of a permanent employee, other than permanent trained teacher for which a provision is made under Clause 13, is also diluting the right of the management. It should be noted that this right of termination of service is not by way of penalty for which different provisions are made in Cls. 16 to 19. The power of termination simpliciter without assigning any reason of a permanent employee is an integral part of the management's right and it is recognized and incorporated in all service Rules-statutory or otherwise, in public as well as private sector which right is undisputably capable of being exercised subject to observance of principles of natural justice and fair play. The impugned clause in so far as it provides for framing of charge sheet and right to file defence etc, substantially impairs the right of the management. To the extent to which this Power of termination is controlled, it must be held to be destructive of the right of the management of the minority institution.

21. Clause 2,4 which invests an employee with a right to appeal against the order of suspension or an order imposing penalty on him to the Administrative Officer, and Clause 27 which specifies the powers of the Appellate Authority which, inter alia, include setting aside o r reducing the penalty is again a power which is destructive of the right of the management since the Appellate Authority can pass any order including the one reversing and/or setting aside the order of penalty, and Clause 24 empowering the authority passing the order of reinstatement to give directions about the pay and allowances for the period under suspension and bow that period is to be treated are clearly destructive of the right of the management and, therefore violative of Art. 30 of the Constitution,

22. Similarly Clause 30 which invests the right in employee to appeal against the order which may deny promotion to higher post or stops him at efficiency bar in the time scale on the ground of his unfitness to cross the bar, or reverting him to a lower service, or post, otherwise than as penalty, to the Administrative officer or the District Educational Officer is again a provision which is subversive of the right of the management and the power of the Appellate Authority is unfettered and uncanalized -and, therefore, destructive of the right of the management.

23. The above provisions of Sch. 'F' clearly trench upon the right of the management of the minority institutions and in so far as the undertaking to be furnished under R. 106 (2) obliges the minority institution managements to abide by these provisions as conditions of recognition, they would be clearly violative of Art, 30 of the Constitution and they would not be to that extent applicable to the cases of minority institutions. The other provisions in the new Sch. 'F' which, inter alia, prescribe for the scales of pay, leave, retirement benefits and conduct and disciplinary proceedings are in the nature of regulatory measures and they cannot be said to be derogatory to the right of the management and the undertaking to abide by these provisions would not, therefore, attract the prohibitory mandate of Art. 30 and cannot be said to be ultra vires the Constitution.

24. It should be recalled that in Special Civil Application No. 820 of 1978 the impugned notices have been issued by the Administrative Officer calling upon the school management to show cause why it should not be derecognised for the reasons stated in the said notices. However, the question shall have to be determined by the Competent Authority as prescribed in the Rules and till then the Administrative Officer would not be entitled to derecognise the school.

25. The result therefore is that these petitions are partially allowed by declaring that the provisions contained in Cls. 1 (2), 5, 13, 15, 24, 27 and 30 of Sch. 'F'' to the Bombay Primary Education Rules as substituted by the Bombay Primary Education (Gujarat Amendment) Rules, 1978, would not be applicable to the minority institutions since they are -violative of Art. 30 of the Constitution and the statutory undertaking to that extent will stand modified, and no action can be taken by the State Government for infraction of these provisions. The Competent Authority will be at liberty to determine, if so advised, afresh, after calling for the recommendations of the competent Officer as to whether there is any case for *1thdrawing the recognition of the three schools which are concerned in these petitions. Rule in each of these petitions is made absolute accordingly with no order as to costs.

26. Mr. D. D. Vyas for the petitioners pray for the stay of the implementation of this judgment in so far as the provisions of Sch, 7' have been upheld by this Court. The stay as prayed for is granted for a period of six weeks on the condition that the concerned school managements will not terminate the services of the member of teaching or non teaching staff without the permission of the Court.

27. Order accordingly.


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