IMPORTANT POINTS
(1) Age of superannuation of an employee of a registered Secondary School would not be applicable to employee or teacher of an educational institution established and administered by a minority.
(2) Right under Article 30(1) of Constitution of India is not an absolute right above law – Provisions for grant or non-grant in aid to educational institutions, whether it is majority-run institution or a minority-run institution, have to be uniformly applied.

JUDGMENT :

BELA M. TRIVEDI, J.

1. The Appellants-State of Gujarat and Others, being aggrieved by the judgment and order dated 02.04.2018 passed by the Division Bench of the Gujarat High Court in Letters Patent Appeal No. 175 of 2017, arising out of Special Civil Application No. 3250 of 2001, have preferred the present appeal.

2. The Respondent No. 1 (original writ petitioner) a Jain Minority Institution, was running a government aided school in the name of “The New High School” in which Shri H.H. Kapadia was appointed as the Principal of the school. Mr. Kapadia having attained the age of 58 years on 22.07.1999, the Respondent No. 1-Institute sought a permission from the Government to continue him as the Principal. The DEO granted the permission to continue him as the Principal upto the age of 60 years on the condition that his salary would be paid by the Institution. The Respondent No. 1 thereafter addressed a letter dated 16.04.2001 to the DEO seeking extension of service of Mr. Kapadia beyond the age of 60 years, which came to be rejected by the DEO vide the letter dated 18.06.2001. The said two decisions of the DEO came to be challenged by the Respondent No. 1 by filing the Writ petition being Special Civil Application No. 3250/2001 before the High Court of Gujarat. The Single Bench vide the judgment and order dated 24.06.2016 allowed the said writ petition and held that the action on the part of the Respondents (the appellants herein) in stopping the grant was violative of Article 30(1) of the Constitution of India and that the Writ Petitioner-Institute had a right to continue Mr. Kapadia as the Principal of the school beyond the age of 60 years. It was further held that the respondents (the appellants herein) were obliged to pay the Grant-in-Aid towards his salary. The Single Bench therefore directed the appellant authorities to calculate the amounts towards the arrears of grant for the period between 2001 and 2012 (as the school was no longer functional since the year 2012) and to pay the requisite amount to the management of the school within a period of 3 months of the order. The aggrieved appellants had preferred an appeal being the LPA No. 175 of 2017 before the Division Bench, which came to be dismissed vide the impugned order dated 02.04.2018.

3. The short question which falls for consideration before this Court is whether the decision of the appellants in not providing the aid to the respondents towards the salary of the principal of the respondent no. 2 - school on his attaining the age of superannuation as per the Grant-in-aid Code, could be said to be arbitrary or violative of Article 30(1) of the Constitution of India?

4. A reference to the relevant provisions contained in the Constitution of India, the Gujarat Secondary Education Act, the Regulations framed thereunder and in the Grant-in-Aid Code published under the Gujarat Notification dated 22.04.1964, would be beneficial for the purpose of answering the aforesaid question. The relevant part of Article 30 of the Constitution pertaining to the right of minority to establish and administer educational institutions reads as under:

“30. Right of minorities to establish and administer educational institutions:

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) xxx xxx xxx

(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.”

5. The Gujarat Secondary Education Act 1972 (hereinafter referred to as ‘the said Act’) was enacted to provide for the Regulation of Secondary Education in the State of Gujarat and to establish a Board for that purpose. The Board established under the said Act has framed the Regulations, namely the Secondary Education Regulations 1974, (hereinafter referred to as the ‘Regulations’) in