JUDGMENT :

(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)

1. By this Special Civil Application, the writ-petitioners, the different Schools registered as linguistic minority Secondary and/or Higher Secondary Schools, receiving grant-in-aid from the Government, have prayed for a mandamus or any other appropriate writ, order or direction holding that the new amendment made by the respondent authorities by the Resolution dated 17th August 2011 as also the amendment in Regulation 43 of the Regulations deleting Regulation 20 framed under the Gujarat Secondary and High Secondary Education Act as ultra vires and inconsistent with Section 40A of the Gujarat Secondary & High Secondary Education Act, 1972 [hereinafter referred to as the Act].

2. The case made out by the petitioners may be summed up thus:-

[a]. The petitioners are the Schools which are recognized and registered as linguistic minority Secondary and/or High Secondary Schools receiving grant-in-aid from the Government and they are categorized as grant-in-aid linguistic minority schools and are governed by the Regulations with exemption from certain conditions prescribed in the Regulations as per Regulation 20.

[b]. The State of Gujarat, by a resolution dated 5th August 2011, amended Regulation 20 by adding Regulation 20(C) which stipulates that the qualification of Teachers Aptitude Test [T.A.T.] Examination for Teachers and Head Masters is mandatory.

[c]. Although Minority Institutions are exempted from the operation of Regulation 20 and any amendment would not be applicable to them, on 5th December 2011, the Government issued directions to see that the candidates possessing qualifications of T.A.T. are only appointed as Teachers and Head Masters in all the Schools.

[d]. Pursuant to the aforesaid directions, on 12th April 2012, one of the Minority Schools of Ahmedabad was granted NOC with the amended condition, although it was a Minority Institution.

[e]. The petitioner No.1 had, on 18th December 2011, represented on behalf of its members clarifying the conditions that since the petitioner-institutions are Minority Institutions, they are exempted from Regulation 20 and, therefore, the amendment made therein cannot be made applicable in the case of Minority Institutions and sought a clarification from the authorities in this regard.

[f]. On 16th October 2012, the petitioners filed a Special Civil Application being No. 13269 of 2012 before this Court wherein Rule was issued but interim relief was refused.

[g]. The petitioners, therefore filed a Letters Patent Appeal being No. 1558 of 2012 challenging the refusal to grant interim relief wherein this Court issued notice to the respondents. However, during the pendency of the Letters Patent Appeal, it came to the knowledge of the petitioners that in violation of Section 17 (26) and Section 40A of the Act, the Government has deleted the exemption given in the Regulation 20 by Resolution dated 17th August 2011. The petitioners, therefore, withdrew the Letters Patent Appeal with a view to file a fresh writ-petition.

[h]. Now, an amendment has been made to the effect that the exemption granted under Regulation 20 to the Minority Institutions will be inapplicable and they are to be treated equally with the other institutions without any exemption conferred in the Constitution of India and the Act, and hence, the present writ-application has been filed.

3. The State of Gujarat has opposed this writ-application by filing an affidavit-in-reply and its defence may be summed up thus:-

[i]. For the purpose of dealing with formation of Schools, appointment of Teachers, Principals etc., and all other requisite functions of the Government Schools as well as the grant-in-aid schools, the Education Department had earlier prepared “Grant in Aid Code, 1964”. The said Code dealt with all aspects of the formation and administration