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2016 Supreme(Guj) 2003

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, J.
H. P. KAPADIA EDUCATION TRUST & Ors. – Petitioners
Versus
STATE OF GUJARAT & Ors. – Respondents
SPECIAL CIVIL APPLICATION NO. 3250 of 2001
Decided On : 24-06-2016

Advocates Appeared:
For the Petitioner: MR. AK CLERK
For the Respondent: MR. SWAPNESHWAR GAUTAM

Important Point—Age of retirement of employees of minority school must be left to decision of such school itself.

Headnote:(A) Gujarat Secondary Education Regulations, 1974—Regulation 36—Constitution of India—Article 30(1)—Age of retirement of employees of minority school—Post of Principal or Headmaster of an unaided minority institution is a key post and apart from mandating that minimum qualification for such post should not be less than that prescribed for other schools, State cannot have any say on what should be terms and conditions of service—Fundamental right guaranteed by Article 30(1) has a twofold aspect—Minority has a right to establish any educational institution of its choice---It has also right to administer such an educational institution—If a hale and hearty Principal of a minority institution performing exceedingly well and has been able to bring institution to a particular level is forced by State authorities to retire at age of 60 years, then it definitely amounts to interference in day-to-day administration of minority educational institutes—It cannot be termed as a part of regulatory regime to maintain standards of educational institutes—In a given case, authorities concerned may object to continuance of a Principal or a Headmaster of a minority school beyond age of 60, if he is, otherwise, found to be unfit both physically and mentally--- However, it would all depend on facts and circumstances of each case—Action on part of respondents in stopping grant as violative of Article 30(1) of Constitution of India.
(B) Constitution of India—Article 30(1)—Age of retirement of employees of minority school—Right of minority to administer an educational institution of its choice requires the presence of a person in whom they can repose confidence, who will carry out their directions, and to whom they can look forward to maintain traditions, discipline and the efficiency of the teaching---When once pivotal position of Headmaster is recognised, it has to be held that right to appoint a person of its choice as Headmaster is of paramount Importance to minority, any interference with which (otherwise than by prescribing qualifications and experience) will denude right of administration of its content, reducing it to mere husk without grain---Such an inroad cannot be saved as a regulation which State might impose for furthering standards of education.
Result—Application allowed.

JUDGMENT :

By this writ application, the writ applicants the Board of Trustees and Principal of a minority School, have prayed for the following reliefs;

“20(a) 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 Annexure-D 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 he respondents from taking any action against the petitioners for continuing 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.

21(aa) staying the operation and implementation of the order dated 18/25.06.2011 at Annexure-D 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”

2. The case of the petitioner may be summarized as under:

2.1. The petitioner is running a school in the name of “the New High School” which is a minority institution established by the Jain Community. By the judgment and order dated 5th May 1997 of this Court passed in the Special Civil Application No.7907 of 1995, the School has been recognized as a ‘minority institution’ entitled to the protection of Articles 29 and 30 of the Constitution of India.

2.2. It is the case of the petitioners that being a minority institution, it has the freedom and powers to administer and manage the institution. By virtue of Section 40-A of the Gujarat Secondary Education Act, the petitioners are exempted from the applicability of Sections 17 (26), 34 and 35 and Clause (b) of sub-section (1) and sub-section (2), (3), (4) and (5) of Section 36.

2.3 According to the petitioners, Section 34(2) of the Act empowers the Gujarat Secondary Education Board to frame Regulations regarding the recruitment and conditions of service including the conduct and discipline of persons appointed as Headmaster, Teachers and members of the non-teaching staff of the registered private secondary schools.

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 re-employ such Teacher or Headmaster, if he or she is physically 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 Headm

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Judicial Analysis

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2016 Supreme(Guj) 2003

IN THE HIGH COURT OF GUJARAT AT AHMEDABADJ.B. PARDIWALA, J.H. P. KAPADIA EDUCATION TRUST & Ors. – PetitionersVersusSTATE OF GUJARAT & Ors. – RespondentsSPECIAL CIVIL APPLICATION NO. 3250 of 2001Decided On : 24-06-2016

Important Point—Age of retirement of employees of minority school must be left to decision of such school itself.

Cases Referred (28)

Judicial Analysis

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, J.
H. P. KAPADIA EDUCATION TRUST & Ors. – Petitioners
Versus
STATE OF GUJARAT & Ors. – Respondents
SPECIAL CIVIL APPLICATION NO. 3250 of 2001
Decided On : 24-06-2016