Patel Rafikbhai Abdulla vs Commissioner Of Schools
2023 Latest Caselaw 833 Guj

    C/SCA/14870/2021                                 JUDGMENT DATED: 02/02/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14870 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                              Sd/-

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1    Whether Reporters of Local Papers may be allowed to see              YES
     the judgment ?

2    To be referred to the Reporter or not ?                              YES

3    Whether their Lordships wish to see the fair copy of the             NO
     judgment ?

4    Whether this case involves a substantial question of law as          NO
     to the interpretation of the Constitution of India or any
     order made thereunder ?

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                         PATEL RAFIKBHAI ABDULLA
                                  Versus
                        COMMISSIONER OF SCHOOLS
=============================================
Appearance:
MR MEET A SHAH(9933) for the Petitioner(s) No. 1
MR. ADITYA PATHAK, AGP for the Respondent(s) No. 1
MS MAMTA R VYAS(994) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2,4
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 02/02/2023

                              ORAL JUDGMENT

1. RULE. Learned Assistant Government Pleader waives service of rule on

C/SCA/14870/2021 JUDGMENT DATED: 02/02/2023

behalf of the respondent No.1 and learned Advocate Ms. Mamta Vyas

waives service of rule on behalf of the respondent No.3.

2. This petition under Article-226 of the Constitution of India is filed with

following prayers:

"(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 12/07/2021 passed by Resp. No. 1 and orders dated 07/12/2020 and 04/02/2021 passed by Respondent No. 2 and further be pleased to direct the respondents to issue appointment order of the petitioner as Principal from the date when the institution has sent the proposal for approval dated 23/10/2020 with all consequential benefits;

(B) Pending admission, hearing and final disposal of the present petition, be pleased to direct the respondents to give provisional approval for appointment of the petitioner as Principal and direct the respondents to pay the salary under Direct Payment Scheme every month;"

3. It is the case of the petitioner that the petitioner is possessing

qualification of M.Com., B.Ed. and was appointed as Assistant Teacher

in the year 2004 at respondent No.4, which is being managed by the

respondent No.3.

4. Learned Advocate for the petitioner submitted that appointment of the

petitioner was in accordance with the law pursuant to the

Advertisement issued by the respondent for the post of Principal and

upon due selection process, the petitioner was appointed as Principal.

However, appointment order could not be issued and no intimation was

given for appointment to the petitioner and therefore, the petitioner

had asked for necessary information under the RTI, which the petitioner

C/SCA/14870/2021 JUDGMENT DATED: 02/02/2023

never received. However, the petitioner was informed that necessary

papers have been sent to the District Education Officer and by

impugned communication, the proposal for appointment of the

petitioner was declined. The respondent-Trust did file Review

Application against such declining of the proposal, but the same also

came to be rejected and the Appeal filed before the respondent No.1 by

the Trust was not accepted. It is under such circumstances that the

petitioner has filed present petition.

5. Learned Advocate for the petitioner submitted that reason for not

considering the proposal appears to be purported lack of experience of

the petitioner as Assistant Teacher to qualify for appointment as

Principal. The reason given by the respondents is lack of necessary

educational qualification and lack of necessary experience.

6. Learned Advocate for the petitioner has drawn attention of this Court to

the relevant provision governing appointment namely Regulation-20(1)

of the Secondary Education Regulations, 1974. As being minority

school, the respondent No.3 is exempted from specifying educational

qualification as also requirement of experience. Reliance is placed upon

the decision of the Division Bench of this Court in case of Gujarat

Minority Schools Association v/s. State of Gujarat passed in Special

Civil Application No.12875 of 2013 dated 04-10-2013, wherein in case

of minority institution, requirement of experience and qualification as

prescribed by the State Government for post of Principal may not apply.

C/SCA/14870/2021 JUDGMENT DATED: 02/02/2023

7. Learned Advocate for the School Authorities has supported the case of

the petitioner, as according to them, the School Authorities have taken

all the necessary steps in accordance with the law.

8. Learned AGP has opposed to the grant of petition by submitting that the

State Government has specified requirement, which is common for all

the Institutions and as the petitioner was found lacking in the required

qualification/experience, there was no question of granting an approval.

9. Having considered the rival submissions of the parties and having

perused the documents on record, it appears that it is the case where

the petitioner was originally appointed with the respondent No.4-

School managed by the respondent No.3 as Assistant Teacher on 13-06-

2004. From the record, it appears that for the purpose of recruitment of

Principal, the respondent No.3 has moved proposal with the District

Education Officer, who granted NOC in the month of August, 2020 and

thereafter, Advertisement has appeared in the Newspaper on 09-09-

2020, where the petitioner was one of the applicant.

10. The School has also stated on Affidavit that all the procedure was done

in due course and the applications received by the School was placed

before the Selection Committee and after drawing proper 'Rojkam' in

this regard, the Proposal was sent for approval giving name of the

petitioner as selected candidate. Such approval came to be rejected by

the impugned communication.

11. Apparently, reason for rejecting the Proposal appears to be that the

C/SCA/14870/2021 JUDGMENT DATED: 02/02/2023

petitioner is not possessing requisite eligibility as per Regulation-20(1)

and the Government Resolution dated 08-11-2019. Grounds mentioned

in such impugned order of rejection of Proposal appears to be that NOC,

which was given by the D.E.O. was on condition of appointee person,

who is eligible as per the Regulation-20(1) of Secondary Education

Regulations, 1974 and as the petitioner is not complying with such

requirement, Proposal has not been granted. Regulation-20 prescribes

Qualifications for head-masters, teachers and members of non-teaching

staff in a registered school and for head-master, requirement is of

trained graduate or B.Ed. with teaching experience of not less than 2

years in a Secondary School and with post training experience of not

less than 3 years.

12. From the record it appears that the petitioner was appointed in the

School as Assistant Teacher since 2004 and therefore, is having

experience till date as Assistant Teacher with the respondent No.3 and

4. It is pertinent to observe that Regulation-43 of the Secondary

Education Regulations, 1974 provides that nothing contained in

Regulation-20 shall apply to any educational institution established and

administered by a minority, whether based on religion or language.

Admittedly, the respondent Nos. 3 and 4 are religion minority

institution and therefore, Regulation-43 would apply.

13. Over and above, decision of this Court in case of Gujarat Minority

Schools Association (supra), the very issue of applicability of

C/SCA/14870/2021 JUDGMENT DATED: 02/02/2023

Regulation-20 was considered, wherein this Court in Para-7 and 8, has

held as under:

"7. After hearing the learned counsel for the parties and after going through the aforesaid materials, we find that by virtue of the amendment in Regulation 43, the State Government has deleted reference of Regulation 20 which was in existence in the said Regulations and by taking aid of such amendment, the respondents have sought to enforce the additional qualification of passing TAT also to the schools managed by minority institutions.

8. As pointed out above, Section 40A of the Gujarat Secondary & Higher Secondary Education Act itself provides that nothing contained in clause (26) of Section 17, sections 34 and 35 and clause (b) of sub-section (1) and sub-sections (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. It is true that in exercise of power conferred under Section 17[26], power has laid down to add the fresh additional qualification for the post of Head Master and teaching and non- teaching staff of the registered private secondary schools and registered private higher secondary schools. The schools which are involved in this application are private secondary schools, meaning, a higher secondary school which is not owned, managed or sponsored by the Central or the State Government. Therefore, by virtue of the provision contained in Section 17[26], the State Government is authorized to add further qualification of Head Master or other teachers or non-teaching staff in such private higher secondary schools or registered private higher secondary schools. At the same time, we find that in the Act itself, Section 40A specifically excludes the operation of clause [26] of Section 17 to any educational institutions established and administered by a minority institution, whether based on religion or language. Such being the position, we find substance in the contention of Mr. Patel, the learned advocate appearing on behalf of the petitioners that so long Section 40A is existing in the Gujarat Secondary & Higher Secondary Education Act, 1972, by merely amending Regulation 43 and deleting the reference of Regulation 20 there from, the new amendment furnishing additional qualification cannot be made applicable at least to a school which is established and administered by a minority institution. Those amendments will be applicable to all other schools which are not established and administered by a minority, whether based on religion or language."

C/SCA/14870/2021 JUDGMENT DATED: 02/02/2023

14. In view of the aforesaid, the Court is of the view that impugned

communication/order dated 12-07-2021 passed by the respondent No.1

and impugned communications/orders dated 07-12-2020 and 04-02-

2021 passed by the respondent No.2 are ordered to be quashed and set

aside. As a necessary consequence, it is therefore directed that the

Proposal of the respondent Nos.3 and 4 dated 23-10-2020 be now

considered by the respondent No.2 afresh in accordance with the law.

15. In view of the aforesaid, the petition stands allowed. Rule is made

absolute to the aforesaid extent with no order as to costs.

Direct service is permitted.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA