Gujarat High Court

Shaileshkumar Pravinbhai Savariya vs State Of Gujarat on 7 July, 2025

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                             C/SCA/13144/2019                                              ORDER DATED: 07/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                   R/SPECIAL CIVIL APPLICATION NO. 14606 of 2019
                                                       With
                                   R/SPECIAL CIVIL APPLICATION NO. 13164 of 2019
                                                       With
                          CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2023
                                 In R/SPECIAL CIVIL APPLICATION NO. 13164 of 2019
                                                       With
                                  R/SPECIAL CIVIL APPLICATION NO. 13144 of 2019
                       ==========================================================
                                            SHAILESHKUMAR PRAVINBHAI SAVARIYA
                                                           Versus
                                                  STATE OF GUJARAT & ORS.
                       ==========================================================
                       Appearance:
                       MR MALAVSINGH N CHAUHAN(10279) for the Petitioner(s) No. 1
                       MS BHAVINI N CHAUHAN(10271) for the Petitioner(s) No. 1
                       MR. HENIL SHAH, AGP for the Respondent(s) No. 1,2,3
                       NOTICE SERVED BY DS for the Respondent(s) No. 4
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                          Date : 07/07/2025
                                                        COMMON ORAL ORDER

1. Since the prayers, issues and facts involved in the

present petitions are almost identical in nature, hence, at

the request of learned advocates for the parties, the

matters are taken up for final consideration and Special

Civil Application No. 14606 of 2019 is considered as lead

matter and all the matters are argued and heard

together.

2. The present lead petition i.e. Special Civil

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Application No. 14606 of 2019 is filed for seeking the

following reliefs:

"(a) This Hon'ble Court may kindly be pleased to admit and allow this petition;

(b) Your Lordships may kindly be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, quashing and setting aside the impugned order dated 27.06.2019 at annexure A and Further be pleased to restore the appointment order dated 25.06.2019 at annexure A.

(c) Pending admission, hearing and final disposal of this petition, Your Lordships may kindly be pleased to stay the operation execution and implementation of impugned order dated 27.06.2019 at annexure A and directions directing to the respondents to vacant the question post with respondent No.5."

3. Brief facts of the case as stated in the present lead

petition i.e. Special Civil Application No. 14606 of 2019

are as under:

3.1 Applicant was working as an assistant teacher in

Shri G.G. Mehta PTC College Tal. Palanpur from

26.07.2001 to 24.11.2010 and at present working with

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District Education and Training center, Santrampur as

Education Inspector since 25.11.2010 to till date. It is

further the case of the petitioner in this petition that for

the post of Principal/Head teacher in grant-in aid schools,

petitioner has applied online but in software, there was

no any option for experience of present petitioner as a

Education Inspector at District Education and Training

Centre since 25.11.2010 and respondents authority

accepted the online application for the question in post

and after verifying the application, called him for the

interview vide interview call letter dated 01.06.2019. It

is further the case of the petitioner in this petition that

online application forms of total 92 candidates were

rejected but the present and other 14 candidate's forms were accepted and were called in interview. Petitioner

has appeared in interview on 25.06.2019 and authority

declared the present petitioner as successful candidate

after the completion of interview and on the very same

day, respondent No. 5 (President Adavasi Seva Samiti

shamlaji) vide appointment order dated 25.06.2019, the

present petitioner is appointed as Principal/Head teacher.

For the question in post, one petitioner namely

Vijaykumar Ramjibhai Patel has challenged the action

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and inaction of the respondents by way of filling the

Special Civil Application No. 13164 of 2019 wherein this

Court has issued notice and granted ad-interim relief

vide judgment and order dated 06.08.2019 and the

matter is kept for consideration on 26.08.2019.

3.2 It is further the case of the petitioner in this

petition that there is almost all the grounds raised in

that petition are identical to the present petition and the

facts of the present petitioner and on more grounds

raised in present petition is on better footing than that

of the petitioner of SCA No. 13164 of 2019.

3.3 Furthermore, it is the case of the petitioner in this

petition that another petitioner has also filled a Special Civil Application No. 13144 of 2019 before this Court

wherein this Court has issued notice and matter is kept

for further consideration on 27.08.2019.

3.4 It is further the case of the petitioner in this

petition that impugned order against the principle of

natural justice and without being given any opportunity

of hearing to the present petitioner and only on relying

the impugned circular issued by the commissioner the

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appointment of the present petitioner is cancelled which

is illegal arbitrary and ex-facie bad in law. Hence the

present petition has been preferred.

4. Heard Ms. Bhavini Chauhan, learned advocate for

the petitioner and Mr. Henil Shah, learned Assistant

Government Pleader for the respondent Nos. 1 to 3 -

State in respective captioned petitions.

5.1 Ms. Bhavini Chauhan, learned advocate for the

petitioners in respective petitions has harped on the

various points that considering the Resolution dated

21.12.1988, wherein there is protection to the employees

and as per the resolution, the present petitioners in

respective petitions are entitled to challenge the illegal and arbitrary issued the impugned circular dated

03.07.2019 passed by the Respondent No. 3 Commissioner

of schools. She has further submitted that the impugned

order passed on the basis of the aforesaid circular is

against the principle of natural justice and without being

given any opportunity of hearing to the present

petitioners in respective petitions and, therefore, it is

required to be quashed and set aside. She has further

submitted that the authority has wrongly relied upon the

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circular dated 03.07.2019, which is not applicable in the

facts of the present case. She has further submitted that

the respondent No. 4 DEO has wrongly relied upon the

impugned circular though the petitioners in respective

petitions possess the required experience as assistant

teacher and also the experience as Education Inspector.

She has further submitted that the said experiences are

falling under the criteria of experience as required for

the question in post of Principal/ Head teacher.

5.2 She has further submitted that one Hiteshbhai

Ramjibhai Patel was recruited in the year 2012 and the

prior experience is required to be considered by the

respondent Authority. She has further submitted that one another namely Jasubhai Desai, who was working as

assistant teacher in PTC college at Kadiyadra, and at

present he is working as a head teacher of JM Tanna

Higher Secondary School at Kadiyadra. Therefore, She

has further submitted that prior experience of assistant

teacher of Government PTC College is required to be

considered for the post of Head teacher/Principal of

Secondary and Higher Secondary School. She has further

submitted that the petitioner was teaching in PTC

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Collect and meaning thereby the students of the PTC

college have already passed higher secondary exam and

teaching the same students in grant-in-aid and PTC

college and it can be said that the experience of the

said teaching is not only equal but also higher

experience than teaching in secondary and higher

secondary schools.

5.3 She has further submitted that at the time of

checking the documents and certificates and during the

interview, no question/objection has been raised by the

authority regarding the experience and thereafter, the

appointment letter is given and thereafter, impugned

order is passed cancelling the said appointment which is totally illegal, arbitrary and bad in eyes of laws. She

has further submitted that the qualification and

experience, which the petitioners in respective petitions

are holding, the same are not properly considered, which

are undisputedly of the higher standards i.e. teaching in

the higher standards than the secondary and higher

secondary and, therefore, the impugned order, which is

passed on the basis of aforesaid circular is illegal and is

required to be dismissed.

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6.1 Per contra, Mr. Henil Shah, learned Assistant

Government Pleader for the respondent Nos. 1 to 3 -

State has opposed the prayers made by the present

petitioners in respective petitions and has referred to the

affidavit-in-reply filed by the respondent. He has

submitted by referring to the various contentions raised

by the respondent in affidavit-in-reply and by referring to

the relevant portion of the reply, he has submitted that

as per the circular dated 25.07.2017 Clause No. 6(1) and

under Section 20(1) of the Gujarat Secondary Education

Regulations, 1974, the petitioner was having requisite

experience for serving at the post of Principal and hence,

by order dated 27.06.2019, the recommendation dated 25.06.2019 came to be cancelled. He has further

submitted that the petitioner has served in Shri G.G.

Metha PTC College, Palanpur from 26.07.2008 to

24.10.2010 which is not acceptable as per the circular

dated 25.07.2017 and as per provisions of the Gujarat

Secondary Education Regulations, 1974. He has further

submitted that the petitioner has not produced any

experience certificate after 25.10.2011 and accordingly, the

appointment letter came to be cancelled. He has further

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submitted that as per 20(1) of the Gujarat Secondary

Education Regulations, 1974, the petitioner was not

having the required eligibility to hold the post of

Principal.

6.2 He has further submitted that the circular dated

03.07.2019 issued by the respondent is nothing but a

reproduction of Rule 20(1) of the Gujarat Secondary

Education Regulation, 1974 and the impugned circular is

only issued with an intention to bring to the notice of

the concerned District Education Officer for considering

the qualification of Principal in the Secondary and

Higher Secondary School and if the petitioners in

respective petitions are aggrieved, they have to challenge

Rule 20(1) of the Gujarat Secondary Education Regulation, 1974 and in absence of challenging to that

Rule, the present petition cannot be considered

maintainable. He has referred to the affidavit of

compliance filed by the respondents and has pointed out

that so far the parity of two persons namely (1)

Jasubhai Desai (2) Hitesh Ramjibhai Patel are concerned,

Mr. Jasubhai Desai was appointed on 27.02.2004 as he

was fulfilling the requisite criteria at relevant point of

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time as stipulated in Rule 20(1) of the Gujarat

Secondary Education Regulation, 1974 and so far as Mr.

Hiteshkumar Ramjibhai patel is concerned, he did not

fulfill the requisite criteria qua experience as mentioned

in the government resolution dated 08.03.2011. He has

submitted that at the time of document verification, it

came to the notice that the experience of Stree

Adhyapan Mandir (PTC College) was wrongly taken into

consideration as valid experience.

6.3 He has relied on the judgment of the Hon'ble Apex

Court in the case of Gurusaran Singh vs New Delhi

Municipal Committee reported in (1996) 2 SSC 459, and

has contended that no negative equity can be granted.

6.4 Furthermore, he has contended that the present

captioned petitions of respective petitioners are required

to be dismissed as the present petitioners do not meet

with the criteria qua valid experience prescribed under

the Government Resolution dated 08.03.2011 and,

therefore, the appointment cannot be granted dehors the

specific Rules.

6.5 Lastly, he has submitted that the Co-ordinate Bench

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of this Court has decided the identical issues by

Common CAV Judgment dated 30.04.2019 passed in

Special Civil Application No.21486 of 2017 and allied

matters and has contended that in that case, though the

facts are not identical, but the issue is similar to the

present petitions and the person, who was serving in

secondary and higher secondary school, his case was not

considered for the post of Principal in the Higher

Secondary School and, therefore, he has submitted that

the present petition deserves to be dismissed.

7.1 It transpires that the prayers involved in the

present petitions are almost identical in nature as

essentially challenge is against the impugned Government

Resolution dated 03.07.2019. Hence, at the request of learned advocates for the respective parties, all the

petitions are heard together and considered together by

this common order and as indicated above, Special Civil

Application No. 14606 of 2019 is considered as lead

matter.

7.2 I have considered the rival submissions made at the

bar by the respective parties. Furthermore, on my

scrutiny of the submissions made at the bar, it

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transpires that the case of the petitioners revolves

around the fact that the petitioner is holding previous

experience in the higher institute namely PTC College

and, therefore, his experience should be considered for

the post of Principal/Head Teacher of the Secondary and

Higher Secondary Schools and impugned circular

prohibits to do so and, therefore, the challenge is made.

It also transpires that one of the contentions of the

petitioners is that another person namely Jasubhai Desai

is appointed as Principal and, therefore, case of the

petitioners in respective petitions should also be

considered for the same. Furthermore, considering the

contention of the respondent that none of the petitioners

is holding the requisite qualification by way of necessary experience as prescribed under Rule 20(1) of the Gujarat

Secondary Education Regulations, 1974. It is also

contended by the respondent that pursuant to the Rule

20(1), the impugned circular is issued by the Authority

and mere challenge of the impugned circular issued by

the respondent Authority and assuming that the petition

is allowed, then also in view of the existence, Rule 20(1)

of the Gujarat Secondary Education Regulations, 1974,

the petitioner will not get benefit and, therefore, the

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petition itself is not maintainable in absence of any

challenge to Rule 20(1) of the Gujarat Secondary

Education Regulations, 1974.

7.3 Considering these submissions, it seems that in the

present cases, the petitioners are not having valid

experience in the secondary and higher second school as

required pursuant to the aforesaid Government

Resolution.

7.4 It is fruitful to refer Rule 20(1) of the Gujarat

Secondary Education Regulations, 1974, which reads as

under:

"20. Qualifications of head-masters, teachers and members of non- teaching staff in a registered school :-

(1) No person shall be appointed as a head-master unless he is a trained graduate (B.T. or B.Ed. or its equivalent as declared by the State Government) with teaching experience of not less than two years in a secondary school, and with post training experience of not less than three years:

Provided that in a school having exclusively girl students, no person other than a woman having the aforesaid qualifications shall be appointed;"

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7.5 It is also relevant to note that after the year 2010,

there is some missing period in the count of experience

of the petitioner has not produced any experience

certificate to show that he is having continuous

experience even in the PTC College. Moreover, when

Rule 20(1) of the Gujarat Secondary Education

Regulations, 1974 prescribed itself some requirement, in

absence of challenge to this Rule, the Court cannot

direct the respondent - Authority to act against the

statute of Rule 20(1) of the Gujarat Secondary Education

Regulations, 1974. Therefore, the say of the petitioners

that the petitioners are having better qualification than

what is required, the petitioners have to challenge the

said Rule, and in absence of the challenge of that Rule, any relief granted in the present petition will become

ineffective and, therefore, the present petitions are

required to be dismissed by considering the no efficacious

relief can be granted. Moreover, as per rule, the

Authorities have issued the aforesaid Government

Resolution and, therefore, it cannot be said that the said

Resolution is illegal or arbitrary. Hence, there is

illegality or infirmity committed by the respondent -

Authority.

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dated 30.04.2019 passed by the Co-ordinate Bench of this

Court in Special Civil Application No.21486 of 2017 and

allied matters, more particularly, paragraph Nos. 3 to 6.2

are relevant, as under:

"3. The facts and events in the background are quite relevant. In exercise of powers conferred under Section 35 of the Gujarat Secondary and Higher Secondary Education Act, 1972, the State Government framed the rules called 'Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011'. These Rules were notified vide Notification of the Education Department dated 11th February, 2011.

3.1 While the aforesaid Rules of 2011 were common to provide the procedure for selection for the Teachers as well as of the Head Masters, in the year 2017, the State Government framed separate Rules which were limited to be applied only to the post of Principal in the registered private secondary and higher secondary schools. These Rules notified under Notification dated 25th July, 2017 were 'The principal in the Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2017'. Except that the later Rules were confined to the post of Principal, both were same in respect of other provisions contained therein.

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3.2 The aforementioned Rules of 2011 relating to the procedure for selection of the Teachers and Head Masters came to be challenged for their vires. The Division Bench in its decision in Akhil Gujarat Rajya Shala Sanchalak Mandal v. State of Gujarat [2011 (5) GLR 3807] upheld the vires of the said Rules. The Division Bench observed as under.

"50. Admittedly, after framing of the First Regulation by the State Government, namely, the Gujarat Education Regulations, 1974, no separate Regulation has been framed by the Board u/Sec.53 of the Education Act and thereby the Regulations framed by the State Government laying down the conditions of service is still in force even as on today. Such power having been already delegated to the State Government and the relevant Sections 34 and 54 having not been under challenge, it cannot be held that the State Government has been delegated with the arbitrary power u/Sec.35 or the selection committee has been delegated with such arbitrary power.

51. In view of the discussions above, while we uphold Sec.35 as substituted by the as amended by Gujarat Education Laws (Amendment Act) 2010 (Amending Act No.3 of 2010), the Rules framed thereunder, namely, the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools

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(Procedure for Selection) Rules, 2011 as published by Notification dated 11th February 2011 are also upheld for the same reasons. We find no merit in the writ petitions. They are accordingly dismissed, but there shall be no order as to costs."

3.3 Thereafter, in Priteshkumar Thakorbhai Patel v. State of Gujarat being Special Civil Application No.19369 of 2017 Notification dated 25th July, 2017, namely Rules of 2017, were brought under challenge. That petition stood dismissed by the Division Bench as per order dated 10th November, 2017, in which it was observed by the Division Bench,

"2. ... ... ... in the earlier judgment of this Court in Special Civil Application No.2877 of 2011 dated 6.9.2011 reported in 2011(5) G.L.R. Page 3807 in the case of Akhil Gujarat Rajya Shala Sanchalak Mandal Through Trustees and others vs. State of Gujarat Through Chief Secretary and others, the very same rules were under challenge, which were upheld by the Division Bench of this Court. As against the same, Civil Appeal was preferred before the Hon'ble Supreme Court, which was also dismissed. Learned counsel for the petitioners submitted that in the aforesaid judgment, only validity of the very same Rule 3 onwards was discussed, as such, it is now open to the petitioners to agitate the matters before this Court."

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3.3.1 It was finally held,

"3. As much as the entire set of rules framed in the year 2011 in the very same form was under

challenge and as such the said rules were upheld by the Division Bench of this Court and same were confirmed by the Hon'ble Supreme Court, we are of the view that subject matter of these petitions is covered to be dismissed, in view of the earlier judgment of this Court reported in 2011(5) G.L.R. Page 3807. Following the judgment in Special Civil Application No.2877 of 2011 reported in 2011(5) G.L.R. Page 3807, these writ petitions are dismissed. Notice is discharged."

3.2 The order of the Division Bench in Priteshkumar Thakorbhai Patel (supra) was carried before the Apex Court, however the SLP was withdrawn.

3.3 It is further relevant to mention that in both Rules of 2011 as well as of the year 2017 upheld by the Court as above, Section 2(b) in the Rules contained the definition of "Registered Private Schools". The verbatim same definition in both reads as under.

"2(b) 'Registered Private Schools' mean the non- government secondary and higher secondary schools receiving grant-in-aid from the Government."

3.4 The eligibility for appointment was the

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qualifications mentioned in Regulation 20(1) of the Gujarat Secondary Education Regulations, 1974. As the above quoted definition or registered private schools came to be amended, also amended was the Regulation 20(1) of the Regulations of 1974. The candidates who are otherwise qualified but working in the other private schools which are not receiving the grant, namely the schools which are non-grant-in-aid schools or self-financed schools, came to be kept out of consideration for the purpose of appointment in the grant- in-aid and government schools. As already noted, the Rules containing the aforesaid provisions came to be upheld by the Division Bench of this Court in Akhil Gujarat Rajya Shala Sanchalak Mandal (supra) as well as in Priteshkumar Thakorbhai Patel (supra).

3.5 It is also relevant to mention that as per the Rules of 2011, advertisement was published for the recruitment of Principal in the grant-in-aid schools with the aforesaid conditions of eligibility criteria as per Regulation 20(1) of the Regulations of 1974. In that recruitment process, 423 candidates came to be appointed as Principals in the grant-in-aid schools.

3.6 Now, the present petition has been filed by the petitioners questioning the classification of the Teachers working in the grant-in-aid schools and those working in the non-grant-in-aid schools or the self-financed schools for the purpose of the recruitment to the post of Principal in the registered private schools which are defined as schools receiving grant from the Government as above. Amongst the

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present petitioners, quite noticeably, petitioner Nos.1, 2, 5, 10, 14, 16 and 17 were also the petitioners who had filed the aforesaid Special Civil Application No.19369 of 2017, which culminated into the decision in Priteshkumar Thakorbhai Patel (supra), in which the Rules regarding the selection of the Principal have been upheld.

4. In order to press the prayers in this petition that the petitioners may be allowed to apply for the Principal in the registered private grant-in-aid secondary and higher secondary schools, it was vehemently submitted that not permitting the petitioners to compete for the post of Principal only for the reason that they are the Teachers working in the non-grant-in-aid schools, tantamount to an invidious discrimination and it would violate petitioners' rights under Articles 14 and 16 of the Constitution. It was the submission of learned senior counsel in the second place, that the duties discharged by the petitioners as Teachers were same as those performed by the Teachers working in the grant-in-aid schools. It was submitted that looking to the duty-chart of the petitioners, the discrimination meted out to them was evident when they are not permitted to compete for the post of Principal.

4.1 It was next submitted that the petitioners possessed the qualifications prescribed in the advertisement, therefore also they shall be treated as eligible to compete for the post of Principal. In the fourth place it was submitted that the Rules applicable to the Teachers in the grant-in-aid schools are applicable to the petitioners and

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that the authorities have been deducting the amount towards Employees' Provident Fund from the salary of the petitioners. It was the fifth submission on behalf of the petitioners that during the last 15 years, very low number of Teachers in the grant-in-aid schools have been selected, therefore searching Principal from the Teachers in grant-in- aid schools only could be difficult. It was submitted also that the petitioners are considered eligible to be appointed as District Education Officer and Education Inspector, therefore they should be treated eligible for the post of Principal. It was highlighted in the sixth place that the only aspect of distinction between the petitioners and those Teachers working in grant-in-aid schools was that the appointment of the petitioners was not done through a governmental agency.

4.2 On the basis of all the above aspects, learned senior counsel for the petitioners contended that the petitioners-Teachers working in the grant-in-aid schools ought to have been treated as a one class for the purpose of the post of Principal. It was submitted that the State Government could not have decided one single class of Teachers into two classes and thereby render the petitioners ineligible for the post of Principal in the registered private grant-in-aid secondary and higher secondary schools. By pressing into service the decision of the Supreme Court in Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise [(2016) 3 SCC 643, paragraphs 28 and 29], it was submitted by learned senior advocate for the petitioners that Rules or Regulations framed under the

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delegated powers under the statute cannot cross the limits of the statutory provisions.

4.3 The petition came to be contested by filing affidavits-in-reply. Both respondent No.2 as well as respondent No.3 raised the main contention that the selection rules for the Teachers and Head Masters of the year 2011 were challenged before this Court. The Division Bench upheld the vires of the said Rules in Akhil Gujarat Rajya Shala Sanchalak Mandal (supra). It was contended that Rules of 2017 were also challenged by the petitioners whom included the several of the present petitioners also, by filing Special Civil Application No.19369 of 2017, which petition too came to be dismissed by the Division Bench as per judgment and order dated 10.11.2017. On the basis of the above, it was submitted that the challenge in this petition was not maintainable and the prayer was not grantable.

4.4 Learned Additional Advocate General for the respondent - State, submitted that in view of decision in Akhil Gujarat Rajya Shala Sanchalak Mandal (supra) and in Priteshkumar Thakorbhai Patel (supra), since Rules are upheld, the prayers made in this petition would not sustain in law. He, however, proceeded further to elaborate the aspect that the nature and the modalities of recruitment of Teachers in the grant-in-aid schools would defer in several ways than under the self-financed schools, that is non-grant- in-aid schools. It was submitted that for the grant-in-aid schools, permission would have to be obtained and no-

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objection from District Education Officer could be required before recruiting Teacher. The recruitment precedes publication of advertisement and the process mentioned therein is required to be undertaken; approval of the District Education Officer for appointment of the selected candidates is required; grant is received from the State Government for payment of salary of the Teachers; roster point are applied.

4.5 Learned Additional Advocate General submitted that all these features may not be present when a non- grant-in-aid or self-financed schools when they recruit and appoint the Teachers. It was thereby sought to be submitted that classification of Teachers belonging to the grant-in-aid schools and those hailing from non-grant-in-aid schools for the purpose of eligibility to the post of Principal was a proper classification.

4.6 Learned Additional Advocate General relied on the decision of the Supreme Court in State of Madhya Pradesh v. Dharam Bir [(1998) 6 SCC 165], in particular paragraphs 32, 33 and 34 thereof, to submit that experience is a condition of eligibility and could not be equated with the educational qualifications. When the plea of experience cannot stand against the provisions of the Rule, it must fail, held the Supreme Court. The next decision, also of the Apex Court, was in State of Jammu & Kashmir v. Shiv Ram Sharma [(1999) 3 SCC 653] wherefrom the principle was asserted that it is permissible for the government to prescribed appropriate qualification in the matter of

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appointment or promotion to different posts. Again by pressing into service, decision of the Supreme Court, in Rajasthan Public Service Commission v. Kaila Kumar Paliwal [(2007) 10 SCC 260], it was submitted that when the post of Head Master was governed by separate Rules statutory in nature, eligibility has to be determined with reference to such Rules.

5. In the context of above set of facts and contentions, Section 35 of the Gujarat Secondary and Higher Secondary Education Act, 1972 presently in force upon being substituted by the Gujarat Educational Laws (Amendment) Act, 2010 may be referred to. It reads as under.

"35. Selection of teachers and headmasters-The procedure for selection of teachers and headmasters of registered private secondary and higher secondary schools shall be such as may be notified by the State Government by rules from time to time."

5.1 Rules of 2011 and the Rules of 2017 referred to hereinabove were framed in exercise of powers conferred under the aforesaid statutory provision. Rule 2(b) in both the Rules defined the registered private schools identically. The only differentiation in the Rules of 2017 was that they were made confined to the selection for the post of Principal. The rest of the provisions were same. Eligibility for appointment was mentioned in Rule 7 in the Rules of 2011 whereas it was Rule 6 in the Rules of 2017. This prescription of eligibility in both the Rules was similarly

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worded. Rule 6 of Rules of 2017 is reproduced hereunder.

"6. Eligibility for appointment. - To be eligible for appointment as a Principal, a candidate shall possess-

(1) requisite educational qualifications in accordance with the provisions of the Gujarat Secondary Education Regulations, 1974; and

(2) basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 :

(3) Provided that the age limit shall be relaxed in favour of a candidate belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes and women in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules 1967."

5.2 From the memorandum of Special Civil Application No.19369 of 2017 being Priteshkumar Thakorbhai Patel, which was made available for perusal of the Court, it could be readily discerned that the very contentions raised in this petition were raised as grounds in the said petition. The prayers in Priteshkumar Thakorbhai Patel (supra) were to hold and declare Rule (b) and Notification dated 11th February, 2011 and 25th July, 2017 as bad in law and contrary to the provisions of the Act. Thus, the definition of registered private schools in the

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Rules of 2011 and Rules of 2017 was challenged. The second prayer was for setting aside amendment in Regulation 20(1) of the Gujarat Secondary Education Regulations. It was also prayed to hold that the petitioners and other similarly situated employees/candidates working in the non-granted schools were eligible for the appointment as Principal in the grant-in-aid schools.

6. There would be no gainsaying that having regard to the difference in the process of recruitment by which the Teachers in the grant-in-aid schools are appointed and further in light of the experience they would gain as Teachers in the grant-in-aid schools, their classification as a class to be eligible to compete for the post of Principal, in exclusion of those Teachers who are appointed and worked in the non-grant-in-aid or self-financed schools, would not be irrational. The submission canvassed by learned Additional Advocate General about the method of selection of Teachers being different in both the cases, could be countenanced to justify the division. Such considerations have to be held to be relevant considerations for the purpose of dividing a class and it would be having the nexus with the object sought to be achieved which is to maintain a particular standard and caliber in manning the post of Principal.

6.1 The clinching would be, however the aforementioned decision of this Court in Akhil Gujarat Rajya Shala Sanchalak Mandal (supra) and the subsequent decision in Priteshkumar Thakorbhai Patel (supra) which have the effect in law of accepting, approving and endorsing

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to the classification acted upon in the Rules for the purpose of appointment to the post of Principal. Once the Rules are upheld as above, the submission as regard the Rules travel the statute can also not hold good.

6.2 Indeed, in view of upholding of Rules of 2011 and 2017 as above, no contention on part of the petitioners would sand valid. There remain no legal room for canvassing any contention and to assail the classification as wrongful. The entire premise of the petition and the set of contentions raised, stand as misconceived in light of above. The petition and the prayers therein were virtually stillborn."

7.7 It is relevant to refer the judgment of the Hon'ble

Apex Court relied upon by the learned AGP in the case

of Gurusaran Singh (supra), more particularly, paragraph 9 is relevant, as under:

"6. In the counter-affidavit which had been filed on behalf of the N.D,M.C. (vide Civil Appeal No. 7503/83) it had been stated that since 1950 onwards stalls had been put up on roads mentioned in the said counter-affidavit including Panchkuian Road and Janpath. In PanchKuian Road and 98 stalls had been put. It has been further stated that a decision was taken that shops be reserved for such stall holders of PanchKuian Road in lieu of their surrendering the stalls, because the lands beneath these

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stalls were required for use of public convenience. They were occupying such stalls for more than three decades and as such a decision was taken after proper examination by the Delhi Administration along with the Government of India to allot 98 shops to such 98 stall-holders for their rehabilitation. They were offered the shops in the aforesaid marketing complex, which had been reserved for them and shown in the Plan also. The relaxation of the trade zoning restrictions was meant to induce them to move from the Panchkuian Road. For the same object even the licence fee in their case was reduced. Because of the same reason no tenders were invited for the 98 shops and tenders were invited only in respect of 177 shops, which were allotted to the appellants and others on basis of tenders submitted by them. It was pointed out that appellants and other allottees of 177 shops knew very well from the Plan published and the notice inviting tenders that 98 shops had been reserved for stall-holders of Panchkuian Road. In spite of that the appellants and others offered their tenders at different rates higher than reserved rates which were accepted by the N.D.M.G. and allotments of shops were made in their favour. In this background, it was not open to them to violate and contravene the trade zoning restrictions to which each one of them had specifically agreed."

7.8 In view of the above, considering the fact that the

Co-ordinate Bench of this Court has decided the identical

question in the above-mentioned matter and considering

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the fact that there is no challenge to the Rule 20(1) of

the Gujarat Secondary Education Regulations, 1974, I am

of the opinion that the petitions fail on their merit on

that count. Moreover, considering the fact that the

judgment in the case of Gurusaran Singh (supra), which

is cited at the bar by learned AGP in respect that no