(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 [TAT] 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 TAT 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 of Government and grant-in-aid Schools. Thereafter, the State of Gujarat had enacted Gujarat Secondary and Higher Secondary Education Act, 1972 and in pursuance of the said Act, an Education Board came to be established. Thereafter, in 1974, Regulations were framed which deal with the appointment of Teachers, registration of Schools, Board examination and other activities, including the power and duties.
(ii). In view of the Act and the Regulations, the State administers and discharges its functions and obligation of providing for education to its citizens and society at large.
(iii). "No Objection Certificates" [NOC, hereafter], are issued only if the candidate to be appointed has the requisite qualifications in accordance with the 1972 Act and the Rules framed there under. If the appointment of the Head Master or Teacher has to be given, the said grant cannot be accorded if the Head Master or Teacher does not possess qualifications of having cleared the TAT. TAT was introduced with the aim of maintaining certain minimum and uniform standard of academics as far as the Head Masters and Teachers are concerned in order to maintain quality standards of imparting better education in educational institutions.
(iv). It is incumbent upon the educational institutions to obtain NOC for the appointment of a Head Master or a Teacher, in accordance with the policy of the State Government published vide Circular dated 6th October 1998. The Government has framed a policy in the year 1998 making it obligatory for the minority institutions to obtain NOC from the concerned authority before making them eligible for grant of a new staff, and such requirement of NOC before any recruitment is in public interest since it is the State which incurs the expenditure of the salaries which are paid to such appointees. The requirement of NOC is put in place in order to regulate the recruitment process and, therefore, it cannot lawfully be contended that the said requirement of securing NOC violates the constitutional mandate of minority institutions.
(v). Section 40A of the Act provides for certain exemptions to the minority institutions inasmuch as it can regulate itself by its own procedure for the purpose of imparting education. However, in order to obtain Government aid and assistance by way of grant for the purpose of Schools, the State is within its powers to impose such condition of insisting on NOC.
(vi). The policy of the State to seek NOC was subject of challenge before this High Court in Letters Patent Appeal No. 1183 of 2002 wherein a Division Bench upheld the requirement of NOC even from minority institutions after considering the exemption as granted under section 40A of the Act. The said judgment of the Division Bench was challenged before the Supreme Court but the Supreme Court upheld the said order.
(vii). In the case of TMA Pai, 2002 8 SCC 481, the Supreme Court observed that once the aid is granted to a private professional educational institution, the Government or the State agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. Therefore, the State has powers to regulate the matters relating to selection and appointment of Teachers after prescribing the requisite qualification for the same, and thus, the State is within its competence to impose conditions for grant of NOC.;