- (1.) By this writ application, the writ applicants the Board of Trustees and Principal of a minority School, have prayed for the following reliefs; "20a) 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 AnnexureD 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 the 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 AnnexureD 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 recognised 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 40A of the Gujarat Secondary Education Act, the petitioners are exempted from the applicability of Sections 17 (26), 34 and 35 and Clause (b) of subsection (1) and subsection (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 nonteaching 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 reemploy 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 reemployment of a Teacher or Headmaster, if he had attained the age of 60 years, except with the prior permission of the Board. The proviso to clause (c)(ii) makes it clear that a Teacher or Headmaster, who has attained the age of 65 years, shall not be continued in service under any circumstances. 2.5 The petitioner further points out that the Regulation 42 provides that the regulation shall prevail over the provisions contained in the GrantinAid Code published under the Notification dated 22nd April 1964. 2.6 The Regulation 43 provides that nothing contained in the Regulations 19, 20, 21, 22, 24, 25, 26, 27, 28, 30, 31, 32, 33, 36, 37, 40 and subclause (4), (5) and (6) of the Regulation 41 shall apply to any educational institutions established and administered by the minority whether based on religion or language. 2.7 It is the case of the petitioners that since the regulations prevail over the provisions of the GrantinCode, the provision, if any, in the GrantinAid Code, providing for the age of superannuation for the employment of the secondary school would not apply to the school in question. It is the case of the petitioners that para 81.2 of the Grantin Aid Code providing for granting of extension to the Teachers upto the maximum age of 60 years is not applicable to the petitioners. 2.8 It is also the case of the petitioners that the provisions of the Grant inAid are not statutory in nature, and therefore, the State Government cannot make provisions in the Code contrary to and inconsistent with the statutory regulations and the provisions of the Act. 2.9 According to the petitioners, since the school has been exempted from the provisions of the Act and the Regulations, it is at liberty to continue its employees in service beyond the age of 60 years, and the GrantinAid Code cannot compel the petitioners to obtain prior permission of the Educational Inspector for granting such an extension. 2.10 The petitioner No.1 addressed a letter dated 16 th April 2011 to the District Education Officer regarding the extension of service of the Headmaster beyond the age of 60 years. However, according to the petitioner No.1, no reply was received in that regard. 2.11 Hence, this petition.
(3.) By way of amendment carried out in the writ application that it has been brought to the notice of the Court that the District Education Officer passed an order dated 5th December 2000 granting extension to the Principal of the school upto 31st October 2001 i.e. till the end of the term. Thereafter, the District Education Officer passed an order dated 7th July 2001 cancelling the order dated 5th December 2000 referred to above and asking the Principal to retire with effect from 22nd July 2001.;