SCA/8618/2001 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8618 of 2001 With SPECIAL CIVIL APPLICATION No. 8619 of 2001 To SPECIAL CIVIL APPLICATION No. 8620 of 2001 With SPECIAL CIVIL APPLICATION No. 11771 of 2001 With SPECIAL CIVIL APPLICATION No. 11775 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HOLY FAMILY PARISH TRUST & 1 - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR UDAY M JOSHI for Petitioner(s) : 1 - 2. MR SHUKLA, AGP in SCA Nos.8618 and 8619 of 2001 & Ms. TRUSHA PATEL AGP in SCA Nos.8620, 11771 and 11775 of 2001 for Respondent(s) : 1 - 2. RULE SERVED for Respondent(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 12/05/2008 SCA/8618/2001 2/7 JUDGMENT ORAL JUDGMENT 1. As in all the petitions, common questions arise for consideration, they are being considered by this common judgement. 2. Special Civil Application No.8618 of 2001 has been preferred by the petitioners for challenging the order dated 28.6.2000 passed by the Commissioner, Mid-day Meals – Annexure “G” and the petitioners have also challenged the legality and validity of the Government Resolution dated 6.10.1998 – Annexure “H” on the ground that the same is ultra vires. The petitioners in the said petition have also prayed that 5% grant to be paid and the staff be placed in the fixed Regular Salary. 3. Special Civil Application No.8619 of 2001 is preferred for appropriate writ to quash and set aside the order dated 28.5.2001 – Annexure “A”, whereby the appointment made by the petitioners is not accepted for the grant purpose. The petitioners have also prayed for appropriate writ to declare the School run by the petitioner SCA/8618/2001 3/7 JUDGMENT Trust is entitled to the benefits of minority status and also prayed to release the grant of salary of the staff concerned. 4. Special Civil Application No.8620 of 2001 is preferred by the petitioners for challenging the order dated 6.9.1999 – Annexure “A”, whereby the appointment of the staff of the petitioners is not approved for grant purpose. In the petition, the petitioners have also prayed for the status of the minority institution and sanction for payment of salary of the staff concerned namely; Fr. Patrick Rebello. 5. Special Civil Application No.11771 of 2001 is preferred for challenging the Government Resolution dated 6.10.1998 on the ground that the same is violative of Article 30 of the Constitution of India and it is also prayed to challenge the order dated 28.5.2001, whereby the appointment made by the petitioners is not approved for admissibility of the grant. The petitioners have prayed for the release of the grant to the staff appointed by the petitioners as if the appointment is acceptable for grant SCA/8618/2001 4/7 JUDGMENT purpose. 6. Special Civil Application No.11775 of 2001 is preferred by the petitioner for the relief, inter alia, to set aside the decision dated 31.7.2001, whereby the appointment of the staff made by the petitioner is not accepted for the grant purpose and the petitioner has also prayed for the status of minority institution and the disbursement of the salary admissible under the grant. 7. It appears that the issues which arise for consideration in the present petitions are pertaining to the status as that of the minority institutions, the right of the petitioners, to appoint the teachers in minority institutions and the insistence on the part of the State Government to fulfill the requirement for appointment of the staff and if there is a shortage, for grant of NOC, even in case of minority institutions, including the institutions for which the grant is admissible. 8. It appears that all such issues, which arise for consideration in the present petitions are SCA/8618/2001 5/7 JUDGMENT covered by the decision of this Court in case of “Atladara Kelavani Mandal & Ors. Vs. State of Gujarat and Ors.”, reported in 2004(1) GLR, 244. In the said decision, this Court, for the reasons recorded therein, has concluded, inter alia, that for conferment of the status of the minority institution, the objects of the Trust are required to be seen and not merely because the Trust is established by a person belonging to minority. Further, it was also observed that merely because the Trust deed provides for induction of some persons belonging to non- minority community itself will not disentitle the institutions for claiming the status of minority Institutions. It was also observed that the State cannot discriminate in the matter of grant-in-aid to minority institutions, but such institutions cannot claim any additional right in this regard. The Court further observed that the Government Resolution providing that teachers declared surplus in a minority institution will be absorbed in another minority institution where there are vacancies, SCA/8618/2001 6/7 JUDGMENT such resolution does not offend Article 30(2) of the Constitution. This Court has upheld the validity of the resolutions qua the minority and non-minority schools. It is also observed by this Court that the entitlement of the grant is not a right and, therefore, if the State has only applied conditions in respect of all the Institutions so as to make them eligible for grant, such cannot be said as in violation of Article 19(1)(g) of the Constitution of India. 9. It further appears from the perusal of the order passed by the authority concerned that the matter is not examined in light of the aforesaid decision of this Court. Therefore, it would be just and proper if proper directions are given to the authority to reconsider the matter in light of the aforesaid decision of this Court and to pass a fresh order. 10.Hence, the impugned orders passed by the authority for not approving the appointment of the staff and disallowing of the grant, in respect of the concerned petitions are quashed and set aside with the directions that the SCA/8618/2001 7/7 JUDGMENT authority shall reexamine the matter in light of the aforesaid decision of this Court in case of “Atladara Kelavani Mandal & Ors.”(supra) and shall pass appropriate orders, including deciding the question as to whether the grant is admissible or not, after giving opportunity of hearing to the petitioners concerned, as early as possible, preferably within a period of six months from the date of receipt of the order of this Court. 11.Rule made absolute to the aforesaid extent. No order as to costs. 12.5.2008 (Jayant Patel, J.) vinod