SCA/6554/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6554 of 2008 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN HONOURABLE MR.JUSTICE AKIL KURESHI ====================================== 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 ? ====================================== RAJYA SHALA SANCHALAK MAHAMAN-DAL & 1 - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ====================================== Appearance : MR BS PATEL for Petitioner(s) : 1 - 2.MRS RANJAN B PATEL for Petitioner(s) : 1 - 2. MR. KAMAL B. TRIVEDI, ADVOCATE GENERAL with MS. SANGITA VISHEN, ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1, RULE SERVED for Respondent(s) : 1 - 2. MR AD OZA for Respondent(s) : 3, ====================================== CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR.JUSTICE AKIL KURESHI Date :5 /12/2008 SCA/6554/2008 2/10 JUDGMENT CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN) This writ petition has been preferred seeking a declaration that provisions of Section 35 of the Gujarat Secondary Education Act, 1972 is ultra-vires, unconstitutional and void and also for a writ of certiorari to quash and set aside Circular dated 9.10.2006 issued by Gujarat Secondary Education Board, giving a complete go-bye to the system of awarding marks in the oral interview for selection to the post of Principal, Teachers and Non-teaching staff. 2. First petitioner is registered under the Bombay Public Trusts Act, 1950 and second petitioner, claiming to be a citizen of India, claims rights under various provisions of the Constitution of India. Petitioners submit that by virtue of Section 35 of the Gujarat Secondary Education Act, 1972 (for brevity ' the Act'), and various Circulars issued, State Government and Gujarat Secondary and Higher Secondary Education Board has effectively taken away the right of the management in the matter of selection and appointment of teachers and non-teaching staff in various Secondary schools functioning under the Act. Petitioners submit that imparting education by establishing educational institution is a fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India. Petitioners submit that as per Section 41, read with section 35 of the Act, right to select teachers is an absolute right of the educational institutions, which have been effectively curtailed and in the Selection Committee consisting of five members, only two members belong to the management which is not a valid and reasonable restriction as per Article 19(6) of the Constitution of India. Learned counsel appearing for the appellant Mr. B.S. Patel submitted that Section SCA/6554/2008 3/10 JUDGMENT 35 of the Act requires re-look after the decision of the apex Court in TMA Pai Foundation Vs. State of Karnataka – (2002) 8 SCC 481. Petitioners submitted that after the introduction of Section 35 of the Act, all schools were forming their own selection committee and third respondent Board is now issuing varying instructions. Learned counsel submitted that though the basic qualification for teachers and the eligibility is stipulated by Rules, the right to select teaching and non-teaching staff is exclusively with of the management. Learned counsel also referred to judgment of the apex Court in Bramho Samaj Education Soceity and ors. Vs. State of West Bengal and ors. - (2004) 6 SCC 224. Learned counsel submitted that Circular dated 9.10.2006 issued by the Board, taking away right of the selection committee of awarding marks in the interview, viva-voce etc. in the process of selecting teaching and non-teaching staff, is illegal, arbitrary and violative of Article 14 of the Constitution of India. 3. Learned Advocate General submitted that vires of Section 35 of the Act was earlier challenged before the apex Court in Bharat Sevashram Sangh Vs. State of Gujarat – 1987 SC 494, and the apex Court held that Section 35 of the Act is intra-vires, and hence petitioners were not justified in challenging the vires of Section again. Learned Advocate General submitted that once vires of the Act was challenged and was concluded by the apex Court, it was not open to the parties to re-agitate the same issue again on various other grounds. In support, reliance was placed on the decision of the apex Court in Delhi Cloth and General Mills Co.Ltd. Vs. Shambhu Nath Mukherji and ors. - AIR 1978 SC 8, T. Govindaraja Mudaliar Vs. State of T.N and ors. - AIR 1973 974. Learned Advocate General also submitted that there is no illegality in the Circular issued by the Board, especially in taking away power of the selection committee to award marks in the oral interview. Learned Advocate General submitted that there was lot of complaints from the general SCA/6554/2008 4/10 JUDGMENT public that large-scale irregularities are committed in the matter of selection of teaching and non-teaching staff in various educational institutions. Provision to do away with the marks in viva-voce and interview was made so as to give no room to such complaints and to make the system transparent and to minimise illegalities and irregularities in the selection of teaching and non-teaching staff in various educational institutions. 4. We find vires of Section 35 of the Act was subject matter of the decision of the Supreme Court in Bharat Sevashram Sangh Vs. State of Gujarat (supra). Section 35(1) of the Act requires every registered private secondary school to have two committees (i) a school staff selection committee for the purpose of recruiting the teaching staff of the school other than the headmaster and (ii) a special school committee for the purpose of recruiting the headmasters and for the purpose of the initial recruitment of the headmaster and the teaching staff of a school started after the appointed day. The school staff selection committee consists of (i) two representatives of the management of the school to be nominated by the management; (ii) the headmaster of the school and so on, and one representative of the Board to be nominated by the Board. These committees are required to select the headmaster and the teachers in the school under Section 35 of the Act. Some modification was made in the composition of such committees. Contention was raised before the Supreme Court that present management being minority in the said committees, they would have practically no voice in the selection of teachers. Rejecting the contention, the apex Court held as follows:- “We again do not find any substance in the argument. The two committees which are to be constituted under Section 35 of the Act consist of the representatives of the management and the representatives of the teachers. The presence of the teachers SCA/6554/2008 5/10 JUDGMENT working in the very school and of the representatives of the Board on the committees does not have the effect of silencing the voice of the management. The provisions of section 35 of the Act do not appear to confer any arbitrary power on the selection committees nor can it be said that there are no guidelines regarding the mode of selection. They have got to select the teachers in accordance with the regulations. We do not, therefore, find any merit in this contention.” 5. We are of the view that since Section 35 of the Act was held to be valid by the apex Court, petitioners are not entitled to challenge vires of Section 35 of the said Act, over and again on some other grounds. The apex Court in Delhi Cloth and General Mills Co.Ltd. Vs. Shambhu Nath Mukherji and ors. (supra), while dealing with Section 10 of the Industrial Disputes Act, held that if the Court held Section 10 of the Act as intra-vires and repelled the objection under Article 14 of the Constitution, it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection, as it is easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by the Supreme Court holding that Section 10 of the Act does not violate Article 14 of the Constitution of India. 6. In T. Govindaraja Mudaliar Vs. State of Tamil Nadu (supra) the apex Court was concerned with validity of Chapter IV-A of Motor Vehicles Act, and upheld certain provisions. When attempts were made to challenge those provisions again, the apex Court noticed that validity of Chapter IV-A was upheld by the apex Court in previous case, and it was held that merely because some aspects which were presented based on the guarantee contained in Article 19(1) (f) was not expressly considered or a decision given thereon, will not take away the binding effect of those previous decisions. SCA/6554/2008 6/10 JUDGMENT 7. We are, therefore, of the view that since Section 35 of the Act was held valid by the apex Court in Bharat Sevashram Sangh Vs. State of Gujarat (supra), it would not be open for the petitioners to challenge validity of that provision on the ground that it violates Article 19(1)(g) of the Constitution of India. 8. We may now examine the second point raised by the appellant about non-granting of any marks in the interview for the selection of teaching and non-teaching staff and also reduction of marks to personality, general knowledge and general impression, in the matter of selection of Principal. Gujarat Secondary and Higher Secondary Education Board, in it's meeting held on 3.10.2003, passed Resolution No. 25/2003, which was issued as Circular No.3 of 2003 dated 9.10.2003. Relevant portion of the Circular reads as follows:- “RESOLUTION No.25/2003. With a view that there should be transparency in the appointments of the staff in the Secondary Schools registered in the State, and the professional qualified candidates can be available, and taking into consideration the requirements of the present society, the education qualifications, experience, training [upto the graduation degree] and experience of the computer subjects such candidates should get appropriate opportunity and the interest of education and students is maintained therefore in the earlier markings there are marks for general knowledge, general impression, personality. But by experience it has come to the knowledge that it is arbitrarily misused. And, the claims by more educated and professionally qualified are ignored, and where the cases of relatives are seen, in the circumstances when in the training class qualifications the direct education training is given the important marks. In the circumstances the priority is given to the trained graduates/post graduates/and other trained and on the basis of the marks obtained in the same the evaluation is done, and with a view that the rights and claims of such candidates can be verified and by adopting arbitrary tactics such candidates may not be ignored with such view it has become imperative to make amendments in the evaluation procedure.” SCA/6554/2008 7/10 JUDGMENT 9. In Schedule I, dealing with Procedure of Markings for selection of Principal, 5 marks have been ear-marked for personality, general knowledge and general impression, out of total marks of 50. In the procedure for selection of teachers, out of 50 marks, no marks have been set apart for assessing personality, general knowledge and general impression of the candidate. So also the case of non-teaching staff. 10. It is evident from the Circular and Instructions issued that absolutely no marks are being ear-marked in the matter of selection of teaching/non-teaching staff for personality, general knowledge and general impression etc. and only 5 marks, out of 50 marks have been ear-marked for the same in the case of selection of Principal. We fail to see why no marks have been ear-marked for personality, general knowledge and general impression etc. while selecting teaching staff and non-teaching staff in various educational institutions functioning under the Board. We also fail to see why a very lesser mark for personality, general knowledge and general impression is ear-marked in the case of selection of Principal. 11. Post of Principal is pivotal, around whom the entire wheel of administration revolves around. Leadership, discipline and smooth functioning of the school vest on the administrative ability and personality of the Principal. Principal has to supervise the teachers, non- teaching staff, students and all others who are associated with the educational institution. Reputation, prestige and image of the school centers around the Principal and we are at a loss to understand why out of 50 marks, only 5 marks have been ear-marked for personality, general knowledge and general impression while selecting a candidate as the Principal. True, there is no rule of thumb with regard to the allotment of SCA/6554/2008 8/10 JUDGMENT percentage of marks in the interview, but we have no hesitation to state that taking into consideration the nature of post of Principal and the duty he has to discharge both in the sphere of administration and in the field of education, reasonable marks should have been ear-marked for personality, general knowledge and general impression for the selection to the Principal. We are sure that respondent Board would bestow their serious attention to this fact and would ear-mark appropriate percentage of marks by carrying out necessary amendment to the rules of selection. 12. We find practically no marks have been ear-marked for selection of teaching staff of various educational institutions. Personality, general knowledge and general impression of the teacher has got extreme importance with regard to the quality of education imparted in an institution is concerned. Teachers selected should possess communication ability, analytical mind, good character and conduct, general knowledge etc. to properly impart education in an educational institution. No marks have been ear-marked to assess the personality, general knowledge, general impression, character, conduct etc. of the teacher to be appointed in a school, which in our view is unfair, arbitrary and violative of Article 14 of the Constitution. 13. We also notice that no marks have been ear-marked while selecting non-teaching staff. Administrative ability, character, conduct, discipline etc. are essential traits for a clerical staff and reasonable percentage of marks should have been ear-marked while selecting non- teaching staff as well. We may in this connection refer a recent judgment of the Supreme Court in K.H. Siraj Vs. High Court of Kerala – (2006) 6 SCC 395, wherein the apex Court has high-lighted the importance of awarding marks in the interview. The Court was dealing with appointment in subordinate judiciary in Kerala. While dealing with SCA/6554/2008 9/10 JUDGMENT the quality of judicial officers, the Court held that a judicial officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like and existence of such capacities can be brought out only through an oral interview. The apex Court in Lila Dhar Vs. State of Rajasthan – (1981) 4 SCC 159 held that the written examination assesses the man's intellect and the interview test the man himself and “the twain shall meet” for a proper selection. While written examination assesses a candidate's knowledge and intellectual ability, an interview- test is valuable to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the interview-test there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. 14. We are sure that the above qualities are essential in the matter of selection of Principal, teaching staff and non-teaching staff in an educational institution. The reason explained for taking away marks for personality, general knowledge, general impression etc. with respect to the selection of teaching and non-teaching staff, is that it would give room for the selection committee to act arbitrarily by awarding more marks to them for personality, general knowledge and general impression. We find it difficult to accept the stand taken by the third respondent. A reasonable percentage of marks can obviously be ear- marked for personality, general knowledge and general impression. This SCA/6554/2008 10/10 JUDGMENT Court sitting in its jurisdiction is not justified in determining what should be the reasonable percentage of mark which should be ear-marked for personality, general knowledge and general impression and other traits in the matter of selection of Principal, teaching and non-teaching staff, but in our view, a reasonable mark has to be ear-marked for personality, general knowledge and general impression while selecting Principal, teaching and non-teaching staff, and we leave it to the third respondent. We however, declare that action of not ear-marking any marks for personality, general knowledge and general impression while selecting candidates for the post of Teaching and Non-Teaching is absolutely illegal, unfair and arbitrary and violative of Article 14 of the Constitution of India. The third respondent should reconsider to fix a proper percentage of marks for personality, general knowledge and general impression while selecting Principal to man an educational institution, and also to ear-mark suitable percentage of marks for the same traits while selecting teaching and non-teaching staff, within a period of 3 months from the date of receipt of a copy of this judgment. 15. With the aforesaid observation, petition is partly allowed. Rule is made absolute to the above extent. (K.S. Radhakrishnan, C.J.) (Akil Kureshi, J.) */Mohandas