SCA/2288/1998 1/37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.2288 of 1998 WITH SPECIAL CIVIL APPLICATION No.2370 of 1996 WITH SPECIAL CIVIL APPLICATION No.5722 of 1996 WITH SPECIAL CIVIL APPLICATION No.8242 of 1998 WITH SPECIAL CIVIL APPLICATION No.7847 of 1998 WITH SPECIAL CIVIL APPLICATION No.7848 of 1998 WITH SPECIAL CIVIL APPLICATION No.7860 of 1998 WITH SPECIAL CIVIL APPLICATION No.7862 of 1998 WITH SPECIAL CIVIL APPLICATION No.10678 of 1996 WITH SPECIAL CIVIL APPLICATION No.8343 of 1996 WITH SPECIAL CIVIL APPLICATION No.8344 of 1996 WITH SPECIAL CIVIL APPLICATION No.7380 of 1997 WITH SPECIAL CIVIL APPLICATION No.7384 of 1997 WITH SPECIAL CIVIL APPLICATION No.8423 of 1998 WITH SPECIAL CIVIL APPLICATION No.10930 of 1998 WITH SPECIAL CIVIL APPLICATION No.2366 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA ======================================================= 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 ? SCA/2288/1998 2/37 JUDGMENT ======================================================= SHREE VIDHYA VIKAS MANDAL & 51 ­ Petitioner(s) Versus STATE OF GUJARAT & 6 ­ Respondent(s) ===================================================== Appearance : MR JAYRAJSINH CHAUHAN for MR MUKUND M DESAI for Petitioner(s) : 1­2 MS ARCHNA C RAWAL with MR PRASHANT D MANKAD, AGPs for Respondent(s) : 1 ­ 3. ===================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 04/12/2006 COMMON ORAL JUDGMENT (1) This petition prays for following reliefs: “21. The petitioners, therefore, pray that this Hon'ble Court may be pleased to:- A) admit this Special Civil Application. B) issue a writ in the nature of mandamus and/or any other appropriate writ, order or direction against the respondents declaring the Government Resolutions dated 21.05.1994 and 21.12.1994 as unconstitutional, illegal and quash and set aside the same by issuing a writ, order or direction. C) pending the admission, hearing and final disposal of this Special Civil Application the operation, execution and implementation of Government Resolutions dated 21.5.1994 and 21.12.1994 at Annexure “D” (collectively) be stayed and the respondents be directed not to implement the provisions of the said Government Resolutions. D) Pending the admission, hearing and final disposal of this Special Civil Application, the operation, execution and implementation of the order dated 11.11.1997 passed by the District Education Officer, Mehsana be stayed and respondents be restrained from taking SCA/2288/1998 3/37 JUDGMENT any penal measures including that of deduction in grant, E) grant such other and further orders as are deemed proper.” (2) The petition has been heard along with the group of matters involving similar issue and hence, Mr.H.J.Nanavati and Mr.B.S. Patel, learned advocates, were permitted to address the Court as interveners in light of the pendency of similar matters wherein they represent the petitioners. (3) The petitioner No.1 is a Public Trust running a secondary school in the name of 'Sitaba J.V. Patel Kanya Vidhyalaya' at Sundhiya, Taluka Kheralu, Dist. Mehsana and the petition has been filed by the General Secretary of petitioner No.1-Trust. (4) The learned advocate Mr.Jayrajsinh Chauhan, appearing on behalf of the petitioners, has submitted that the following questions of law arise for determination: (a) Whether the Gujarat Secondary Education Act empowers the District Education Officer to pass order of appointment to surplus teacher to different schools. SCA/2288/1998 4/37 JUDGMENT (b) Whether any such appointment not made in accordance with Section 35 of the Act would be void as per the provisions of Section 35(7) of the Gujarat Secondary Education Act, 1972. (c) Whether the District Education Officer has power or authority to appoint anyone in contravention of provisions of Sections 34 and 35 of the Act. (d) Whether the provisions incorporated in Government Resolution dated 21.5.1994 whereby the District Education Officer is vested with power to cancel the recognition of the school for non-compliance of his order ? (e) Whether such provisions of the Government Resolutions dated 21.5.1994 and 21.12.1994 are in contravention of Section 31 of the Gujarat Secondary Education Act and Regulations 9 and 9-A or Gujarat Secondary Regulations, 1974 ? (5) The two circulars dated 21.05.1994 and 21.12.1994, which are under challenge, have been translated and read as under: “Regarding giving the protection to the surplus teachers/employees of Non Government Secondary and Higher Secondary Schools. GOVERNMENT OF GUJARAT Education Department Resoultion No UMSH-1293-2533-G-1 Sachivalaya Gandhinagar Date : 21-05-1994 SCA/2288/1998 5/37 JUDGMENT Read: 1. Govt Resolution No BMSH-1382-816-83-G dtd 11- 01-1983 of the Education Department. 2. Govt Resoultion No UMSH-1286-61806-G-1 dtd 13-02-1990 of the Education Department of the Govt. 3. Resolution No UMB-1292-641-G-1 dtd 10- 07-1992 of the Education Department of the Court. 4. Letter No BMSH-MA-1-Fajal-93-94-12-284-85 dtd 30-10-1993 of the Higher Edu Commissioner State of Gujarat, Gandhinagar. P R E A M B L E Some schools out of Non Govt Secondary Schools and Higher Secondary Schools situated in the State remain closed for want of students. Similarly, the situation of closure of class arises in some schools. As a result of which, the question of inclusion of surplus Secondary as well as Higher Secondary Teachers/employees of the schools going to be closed arises. Many times the teachers/employees at some extent cannot be included for long time. For that reason, the salary is required to be paid to such teachers/employees sitting at home for the reason of pay protection having been given to them and in this way, unnecessary economic burden is being suffered by the Government. However the Government by passing orders from time to time has continued the policy of giving protection to such surplus teachers/employees. Reconsidering the facts as to the present policy regarding the pay protection of surplus teachers/employees, (as it appeared very much necessary to do accordingly, at the end to large discussion in a meeting in presence of the Hon'ble Chief Minister with the office bearers of Gujarat Secondary Teachers Union on 13-4-94) it has been resolved SCA/2288/1998 6/37 JUDGMENT to frame a new policy in respect of the present protection being given to surplus teachers/employees. R E S O L U T I O N At the end of careful consideration, it is hereby resolved to implement the present policy as mentioned below instead of the present policy of protection being given to surplus secondary teachers or higher secondary teachers/employees. 1. The protection of surplus shall be given to the secondary teachers or higher secondary teachers/employees having been appointed w.e.f. 15-04-1994 or prior to that, who have completed minimum one year service i.e. 365 days service. The protection of surplus shall not be given to teachers/employees having been appointed w.e.f. 16-4-94 or thereafter. 2. No kind of protection as any surplus teachers/employees shall be given to those having been appointed w.e.f 16-04-1994 or thereafter. But such surplus teachers/employees shall be discharged giving remuneration as per the provision of Rule 33 of the Gujarat Secondary Education Rules, 1972. No kind of grant shall be given to schools regarding paying the remuneration at the time of discharging such teachers/employees and the school shall have to pay the remuneration from its own fund. The amount of remuneration shall be cut off from the maintenance grant of the school failing in making payment of remuneration to the teachers/employees. The District Education Officer shall take lawful action against the school failing in making payment in this way. 3. The clear interpretation shall have to be made with regard to closing the protection of surplus teachers/employees means discharging from service. SCA/2288/1998 7/37 JUDGMENT 4. If the teachers/employees having been appointed upto 15-04-1994, whose one year service is completed on that day, shall have to be discharged on arising of circumstances, then the protection of surplus shall be given to them in accordance with the provisions as under : A) The school from which such surplus teacher/employee is not discharged should not have closed within five(5) years from commencement. B) The school in which a teacher/employee becomes surplus for the reason of closure of a class, shall not be given new class upto five years after closure of such class under any circumstances. C) The order of the District Education Officer shall be considered final in respect of inclusion of surplus teachers/employees and if the concerned teacher/employee would not go to the place allotted to him, he shall be discharged from service and thereafter even if their service is of those much years, they shall be discharged giving remuneration as per the provision of Rule 33 of The Gujarat Secondary Education Rules, 1972. D) Even if the Government Resolutions or circulars are mentioned at any place, the male employee shall be allotted in female school, if there is no vacancy in relevant school, in any other school and the female school shall have to accept him. E) In the cases, where the institute does not resume the allotted the teacher/employee the expenditure required to be paid to such employee for the period without work, shall be deducted from the maintenance grant payable to institute. If the maintenance grant being similar to the pay of the assistant teacher is not admissible to the SCA/2288/1998 8/37 JUDGMENT school, then the District Education Officer shall take the action for the cancellation of registration of such school. F) Whatever provision having been made earlier in respect of giving alternate with regard to the choice of a station, regarding inclusion of surplus teacher/employee is hereby cancelled. G) The teachers/employees becoming surplus from the school being run by the Institutes formed on the basis of linguistic or religious minority shall be included in other minority schools or other schools. In alternate, following procedure as per rules, they shall be discharged giving remuneration as per Rule 33. H) A teacher/employee who is given the protection of surplus, shall be included first of all in concern district or in the school of a district nearby and if no vacancy is there accordingly, he shall be included in a school of any district of the State and it will be compulsory for him to go there. I) The post of non-academic employee is based on the total strength of the students as per the present rules. But the specific posts such as librarian, research teacher, laboratory assistant cum peon are being created taking the physical facilities and the number of classes into consideration. If the employees working on all the said posts have to be made surplus in any way, then the rules as stated herein above shall have to be made applicable. J) On the occasion of filling up the post of academic/non-academic employee, if the relevant post is to be filled up by the candidate of reservation category as per roster point and the surplus academic/non academic employee of relevant subject is available with the District Education Officer, SCA/2288/1998 9/37 JUDGMENT then in such circumstances, the relevant post shall be filled up by the available surplus teacher/employee and the roster point shall have to be carried forward. K) If vacancy takes place in school and the surplus teacher/employee has been allotted to such school, then 'No objection Certificate' should be given for the new posts becoming vacant. If No Objection certificate for the immediate previous post fallen vacant has come and the surplus teacher of relevant subject is available, then the allotment of surplus teacher shall be made. If the posts more than one becomes vacant simultaneously in the school and the surplus teacher is available than this extent shall be kept as 1:1 to allot it the surplus teacher of relevant subject. L) During the period the grantable Secondary/ Higher Secondary school going to be started as new takes time to be grantable in context with the policy of grant, shall compulsorily have to accept the surplus teacher/employee being available in the office of the District Education Officer and only pay expense of such teachers shall have to be given in form of grant to such schools. By the order and in the name of Governor of Gujarat. D. C. Vora Dy. Secretary Education Department Copy to : * Personal Secretary/Assistant to the Chief Minister and Ministers. * Higher Education Commissioner State of Gujarat, Gandhingar. * Secretary Gujarat Secondary Education Board, Gandhingar. SCA/2288/1998 10/37 JUDGMENT * Joint Education Director (10+2 special pattern), Capital Project Bhavan, Ellisbridge, Ahmedabad. * All District Education Officers * Registrars, Secondary School Service Tribunal, Ahmedabad. * Registrar, Gujarat Affiliated Colleges Services Tribunal, Ahmedabad. * All Branches of Dept. * Special File” ---------------------------------------------------------------------------------------------- the Surplus teachers/employees of non-government secondary and higher secondary School --------------------------------- for giving protection to ........ Government of Gujarat, Education Department, Resolution No. : UMSh-1293-2533/G. Sachivalaya, Gandhinagar. Date : 21/12/1994. Read: 1. Government Education Dept. resolution No.: UMSh-1293-2533/G. Dated 21-5-1994 2. Higher Education Commissioner, Gujarat State, Gandhinagar letter no. : BMSh-M : 1/Gh/94-95/13071 dated 6-10-94. P R E A M B L E A new policy for giving protection to the surplus teachers/employees of non-government secondary and higher secondary school had been formed vide resolution dated 21-5-1994 at above reference - (1). In connection with the said policy, as it was decided in the meeting held in the chairmanship of the Hon'ble Dy. Chief Minister SCA/2288/1998 11/37 JUDGMENT (Education) with Gujarat State Higher Secondary Teachers' Association on Dt. 29/9/1994, it was under active consideration of the Government as to whether the teachers/employees who are entitled to be given protection of surplus as per resolution Dt. 21/5/1994, can be given protection of surplus or not if they change school only once during the rest of their entire service. R E S O L U T I O N After careful consideration, in view of the new policy formed vide resolution Dt. 21/5/1994 at above reference (1), it is hereby resolved that protection of surplus to the teachers/employees of non-government secondary and higher secondary schools, who are entitled to be given protection of surplus, may be continued for those teachers/employees who change school only once during the rest of their entire service, on the following conditions : 1. In accordance with the resolution No.:Umsh- 1293-2533/G dated 21/5/94 at above reference (1), the appointment to the concerned teachers/employees should have been given on or before dt. 15/4/93, meaning thereby he/she should be entitled to be given protection of surplus. 2. The teacher/employee concerned with the above (1), who is willing to change school, he shall have to take prior permission of the Higher Education Commissioner through concerned District Education Officer. 3. A school principal shall have to make note of such permission in service book of such teacher/employee who has been given permission to change a school and the concerned District Education Officer shall have to certify the said note and a certificate permitting such teacher/employee to change school be issued by the Higher SCA/2288/1998 12/37 JUDGMENT Education Commissioner and the said certificate shall be stuck in the service book of the concerned teacher/employee. 4. If any teacher/employee will change school without permission of the Higher Education Commissioner, he shall not be entitled to the protection of surplus teacher/employee even if his appointment date may be on or before date 15/4/93. 5. If any teacher/employee, who would not have been entitled to be given protection of surplus, joins a new school without prior permission of the Higher Education Commissioner, his pay or pay-scale may not be entitled to be protected and his service prior to the new appointment may not be considered under the Government Higher Pay Scale Scheme. By order and in name of the Governor of Gujarat. Sd/- illegible (Ashwin Bhavsar) Section Officer, Education Deptt. To : The Hon'ble Chief Mininster/Education Minister & The Personal Secretary/Assistant to the other Ministers, Sachivalaya, Gandhinagar. Higher Education Commissioner, State of Gujarat, Gandhinagar. The Secretary, Gujarat Secondary Education Board, Gandhinagar. Joint Education Director(10+2 Special Pattern) Patnagar Yojana Bhavan, Ellisbridge, Ahmedabad. SCA/2288/1998 13/37 JUDGMENT All District Education Officers Registrar, Secondary School Services Tribunal, Ahmedabad. Registrar, Gujarat affiliated College, Services Tribunal, Ahmedabad. All Branches of Department Select File/ ancillary Select File.” (6) According to the petitioners, by virtue of provisions of Sections 31, 34 and 35 of the Gujarat Secondary Education Act, 1972 (the Act) every school is entitled to recruit teachers and head master in accordance with the statutory scheme laid down by the aforesaid provisions. That once the appointment of the teachers and the head master is by virtue of the committee to be constituted as provided under the statute, the District Education Officer (DEO) has no powers and cannot insist on composition of the committee. As a natural corollary he has no powers to appoint and/or allocate teachers. That in absence of any such powers every school must be permitted to appoint teachers by virtue of its own procedure laid down in the form of committee considering the standard of education to be imparted by a particular school. That neither the DEO SCA/2288/1998 14/37 JUDGMENT nor the State authorities are entitled to appoint/allocate any such teacher who is rendered surplus because either a class or classes in a particular school are closed down because of diverse circumstances, or where the teachers are rendered surplus because the entire school is closed down. That the problem has principally arisen because the education department has come across certain schools which are only paper entities. In other words, such schools only exist on paper and in fact do not have either any building, or infrastructure, or students and hence, there is no education being imparted as such. That under the guise of protecting the services of such teachers the DEO should not be permitted to exercise collateral powers of appointing such teachers to the existing schools which have achieved certain educational standard by foisting upon them sub- standard teachers. (7) It was also contended that there have been instances when a vacancy in a particular school is in relation to a particular subject e.g. mathematics and the DEO allots a surplus teacher who is not a teacher for SCA/2288/1998 15/37 JUDGMENT mathematics but a teacher for languages. Such instances were cited to highlight the grievance of the petitioners. A further submission was made based on the Apex Court decision in the case of T.M.A. Pai Foundation & Ors. Vs. State of Karnataka & Ors., (2002) 8 SCC 481 to submit that under Article 19(1) (g) of the Constitution of India every person has an unfettered right to set up an educational institution and such right cannot be curtailed by a government resolution. That merely because the State Government disburses monetory grant by virtue of the grant-in-aid code, the government does not get any right per se to dictate terms in appointment of teachers contrary to the statutory provisions. That in fact the grant-in-aid code is only a form of executive instructions and cannot take place of a statutory provision. (8) Referring to the impugned circulars, a submission was made that the said circulars have been issued, as recorded in the circulars itself, after consultation with the office-bearers of the Gujarat Secondary Teachers' Federation but the management of the schools which is vitally affected with the running of the schools was SCA/2288/1998 16/37 JUDGMENT never consulted. In the circumstances, even if the circulars are required to be upheld as laying down a policy decision, it was necessary that before the said circulars are implemented qua a particular school, the management of such a school should be granted a choice to select a teacher out of the panel of surplus teachers prepared by the DEO. That this was necessary considering the fact that it was the primary duty of the management of a school to achieve and maintain certain standard of education. (9) On behalf of the respondent authorities, the learned Additional Government Pleader has placed reliance on the following decisions of this Court: (i) Chairman, Dhareshwar Sarvajanik Kelvani Trust & Anr. Vs. District Education Officer & Anr., 1997(2) G.L.H. 21; AND (ii) Atladara Kelavani Mandal & Ors. Vs. State of Gujarat, 2004(1) GLR 244. It was, therefore, urged that the issue has already been decided by this Court and it has been categorically held that the direction to absorb a surplus teacher in a school which has a vacancy and which has opted to run on grant cannot be termed to SCA/2288/1998 17/37 JUDGMENT be either unjust or arbitrary. That the appointment contemplated under Section 35(1) of the Act is a fresh appointment and cannot be equated with absorption of teachers rendered surplus due to closure of classes and/or class. Lastly, it was submitted that though the concept of consultation is alien in the circumstances, in practice, as far as possible, the concerned DEO makes an attempt to ensure that a surplus teacher is allotted to a school after making prior consultation. It was, therefore, urged that the petitions do not merit acceptance and deserve to be rejected. (10) Before adverting to the principles enunciated by the decisions it is necessary to take note of the fact that one of the contentions raised was that the DEO has no powers to direct the management of a school to absorb a teacher or teachers declared to be surplus in light of the fact that right from the point of time of registration of a school as provided under Section 31 of the Act, it is the Secondary Board which is all in all. (11) The contention is required to be stated to be rejected. This contention looses sight of the fact that under SCA/2288/1998 18/37 JUDGMENT Section 21 of the Act the State Government is empowered to appoint such other officers and servants as may be required to enable the Board to discharge its functions under the Act. In exercise of such powers read with clause (vii) of Regulation 2 of the Secondary Education Regulations, 1974 (the Regulations) the State Government has appointed every District Education Officer to be an officer of the Board to discharge the functions of the Board under the Act and the Regulations in the District for which such DEO is appointed. This has been done by notification dated 08.10.1974 published in Gazette on 31.10.1974. This has to be noted in context of the definition of “officer” as given in Regulation 2 (vii) of the Regulations. Therefore, to state that the DEO is a rank outsider in the present controversy cannot be accepted. (12) It is true that the State Government cannot issue directions to appoint a teacher or headmaster, but from that it is not possible to accept the contention that a teacher already appointed and rendered surplus because of diverse reasons, cannot be permitted to be SCA/2288/1998 19/37 JUDGMENT absorbed in existing vacancy or a vacancy that arises subsequently. In the case of Chairman, Dhareshwar Sarvajanik Kelvani Trust & Anr. (supra) this Court has stated thus: “2. ..... There is absolutely no substance in this contention. The appointment which is contemplated under Section 35(1) is a fresh appointment and it is not an absorption of teachers who are declared surplus due to closure of classes. The petitioner which is a grant-in-aid school is required to follow the directives under the Resolution dated 21.5.1994 issued by the Government under the provisions of Ss. 48 and 58 of the said Act and other enabling provisions. The direction to absorb a surplus teacher in a school which requires a teacher and which has opted to run on grant cannot be said to be unjust or arbitrary. If at all it would be very just arrangement to ensure that teachers, who have been declared surplus for no fault of theirs and only because of closure, are absorbed in other schools where teachers are needed. The challenge against the impugned Resolution cannot therefore be sustained. It was also submitted that the Resolution does not provide for consultation with the school concerned before a teacher is allotted to such school. In the context of things, it would be impossible to enforce such allotment if it is