[2009] 15 (ADDL.) S.C.R. 272

KOLAWANA GRAM VIKAS KENDRA v.

STATE OF GUJARAT & ORS. (Civil Appeal No. 7595 of 2004 Etc.)

OCTOBER 20, 2009

[V.S. SIRPURKAR AND DEEPAK VERMA, JJ.]

Constitution of India, 1950 - Articles 14, 19 and 30 - Minority educational institution - Appointment of teachers -: Necessity for prior approval of State- Held: Such requirement does not amount to unconstitutional interference in the internal working of the minority institution - Hence, not violative of Articles 14, 19 and 30 as also s. 40-A of Secondary Education Act - Gujarat Secondary Education Act, 1972 - s. 40-A - Education/Educational Institution.

Appellant-minority institution appointed teachers without prior approval of the competent authority of Education Department. The institution sought a relief that their salaries should be paid as the institution was admitted to 100% grant. Education Officer refused the same. Appellant filed a writ petition, which was dismissed by Single Judge of High Court: The order was further confirmed by Division Bench of High Court in Letters Patent Appeal. Hence, the present appeal.

Dismissing the appeal, the Court

HELD: 1. There is no interference in the selection process. It would be perfectly all right for a minority institution tc select the candidates without any interference from the Government. However, the requirement of the prior approval is necessitated because - it is for the Government to see as to whether there was actually posts avaUable in the said institution as per the

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KOLAWANA GRAM VIKAS KENDRA v. STATE OF 273

GUJARAT & ORS.

f strength of students and secondly; whether the A candidates, who were sought to be appointed, were

~ having the requisite qualifications in terms of the rules and regulations of the Education Department. It is not correct to say tht the Circular dated 6.1.1998 by which the Government had provided that every minority B institution should obtain the prior approval from the competent authority to appoint the teachers would .,, amount to interference in the internal administration of minority institution. [Paras 5 and 6] [275-C-G]

2. From the stand taken by the State Government, it c

is clear that all that the Government wants to examine is as to whether the proposed appointments were within the frame work of the rules considering the workload and

~ the availability of the post in that institution and, secondly; D whether the selected candidates had the necessary qualifications for the subjects in which the said teachers were appointed. The same applies to the non-teaching staff also. [Para 7] [276-C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.

E 7595 of 2004.

-~ From the Judgment & Order dated 7.4.2003 of the High Court of Gujarat at Ahmedabad in Letter Patent Appeal Nos. 1183 of 2002 in Special Civil Application No. 8697 of 2002.

F ~

WITH

C.A. Nos. 7624-7625 of 2004.

Huzefa Ahmadi, Bina Madhavan (for Lawyer's Knit & Co.) G for the Appellant.

I .,...

Hemantika Wahi for the Respondents.

The Jugment of the Court was delivered by

A V.S. SIRPURKAR, J. 1. In these appeals, the challenge is to the orders of the Division Bench of the High Court dated "' 30.9.2003 and 7.4.2003 dismissing the Letter Patent Appeal Nos. 529 of 2003 and 1183 of 2002 filed by the appellant < herein.

2. The appellant herein is a minority institution and that is an admitted fact. It challenged the order dated 12/13.8.2002 on the ground that the said order is violative of the provisions of Articles 14,29 and 30 of the Constitution of India and is also ' c violative of Section 40A of the Gujarat Secondary Education Act, 1972. By that order, the District Education Officer, Bharuch District, Bharuch had refused the permission to admit the selected candidate in direct pay scheme for the purpose of grant. It so happened that the appellant selected few candidates

D and sought a relief that their salaries should be paid as the institution was admitted to 100% grant. The appellant admittedly had not intimated the Department before making the selection and proceeded to select the candidates without scrutiny of the Education Department. This order was challenged before the learned Single Judge.

3. Learned Single Judge, by orders dated 18.9.2002 & 11.3.2003 dismissed the Special Civil Application Nos. 8697 of 2002 and 1022 of 2003 respectively relying on the law laid down by this Court and further relying on the circular dated ~"

F 6.10.1998 whereby it was obligatory on the part of minority institutions to obtain prior approval from the State Government/ competent authority before making any new appointment. The t said orders of the learned Single Judge were challenged befrv:: the Division Bench which confirmed the said orders relying on

G the "relevant circulars annexed with the petition". The view taken by the Division Bench was that the no-objection certificate insisted upon by the State Government was only with a view to + regulate recruitment process and, therefore, it could not be contended that the said policy violated the constitutional

H mandate for minority institutions.

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KOLAWANA GRAM VIKAS KENDRA v. STATE OF 275

GUJARAT & ORS. [V.S. SIRPURKAR, J.]

4. The Division Bench observed that the minority institution A f can regulate its own procedure for the purpose of imparting education and managing the institution. However, for obtaining Government aid and assistance by way of grant for the purpose of schools, it was within the power of the government to put up such conditions of insisting upon no-objection certificate. The B orders passed by the Division Bench are in challenge before us.

5. Mr. Huzefa Ahmadi, learned counsel appearing for the appellant in his persuasive way tried to convince us that the aforementioned circular by which the Government had provided c that every minority institution should obtain the prior approval

from the competent authority to appoint the teachers would amount to interference in the internal administration of minority institution. We do not agree. All that the circular dated 6.10.1998 provides is that all the government aided educational D institutions of the State such as Primary Schools, Middle Schools, Higher Secondary Schools, Colleges, Sanskrit Pathshalas, Sangeet Vidhyalaya etc. will not give effect to any appointment in teaching and non-teaching post without prior approval from the State Government or the competent authority.

6. In our considered view, we do not view this to be the interference in the selection process. It would be perfectly all

'+- right for a minority institution to select the candidates wthout any interference from the Government. However, the requirement of this prior approval is necessitated because it F is for the Government to see as to whether there was actually posts available in the said institution as per the strength of students and secondly; whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the ruls and regulations of the Education G

_._ Department. That is precisely the stand taken by the State of Gujarat before us in its counter-affidavit. Para 3 of the said affidavit reads as under:

"Minority institutions are free to select their teaching and H

A non-teaching staff. No Government Officer or the

" representative of the Board was appointed in the selection committee of the. minority institution. There is no interference by the Government in the administration of the schools. However,· N.O.C. is required to be obtained to

B verify whether there is a vacancy of a teacher of a particular subject as per the workload fixed by the Gujarat Secondary and Higher Secondary Education Board specially when the government is providing grant-in-aid and that he possesses minimum required qualification for the post he is c appointed.'.'

7. From the reading of aforementioned para 3, it is clear that all that the Government wants to examine is as to whether the proposed appointments were within the frame work of the rules considering the workload and the availability of the post

D in that institution and, secondly; whether the selected -+ candidates had the necessary qualifications for the subjects in which the said teachers were appointed. The same applies to the non-teaching staff also.

8. In view of this clear stand taken by the State Government, E we cannot pursue ourselves to hold that the aforementioned circular amounts to any unconstitutional interference in the internal working of the minority institution. In that view, we would choose to dismiss these appeals. However, Mr. Ahmadi raised another point saying that if the prior approval or the no-objection F certificate, as the case may be, is not awarded within seven days without any reason, then it would be hazardous for the minority institution to run itself. We do expect the competent a_uthority to issue the no-objection certificate within the ~:;11e provided in the said circular which is of seven days. Of course,

G if there are any objections, the authority will be justified to take some more time within the reasonable limits.

9. With these observations, these appeals are dismissed. +

However, there shall be no order as to the costs.

H K.K.T.

Appeal dismissed.