Mere Conferment Of Power On State To Regulate Teacher Recruitment In Minority Schools Doesn’t Violate Article 30: Gujarat High Court

Upholding the 2021 amendments to Gujarat Secondary and Higher Secondary Education Act which allowed the State to make rules regarding recruitment of teachers and principals in linguistic and religious minority schools, the Gujarat High Court said that the language of the provisions did not denote that the State had any “unfettered, uncannalized or unlimited power” to make regulations.
It further emphasized that though power of the state to regulate is not unfettered however mere conferment of power by enabling provisions alone cannot be perceived as infringement of protection granted to minority institutions under Article 30 of the Constitution of India.
A division bench Chief Justice Sunita Agarwal and Justice Pranav Trivedi in its 260 page order further said, “The power of the State to regulate, though, is not unfettered or unlimited but mere conferment of power by enabling provisions itself, cannot be perceived as infringement of the protection of Article 30 (1) of the Constitution. The language of the above provisions is not such, which can be said to be unfettered, uncannalized or unlimited power of the State to make regulations as while framing regulations, the State legislature or the Board are expected to be alive of the constraint on their powers in the matter of making law regulating minority institutions put forth by the Constitution [Article 30(1)], which do not interfere with the right of minorities management to administer their institutions”.
The court noted that the three provisions in the Act–Section 17 (26), Section (2) and Section 35, brought into force by the Amendment Act of 2021, are “merely enabling provisions” empowering the State Government and the Board (as the case may be) to make regulations, to regulate the minority institutions, so as to carry out the purposes Act, the “object of which is to achieve excellence in education by maintaining standards of minority institutions”.
The court was hearing a batch of pleas by various such institutions challenging the 2021 amendments which applied a centralised process of recruiting teachers and principals in such schools.
On Grant-in-aid from State and if it curtails institution’s rights
The court noted that the question whether Article 30 gives a right to ask for grant or aid from the State and further, to what extent its autonomy in administration can be curtailed or regulated had been considered in TMA Pai Foundation & Ors. vs. State of Karnataka & Ors specifically in the matter of admission to educational institutions established by minority community.
“While answering, it was said that the grant of aid is not a constitutional imperative. Article 30 (1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1) illusory. However, a minority institution shall not be discriminated against when aid to educational institution is granted. When the State chooses to grant aid to educational institutions, it cannot deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority,” the court said.
It further noted that Supreme Court had held that “if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2)”.
However, if the conditions of grant of aid do not involve a surrender of the substantial right of management it would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon “some facet of administration”.
The conditions for affiliation, recognition and for grant-in-aid to educational institutions have to be uniformly applied whether it is a majority run institution or minority run institution.
State can regulate if regulations do not impinge on rights of minorities
Referring to TMA Pai and Ahmedabad St. Xavier’s College Society v. State of Gujarat (1974) the court said that it well established that no educational institution established by religious or linguistic minority can claim total immunity from the regulations by the legislature or uniformity, if it wants affiliation or recognition.
However the character of the permissible regulations must depend upon their purpose; such regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation.
“On a conjoint reading of both the decisions (the Ahmedabad St. Xavier’s and TMA Pai Foundation), we find that the consistent view has been on the concept of equality under Article 30 (1) in the matter of recognition, affiliation and grant-in-aid; autonomy of recognized private educational institutions whether aided and unaided and both the decisions are directly aimed towards one fundamental principle of the right of the State to regulate by making such regulations, which do not impinge upon the right of minorities under Article 30(1) of the Constitution. While making regulations, balance is to be kept between the two objectives; that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. The principle that regulations which embrace and reconcile the two objectives, can be considered to be reasonable as sacrosanct,” it underscored.
Provisions provide prescription of qualifications, conditions of service
With respect to the provisions which were made applicable to the institutions post the amendment the court said, “We may note that Clause (26) of Section 17, which was initially excluded by virtue of original Section 40-A (saving clause) from its application to minority institutions, has now been made applicable to the minority institutions. However, it only empowers the Board to lay down qualifications, method of selection and conditions of appointment, promotion and termination of employment and rules for conduct of discipline of Headmaster and teaching and non-teaching staff of registered minority institution in the State which cannot be said to be transgression to the right of the minority to administer their institutions guaranteed under Article 30 (1) of the Constitution of India”.
This power is delegated by the Statute framed by the State Government in no manner can be termed as beyond the jurisdiction of the State to regulate the functioning of the minority institutions, the court said.
With respect to Section 34 (2), which has now been applied to minority institutions by the 2021 amendment, the court said that it “only empowers the Board to regulate the recruitment and conditions of service” including conduct and discipline of persons appointed as headmasters, teachers and members of the non-teaching staff of the registered private secondary and higher secondary schools in the State.
It said, “the power conferred upon the Board by virtue of Sub-section (2) of Section 34 to make regulations regulating the appointment and conditions of service including conduct and discipline of teaching and nonteaching staff of minority institution, in no manner, can be said to be violative of Article 30 (1) of the Constitution, for the settled legal position pertaining to the power of the State to regulate as discussed above”.
“In light of the law laid down of the Constitution Bench of the Apex Court in the Ahmedabad St. Xavier’s3 and TMA Pai Foundation the right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right and is not free from regulations, we find that by mere application of the provisions of Section 17 (26), Section 34 (2) and Section 35 to the registered aided minority institutions in the State, it cannot be said that the State has crossed the line to encroach upon the rights of the minorities to run and administer their institutions,” the court said.
It also rejected the petitioners’ contention that the same enactment, which governs educational institutions run by the majority cannot be applied to regulate the minority institution on the plea of violation of Article 14, based on the principle culled out from decisions of the Supreme Court as per which the whole object of conferring the special rights on minorities under Article 30 is to ensure that there is equality between them and the minority.
“The impugned provisions of the Act, 1972, conferring enabling power upon the State to make rules to regulate minority institutions in order to bring equality in the matter of administration of minority institutions keeping in mind the special protection granted to under Article 30, cannot be said to be hit by Article 14 or ultra vires to Articles 29 and 30 read with Article 14 of the Constitution,” the court said.
Process of selection doesn’t violate Article 30
“The regulations, which promote such a process of selection of a candidate for the post of principal or teacher of a minority institution, cannot be said to be violative of the rights of the minority educational institution under Article 30 of the Constitution. It needs to be emphasized that in the process of selection of the best qualified and the most suitable candidate, the qualifying marks in the personal interview are allocated by the Minority School Selection Committee headed by the Nominee of the concerned Trust/Management of the minority school, to prepare the final select list. The Committee is free to choose a candidate out of the most qualified candidates from the list prepared by the Scrutiny Committee, who is the best suited to the ideology of the school management. There is absolutely no fetters on the powers of the minority school management in selection of the best suited candidate for its own school,” the court said.
The court hence dismissed the petitions.
Background
For context, the original Act had exempted linguistic and religious minority institutions from the application of Sections 17(26), 34 and 35 of the Act.
The amendments to the Act make the applicability of Section 17(26), certain provisions of Section 34 and Section 35 applicable to minority institutions.The State legislative assembly had passed the law in March 2021 which became effective in June that year.
Courtesy: Live Law
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