Full Judgment Text
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PETITIONER:
BHARAT SEVASHRAM SANGH ETC. ETC.
Vs.
RESPONDENT:
STATE OF GUJARAT ETC. ETC.
DATE OF JUDGMENT18/08/1986
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
MISRA RANGNATH
CITATION:
1987 AIR 494 1986 SCR (3) 602
1986 SCC (4) 51 JT 1986 165
1986 SCALE (2)263
ACT:
Gujarat Secondary Education Act 1972, ss. 33, 34, 35
and 36-Constitutional validity of.
Constitution of India, Articles 200, 201 and 213-Assent
to Bill-Whether justiciable.
HEADNOTE:
The Gujarat Secondary Education Act 1972 (Gujarat Act
No. 18 of 1973) was enacted to provide for the regulation of
secondary education in the State of Gujarat. Section 33 of
the Act provides that whenever it appears to the State
Government that the manager of any registered private
secondary school has neglected to perform any of the duties
imposed on him by or under the Act or the regulations and
that it is necessary in the public interest to take over the
management of the school, it may, after giving to the
manager of such school a reasonable opportunity of showing
cause against the proposed action and after considering the
cause, if any, shown by him, take over the management of the
school for such period as the State Government may, from
time to time fix, so, however, that such period shall not
exceed 5 years in the aggregate. Section 34(1) provides that
15% of vacancies for the teaching staff of a registered
private school shall be filled up by persons belonging to
the Scheduled Castes and Scheduled Tribes Section 35(1)
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 headmaster.
These committees consist of the representatives of the
management and the representatives of the teachers. The
committees are required to select the headmaster and the
teachers in the school. Section 36 of the Act provides that
no person who is appointed as a headmaster, a teacher or a
member of non-teaching staff of a registered private
secondary school can be dismissed or removed or reduced in
rank nor can his services be otherwise terminated by the
manager until he has been given by the
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manager a reasonable opportunity of showing cause against
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the action proposed to be taken against him and the action
proposed to be taken has also been approved in writing by an
officer authorised in this behalf by the Gujarat Secondary
Education Board established under the Act.
The petitioners/appellants, as the case may be
challenged the constitutional validity of the Act and
particularly ss. 33, 34, 35 and 36. It was contended on
their behalf: (i) that the assent given to the Act by the
President being a qualified one, the Act was not
enforceable; and (ii) that ss. 33, 34, 35 and 36 of the Act
were contrary to the constitutional provisions.
Dismissing the appeals and the writ petitions,
^
HELD: 1. The Act which was duly published in the
official Gazette contains the recital that the said Act had
received the assent of the President on the 28th of
September, 1973. Questions relating to the fact whether
assent is given by the Governor or the President cannot be
agitated in this manner. Moreover in the instant case, it is
clear from the material placed before this Court that the
President had given assent to the Act and it is not correct
to say that it was a qualified assent. [608E-F]
Hoechst Pharmaceuticals Ltd. & Anr. Etc. v. State of
Bihar & Ors., [1983] 3 SCR 130, referred to.
2. A large number of teachers are employed by the
private secondary schools. The protection of their interests
is also equally important from the point of view of the
State. In these circumstances, a provision like s. 33 of the
Act which provides that the taking over of the management of
a school whenever it is found that the school is not being
run in accordance with the statute and the best interest of
all the students and the community is necessary. The
management of a school cannot be taken over for an
indefinite period because the said section provides such
taking over shall not exceed 5 years in the aggregate.
Before a school is taken over a reasonable opportunity has
to be given to its manager for showing cause against the
proposed action. In these circumstances, it cannot be said
that s. 33 of the Act is unconstitutional. The said
provision is introduced in the interest of the general
public and does not, in any way, affect prejudicially the
fundamental right of the management guaranteed under Art.
19(1)(g) of the Constitution. [609C-F]
3. Since a large number of teachers whose salaries are
met by the
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grant given by the State under the Grants-in-Aid Code, are
employed by the managements, the State should therefore have
a voice in the method of recruitment. The State should also
make provision for reservation of certain percentage of
seats for members belonging to the Scheduled Castes and the
Scheduled Tribes under Art. 16(4) of the Constitution. The
insistence on having teachers belonging to the Scheduled
Castes and the Scheduled Tribes in also in the public
interest. Children should be brought up in an atmosphere
where there is opportunity to mix freely with students and
teachers belonging to traditionally disfavoured communities
also. The opportunity to show reverence to teachers
belonging to Scheduled Castes and the Scheduled Tribes will
in the long run enable the child brought up in that
atmosphere to shed the feeling of superiority over members
belonging to the Scheduled Castes and the Scheduled Tribes.
Such an atmosphere would also be congenial to the
development of a society consisting of person free from
feelings of hatred or contempt towards others. S. 34 of the
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Act serves the above mentioned laudable purpose. Even the
teachers who belong to the Scheduled Castes or the Scheduled
Tribes have to possess the requisite qualifications for the
posts. Therefore, there is no illegality in s. 34 of the
Act. [609G-H; 610A-D]
4. The presence of the teachers working in the very
school and of the representatives of the Board on the
committee does not have the effect of silencing the voice of
the management. The provisions of s. 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. Therefore, s.
35 of the Act is also constitutionally valid. [611B-C]
5. Section 36 protects the tenure of the teachers and
of the non-teaching staff of a registered private secondary
school and acts as a shield against arbitrary actions of the
management resulting in wrongful termination of their
services. If the management is aggrieved by the decision of
the authorised officer it may prefer an appeal before the
Tribunal under s. 36(5) of the Act within 30 days from the
date of the decision of the authorised officer. S. 39 of the
Act provides for the establishment of a Tribunal. The
Tribunal consists of a District Judge or a person who has
been or is qualified to be a judge of a High Court or a
District Judge. The provision for an appeal to the Tribunal
is a sufficient guarantee against any arbitrary order of the
authorised officer refusing to grant unreasonably his
approval to the termination of
605
the services of an employee. Merely because the management
cannot terminate the services of a teacher or a member of a
non-teaching staff forthwith without the approval of the
authorised officer, it cannot be said that an unreasonable
restriction has been imposed on the right of the management
guaranteed under Art. 19(1)(g) of the Constitution. [611E-H;
612A]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 205 of 1975
Etc. Etc.
(Under Article 32 of the Constitution of India.)
H.S. Parihar, V.A. Bobde, M.N. Shroff, R.P. Kapur, P.C.
Kapur and R.C. Bhatia for the Petitioners.
S.Srinivasan and B. Mehta for the Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. In these cases the petitioners and
the appellants, as the case may be, have questioned the
constitutional validity of the Gujarat Secondary Education
Act, 1972 (Gujarat Act No. 18 of 1973) (hereinafter referred
to as ’the Act’) which has been enacted to provide for the
regulation of secondary education in the State of Gujarat
and to establish a Board for that purpose.
These cases can be divided into three groups. Writ
Petition No. 205 of 1975, Writ Petitions Nos. 16988-17055 of
1984 and Writ Petitions Nos. 2837-38 of 1983 are Writ
Petitions filed in this Court under Article 32 of the
Constitution. T.C. Nos. 9 and 10 of 1985 are Writ Petitions
filed under Article 226 of the Constitution in the High
Court of Gujarat which have been withdrawn under Article
139A of the Constitution for being heard along with the
above Writ Petitions filed in this Court. Civil Appeal No.
2440 of 1982 is an appeal filed under Article 136 of the
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Constitution against the judgment dated July 6, 1981 in
Special Civil Application No. 2140 of 1980 of the Gujarat
High Court and S.L.P. (Civil) No. 2659 of 1982 is a petition
filed against the judgment and order of Gujarat High Court.
All these cases are heard together since common questions of
law have been raised in these cases. All of them are
disposed of by this common judgment.
The Act received the assent of the President on
September, 28, 1973 and was published on the same day.
Section 11 of the Act came
606
into force at once but its remaining provisions came into
force on October 13, 1973 on the issue of a notification by
the State Government in that regard as provided in sub-
section (3) of section 1. The Act provides for the
constitution, incorporation and powers of the Gujarat
Secondary Education Board, its finances, accounts and audit,
registration of schools imparting secondary education,
taking over of management of registered schools, recruitment
and conditions of service of persons appointed in registered
private schools and certain other ancillary and incidental
provisions. Chapter II of the Act contains the provisions
relating to the Constitution, incorporation and powers of
the Gujarat Secondary Education Board (hereinafter referred
to as ’the Board’). The Board consists of the Director of
Education, the Director of Technical Education, the Director
of Agriculture, the Chairman of the Board of Primary
Education, the Director, Gujarat State Board of School Text
Books, the Director, State Institute of Education, the
Director of Man power, Employment and Training, an officer
of the Education Department not below the rank of a Deputy
Secretary designated by the State Government, the Chairman,
State Board of Examination and the Chairman, Technical
Examination Board. In addition to these officers there are
certain elected members and nominated members on the Board.
Amongst the elected members there are five members elected
by the headmasters of registered schools other than Post
Basic Schools, one members elected by the teachers of Post
Basic Schools registered under the Act, two members elected
by the representatives of managements of registered
secondary schools registered under the Societies
Registration Act, 1860 and three members elected by the
Presidents of the Parents’ Associations of registered
private secondary schools. Three members are to be nominated
by the State Government from amongst persons who have
special knowledge or practical experience in the field of
science, industry or commerce. Thus it is seen that the
Board consists of members representing different interests
which are affected by the Act, namely, the Government, the
managements of the institutions, the teachers, the parents
of students and the members of the public. The powers and
duties of the Board are set out in section 17 of the Act.
The Board is required to advise the State Government on
matters of policy relating to secondary education in general
and on certain other matters specified in that section. The
powers and duties of the Board amongst others are to
prescribe measures for promotion of physical, moral and
social welfare of, and for inculcation of spirit of
discipline among students in registered schools and to
prescribe standards of conditions of residence to be
provided in hostels, to lay down standards for test-
607
ing students, for conducting examinations and for promotion
of students from one standard to the next higher standard of
a registered school and to prescribe the standards,
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including qualifications, for appointment of the staff of a
registered school and the standard requirements in respect
of building, laboratory, library, furniture, equipment,
stationery and other articles for conducting registered
schools.
Section 31 of the Act prescribes that no person shall
impart secondary education through a school unless such
school is registered under the provisions of the Act and its
provisions are complied with.
Aggrieved by the enforcement of the Act and the
regulations made thereunder the petitioners/appellants in
these petitions have challenged the provisions of the Act
and the regulations made thereunder on many grounds but at
the hearing the learned counsel for the
petitioners/appellants urged the following grounds only: (i)
the assent given to the Act by the President being a
qualified one, the Act was not enforceable; and (ii)
sections 33, 34, 35 and 36 of the Act were contrary to
constitutional provisions.
The contention relating to the alleged invalidity of
the assent given by the President is formulated by the
learned counsel for the petitioners/appellants thus. The
Bill was passed by the legislature of the State on February,
15, 1973 and it was immediately thereafter forwarded to the
Governor for his assent. The Governor reserved the Bill for
the consideration of the President under Article 200 of the
Constitution and the subsequent events according to the
learned counsel showed that the President did not either
give his assent or withhold his assent as contemplated under
Article 201 of the Constitution but he gave a qualified or
conditional assent which was not contemplated under Article
201 of the Constitution. It is argued that since the
President did not give absolute assent but only a qualified
or conditional assent the Bill in question had not become a
law. In reply to these averments in the petitions the Under
Secretary to the Government of Gujarat, Education Department
has stated in his counter affidavit that the Bill was
presented to the Governor of Gujarat after it was passed by
the Assembly. The Governor of Gujarat reserved the Bill for
the consideration of the President under Article 200 of the
Constitution since he felt that in view of clause 33 of the
Bill which provided for taking over of the management of a
school for a limited period in public interest it was
necessary to reserve the Bill for the
608
consideration of the President. Accordingly the Bill was
referred to the President. At the meeting held in the
Ministry of Home Affairs, Government of India on August 3,
1973 to discuss the Bill it was suggested by the
representatives of the Central Government that the
provisions of the Bill which did not exclude institutions
established or administered by the minorities from their
scope were repugnant to Artilce 30 of the Constitution and
therefore the Bill should be suitably amended. It was also
suggested to the representatives of the State Government
that it would be better to carry out the requisite
amendments by promulgating an Ordinance. Accordingly the
draft of the Ordinance which was ultimately promulgated as
Ordinance No. 6 of 1973 was forwarded for the instructions
of the President under Article 213(1) of the Constitution.
Thereafter the draft of the Ordinance and the Bill were both
considered by the President and he assented to the said Bill
and issued instructions as required by the proviso to
Article 213 of the Constitution for the promulgation of the
said Ordinance on September 28, 1973. Accordingly the said
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Bill became law on its publication on the very same day. The
Ordinance was issued on the 29th of September, 1973. In the
circumstances it cannot be said that the assent which was
given by the President was conditional. The records relating
to the above proceedings were also made available to the
Court. On going through the material placed before us we are
satisfied that the President had given assent to the Act and
it is not correct to say that it was a qualified assent. The
Act which was duly published in the Official Gazette
contains the recital that the said Act had received the
assent of the President on the 28th of September, 1973.
Moreover questions relating to the fact whether assent is
given by the Governor or the President cannot be agitated
also in this manner. In Hoechst Pharmaceuticals Ltd. & Anr.
Etc. v. State of Bihar & Ors., [1983] 3 S.C.R. 130 this
Court has observed at page 194 thus: "We have no hesitation
in holding that the assent of the President is not
justiciable, and we cannot spell out any infirmity arising
out of his decision to give such assent." The above
contention relating to the assent given by the President is,
therefore, rejected.
The next provision of the Act whose validity is
questioned is section 33. That section provides that
notwithstanding anything contained in any law for the time
being in force, whenever it appears to the State Government
that the manager of any registered private secondary school
has neglected to perfrom any of the duties imposed on him by
or under the Act or the regulations, and that it is
necessary in the public interest to take over the management
of the school, it may,
609
after giving to the manager of such school a reasonable
opportunity of showing cause against the proposed action and
after considering the cause, if any, shown by him, take over
the management of the school for such period as the State
Government may, from time to time fix, so however, that such
period shall not execeed five years in the aggregate. Under
the Grants-in-Aid Code the Government is under an obligation
to pay to all private secondary schools registered under the
Act 100% grant towards the teachers salaries as also 30%
grant by way of "Maintenance Grant" from the public
exchequer. It is, however, open to any school not to accept
the grant but that would not make any difference in so far
as the power of the State to regulate the imparting of
secondary education by the registered schools in which the
entire society and in particular the parents of the children
are vitally interested. A large number of teachers are
employed by these schools. The protection of their interests
is also equally important from the point of view of the
State. In these circumstances a provision like section 33 of
the Act which provides for the taking over of the management
of a school whenever it is found that the school is not
being run in accordance with the statute and in the best
interests of the students and the community is necessary.
The management of a school cannot be taken over for an
indefinite period because the said section provides such
taking over shall not exceed five years in the aggregate.
Before a school is taken over a reasonable opportunity has
to be given to its manager for showing cause against the
proposed action. In these circumstances it cannot be said
that section 33 of the Act which provides for taking over of
management of any registered private secondary school for a
temporary period in the public interest is unconstitutional.
The said provision is introduced in the interest of the
general public and does not in any way affect prejudicially
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the fundamental right of the management guaranteed under
Article 19(1)(g) of the Constitution.
The next section which was attacked before us is
section 34 of the Act. Section 34(1) of the Act provides
that fifteen per cent of vacancies of the teaching staff of
a registered private school shall be filled up by persons
belonging to the Scheduled Castes and the Scheduled Tribes.
It is argued that the above provision interferes with the
managerial function. As already mentioned a large number of
teachers whose salaries are met by the grants given by the
State under the Grant-in-Aid Code are employed by the
managements. The State should, therefore, have a voice in
the method of recruitment. The State should also make
provision for reservation of certain percentage
610
of seats for members belonging to the Scheduled Castes and
the Scheduled Tribes under Article 16(4) of the
Constitution. The insistence on having teachers belonging to
the Scheduled Castes and the Scheduled Tribes is also in the
public interest. Children should be brought up in an
atmosphere where there is opportunity to mix freely with
students and teachers belonging to traditionally disfavoured
commities also. The opportunity to show reverence to
teachers belonging to the Scheduled Castes and the Scheduled
Tribes will in the long run enable the child brought up in
that atmosphere to shed the feeling of superiority over
members belonging to the Scheduled Castes and the Scheduled
Tribes. Such an atmosphere would also be congenial to the
development of a society consisting of persons free from
feelings of hatred or contempt towards others. Section 34 of
the Act serves the above mentioned laudable purpose. Even
the teachers who belong to the Scheduled Castes or the
Scheduled Tribes have to possess the requisite
qualifications for the posts. We do not, therefore, find any
illegality in section 34 of the Act.
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 the following members,
namely (i) two representatives of the management of the
school to be nominated by the management; (ii) the
headmaster of the school; (iii) in the case of a school the
total number of teachers in which is more than six, two
teachers to be elected by the teachers of the school from
amongst themselves, and in the case of a school the total
number of teachers in which is or is less than six, one
teacher to be elected by the teachers of the school from
amongst themselves; and (iv) one representative of the Board
to be nominated by the Board. The special school committee
consists of the following members namely: (i) two
representatives of the management of the school to be
nominated by the management and (ii) two representatives 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. Their functions are also
set out in it. There appears to have been some modification
in the composition of these committees subsequent to the
filing of the first writ petition in this Court. That
however is immaterial for purposes of considering the
611
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contention urged before us. The argument urged on behalf of
the petitioners/appellants is that the representatives of
managements being in a minority in the said committees they
would have practically no voice in the selection of the
teachers. 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 working in the very school and
of the representatives of the Board on the committee 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.
Section 36 of the Act which came under attack in the
course of the arguments deals with the dismissal, removal
and reduction in rank of certain employees of the school. No
person who is appointed as a headmaster, a teacher or a
member of non-teaching staff of a registered private
secondary school can be dismissed or removed or reduced in
rank nor can his service be otherwise terminated by the
manager until he has been given by the manager a reasonable
opportunity of showing cause against the action proposed to
be taken against him and the action proposed to be taken has
also been approved in writing by an officer authorised in
this behalf by the Board. We do not find any constitutional
invalidity in this provision. It protects the tenure of the
teachers and of the non-teaching staff of a registered
private secondary school and acts as a shield against
arbitrary actions of the management resulting in wrongful
termination of their services. If the management is
aggrieved by the decision of the authorised officer it may
prefer an appeal before the Tribunal under section 36(5) of
the Act within 30 days from the date of the decision of the
authorised officer. Section 39 of the Act provides for the
establishment of a Tribunal. The Tribunal consists of a
District Judge or a person who has been or is qualified to
be a judge of a High Court or a District Judge. The
provision for an appeal to the Tribunal is a sufficient
guarantee against any arbitrary order of the authorised
officer refusing to grant unreasonably his approval to the
termination of the services of an employee. Merely because
the management cannot terminate the services of a teacher or
a member of a non-teaching staff forthwith without the
approval of the authorised officer it cannot be said that an
unreasonable restriction has been imposed on the right of
612
the management guaranteed under Article 19(1)(g) of the
Constitution.
Section 40-A of the Act which was introduced into the
Act by the Gujarat Act 25 of 1973 provides that nothing
contained in clause (26) of section 17, sections 34 and 35
and clause (b) of sub-section (1), and sub-sections (2),
(3), (4) and (5) of section 36 shall apply to any
educational institution established and administered by a
minority whether based on religion or language. In view of
this provision no minority institution also can complain
about the Act.
We agree with the decision of the High Court on the
questions raised before it. All the contentions urged before
us in these cases, therefore fail. These petitions and the
appeal are accordingly dismissed. There will be no order as
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to costs.
M.L.A. Petitions and appeal dismissed.
613