Kolawana Gram Vikas Kendra vs State Of Gujarat & Ors

KOLAWANA GRAM VIKAS KENDRA ...APPELLANT

VERSUS

STATE OF GUJARAT & OTHERS ...RESPONDENTS

WITH

CIVIL APPEAL NOS. 7624-7625/2004

KOLAWANA GRAM VIKAS KENDRA ....APPELLANT

VERSUS

STATE OF GUJARAT & OTHERS ...RESPONDENTS

J U D G M E N T

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 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 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 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 said orders of the learned Single Judge

were challenged before the Division Bench which confirmed

the said orders relying on 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

mandate for minority institutions.

4. The Division Bench observed that the minority

institution 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 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 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 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 without any interference from the Government.

However, the requirement of this prior approval is

necessitated because it 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

rules and regulations of the Education 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 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 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 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 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, 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 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

authority to issue the no-objection certificate within the

time provided in the said circular which is of seven days.

Of course, 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.

.............................J. [ V.S. SIRPURKAR ]

.............................J. [ DEEPAK VERMA ] NEW DELHI OCTOBER 20, 2009.