Gujarat High Court upholds law allowing State to regulate appointment of teachers to minority schools

The Gujarat High Court recently dismissed a batch of petitions challenging a 2021 amendment to the Gujarat Secondary & Higher Secondary Education Act that allows the State government to frame rules for appointment of principals and teachers to the religious and linguistic minority institutions [Mount Carmel High School & Anr v State of Gujarat & Ors]..The Division Bench of Justice Sunita Agarwal and Justice Pranav Trivedi considered whether the State action curtails or impinges upon the rights of minority educational institutions to manage their own institutions in accordance with Article 30 of the Constitution of India. “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 Bench held..The Court noted that the 2021 amendment empowers the Gujarat Secondary and Higher Secondary Education 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 institutions.The same 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, the Court ruled.“We may simply record that Clause (26) of Section 17 only empowers the Board, which is an expert body in the field of secondary and higher secondary institution to regulate minority institutions by providing prescription of qualifications etc. for the teaching and non-teaching staff, in its power delegated by the Statute framed by the State Government which can, in no manner, be said to be beyond the jurisdiction of the State to regulate the functioning of the minority institutions,” it said in a 260-page judgment,.The Court was hearing a batch of petitions filed by certain aided minority institutions challenging the validity of Section 40A of Gujarat Secondary & Higher Secondary Education Act. The petitions also challenged the "Principal in the Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021" and "the Teachers in Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021"..After hearing extensive arguments on the issue and applying the law laid down by the Supreme Court, the High Court found that the right conferred on religious and linguistic minorities to administer educational institutions of their choice is not absolute.It thus opined that applicability of three more provisions of Gujarat Secondary & Higher Secondary Education Act to the minority institutions does not amount to encroachment on the rights of minorities to run and administer them.“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 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 Court also upheld the rules framed by the State for appointment of principal and the teachers of schools with minority status.The governing criteria brought in place by the 2021 Rules, framed by the State Government under Section 35 of the 1972 Act, is such which will help the minority institutions to choose the best available candidate out of the list of eligible candidates in the order of merit prepared by the Scrutiny Committee, it reasoned.“The governing criteria prescribed in the Rules, 2021 for the post of Principal, in no manner, can be said to be hit by Article 30 of the Constitution, inasmuch as, the legislature has taken due care of the interest of the Registered Minority Institutions receiving Grant-in-aid from the State exchequer, that they may get the best qualified and suitable candidates to impart education. The provision ensures that the Scrutiny Committee adopts a fair criteria to prepare a pool of the best available talent purely on the merit…,” the Court further said..Senior Advocates Mihir Thakore and Shalin Mehta with advocates Paritosh Gupta, Aishwarya Reddy, Darshan Parikh, Yash Modi, Parinaz, V Fanibanda, Mihir Joshi, Isa Hakim, Hemang Shah, Abhishek M Mehta, Saquib S Ansari, Kalpana K Raval, Nikunt K Raval and NK Majmudar represented the petitioners.Advocate General Kamal Trivedi with advocates Vinay B Vishen, Ankeeta Rajput and Hetal Patel represented the State.Advocates AD Oza, Meet Shah and Garima Malhotra represented other respondents..[Read Judgment]