Amendment To Law For 'Fair, Merit Based Selection Of Teachers', Doesn't Violate Minority Institutions' Article 30 Right: State To Gujarat HC

The state government told the Gujarat High Court on Wednesday that the amendments to the Gujarat Secondary and Higher Secondary Education Act do not violate fundamental right of minority educational institutions to administer themselves, but aim at ensuring a "fair and transparent process for effecting merit based selection". 

A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi was hearing a batch of petitions moved by various linguistic and religious minority schools challenging the 2021 amendments to the Gujarat Secondary and Higher Secondary Education Act applying a centralised process of recruiting teachers and principals in such schools.

During the hearing, the Advocate General appearing for the state said that the petitioners before the high court had challenged the applicability of Section17(26), applicability of subsections of Section 34 barring subsection 1 and the applicability of Section 35 of the Act, on the institutions. 

"Two fold challenge is presented before the court–one, that we could not have taken recourse to frame the rules under Section 35 which nullify the minority character if the institution. Which nullify the right to establish and administer an educational institution of their own choice," he said. 

He further said that the petitioners had contended that Section 35 is "bad because from the entire law no guidelines are flowing as to what should be good for minority institution and what should be good for non minority institution".

He submitted that all these schools have been provided salary grant and maintenance grant and are absolutely taken care of by the funds of the State. 

Pointing to the relevant rules which were framed following the amendments, the advocate general said that Rules 3, 10, 11 of Principal in the Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021 lays down the procedural formality to be carried out by scrutiny committee.

He submitted that the scrutiny committee is to verify as regards the possession of the qualification criteria by the candidate concerned. It has to put in place performance of the aptitude test of concerned candidate on the basis there of they have to prepare the merit list. He thereafter referred to the rules concerning the selection committee. 

The advocate general said, "If I concentrate on the main contention...the first and foremost is why is there a need for scrutiny committee? Why should not the function of the scrutiny committee be carried out by the selection committee itself? Of course there is reservation about the selection committee also...so far as the right of choice for the selection and appointment of principal and teachers is concerned that right of a choice is a fundamental right included under article 30 of the constitution.In my humble submission Article 30 of the Constitution which says that a minority whether linguistic or religious has a fundamental right to establish and administer an educational institution of their choice undoubtedly". 

The advocate general said, that as per several judgments, courts have taken the view that this right comprises of several rights. For instance, he said, the right to constitute a governing body which is perhaps a major right.

Others rights include– right of constituting a management council which is an equally imo right; right to set up reasonable fee structure that is also an important right; right to admit students of their own choice; right to appoint teaching and non teaching staff and take action in case of dereliction of duty. 

The advocate general then contended, "My (State) rules do not tinker with their right of constituting of a governing body, which is perhaps a major portion of the fundamental right as to 'how should I drive my vehicle of educational institution'. We do not tinker with right of constituting management committee". 

"My lords must have taken the note of the fact that though the language of Article 30 unlike (Article) 19 appears as if it is a right which cannot be restricted or regulated. Nevertheless the apex court has taken a view that though the language gives rise to an impression that this is a right in absolute terms it is not so...Fundamental right of the minorities under Article 30 to administer to establish educational institution is not absolute. That can be subjected to reasonable regulations. Those regulations should be for the benefit for the institution itself, but should be consistent with the principles of national interest," he emphasized. 

The advocate general submitted that the word national interest is not defined, but has the "widest connotation". 

Pointing to the judgments of the Supreme Court–such as T.M.A.Pai Foundation & Ors vs State Of Karnataka & Ors–on what would constitute national interest the advocate general said, "If i just pick up some of the expressions laid down by the Hon'ble Supreme Court...like achieving excellence and uniformity in standard of education, this is in national interest. Im borrowing this language in TMA Pai itself". 

He submitted that another aspect of national interest is that there should be fair and transparent process for effecting merit based selection. He further said that regulation can be framed for ensuring facilitation of smooth administration and for prevention of maladministration, which is also national interest. It is also in national int that standards of health, morality and public order are also maintained, he added. 

"All these judgments say that regulations framed in the interest of students, teachers and principals are also good regulations. I pose a question to myself, how should I ensure that institutions adopt or conduct fair and transparent process for effecting merit based selection. Either I leave it to the institution concerned, which may adopt process of its own choice," he said. 

Pointing to the kind of issues that were coming across, the advocate general said that in an inspection in a school in a very remote area, it was found that it had no principal and teachers, adding that the school was getting a 100 percent grant (both salary and maintenance grant).

He then said, "At times it was difficult to keep a constant watch. Therefore we thought that in order to see that there is a fair and transparent process for effecting merit based selection, let there be some mechanism which does ministerial work, which gives advertisement, which prepares the merit list by verifying as to whether candidates concerned possess the required qualification or not. By verifying what is their performance in the aptitude test, they do not apply any other language...having prepared the merit list of 15 people it goes to the selection committee. Section committee members is nothing but an alter ego of the institution itself. Out of 4-5 members everyone is theirs (institution). Nobody is an outsider". 

After hearing the matter for some time the high court listed the matter on Thursday. 

Background

For context, the original act–Gujarat Secondary and Higher Secondary Education Act, 1972 had exempted linguistic and religious minority institutions from the application of Sections 17(26), 34 and 35 of the Act.

Section 17(26) lays down the “qualifications, methods of selection and conditions of appointment, promotion and termination of employment and rules for conduct and discipline” of the headmaster, teaching and non teaching staff of registered private secondary schools and registered private higher secondary schools.

Section 34 lays down the Recruitment and conditions of service of persons–which includes teaching staff, appointed in registered private secondary schools or registered private higher secondary schools.

Section 34(2) said that the Gujarat Secondary and Higher Secondary Education Board shall regulate the recruitment and conditions of service including conduct and discipline of persons appointed as headmaster, teachers and members of non-teaching staff of registered private secondary schools in the State.

Section 35 states that registered private secondary schools and registered private higher secondary schools are to have “Selection Committees” for recruiting the teaching staff and the head-master of such schools.

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.

Subsequent to the amendments, certain rules were prescribed by the State government pertaining to the selection of the Principal and Teachers in minority schools. The petitioners have also challenged these rules as well. These are the 'Principal in the Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021' and the 'Teachers in the Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021'.

Case title: MOUNT CARMEL HIGH SCHOOL & ANR. v/s STATE OF GUJARAT & ORS and batch