Not State Under Article 12, Not Doing Public Duty: Aided Minority Schools To Gujarat HC In Plea Against Centralised Recruitment Of Teachers

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.

Expounding on his submissions from last week senior advocate Mihir Thakore appearing for the petitioner schools said, “A second type of employment is employment with an organisation which is neither state nor Union but organisations which fall under Article 12–i.e. State. Which are agencies of the state like government corporations. The employees of those organizations are not employees of the state. They are not in public employment in that sense but they have protection of fundamental rights…under Articles 14, 15 and 16 (of the Constitution). For that it will be necessary first that the organization is held as a State. Getting a grant from the state does not make any private institution State. If that is not state, employment with any private aided institution, no protection under Articles 14-16 will be available”.

He further said that giving of grant to an organisation amounts to payments of salaries from the coffers of the government but the same would not qualify as “public employment”.

“It is still 'employment by the organisation'. The organisation gets the grant…one more aspect is that public employment implies employment with the state. That is the government (not State under Article 12) to which Article 309, 310, 311 (of the Constitution) would apply. This employment (the pleas before the high court) certainly is not falling under those provisions,” Thakore added.

Explaining the scope of Article 309 of the Constitution, Thakore said that it “only applies to direct employment with the state in the sense of the state government or the Union” and is “pure public employment”.

“There are protections given under Article 311 to such employees. But these provisions have no application to any teacher or professor of an aided minority or majority institution. In fact it is for that reason that provisions are made for services of the employees in the secondary education Act because they are not protected under Article 311,” the senior advocate said.

At this stage the Chief Justice orally said that there are judgments of the Supreme Court vis-a-vis an organisation doing public duty and applicability of Articles 14-16 under Constitution of India.

“The fundamental right of the institution to establish and administer cannot be violated but if in pressing that fundamental right the institution violates the rights of the teachers…Question is this whether the institution can be permitted to violate the fundamental rights when it is discharging public duty?” the Chief Justice orally said.

To this Thakore responded that the institutions in question "were not discharging a public duty". On this the high court remarked that is the “mixed question” which the court will have to answer.

The high court further orally said that according to it, the institutions getting grant in aid are “discharging public duties and the law is that they can be regulated” adding that “reasonable regulation is not prohibited”.

“According to us when the law prescribes the manner in which selection is to take place that means the prescribing standards, qualifications, procedure for selection…You are saying that the 'procedure should also be left to me'. Procedure does not mean procedure as to how selection is to take place. The criteria for selection, the qualification for selection. We are saying that it can be regulated. For a person who is being appointed, the state can provide that he must qualify the aptitude test. You may take us to the extent that the test is not properly regulated,” the high court orally said.

The court further orally said that it “tentatively agrees” with Thakore on the insertion of outsiders in the committees (under the Rules) taking away the right of the management to make a selection.

“But what we are saying is that there is no absolute discretion given to the committee. The state can regulate in a reasonable manner saying that this will be the criteria of selection and qualification. Criteria means the preparation of merit list and adherence to the merit list…The right of selection of a meritorious person is not taken away, the merit list will be prepared by you,” the high court added.

At this stage Thakore submitted that the fundamental rights of selected citizens are against the state.

“My submission is that these institutions, whether minority and minority which are aided, are not State and are not required to adhere to fundamental rights of the citizens,” he added.

The Chief Justice however orally said that there were judgments of the Supreme Court which observed that once a private educational institution discharges public functions they cannot violate fundamental rights.

After some arguments, the high court listed the matter on Tuesday at 2:30pm.

Applicable Rules

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'.

On August 1, the high court had orally remarked that even in cases of public employment in minority institutions, the right of the institution to administer has to be balanced with the basic principles of selection in public employment such as transparency and uniformity.

The petitioner schools had earlier argued that the 2021 amendment violates their rights under Article 30 of the Constitution– pertaining to the right of minorities to establish and administer educational institutions.

Background

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 headmasters, 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 headmaster 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 passed the law in March 2021 which became effective in June that year.

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