Minority Institutions' Right Of Administration Must Be Balanced With Principles Of Public Employment: Gujarat High Court

The Gujarat High Court on Thursday 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.

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, senior advocate Mihir Thakore appearing for certain petitioner schools said that rules that were brought in by the state (subsequent to the 2021 amendment) resulted in an effect allowing the state to make any rule “whenever they want to” vis-a-vis the right of the minority schools to appoint teachers and principals.

At this stage, Chief Justice Agarwal said, “Inclusion of outsiders in the committees that were formed at the state level (scrutiny committee) and committees which are formed at the school level seems to be an interference in the right of the management of the institution which is guaranteed by right to administer. But providing criteria for bringing uniformity in the selection for public employment…you are a minority institution but once these teachers are getting salary from aid given by the state that is public money. Whosoever is participating in the selection process and whatever are the vacancies those are public posts. Once selection is for public employment all principles of public employment come in”.

The Chief Justice further said that while there may be some excesses in the rules, the “basic concept of public employment has to be balanced with the rights of minorities and there lies a requirement of regulating rights and those regulations have to be reasonable”.

Thakore meanwhile said that in the process, the right of choice of such schools is being taken away. He further said that the aptitude tests prescribed in the rules for recruitment of principals are only in English and Gujarati where there were various linguistic minority schools (operating in Sindhi, Marathi, Urdu) being run in the state. Thakore further said that by granting aid to minority institutions, their right as a minority cannot be “jeopardised”. He said that the process would amount to “no right of choice” of the institutions.

Noting that while the “language issue” can be worked around, the high court said, “Right of choice cannot be tinkered to that extent…according to us…that it can be a sweet will of management. Here the issue is about maintaining standards of education and selection to public employment. It has to be transparent, uniform, guided by rules and merit cannot be compromised”.

On the argument that the institutions have an “absolute right of selection”, the high court orally remarked that then it would have to see that this “absolute right in case of public employment can be so absolute that there would be possibility of pick and choose”.

After some hearing, the high court listed the matter for further hearing on August 5 at 2:30 pm.

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'.

In the previous hearing, the petitioner schools had said 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