Violates Our Fundamental Rights: Minority Schools To Gujarat HC On Amendment Enabling State To Regulate Recruitment Of Teachers, Principals

Linguistic and religious minority schools told the Gujarat High Court on Tuesday that the 2021 amendments to the Gujarat Secondary and Higher Secondary Education Act applying a centralised process of recruiting teachers and principals in such schools, violates their fundamental rights under the Constitution of India.

Appearing for certain petitioner schools, senior advocate Mihir Thakore submitted before a division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi that the schools were challenging the amendment as it violates their rights under Article 30 of the Constitution– pertaining to the right of minorities to establish and administer educational institutions.

“They (minority institutions) have a right not only to establish but also to administer and (the term) administer includes the prerogative to appoint the principal and teachers…We are all aided minority institutions. There cannot be any discrimination as far as aid is concerned to a minority institution,” Thakore said.

At this stage, Chief Justice Agarwal orally said, “If the State is providing aid…the State is not regulating but the State can regulate only by prescribing what rules are to be followed by the management in administration of the institution. State will give you money for teachers appointed by you but would not regulate as to what would be the procedure for their selection?”

Thakore submitted that the State can provide rules prescribing qualifications for the teachers but as far as recruitment is concerned that is the “absolute right of the minority institution” so long as the candidates are persons who are “duly qualified”.

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'.

Also Read: Aided Minority Institutions Have Absolute Right To Appoint Principals, Teachers; DoE Can Only Prescribe Qualification & Experience: Delhi HC

On Scrutiny Committee

Thakore pointed to the duties and functions of the scrutiny committee constituted under the 'Principal in the Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021'.

As per the rules, the committee is to scrutinize applications of candidates for the Principals received and prepare a school wise merit list based on weightage of the marks secured by the candidate in the “HMAT (Head Master Aptitude test) and educational qualifications, as also experience if any in the ratio of 60% and 40% respectively”.

The bench was further informed that the HMAT is conducted by the State Education Board.

Minority School Selection Committee and selection of principals

Thakore then pointed to the Constitution of a minority school selection committee and said, “this provision results in the selection committee substituting the management of the private school. Otherwise it was the private school which was appointing”. The list of first 15 candidates in the merit list is to be sent by the scrutiny committee to the minority school's selection committee for personal interview, Thakore said.

“If this rule was not there, I could have selected from the whole bunch of persons who were qualified. Now my selection is limited to the top 15 who have applied for my school and who have been scrutinized and listed by the scrutiny committee. From that only I can select…I'm aggrieved by the fact that I'm not entitled to select. My right to select is taken (away),” Thakore submitted.

Thakore said that he is also aggrieved by the “criteria”. He submitted that while qualification can be prescribed however selection has to “completely” be the minority institution's “prerogative”.

“That you can lay down that a person who has to be a Principal, the minimum qualification should be post graduation and a B.Ed but thereafter it is my privilege alone to select. In an aided school also. That is the law laid down by the Supreme Court…,” Thakore said.

Thakore further submitted that merely because the minority institution was getting aid from the State, the same would not deprive it of its right to administer the institution.

At this Chief Justice Agarwal orally said,“Yes…but since it is public employment and the State is making payment for those teachers who are grant-in-aid, so the State can regulate to the extent. And that regulation is in terms of constitutional principles of uniformity, transparency in public employment”.

After hearing the matter for some time, the high court listed the matter for further hearing at 2:30 on August 1.

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.

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