THE STATE OF GUJARAT & ORS. versus H. B. KAPADIA EDUCATION TRUST & ANR. on 21 February 2023

THE STATE OF GUJARAT & ORS.

v.

H. B. KAPADIA EDUCATION TRUST & ANR.

(Civil Appeal No. 2837 of 2022)

FEBRUARY 21, 2023

[DINESH MAHESHWARI AND BELA M. TRIVEDI, JJ.]

Constitution of India – Art.30(1) – Right of minorities toestablish and administer educational institutions – Respondent no.1-a minority institution was running a government aided school-respondent no. 2 – Decision of the appellants refusing to providethe aid to the respondents towards the salary of the principal of therespondent no.2 on his attaining the age of superannuation as perthe Grant-in-aid Code, if arbitrary or violative of Art.30(1) – Held:As per the Grant-in-Aid Code, the minority educational institutionslike the respondents could not continue the employees/teachersbeyond the age of 58 years or 60 years, as the case may be –Respondent-institution was bound by the provisions contained inthe Grant-in-Aid Code –Thus, if the appellants refused to pay theGrant-in-Aid to the respondents, on the Principal having reachedthe age of superannuation, it cannot be said that they had interferedwith the affairs of the respondents or violated Art.30(1) – HighCourt erred in holding that the respondent-institute had a right tocontinue the Principal of its school beyond his age of 60 years –Order of the High Court set aside–Gujarat Secondary EducationAct 1972 – Secondary Education Regulations 1974.

Allowing the appeal, the Court

HELD: 1.1 As per Regulation 42 of the SecondaryEducation Regulations 1974, the provisions contained in the saidRegulations framed under the said Act prevail over thoseprovisions contained in the Grant-in-Aid Code published underthe government notification dated 22.04.1964, insofar as theyrelate to any matter provided in the said Regulations. It furtheremerges that as per Regulation 43 of the said Regulations,Regulation 36 pertaining to the age of superannuation is notapplicable to the educational institution established andadministered by a minority, whether based on religion or

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Alanguage. Therefore, the age of superannuation of an employeeof a registered Secondary School as mentioned in Regulation 36would not be applicable to the employee or teacher of aneducational institution established and administered by a minority.The combined reading of Regulations 42 and 43 of the saidRegulations makes it clear that Regulation 36 would not apply toBany educational institutions established and administered byminority, and therefore the matter pertaining to the age ofsuperannuation of the employees of registered Secondary Schoolestablished and administered by minority, availing the Grant-in-Aid could not be said to have been provided under the saidCRegulations. The necessary corollary would be that the saidRegulation 36 being not applicable to the minority educationalinstitution, the provisions contained in the Grant-in-Aid Codepertaining to the age of superannuation would be applicable tosuch minority institutions availing the grant from the StateGovernment. [Para 7][493-C-G]D

1.2 Now, as per para 81.1 of the Grant-in-Aid Code, asecondary school teacher receiving grant-in-aid would ordinarilyretire from service at the age of 58, and the management maygrant to the teachers extensions upto the age of 60, in view ofpara 81.2 of the said Code. Therefore, the minority educationalEinstitutions like the respondents could not continue theemployees/teachers beyond the age of 58 years or 60 years asthe case may be. If an employee or a teacher is continued inservice by the management of any registered minority SecondarySchool receiving Grant-in-Aid from the State-Government, thenFsuch school would not be entitled to receive any grant in respectof the expenditure incurred for continuing such employee orteacher beyond the age of 58 or 60 years, as the case may be.The provisions of Grant-in-Aid Code are applicable to all theregistered secondary education institutions desirous of receivingor which are receiving the grant from the Government, and suchGinstitutions would be subject to the restrictions imposed underthe Code, except for the matters provided in the said Regulations.[Para 8][493-G-H; 494-A-C]

1.3 The provisions contained in the said Grant-in-Aid Codepertaining to the recognition, eligibility criteria, the procedureH

for making application to the government for receiving Grant-in-Aid etc. are applicable to all the secondary schools whetherestablished and administered by the minority or not and therespondents could not have claimed any right to receive the aidfrom the Government dehors the provisions of the Grant-in-AidCode. If the appellants therefore had refused to pay the Grant-in-Aid to the respondents, on the Principal having reached to theage of superannuation, it could not be said by any stretch ofimagination that the appellants had interfered with the affairs ofthe respondents or had violated Article 30(1) of the Constitution.The respondent-institution was bound by the provisions containedin the Grant-in-Aid Code. There is also nothing on record to showthat the appellant-State had discriminated against the respondentinstitution on the ground that it was under the management of aminority, attracting Article 30(2) of the Constitution of India. TheHigh Court therefore had committed gross error in holding thatthe respondent-institute had a right to continue the Principal ofits school beyond his age of 60 years, and in directing theappellants to calculate and pay the requisite amount towards thearrears ofgrant for the period from 2001 to 2012.[Paras 9, 11][494-D-E; 496-A-B]

T.M.A. Pai Foundation and Others vs. State ofKarnataka and Others (2002) 8 SCC 481: [2002]3 Suppl. SCR 587 – followed.

State of Uttar Pradesh and Others vs. Principal AbhayNandan Inter College and Others 2021 SCC OnlineSC 807 – relied on.

Case Law Reference

2002 ( 3 ) Suppl. SCR 587 followedPara 9

CIVIL APPELLATE JURISDICTION : Civil Appeal No.2837of 2022.

From the Judgment and Order dated 02.04.2018 of the High Courtof Gujarat at Ahmedabad in LPA No.175 of 2017.

Ms. Archana Pathak Dave, Ms. Swati Ghildiyal, Ms. DevyaniBhati, Ms. Deepanwita Priyanka, Advs. for the Appellants.

P. K. Manohar, Adv. for the Respondents

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AThe Judgment of the Court was delivered by BELA M. TRIVEDI, J.

1. The Appellants-State of Gujarat and Ors., being aggrieved bythe judgment and order dated 02.04.2018 passed by the Division Benchof the Gujarat High Court in Letters Patent Appeal No. 175 of 2017,Barising out of Special Civil Application No. 3250 of 2001, have preferredthe present appeal.

2. The Respondent No. 1 (original writ petitioner) a Jain MinorityInstitution, was running a government aided school in the name of “TheNew High School”, in which Shri H.H. Kapadia was appointed as theCPrincipal of the school. Mr. Kapadia having attained the age of 58 yearson 22.07.1999, the Respondent No. 1-Institute sought a permission fromthe Government to continue him as the Principal. The DEO granted thepermission to continue him as the Principal upto the age of 60 years onthe condition that his salary would be paid by the Institution. TheDRespondent No. 1 thereafter addressed a letter dated 16.04.2001 to theDEO seeking extension of service of Mr. Kapadia beyond the age of 60years, which came to be rejected by the DEO vide the letter dated18.06.2001. The said two decisions of the DEO came to be challengedby the Respondent No. 1 by filing the Writ petition being Special CivilApplication No. 3250/2001 before the High Court of Gujarat. The SingleEBench vide the judgment and order dated 24.06.2016 allowed the saidwrit petition and held that the action on the part of the Respondents (theappellants herein) in stopping the grant was violative of Article 30(1) ofthe Constitution of India and that the Writ Petitioner-Institute had a rightto continue Mr. Kapadia as the Principal of the school beyond the age ofF60 years. It was further held that the respondents (the appellants herein)were obliged to pay the Grant-in-Aid towards his salary. The SingleBench therefore directed the appellant authorities to calculate the amountstowards the arrears of grant for the period between 2001and 2012 (asthe school was no longer functional since the year 2012) and to pay therequisite amount to the management of the school within a period of 3Gmonths of the order. The aggrieved appellants had preferred an appealbeing the LPA No. 175 of 2017 before the Division Bench, which cameto be dismissed vide the impugned order dated 02.04.2018.

3. The short question which falls for consideration before thisCourt is whether the decision of the appellants in not providing the aid toH

the respondents towards the salary of the principal of the respondent no.2 - school on his attaining the age of superannuation as per the Grant-in-aid Code, could be said to be arbitrary or violative of Article 30(1) of theConstitution of India?

4. A reference to the relevant provisions contained in theConstitution of India, the Gujarat Secondary Education Act, theRegulations framed thereunder and, in the Grant-in-Aid Code publishedunder the Gujarat Notification dated 22.04.1964, would be beneficial forthe purpose of answering the aforesaid question. The relevant part ofArticle 30 of the Constitution pertaining to the right of minority to establishand administer educational institutions reads as under: - “30. Right of minorities to establish and administereducational institutions. –

(1) All minorities, whether based on religion or language, shallhave the right to establish and administer educational institutionsof their choice.

(1A) - xxxx -

(2) The State shall not, in granting aid to educational institutions,discriminate against any educational institution on the ground thatit is under the management of a minority, whether based on religionor language.”

5. The Gujarat Secondary Education Act 1972 (hereinafter referredto as ‘the said Act’) was enacted to provide for the Regulation ofSecondary Education in the State of Gujarat and to establish a Board forthat purpose. The Board established under the said Act has framed theRegulations, namely the Secondary Education Regulations 1974,(hereinafter referred to as the ‘Regulations’) in exercise of the powersconferred upon it under Section 53 of the said Act, for the purpose ofcarrying into effect the provisions of the said Act. The Regulationsrelevant for the purpose of deciding the present appeal, read as under:- “36. Superannuation- (1) An employee of a registered secondaryschool shall be compulsorily retired on the date on which he attainsthe age of 58 years.

(2) No management shall employ or re-employ any person whohas completed the age of 58 years.

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Provided however that if the date of superannuation of anemployee falls within a term, his service shall automatically beextended up to end of that term, Provided further that re-employment upto the age of 60years should normally be given to peons and such other menialservants by the management if they are physically fit.

37. Superannuation of non-teaching staff - Deleted by G.R.No. E & L.D. No. SER/1074/36379-G dated 2-12-75.

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42. Regulations to prevail over Grant-in-Aid Code -Theprovisions of these regulations shall prevail over those provisionscontained in the Grant-in-aid Code published under GovernmentNotification, Education and Labour Department No.GAC-1064-C dated the 22nd April, 1974 in so far as they relate to any mattersprovided in these regulations.

43. Nothing contained in Regulations 19, 20, 21, 22, 24, 25, 26, 27,28, 30, 31, 32, 33, 36, 37, 40 and sub-clauses (4), (5) and (6) ofRegulation No. 41 shall apply to any educational institutionestablished and administered by a minority, whether based onreligion or language.”

6. It would be also germane to reproduce the relevant provisionscontained in the Grant-in-Aid Code for Secondary Schools, publishedvide the notification dated 22.04.1964: - “81.1 A secondary school teacher shall ordinarily retire fromservice at the age of 58.

81.2. The management may grant to teachers extensions uptothe age of 60. If the Inspecting Officers report on the basis oftheir inspection that any teacher beyond the age of 58 is unable todischarge his duties properly, the teacher will be sent for medicalexamination and if declared unfit will be compelled to retire.

81.3. and 81.4 - xxxx -

81.5 No person who has already attained the age of 58 yearsshall be employed as a teacher or on the non-teaching staff. Retiredpersons from Government or non-Government Educational THE STATE OF GUJARAT v. H. B. KAPADIA EDUCATIONTRUST [BELA M. TRIVEDI, J.]

Institutions may however, be re-employed by the EducationalInstitution provided they are physically and mentally fit. Theemployment of such retired persons should be subject to theprovisions made in clauses 81.2 and 81.3 above and such otherterms and conditions not in contravention of these rules and thegeneral service conditions as may be mutually agreed uponbetween the employer and the employee. Such re- employedpersons will not however, be eligible for the departmentallyprescribed scales of pay and allowances, etc. and to theGovernment aided provident fund scheme.”

7. From the above stated provisions, it emerges that as perRegulation 42 of the said Regulations, the provisions contained in thesaid Regulations framed under the said Act prevail over those provisionscontained in the Grant-in-Aid Code published under the governmentnotification dated 22.04.1964, insofar as they relate to any matter providedin the said Regulations. It further emerges that as per Regulation 43 ofthe said Regulations, Regulation 36 pertaining to the age of superannuationis not applicable to the educational institution established and administeredby a minority, whether based on religion or language. Therefore, the ageof superannuation of an employee of a registered Secondary School asmentioned in Regulation 36 would not be applicable to the employee orteacher of an educational institution established and administered by aminority. The combined reading of Regulations 42 and 43 of the saidRegulations makes it clear that Regulation 36 would not apply to anyeducational institutions established and administered by minority, andtherefore the matter pertaining to the age of superannuation of theemployees of registered Secondary School established and administeredby minority, availing the Grant-in-Aid could not be said to have beenprovided under the said Regulations. The necessary corollary would bethat the said Regulation 36 being not applicable to the minority educationalinstitution, the provisions contained in the Grant-in-Aid Code pertainingto the age of superannuation would be applicable to such minorityinstitutions availing the grant from the State Government.

8. Now, as per para 81.1 of the Grant-in-Aid Code, a secondaryschool teacher receiving grant-in-aid would ordinarily retire from serviceat the age of 58, and the management may grant to the teachersextensions upto the age of 60, in view of para 81.2 of the said Code.Therefore, the minority educational institutions like the respondents could AB

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Anot continue the employees/teachers beyond the age of 58 years or 60years as the case may be. If an employee or a teacher is continued inservice by the management of any registered minority Secondary Schoolreceiving Grant-in-Aid from the State-Government, then such schoolwould not be entitled to receive any grant in respect of the expenditureincurred for continuing such employee or teacher beyond the age of 58Bor 60 years, as the case may be. The provisions of Grant-in-Aid Codeare applicable to all the registered secondary education institutionsdesirous of receiving or which are receiving the grant from theGovernment, and such institutions would be subject to the restrictionsimposed under the Code, except for the matters provided in the saidCRegulations.

9. The provisions contained in the said Grant-in-Aid Codepertaining to the recognition, eligibility criteria, the procedure for makingapplication to the government for receiving Grant-in-Aid etc. are applicableto all the secondary schools whether established and administered byDthe minority or not and the respondents could not have claimed any rightto receive the aid from the Government dehors the provisions of theGrant-in-Aid Code. If the appellants therefore had refused to pay theGrant-in-Aid to the respondents, on the Principal having reached to theage of superannuation, it could not be said by any stretch of imaginationthat the appellants had interfered with the affairs of the respondents orEhad violated Article 30(1) of the Constitution. As held by the ConstitutionBench in case of T.M.A. Pai Foundation and Others vs. State ofKarnataka and Others[1], the right under Article 30(1) is not an absoluteright above the law, and that the provisions for the grant or non-grant inaid to the educational institutions, whether it is majority-run institution or Fa minority-run institution, have to be uniformly applied. The relevantobservations made in para 143 and 144 of the said judgment, whichclinch the issue read, as under: -

“143. This means that the right under Article 30(1) implies thatany grant that is given by the State to the minority institution cannotGhave such conditions attached to it, which will in any way dilute orabridge the rights of the minority institution to establish andadminister that institution. The conditions that can normally bepermitted to be imposed, on the educational institutions receivingthe grant, must be related to the proper utilization of the grant and fulfilment of the objectives of the grant. Any such secular conditionsso laid, such as a proper audit with regard to the utilization of thefunds and the manner in which the funds are to be utilized, will beapplicable and would not dilute the minority status of the educationalinstitutions. Such conditions would be valid if they are also imposedon other educational institutions receiving the grant.”

“144. It cannot be argued that no conditions can be imposed whilegiving aid to a minority institution. Whether it is an institution runby the majority or the minority, all conditions that have relevanceto the proper utilization of the grant-in-aid by an educationalinstitution can be imposed. All that Article 30(2) states is that onthe ground that an institution is under the management of a minority,whether based on religion or language, grant of aid to thateducational institution cannot be discriminated against, if othereducational institutions are entitled to receive aid. The conditionsfor grant or non-grant of aid to educational institutions have to beuniformly applied, whether it is a majority-run institution or aminority-run institution..”

10. In a case involving similar issue as to whether a minority institutereceiving an aid is bound by the conditions imposed by the Government,this Court in a recent decision in case of State of Uttar Pradesh andOthers vs. Principal Abhay Nandan Inter College and Others[2]observed as under: - “32. When it comes to aided institutions, there cannot be anydifference between a minority and non-minority one. Article 30of the Constitution of India is subject to its own restrictions beingreasonable. A protection cannot be expanded into a better rightthan one which a non-minority institution enjoys. Law has becomequite settled on this issue and therefore does not require anyelaboration.

33. Thus, on the aforesaid issue we have no hesitation in reiteratingthe principle that an institution receiving aid is bound by theconditions imposed and therefore expected to comply. Once wehold so, the challenge made on various grounds, falls to the ground.”

11. In light of the afore-stated legal position, we are of the opinionthat the respondent-institution was bound by the provisions contained in A

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Athe Grant-in-Aid Code. There is also nothing on record to show that theappellant-State had discriminated against the respondent- institution onthe ground that it was under the management of a minority, attractingArticle 30(2) of the Constitution of India. The High Court therefore hadcommitted gross error in holding that the respondent-institute had a rightto continue the Principal of its school beyond his age of 60 years, and inBdirecting the appellants to calculate and pay the requisite amount towardsthe arrears of grant for the period from 2001 to 2012.

12. In that view of the matter, the impugned order passed by theDivision Bench confirming the order passed by the Single Bench allowingthe writ petition filed by the respondent institution is set aside. The presentCappeal filed by the appellants stands allowed accordingly.

Divya Pandey

(Assisted by : Bhavyata Kapoor and Shevali Monga, LCRAs)

Appeal allowed.

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