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PETITIONER: BHARAT SEVASHRAM SANGH ETC. ETC.

       Vs.

RESPONDENT: STATE OF GUJARAT ETC. ETC.

DATE OF JUDGMENT18/08/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MISRA RANGNATH

CITATION:  1987 AIR  494            1986 SCR  (3) 602  1986 SCC  (4)  51        JT 1986   165  1986 SCALE  (2)263

ACT:      Gujarat Secondary  Education Act  1972, ss.  33, 34, 35 and 36-Constitutional validity of.      Constitution of India, Articles 200, 201 and 213-Assent to Bill-Whether justiciable.

HEADNOTE:      The Gujarat  Secondary Education  Act 1972 (Gujarat Act No. 18 of 1973) was enacted to provide for the regulation of secondary education  in the  State of Gujarat. Section 33 of the Act  provides that  whenever it  appears  to  the  State Government  that  the  manager  of  any  registered  private secondary school  has neglected to perform any of the duties imposed on  him by  or under  the Act or the regulations and that it is necessary in the public interest to take over the management of  the school,  it  may,  after  giving  to  the manager of  such school  a reasonable opportunity of showing cause against  the proposed action and after considering the cause, if any, shown by him, take over the management of the school for  such period  as the  State Government  may, from time to  time fix,  so, however,  that such period shall not exceed 5 years in the aggregate. Section 34(1) provides that 15% of  vacancies for  the teaching  staff of  a  registered private school  shall be  filled up  by persons belonging to the Scheduled  Castes and  Scheduled  Tribes  Section  35(1) requires every  registered private  secondary school to have two committees:  (i) a  school staff selection committee for the purpose  of recruiting  the teaching staff of the school other  than  the  headmaster,  and  (ii)  a  special  school committee for  the purpose  of  recruiting  the  headmaster. These committees  consist  of  the  representatives  of  the management and  the representatives  of  the  teachers.  The committees are  required to  select the  headmaster and  the teachers in  the school. Section 36 of the Act provides that no person  who is  appointed as a headmaster, a teacher or a member  of   non-teaching  staff  of  a  registered  private secondary school  can be  dismissed or removed or reduced in rank nor  can his  services be  otherwise terminated  by the manager until he has been given by the 603 manager a  reasonable opportunity  of showing  cause against

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the action  proposed to  be taken against him and the action proposed to be taken has also been approved in writing by an officer authorised  in this  behalf by the Gujarat Secondary Education Board established under the Act.      The  petitioners/appellants,   as  the   case  may   be challenged  the  constitutional  validity  of  the  Act  and particularly ss.  33, 34,  35 and  36. It  was contended  on their behalf:  (i) that  the assent  given to the Act by the President  being   a  qualified   one,  the   Act  was   not enforceable; and  (ii) that ss. 33, 34, 35 and 36 of the Act were contrary to the constitutional provisions.      Dismissing the appeals and the writ petitions, ^      HELD: 1.  The Act  which  was  duly  published  in  the official Gazette  contains the recital that the said Act had received  the  assent  of  the  President  on  the  28th  of September, 1973.  Questions relating  to  the  fact  whether assent is  given by  the Governor or the President cannot be agitated in this manner. Moreover in the instant case, it is clear from  the material  placed before  this Court that the President had  given assent to the Act and it is not correct to say that it was a qualified assent. [608E-F]      Hoechst Pharmaceuticals  Ltd. &  Anr. Etc.  v. State of Bihar & Ors., [1983] 3 SCR 130, referred to.      2. A  large number  of teachers  are  employed  by  the private secondary schools. The protection of their interests is also  equally important  from the  point of  view of  the State. In these circumstances, a provision like s. 33 of the Act which provides that the taking over of the management of a school  whenever it  is found that the school is not being run in  accordance with the statute and the best interest of all  the  students  and  the  community  is  necessary.  The management  of   a  school  cannot  be  taken  over  for  an indefinite period  because the  said section  provides  such taking over  shall not  exceed 5  years  in  the  aggregate. Before a  school is  taken over a reasonable opportunity has to be  given to  its manager  for showing  cause against the proposed action.  In these  circumstances, it cannot be said that  s.  33  of  the  Act  is  unconstitutional.  The  said provision is  introduced in  the  interest  of  the  general public and  does not,  in any  way, affect prejudicially the fundamental right  of the  management guaranteed  under Art. 19(1)(g) of the Constitution. [609C-F]      3. Since  a large number of teachers whose salaries are met by the 604 grant given  by the  State under the Grants-in-Aid Code, are employed by the managements, the State should therefore have a voice  in the method of recruitment. The State should also make provision  for reservation  of  certain  percentage  of seats for  members belonging to the Scheduled Castes and the Scheduled Tribes  under Art.  16(4) of the Constitution. The insistence on  having teachers  belonging to  the  Scheduled Castes and  the Scheduled  Tribes  in  also  in  the  public interest. Children  should be  brought up  in an  atmosphere where there  is opportunity  to mix freely with students and teachers belonging  to traditionally disfavoured communities also.  The   opportunity  to   show  reverence  to  teachers belonging to  Scheduled Castes and the Scheduled Tribes will in the  long  run  enable  the  child  brought  up  in  that atmosphere to  shed the  feeling of superiority over members belonging to  the Scheduled Castes and the Scheduled Tribes. Such  an   atmosphere  would   also  be   congenial  to  the development of  a society  consisting of  person  free  from feelings of  hatred or contempt towards others. S. 34 of the

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Act serves  the above  mentioned laudable  purpose. Even the teachers who belong to the Scheduled Castes or the Scheduled Tribes have  to possess the requisite qualifications for the posts. Therefore,  there is  no illegality  in s.  34 of the Act. [609G-H; 610A-D]      4. The  presence of  the teachers  working in  the very school and  of the  representatives  of  the  Board  on  the committee does not have the effect of silencing the voice of the management.  The provisions  of s.  35 of the Act do not appear to  confer  any  arbitrary  power  on  the  selection committees nor  can it  be said that there are no guidelines regarding the mode of selection. They have got to select the teachers in  accordance with  the regulations. Therefore, s. 35 of the Act is also constitutionally valid. [611B-C]      5. Section  36 protects  the tenure of the teachers and of the  non-teaching staff of a registered private secondary school and acts as a shield against arbitrary actions of the management  resulting   in  wrongful  termination  of  their services. If  the management is aggrieved by the decision of the authorised  officer it  may prefer  an appeal before the Tribunal under  s. 36(5)  of the Act within 30 days from the date of the decision of the authorised officer. S. 39 of the Act provides  for  the  establishment  of  a  Tribunal.  The Tribunal consists  of a  District Judge  or a person who has been or  is qualified  to be  a judge  of a  High Court or a District Judge.  The provision for an appeal to the Tribunal is a sufficient guarantee against any arbitrary order of the authorised  officer   refusing  to  grant  unreasonably  his approval to the termination of 605 the services  of an  employee. Merely because the management cannot terminate  the services of a teacher or a member of a non-teaching staff  forthwith without  the approval  of  the authorised officer,  it cannot  be said that an unreasonable restriction has  been imposed on the right of the management guaranteed under Art. 19(1)(g) of the Constitution. [611E-H; 612A]

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petition No. 205 of 1975 Etc. Etc.      (Under Article 32 of the Constitution of India.)      H.S. Parihar, V.A. Bobde, M.N. Shroff, R.P. Kapur, P.C. Kapur and R.C. Bhatia for the Petitioners.      S.Srinivasan and B. Mehta for the Respondents.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  In these  cases the  petitioners and the appellants,  as the  case may  be, have  questioned  the constitutional validity  of the  Gujarat Secondary Education Act, 1972 (Gujarat Act No. 18 of 1973) (hereinafter referred to as  ’the Act’)  which has been enacted to provide for the regulation of  secondary education  in the  State of Gujarat and to establish a Board for that purpose.      These cases  can be  divided into  three  groups.  Writ Petition No. 205 of 1975, Writ Petitions Nos. 16988-17055 of 1984 and  Writ Petitions  Nos.  2837-38  of  1983  are  Writ Petitions filed  in this  Court  under  Article  32  of  the Constitution. T.C.  Nos. 9 and 10 of 1985 are Writ Petitions filed under  Article 226  of the  Constitution in  the  High Court of  Gujarat which  have been  withdrawn under  Article 139A of  the Constitution  for being  heard along  with  the above Writ  Petitions filed  in this Court. Civil Appeal No. 2440 of  1982 is  an appeal  filed under  Article 136 of the

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Constitution against  the judgment  dated July  6,  1981  in Special Civil  Application No.  2140 of  1980 of the Gujarat High Court and S.L.P. (Civil) No. 2659 of 1982 is a petition filed against  the judgment and order of Gujarat High Court. All these cases are heard together since common questions of law have  been raised  in  these  cases.  All  of  them  are disposed of by this common judgment.      The  Act  received  the  assent  of  the  President  on September, 28,  1973 and  was published  on  the  same  day. Section 11 of the Act came 606 into force  at once  but its  remaining provisions came into force on  October 13, 1973 on the issue of a notification by the State  Government in  that regard  as provided  in  sub- section  (3)   of  section  1.  The  Act  provides  for  the constitution,  incorporation   and  powers  of  the  Gujarat Secondary Education Board, its finances, accounts and audit, registration  of   schools  imparting  secondary  education, taking over of management of registered schools, recruitment and conditions of service of persons appointed in registered private schools  and certain  other ancillary and incidental provisions. Chapter  II of  the Act  contains the provisions relating to  the Constitution,  incorporation and  powers of the Gujarat  Secondary Education Board (hereinafter referred to as  ’the Board’).  The Board  consists of the Director of Education, the Director of Technical Education, the Director of  Agriculture,  the  Chairman  of  the  Board  of  Primary Education, the  Director, Gujarat State Board of School Text Books, the  Director,  State  Institute  of  Education,  the Director of  Man power,  Employment and Training, an officer of the  Education Department  not below the rank of a Deputy Secretary designated  by the State Government, the Chairman, State Board  of  Examination  and  the  Chairman,  Technical Examination Board.  In addition  to these officers there are certain elected  members and nominated members on the Board. Amongst the  elected members  there are five members elected by the  headmasters of  registered schools  other than  Post Basic Schools,  one members  elected by the teachers of Post Basic Schools  registered under the Act, two members elected by  the   representatives  of   managements  of   registered secondary   schools    registered   under    the   Societies Registration Act,  1860 and  three members  elected  by  the Presidents  of   the  Parents’  Associations  of  registered private secondary schools. Three members are to be nominated by the  State  Government  from  amongst  persons  who  have special knowledge  or practical  experience in  the field of science, industry  or commerce.  Thus it  is seen  that  the Board consists  of members  representing different interests which are  affected by  the Act, namely, the Government, the managements of  the institutions,  the teachers, the parents of students  and the  members of  the public. The powers and duties of  the Board  are set  out in section 17 of the Act. The Board  is required  to advise  the State  Government  on matters of policy relating to secondary education in general and on  certain other matters specified in that section. The powers and  duties  of  the  Board  amongst  others  are  to prescribe measures  for promotion  of  physical,  moral  and social  welfare   of,  and  for  inculcation  of  spirit  of discipline among  students  in  registered  schools  and  to prescribe  standards   of  conditions  of  residence  to  be provided in hostels, to lay down standards for test- 607 ing students,  for conducting examinations and for promotion of students from one standard to the next higher standard of a  registered   school  and   to  prescribe  the  standards,

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including qualifications,  for appointment of the staff of a registered school  and the  standard requirements in respect of  building,  laboratory,  library,  furniture,  equipment, stationery and  other  articles  for  conducting  registered schools.      Section 31  of the  Act prescribes that no person shall impart secondary  education through  a  school  unless  such school is registered under the provisions of the Act and its provisions are complied with.      Aggrieved  by  the  enforcement  of  the  Act  and  the regulations made  thereunder the  petitioners/appellants  in these petitions  have challenged  the provisions  of the Act and the  regulations made  thereunder on many grounds but at the    hearing     the    learned     counsel    for     the petitioners/appellants urged the following grounds only: (i) the assent  given to  the  Act  by  the  President  being  a qualified  one,  the  Act  was  not  enforceable;  and  (ii) sections 33,  34, 35  and 36  of the  Act were  contrary  to constitutional provisions.      The contention  relating to  the alleged  invalidity of the assent  given by  the President  is  formulated  by  the learned counsel  for the  petitioners/appellants  thus.  The Bill was passed by the legislature of the State on February, 15, 1973  and it was immediately thereafter forwarded to the Governor for  his assent. The Governor reserved the Bill for the consideration  of the President under Article 200 of the Constitution and  the subsequent  events  according  to  the learned counsel  showed that  the President  did not  either give his assent or withhold his assent as contemplated under Article 201  of the  Constitution but he gave a qualified or conditional assent  which was not contemplated under Article 201 of  the  Constitution.  It  is  argued  that  since  the President did  not give absolute assent but only a qualified or conditional  assent the Bill in question had not become a law. In  reply to these averments in the petitions the Under Secretary to the Government of Gujarat, Education Department has stated  in his  counter  affidavit  that  the  Bill  was presented to  the Governor of Gujarat after it was passed by the Assembly.  The Governor of Gujarat reserved the Bill for the consideration  of the President under Article 200 of the Constitution since  he felt that in view of clause 33 of the Bill which  provided for  taking over of the management of a school for  a limited  period  in  public  interest  it  was necessary to reserve the Bill for the 608 consideration of  the President.  Accordingly the  Bill  was referred to  the President.  At  the  meeting  held  in  the Ministry of  Home Affairs,  Government of India on August 3, 1973  to   discuss  the   Bill  it   was  suggested  by  the representatives  of   the  Central   Government   that   the provisions of  the Bill  which did  not exclude institutions established or  administered by  the minorities  from  their scope were  repugnant to  Artilce 30 of the Constitution and therefore the  Bill should  be suitably amended. It was also suggested to  the representatives  of the  State  Government that  it   would  be  better  to  carry  out  the  requisite amendments by  promulgating an  Ordinance.  Accordingly  the draft of  the Ordinance  which was ultimately promulgated as Ordinance No.  6 of  1973 was forwarded for the instructions of the  President under  Article 213(1) of the Constitution. Thereafter the draft of the Ordinance and the Bill were both considered by the President and he assented to the said Bill and issued  instructions  as  required  by  the  proviso  to Article 213  of the Constitution for the promulgation of the said Ordinance  on September  28, 1973. Accordingly the said

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Bill became law on its publication on the very same day. The Ordinance was  issued on the 29th of September, 1973. In the circumstances it  cannot be  said that  the assent which was given by the President was conditional. The records relating to the  above proceedings  were also  made available  to the Court. On going through the material placed before us we are satisfied that the President had given assent to the Act and it is not correct to say that it was a qualified assent. The Act  which  was  duly  published  in  the  Official  Gazette contains the  recital that  the said  Act had  received  the assent of  the President  on the  28th of  September,  1973. Moreover questions  relating to  the fact  whether assent is given by  the Governor  or the  President cannot be agitated also in  this manner. In Hoechst Pharmaceuticals Ltd. & Anr. Etc. v.  State of  Bihar &  Ors., [1983]  3 S.C.R.  130 this Court has  observed at page 194 thus: "We have no hesitation in  holding   that  the  assent  of  the  President  is  not justiciable, and  we cannot  spell out any infirmity arising out  of  his  decision  to  give  such  assent."  The  above contention relating to the assent given by the President is, therefore, rejected.      The  next  provision  of  the  Act  whose  validity  is questioned  is   section  33.  That  section  provides  that notwithstanding anything  contained in  any law for the time being in  force, whenever it appears to the State Government that the  manager of any registered private secondary school has neglected to perfrom any of the duties imposed on him by or under  the  Act  or  the  regulations,  and  that  it  is necessary in the public interest to take over the management of the school, it may, 609 after giving  to the  manager of  such school  a  reasonable opportunity of showing cause against the proposed action and after considering the cause, if any, shown by him, take over the management  of the  school for  such period as the State Government may, from time to time fix, so however, that such period shall  not execeed five years in the aggregate. Under the Grants-in-Aid Code the Government is under an obligation to pay to all private secondary schools registered under the Act 100%  grant towards  the teachers  salaries as  also 30% grant  by   way  of  "Maintenance  Grant"  from  the  public exchequer. It  is, however, open to any school not to accept the grant  but that  would not make any difference in so far as the  power of  the State  to regulate  the  imparting  of secondary education  by the  registered schools in which the entire society and in particular the parents of the children are vitally  interested. A  large  number  of  teachers  are employed by these schools. The protection of their interests is also  equally important  from the  point of  view of  the State. In these circumstances a provision like section 33 of the Act which provides for the taking over of the management of a  school whenever  it is  found that  the school  is not being run  in accordance  with the  statute and  in the best interests of  the students  and the  community is necessary. The management  of a  school cannot  be taken  over  for  an indefinite period  because the  said section  provides  such taking over  shall not  exceed five  years in the aggregate. Before a  school is  taken over a reasonable opportunity has to be  given to  its manager  for showing  cause against the proposed action.  In these  circumstances it  cannot be said that section 33 of the Act which provides for taking over of management of  any registered private secondary school for a temporary period in the public interest is unconstitutional. The said  provision is  introduced in  the interest  of  the general public  and does not in any way affect prejudicially

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the fundamental  right of  the management  guaranteed  under Article 19(1)(g) of the Constitution.      The next  section  which  was  attacked  before  us  is section 34  of the  Act. Section  34(1) of  the Act provides that fifteen  per cent of vacancies of the teaching staff of a registered  private school  shall be  filled up by persons belonging to  the Scheduled Castes and the Scheduled Tribes. It is  argued that  the above  provision interferes with the managerial function.  As already mentioned a large number of teachers whose  salaries are  met by the grants given by the State under  the  Grant-in-Aid  Code  are  employed  by  the managements. The  State should,  therefore, have  a voice in the method  of  recruitment.  The  State  should  also  make provision for reservation of certain percentage 610 of seats  for members  belonging to the Scheduled Castes and the  Scheduled   Tribes   under   Article   16(4)   of   the Constitution. The insistence on having teachers belonging to the Scheduled Castes and the Scheduled Tribes is also in the public  interest.  Children  should  be  brought  up  in  an atmosphere where  there is  opportunity to  mix freely  with students and teachers belonging to traditionally disfavoured commities  also.   The  opportunity  to  show  reverence  to teachers belonging to the Scheduled Castes and the Scheduled Tribes will  in the  long run enable the child brought up in that atmosphere  to shed  the feeling  of  superiority  over members belonging  to the Scheduled Castes and the Scheduled Tribes. Such  an atmosphere  would also  be congenial to the development of  a society  consisting of  persons free  from feelings of hatred or contempt towards others. Section 34 of the Act  serves the  above mentioned  laudable purpose. Even the teachers  who belong  to the  Scheduled  Castes  or  the Scheduled   Tribes    have   to    possess   the   requisite qualifications for the posts. We do not, therefore, find any illegality in section 34 of the Act.      Section 35(1)  of the  Act  requires  every  registered private secondary school to have two committees (i) a school staff selection  committee for the purpose of recruiting the teaching staff  of the  school other than the headmaster and (ii)  a   special  school   committee  for  the  purpose  of recruiting the  headmasters  and  for  the  purpose  of  the initial recruitment of the headmaster and the teaching staff of a  school started  after the  appointed day.  The  school staff selection committee consists of the following members, namely (i)  two representatives  of the  management  of  the school  to   be  nominated   by  the  management;  (ii)  the headmaster of  the school; (iii) in the case of a school the total number  of teachers  in which  is more  than six,  two teachers to  be elected  by the  teachers of the school from amongst themselves,  and in  the case  of a school the total number of  teachers in  which is  or is  less than  six, one teacher to  be elected  by the  teachers of  the school from amongst themselves; and (iv) one representative of the Board to be  nominated by  the Board. The special school committee consists  of   the  following   members  namely:   (i)   two representatives of  the  management  of  the  school  to  be nominated by  the management and (ii) two representatives of the Board to be nominated by the Board. These committees are required to  select the  headmaster and  the teachers in the school under section 35 of the Act. Their functions are also set out  in it. There appears to have been some modification in the  composition of  these committees  subsequent to  the filing of  the first  writ  petition  in  this  Court.  That however is immaterial for purposes of considering the 611

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contention urged  before us. The argument urged on behalf of the petitioners/appellants  is that  the representatives  of managements being  in a minority in the said committees they would have  practically no  voice in  the selection  of  the teachers.  We  again  do  not  find  any  substance  in  the argument. The  two committees  which are  to be  constituted under section  35 of  the Act consist of the representatives of the  management and  the representatives of the teachers. The presence  of the teachers working in the very school and of the  representatives of  the Board  on the committee does not  have   the  effect   of  silencing  the  voice  of  the management. The  provisions of  section 35 of the Act do not appear to  confer  any  arbitrary  power  on  the  selection committees nor  can it  be said that there are no guidelines regarding the mode of selection. They have got to select the teachers in  accordance with  the regulations.  We  do  not, therefore, find any merit in this contention.      Section 36  of the  Act which  came under attack in the course of  the arguments  deals with  the dismissal, removal and reduction in rank of certain employees of the school. No person who  is appointed  as a  headmaster, a  teacher or  a member  of   non-teaching  staff  of  a  registered  private secondary school  can be  dismissed or removed or reduced in rank nor  can his  service be  otherwise terminated  by  the manager until  he has been given by the manager a reasonable opportunity of  showing cause against the action proposed to be taken against him and the action proposed to be taken has also been  approved in  writing by  an officer authorised in this behalf  by the Board. We do not find any constitutional invalidity in  this provision. It protects the tenure of the teachers and  of the  non-teaching  staff  of  a  registered private secondary  school  and  acts  as  a  shield  against arbitrary actions  of the  management resulting  in wrongful termination  of   their  services.   If  the  management  is aggrieved by  the decision  of the authorised officer it may prefer an  appeal before the Tribunal under section 36(5) of the Act  within 30 days from the date of the decision of the authorised officer.  Section 39  of the Act provides for the establishment of  a Tribunal.  The Tribunal  consists  of  a District Judge  or a  person who has been or is qualified to be a  judge of  a  High  Court  or  a  District  Judge.  The provision for  an appeal  to the  Tribunal is  a  sufficient guarantee against  any arbitrary  order  of  the  authorised officer refusing  to grant  unreasonably his approval to the termination of  the services  of an employee. Merely because the management cannot terminate the services of a teacher or a member  of a  non-teaching  staff  forthwith  without  the approval of the authorised officer it cannot be said that an unreasonable restriction has been imposed on the right of 612 the management  guaranteed under  Article  19(1)(g)  of  the Constitution.      Section 40-A  of the  Act which was introduced into the Act by  the Gujarat  Act 25  of 1973  provides that  nothing contained in  clause (26)  of section 17, sections 34 and 35 and clause  (b) of  sub-section (1),  and sub-sections  (2), (3),  (4)   and  (5)  of  section  36  shall  apply  to  any educational institution  established and  administered by  a minority whether  based on  religion or language. In view of this provision  no minority  institution also  can  complain about the Act.      We agree  with the  decision of  the High  Court on the questions raised before it. All the contentions urged before us in  these cases,  therefore fail. These petitions and the appeal are  accordingly dismissed. There will be no order as

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to costs. M.L.A.                       Petitions and appeal dismissed. 613