THE STATE OF GUJARAT & ORS. VERSUS H. B. KAPADIA EDUCATION TRUST & ANR

THE STATE OF GUJARAT & ORS. VERSUS H. B. KAPADIA EDUCATION TRUST  & ANR 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2837 OF 2022
THE STATE OF GUJARAT & ORS. .... APPELLANTS
VERSUS
H. B. KAPADIA EDUCATION TRUST
 & ANR. .... RESPONDENTS
J U D G M E N T
BELA M. TRIVEDI, J.
1. The Appellants-State of Gujarat and Ors., being aggrieved by the
judgment and order dated 02.04.2018 passed by the Division
Bench of the Gujarat High Court in Letters Patent Appeal No. 175
of 2017, arising out of Special Civil Application No. 3250 of 2001,
have preferred the present appeal.
2. The Respondent No. 1 (original writ petitioner) a Jain Minority
Institution, was running a government aided school in the name of
“The New High School”, in which Shri H.H. Kapadia was appointed
1
as the Principal of the school. Mr. Kapadia having attained the age
of 58 years on 22.07.1999, the Respondent No. 1-Institute sought
a permission from the Government to continue him as the
Principal. The DEO granted the permission to continue him as the
Principal upto the age of 60 years on the condition that his salary
would be paid by the Institution. The Respondent No. 1 thereafter
addressed a letter dated 16.04.2001 to the DEO seeking extension
of service of Mr. Kapadia beyond the age of 60 years, which came
to be rejected by the DEO vide the letter dated 18.06.2001. The
said two decisions of the DEO came to be challenged by the
Respondent No. 1 by filing the Writ petition being Special Civil
Application No. 3250/2001 before the High Court of Gujarat. The
Single Bench vide the judgment and order dated 24.06.2016
allowed the said writ petition and held that the action on the part of
the Respondents (the appellants herein) in stopping the grant was
violative of Article 30(1) of the Constitution of India and that the
Writ Petitioner-Institute had a right to continue Mr. Kapadia as the
Principal of the school beyond the age of 60 years. It was further
held that the respondents (the appellants herein) were obliged to
pay the Grant-in-Aid towards his salary. The Single Bench
therefore directed the appellant authorities to calculate the
amounts towards the arrears of grant for the period between 2001
2
and 2012 (as the school was no longer functional since the year
2012) and to pay the requisite amount to the management of the
school within a period of 3 months of the order. The aggrieved
appellants had preferred an appeal being the LPA No. 175 of 2017
before the Division Bench, which came to be dismissed vide the
impugned order dated 02.04.2018.
3. The short question which falls for consideration before this Court is
whether the decision of the appellants in not providing the aid to
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 the Constitution of India?
4. A reference to the relevant provisions contained in the Constitution
of India, the Gujarat Secondary Education Act, the Regulations
framed thereunder and, in the Grant-in-Aid Code published under
the Gujarat Notification dated 22.04.1964, would be beneficial for
the purpose of answering the aforesaid question. The relevant part
of Article 30 of the Constitution pertaining to the right of minority to
establish and administer educational institutions reads as under: -
“30. Right of minorities to establish and administer
educational institutions. –
3
(1) All minorities, whether based on religion or language,
shall have the right to establish and administer educational
institutions of their choice.
(1A) - xxxx -
(2) The State shall not, in granting aid to educational
institutions, discriminate against any educational institution on
the ground that it is under the management of a minority,
whether based on religion or language.”
5. The Gujarat Secondary Education Act 1972 (hereinafter referred to
as ‘the said Act’) was enacted to provide for the Regulation of
Secondary Education in the State of Gujarat and to establish a
Board for that purpose. The Board established under the said Act
has framed the Regulations, namely the Secondary Education
Regulations 1974, (hereinafter referred to as the ‘Regulations’) in
exercise of the powers conferred upon it under Section 53 of the
said Act, for the purpose of carrying into effect the provisions of the
said Act. The Regulations relevant for the purpose of deciding the
present appeal, read as under:-
“36. Superannuation- (1) An employee of a registered
secondary school shall be compulsorily retired on the date
on which he attains the age of 58 years.
(2) No management shall employ or re-employ any person
who has completed the age of 58 years.
Provided however that if the date of superannuation
of an employee falls within a term, his service shall
automatically be extended up to end of that term,
Provided further that re-employment upto the age
of 60 years should normally be given to peons and such
other menial servants 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.
4
38. to 41. - xxxx -
42. Regulations to prevail over Grant-in-Aid Code -The
provisions of these regulations shall prevail over those
provisions contained in the Grant-in-aid Code published
under Government Notification, Education and Labour
Department No.GAC-1064-C dated the 22nd April, 1974 in
so far as they relate to any matters provided 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) of Regulation No. 41 shall apply to any
educational institution established and administered by a
minority, whether based on religion or language.”
6. It would be also germane to reproduce the relevant provisions
contained in the Grant-in-Aid Code for Secondary Schools,
published vide the notification dated 22.04.1964: -
“81.1 A secondary school teacher shall ordinarily retire from
service at the age of 58.
81.2 The management may grant to teachers extensions upto
the age of 60. If the Inspecting Officers report on the basis of
their inspection that any teacher beyond the age of 58 is unable
to discharge his duties properly, the teacher will be sent for
medical examination 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 years
shall be employed as a teacher or on the non-teaching staff.
Retired persons from Government or non-Government
Educational Institutions may however, be re-employed by the
Educational Institution provided they are physically and mentally
fit. The employment of such retired persons should be subject to
the provisions made in clauses 81.2 and 81.3 above and such
other terms and conditions not in contravention of these rules
and the general service conditions as may be mutually agreed
upon between the employer and the employee. Such reemployed persons will not however, be eligible for the
departmentally prescribed scales of pay and allowances, etc.
and to the Government aided provident fund scheme.”
7. From the above stated provisions, it emerges that as per
Regulation 42 of the said Regulations, the provisions contained in
5
the said Regulations framed under the said Act prevail over those
provisions contained in the Grant-in-Aid Code published under the
government notification dated 22.04.1964, insofar as they relate to
any matter provided in the said Regulations. It further emerges that
as per Regulation 43 of the said Regulations, Regulation 36
pertaining to the age of superannuation is not applicable to the
educational institution established and administered by a minority,
whether based on religion or language. Therefore, the age of
superannuation of an employee of a registered Secondary School
as mentioned in Regulation 36 would not be applicable to the
employee or teacher of an educational institution established and
administered by a minority. The combined reading of Regulations
42 and 43 of the said Regulations makes it clear that Regulation
36 would not apply to any educational institutions established and
administered by minority, and therefore the matter pertaining to the
age of superannuation of the employees of registered Secondary
School established and administered by minority, availing the
Grant-in-Aid could not be said to have been provided under the
said Regulations. The necessary corollary would be that the said
Regulation 36 being not applicable to the minority educational
institution, the provisions contained in the Grant-in-Aid Code
pertaining to the age of superannuation would be applicable to
6
such minority institutions availing the grant from the State
Government.
8. Now, as per para 81.1 of the Grant-in-Aid Code, a secondary
school teacher receiving grant-in-aid would ordinarily retire from
service at the age of 58, and the management may grant to the
teachers extensions upto the age of 60, in view of para 81.2 of the
said Code. Therefore, the minority educational institutions like the
respondents could not continue the employees/teachers beyond
the age of 58 years or 60 years as the case may be. If an
employee or a teacher is continued in service by the management
of any registered minority Secondary School receiving Grant-in-Aid
from the State-Government, then such school would not be entitled
to receive any grant in respect of the expenditure incurred for
continuing such employee or teacher beyond the age of 58 or 60
years, as the case may be. The provisions of Grant-in-Aid Code
are applicable to all the registered secondary education institutions
desirous of receiving or which are receiving the grant from the
Government, and such institutions would be subject to the
restrictions imposed under the Code, except for the matters
provided in the said Regulations.
7
9. The provisions contained in the said Grant-in-Aid Code pertaining
to the recognition, eligibility criteria, the procedure for making
application to the government for receiving Grant-in-Aid etc. are
applicable to all the secondary schools whether established and
administered by the minority or not and the respondents could not
have claimed any right to receive the aid from the Government
dehors the provisions of the Grant-in-Aid Code. If the appellants
therefore had refused to pay the Grant-in-Aid to the respondents,
on the Principal having reached to the age of superannuation, it
could not be said by any stretch of imagination that the appellants
had interfered with the affairs of the respondents or had violated
Article 30(1) of the Constitution. As held by the Constitution Bench
in case of T.M.A. Pai Foundation and Others vs. State of
Karnataka and Others1
, the right under Article 30(1) is not an
absolute right above the law, and that the provisions for the grant
or non-grant in aid to the educational institutions, whether it is
majority-run institution or a minority-run institution, have to be
uniformly applied. The relevant observations made in para 143 and
144 of the said judgment, which clinch the issue read, as under: -
“143. This means that the right under Article 30(1) implies that
any grant that is given by the State to the minority institution
cannot have such conditions attached to it, which will in any way
dilute or abridge the rights of the minority institution to establish
and administer that institution. The conditions that can normally
1 (2002) 8 SCC 481
8
be permitted to be imposed, on the educational institutions
receiving the grant, must be related to the proper utilization of
the grant and fulfilment of the objectives of the grant. Any such
secular conditions so laid, such as a proper audit with regard to
the utilization of the funds and the manner in which the funds are
to be utilized, will be applicable and would not dilute the minority
status of the educational institutions. Such conditions would be
valid if they are also imposed on other educational institutions
receiving the grant.”
“144. It cannot be argued that no conditions can be imposed
while giving aid to a minority institution. Whether it is an
institution run by the majority or the minority, all conditions that
have relevance to the proper utilization of the grant-in-aid by an
educational institution can be imposed. All that Article 30(2)
states is that on the ground that an institution is under the
management of a minority, whether based on religion or
language, grant of aid to that educational institution cannot be
discriminated against, if other educational institutions are entitled
to receive aid. The conditions for grant or non-grant of aid to
educational institutions have to be uniformly applied, whether it is
a majority-run institution or a minority-run institution..”
10. In a case involving similar issue as to whether a minority institute
receiving an aid is bound by the conditions imposed by the
Government, this Court in a recent decision in case of State of
Uttar Pradesh and Others vs. Principal Abhay Nandan Inter
College and Others2
 observed as under: -
“32. When it comes to aided institutions, there cannot be any
difference between a minority and non-minority one. Article 30 of
the Constitution of India is subject to its own restrictions being
reasonable. A protection cannot be expanded into a better right
than one which a non-minority institution enjoys. Law has
become quite settled on this issue and therefore does not require
any elaboration.
33. Thus, on the aforesaid issue we have no hesitation in
reiterating the principle that an institution receiving aid is bound
by the conditions imposed and therefore expected to comply.
Once we hold so, the challenge made on various grounds, falls
to the ground.”
11. In light of the afore-stated legal position, we are of the opinion that
the respondent-institution was bound by the provisions contained
2 2021 SCC Online SC 807
9
in the Grant-in-Aid Code. There is also nothing on record to show
that the appellant-State had discriminated against the respondentinstitution on the ground that it was under the management of a
minority, attracting Article 30(2) of the Constitution of India. The
High Court therefore had committed gross error in holding that the
respondent-institute had a right to continue the Principal of its
school beyond his age of 60 years, and in directing the appellants
to calculate and pay the requisite amount towards the arrears of
grant for the period from 2001 to 2012.
12. In that view of the matter, the impugned order passed by the
Division Bench confirming the order passed by the Single Bench
allowing the writ petition filed by the respondent institution is set
aside. The present appeal filed by the appellants stands allowed
accordingly.
………………………. J.
[DINESH MAHESHWARI]
 …..................................J.
 [BELA M. TRIVEDI]
NEW DELHI
21.02.2023.
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