IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 848 of 2012 In SPECIAL CIVIL APPLICATION No. 3899 of 2012 With CIVIL APPLICATION NO. 6833 of 2012 with LETTERS PATENT APPEAL No. 826 of 2012 In SPECIAL CIVIL APPLICATION No. 3721 of 2012 with CIVIL APPLICATION No.6465 of 2012 with LETTERS PATENT APPEAL No. 818 of 2012 In SPECIAL CIVIL APPLICATION No. 3897 of 2012 and LETTERS PATENT APPEAL No. 819 of 2012 in SPECIAL CIVIL APPLICATION No. 4052 of 2012 and LETTERS PATENT APPEAL No. 820 of 2012 In SPECIAL CIVIL APPLICATION No. 4100 of 2012 With LETTERS PATENT APPEAL No. 824 of 2012 In SPECIAL CIVIL APPLICATION No. 2618 of 2012 with CIVIL APPLICATION NO. 6369 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE G.B.SHAH =========================================
========================================= HITESHBHAI BHIKHABHAI VYAS & 14 - Appellant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance :
M/s. AJ YAGNIK, D.P. Joshi, Shalin Mehta for Ms Vidhi J Bhatt and Ms. Sneha Joshi for Appellant(s) : 1 - 15.
Mr P K Jani, GOVERNMENT PLEADER with Mr. Niraj Ashar, AGP for Respondent(s) : 1, None for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.B.SHAH Date :29/08/2012 CAV (COMMON) JUDGMENT (Per : HONOURABLE MR.JUSTICE G.B. SHAH)
1. The appellants-original petitioners in Special Civil Applications No. 2899 and 3722 of 2012 have mainly challenged the validity and legality of age limit of 35 years provided in the Notification dated 18.1.2012 issued by the respondents for appointment of Head Teacher in Government Primary Schools by way of direct recruitment.
1.1. Appellants/original petitioners in Special Civil Applications No. 3897, 4052 and 4100 of 2012 have mainly filed the same for the purpose of allowing B.Ed College Teachers to apply and get appointment, if found eligible, as Head Teachers.
1.2. Appellants/original petitioners in Special Civil Application No.2618 of 2012 have mainly prayed to declare the Head Teacher, Class III in the subordinate service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee Recruitment Rules, 2012 as incompetent, ultra vires the Gujarat Primary Education Act, 1947 and inconsistent and incompatible with Articles 14 and 16 of the constitution of India.
2. Being aggrieved by and dissatisfied with the common judgment and order dated 8.5.2012 passed by the learned Single Judge in the above referred Special Civil Applications and other connected matters, the above referred Letters Patent Appeals under Clause 15 of the Letters Patent are filed against the same. Since the grievance and the challenge referred above are intertwined and magnetically drawn to the common issues and contentions and since the respondent State has put forward common defence, the rival contentions are considered and dealt with by this common order.
2.1. So far as the factual background of the cases are concerned, the same is not in controversy and hence the factual background which has been narrated in para 2 of the impugned judgment dated 8.5.2012 is reproduced hereunder:
“Factual Background
2. Until 2009 the matters related to primary education in the State was regulated by the provisions under Bombay Primary Education Act 1947 (hereinafter referred to as the “State Act”) and “Bombay Primary Education Rules, 1949” (hereinafter referred to as “State Rules”).
2.1 Then parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the “Central Act”) and in exercise of powers conferred by Section 38 of the Central Act, the Central Government made “The Right Of Children To Free and Compulsory Education Rules, 2010 (hereinafter referred to as the ‘Central Rules’). Besides this, in exercise of powers conferred by subsection (1) of Section 23 of the Central Act, NCTE issued notification dated 23rd August 2010 laying down eligibility criteria for appointment as teacher in 1st standard to 5th standard and 6th standard to 8th standard. Moreover “National – Council for Teacher Education Act, 1993 (hereinafter referred to as ‘NCTE Act”) has been enacted and NCTE has framed “National – Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001” (NCTE Rules, for short)
2.2 With the enactment of the Central Act substantial and qualitative changes in the system of primary education are introduced and brought in force. Until the enactment of Central Act the division of primary education comprised 1st Standard to 7th Standard while secondary education division comprised Standard VIII, IX and X Standard while standard XI and XII constituted Higher Secondary division (prior to 1973-1974 Standard VIII to Standard XI formed Secondary Division) however the Central Act altered the set – up of primary school in view of which the State Act came to be amended so as to provide that primary school shall comprise 1st Standard to 8th Standard which shall be divided in two division i.e. 1st Standard to 5th Standard in lower primary school and 6th Standard to 8th Standard in upper primary school. The Central Act also mandates appointment of Head Teacher in lower primary school (if more than 200 students are admitted) as well as in upper primary school (if more than 100 students are admitted). The third change brought on account of Central Act is the provision which prescribes educational qualification.
2.3 So as to carry out and implement the object and provisions of the Central Act the Rules of 2012 are framed and brought in force. The said Rules of 2012, inter alia, prescribe procedure and criteria for recruitment of Head Teacher. In absence of any statutory requirement for the said post and appointment on the post, the primary schools asked the senior most teachers to also perform the functions of Head Teacher.”
3. Learned counsel Mr A.J. Yagnik for the appellants in LPA No. 848 of 2012 in Special Civil Application No.3899 of 2012 submitted that the impugned judgment and order is erroneous, illegal and unlawful. He submitted that the respondent State ought to have exercised the prerogative to determine the age in the context of duties and obligations to be discharged by a Head Teacher. He submitted that more the experience, better the qualification for a candidate to become a Head Teacher, enabling him or her to utilise the experience to head the School. At the age of 35, the teacher has experience of not more than 10 years and, therefore, it is a premature age for being a Principal/Head Teacher. He stated that if the maximum age of Vidhya Sahayak is upto 33 years then how a Teacher can acquire experience within 2 years to become a Principal. He stated that classification between teachers teaching in the Government schools and private schools for age relaxation is arbitrary, irrational and discriminatory and therefore, violative of Article 14 of the Constitution of India and hence illegal and unconstitutional. He also submitted that the rationale behind age relaxation beyond 35 years to teach in Government schools is equally applicable to the teachers teaching in private schools. He submitted that relaxation of age does not have a negative impact on the quality of education and efficiency of administration to be undertaken by a Head Teacher. He submitted that the provisions of Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 are also applicable to teachers coming from the private schools insofar as age relaxation is concerned and hence this benefit cannot be denied to the appellants. He finally submitted that as the age limit was coming in the way of the appellants, they were not able to register themselves.
3.1. Ms. Sneha Joshi for appearing for the appellants in LPA 826 of 2012 in Special Civil Application No. 3721 of 2012 mainly adopted the above submissions and added that the learned Single Judge has committed an error in not considering the fact that many of the appellants are discharging their duties in the PTC colleges and are seniors having vast experience in administrative and academic side. She finally requested to issue suitable directions to the respondent authorities on the upper age limit criteria.
3.2. Mr D.P. Joshi, learned counsel for the appellants in LPAs 818, 819 and 820 of 2012 in Special Civil Application No.
3897, 4052 and 3100 of 2012 submitted that, Learned Single Judge, while considering the case of the present appellants, has not considered the judgment of this Court passed in SCA 8075 of 2001 with SCA 4332 of 2006 and rejected the claim of the appellants to get appointed as Head Teacher only on the ground that they are not possessing the required experience as they have only taught in B.Ed college as Lecturers, which is illegal, unjust and improper. He submitted that the appellants are possessing required experience of 5 years of teaching in B.Ed College and hence they ought to have been allowed to appear in the recruitment process. The Notification dated 18.1.2012 issued by the State Government is based on Right to Free and Compulsory Education Act, 2009 which was subsequently amended by Education Department as the Gujarat Educational Laws (Amendment) Act, 2010 and Resolution dated 15.4.2010 is issued. It is submitted that, as the State Government had issued another Resolution dated 27.4.2011, two set of Primary Teachers/Vidhya Sahayaks came into existence. One set of Teachers are teaching in Std. I to V and in another set are teaching in Std VI to VIII. The teachers who are teaching in Std I to V are considered as Teachers in lower primary education while the other set of teachers are considered as teachers in upper primary education. The present appellants are having degree of B.Ed and are having experience of teaching in B.Ed college as Lecturers. The experience of the B.Ed Teachers was considered for the post of Vidhya Sahayak and the appellants are having the list of such appointees. The learned counsel contended that before the learned Single Judge it was submitted that prior to issuance of present advertisement, in all appointments of Vidhya Sahayak, experience of teaching in B.Ed college was considered as acceptable. He submitted that learned Single Judge has erred in coming to the conclusion that the appellants are not entitled to the post of Head Teacher as they are possessing higher degree which is different from the degree of PTC teacher, and that part is required to be quashed and set aside. The learned Single Judge has not appreciated the fact that if the appellants can teach in B.Ed college, why they cannot teach in the primary school. He further submitted that learned Judge, while passing the impugned order, has not appreciated the fact that exclusion of B.Ed teachers and their teaching experience of five years is not based on any rational criteria or classification for the objective sought to be achieved by appointment of Head Teacher in primary school. Prior to the present advertisement dated 22.3.2012 such experience was counted and there was no mention at all that experience of B.Ed college Teacher will not be counted and, therefore, the appellants have applied for the posts. Thereafter as the website was not accepting their forms, the appellants filed Special Civil Applications before this court which came to be rejected by the learned Single Judge. He, therefore, prayed that the impugned judgment be quashed and set aside and the present appellants be appointed as Head Teachers.
3.3. Mr Shalin N Mehta, learned senior Advocate appearing with Ms. Vidhi J Bhatt in LPA No. 824 of 2012 in Special Civil Application No. 2618 of 2012 submitted that the Head Teachers, Class III, in the subordinate service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee Recruitment Rules, 2012 (for short, “Head Teachers' Rules”) are ultra vires section 63 of the Gujarat Primary Education Act, 1947. Drawing attention to section 63 (3) of the Act, he submitted that it provides for notice and thereby inviting comment. The whole object of previous publication of the Rules is to provide an opportunity to the interested parties to criticize the rules. The proviso to sub-rule (3) lays down that the previous publication can be dispensed with by the State Government if it is satisfied that circumstances exist which render it necessary to take immediate action. In this case, there is no previous publication of the Head Teachers' Rules. There is also no satisfaction of the State Government in dispensing with the previous publication of the Rules. Therefore, the Head Teachers' Rules are ultra vires section 63 of the Gujarat Primary Education Act, 1947. He further submitted that it is a well-established doctrine that when the statute prescribes a particular mode of doing a thing, the thing must be done in that way only. Section 63 of the Gujarat Primary Education Act, 1947 is the only section conferring rule making power upon the State Government. The manner of making rules is provided in sub-section (3) and (4). Thus the manner of making Rules having been provided in the statute itself, no deviation can be made from the prescribed procedure. In the present case, the Head Teachers Rules suffer from a serious procedural impropriety because they are not made in the manner provided in the statute. Quoting section 23 of the Gujarat Primary Education Act, 1947, he vehemently submitted that the Head Teachers Rules are ultra vires section 23 (3) of the Gujarat Primary Education Act, 1947 for two reasons , namely:
(a) Section 23(3) confers no rule making power on the State Government to frame recruitment Rules for the post of Head Teacher.
(b) Section 23(3) states that “the selection of of candidates shall be made in accordance with the instructions issued by the State Government.” The words “selection of candidates” would not mean that the State Government would derive the power to frame recruitment rules for determining eligibility and selection criteria for the post of Head Teachers”.
He, finally submitted that the impugned order may be set aside to the extent the judgment holds that the Head Teachers' Rules are valid and competent.
4. Controverting the submissions made by respective learned counsel for the parties, Mr P.K. Jani, learned Government Pleader submitted that the rules and provisions thereunder referred by learned counsel for the appellants are only policy decisions and they are outside the scope of judicial review and therefore, the court should not interfere with the same. He submitted that it is the employer's prerogative to prescribe qualification and eligibility criteria and other requirements for the post. He argued that the power to make rules is available under the Act in Section 23 (3) of the Act and hence the requirement to publish the rules and to lay it before the State Legislature is not applicable in the present case and in any case the provision is only directory and failure does not invalidate the Rules. He also submitted that post of Head Teacher is created for the first time and the Rules are also framed for the first time. He submitted that until now only special allowance was being paid to the senior most teacher for working as Head Teacher. He also submitted that the respondent State would be the employer for the persons to be recruited on the said posts and that therefore, it has the right to prescribe conditions and qualifications which are considered necessary and appropriate. He claimed that the appellants have approached the court at a belated stage and that those who did not appear in the said HTAT (Head Teachers' Aptitude Test) examination cannot make any grievance. He submitted that the Teachers who claim that they have been appointed as Head Teachers, are merely holding the post and they get only special allowance and they do not have any right for being continued as Head Teachers.
5. So far as the grievance related to upper age limit narrated above in paras 3 and 3.1 is concerned, as the age limit was coming in the way of the appellants, they were not able to register themselves. The upper age limit of 35 years is prescribed under rule 4 (a) of the Rule of 2012. Because of the second proviso to the said rule 4 (a) all those teachers who are employed and working in self-financed primary schools or in private primary schools receiving grant-in-aid and have crossed upper age limit on the relevant date, are automatically excluded and are rendered disqualified. As per the say of the appellants, the provisions as to upper age limit cannot be applied to the teachers who are already working as teachers and it is claimed that the provision is discriminatory. The learned Single Judge has dealt with at length as under on each and every issue on this point in paras No. 9.3 to 9.9 of the impugned judgment:
“9.3. It is pertinent that the posts of Head Teacher are to be filled – up by promotion and direct selection from amongst the teachers in primary schools. Thus, the cadre of “primary teacher” is feeder cadre for the post of Head Teacher. When recruitment is to be made by direct selection then it is usual practice to prescribe minimum and upper age limit. Only because upper age limit is prescribed it cannot be said that entire class is excluded inasmuch as the impugned provision merely prescribes limitation in terms of maximum age and the primary teachers in all primary schools (be it self finance / or those receiving grant / run by local authority or State) who are within prescribed age limit (have not crossed upper age limit) and fulfill other criteria can apply and participate in the recruitment process. The provision does not exclude or discriminate against any particular class of teachers.
“9.4. The right to prescribe eligibility criteria including upper age limit, for any post, is employer’s prerogative. Employer alone can determine the requirements for the post in question. When employer prescribes particular qualification, then Court would not be justified in imposing its view and would also not claim expertise so as to substitute its view or decision for that of the employer. In present case when the respondent State, in its capacity as employer has, while creating now (sic) post and while prescribing eligibility criteria as policy, considered it necessary and appropriate to prescribe upper age limit, then such decision cannot be interfered with and it would not be within the purview of judicial review and Court would not examine the propriety of the decision.
“9.5. Furthermore, when the prescribed upper age limit is not lower than upper age limit prescribed for the post of teacher and prescribed experience put together, then the objection from “in service” employees ( teacher – candidates) will not have any base to stand on. In present case upper age limit for being eligible for appointment on the post of teacher is 25 years and prescribed experience is 5 years, whereas upper age limit for post of Head Teacher (35 Years) which is higher or more than the total of upper age limit for post for teacher (25 years) plus the total prescribed experience (5 years).
“9.6. In the case on hand it is also necessary and relevant to keep in focus that it is for the first time that the posts in question are created and eligibility criteria are also fixed for first time, and when recruitment is to be made by promotion as well as direct selection, the provision prescribing upper age limit cannot be termed as retrospective in effect and / or retroactive in operation, more particularly when such qualification is prescribed while creating the post in question (in present case Head Teacher) and when the said condition does not take away any duly accrued or vested right.
Furthermore, until now there was no duly sanctioned post and no appointment on the post and merely because senior most teacher was being assigned the duty of Head Teacher it would not create any vested - enforceable right.
A practice, without support and sanction of law or an irregularity (even if continued for long time) will not create any vested - enforceable right and Court cannot, for protecting such practice, strike down or read down duly enacted Law or Rules. The “in service teachers” including those working as Head Teacher (on account of the practice) cannot expect, much less insist, that such practice, would continue or should continue forever.
“9.7. The contention that the impugned provision discriminates the teachers employed in private primary school is also misconceived. The condition is applicable to all cases where the appointment is to be made by direct selection and competitive exam. According to the advertisement inviting applications, relaxation in age limit is restricted to age of 45 years for “in service” candidates and by restricting relaxation in upper age limit, the provision as to upper age limit is made applicable (in matter of appointment by direct selection) in case of “in service” teachers as well, of course subject to relaxation available under Rules of 1967.
“9.8. Likewise, the protest or objection by “in service” teachers against the provision prescribing upper age limit is also not justified or sustainable. In this context it is necessary to note that the post of Head Teacher is created in class-III. Thus, “in service” teachers will have the benefit of the provision under sub-rule (5) of Rule 8 of Gujarat Civil Services Classification and Recruitment (General) Rules 1967 which provides relaxation in, as the case may be, upper age limit. It is clarified in the advertisement that the said relaxation is made available to “in service” teachers. The objection is, thus, not sustainable.
“9.9. In the matters related to selection and recruitment, employer is the best judge of his requirements and of the qualification he looks for and desires including the age group of employees. Persons of which age group will be more suitable is for the employer to decide and the Court would be loath and reluctant to interfere with the criterion fixed by an employer, be it State or any private employer. In present case the provision is neither discriminatory nor irrational or arbitrary and is not beyond Government’s authority to prescribe such requirement.”
5.1. Considering the above referred submissions made by learned counsel for the appellants and the issues dealt with and the findings arrived at by learned Single Judge as referred above, apparently a well reasoned and sound findings have been given by learned Single Judge and in our view, nothing substantial has been argued by learned counsel for the appellants to show where learned Single Judge has erred in arriving at the findings. So far as the grievance related to upper age limit is concerned, there appears no illegality in the Rules or in making of the Rules.
6. So far as the experience and the restriction on considering teaching experience only in specified institutions is concerned, it has been mainly argued for the appellants that it is illegal, unjust and improper to say that the appellants are not possessing required experience as they have taught in B.Ed. Colleges as Lecturers and as such the appellants are possessing the required experience of 5 years in B.Ed. College.
The main grievance is about exclusion of teaching experience in institutions/colleges other than those mentioned in clause 4(d), more particularly B.Ed colleges. The appellants of that group do possess 5 years' teaching experience which includes combined or exclusive experience of teaching in B.Ed colleges.
6.1. It was vehemently argued for the appellants that, after coming into force the Right of Children to Free and Compulsory Education Act, 2009, the State Government has issued Resolution dated 27.4.2011 and segregated Std. I to Std. V as lower primary and Std. VI to Std. VIII as upper primary and so the present appellants are eligible as per the judgment in Sudip Tripathi and anr. vs. State of Gujarat and ors (2007 (1) GLH 590). Learned counsel Mr Joshi placed reliance on para 17 of the said judgment, which reads as under:
“17. In the above circumstances, we are of the opinion that the primary teachers' training of two years' duration (as suggested by the council) shall be the only valid qualification for appointment of teachers in primary schools : be it an appointment in regular pay scale or be it an appointment as Vidya Sahayak. The State Government may, however, consider appointment of candidates possessing post graduate B.Ed. degree for standards VI & VII of the primary schools but only if and after the State Government segregates Standards VI & VII from Classes I to V by appropriate legislation and requisite guidelines. We answer the reference accordingly.”
Mainly placing reliance on the above referred decision of the Full Bench, learned counsel for the appellants submitted that learned Single Judge has erred in rejecting the claim of the appellants to get appointed as Head Teachers only on the ground that they are not possessing required experience as they have taught in B.Ed college as Lecturers. Referring the above judgment in Sudip Tripathi (supra), learned Single Judge has observed that PTC has been considered to be the only valid qualification for appointment as primary school teacher. We have also gone through the above referred decision. It is important to note that the Central Act also mandates appointment of Head Teachers in lower Primary Schools (if more than 200 students are admitted) as well as in upper Primary School (if more than 100 students are admitted). Learned Single Judge has rightly appreciated the ratio laid down in Sudip Tripathi's case (supra), insofar as the post of Head Teacher is newly created in a cadre different from the cadre of Primary Teacher or Vidyasahayaks.
6.2. Learned counsel for the appellants also placed reliance on “Railway Board v. M/s. Observer Publications (P) Ltd. (AIR 1972 SC 1792). Drawing our attention to para 10, 12 and 14 of the above referred judgment, learned counsel submitted that the Larger Bench of Supreme Court has held that those who are similarly situated may be similarly treated by the authorities. In the facts of that case petition under Article 226 of the Constitution filed by the respondent was allowed and the ban imposed on the sale of a news weekly called “The Indian Observer” by the licensees of the Railway Book Stalls throughout the country under directions issued by the appellant was set aside. It was held by the Apex Court that since the other publications containing similar material were not prohibited from sale by the Railway Board, the said order was liable to be set aside as it was violative of Article 14 of the Constitution of India. That decision would not be of any help to the appellants herein as they are not possessing valid qualification for appointment as Primary School Teachers. Thus, it cannot be said that they are similarly situated.
6.3. Drawing attention to paras 6, 7 and 8 of the judgment in the case of “Y. Srinivasa Rao v. J. Veeraiah” (AIR 1993 SC 929), learned counsel for the appellants submitted that the Supreme Court has held that the decision to prefer an uneducated person over an educated person amounts to allowing premium on ignorance, incompetence and consequently inefficiency, and is unconstitutional. The ratio laid down in the above decision, in our view, would not be applicable considering the difference between the students in B.Ed colleges and Primary Schools as explained by learned Single Judge in para 10.3 of the judgment dated 8.5.2012, which reads as under:
“10.3 On this count it is relevant to note that besides the difference in age of students, there is vast qualitative difference between the students in B.Ed. colleges and in primary schools. The in-take and absorbing capacity of the students in primary school and B.Ed. college, their reaction ability and capacity, the method and tools of teaching students in primary schools and B.Ed. colleges, the tolerance and patience required for teaching the said two sets of students etc. are substantially and meaningfully and qualitatively different.
Needless to state that teaching the students in primary schools and their supervision demand special skill and training and it is markedly and qualitatively different from the teaching experience in B.Ed. College.”
6.4. In A. Franklin Joseph v. State of Tamil Nadu )1994
(2) SCC 387), the Apex Court has observed that “the rule of equity
cannot be applied in Government's whims and fancy to suit its convenience. In our view, for the reasons mentioned hereinabove, the Government is not shown to have acted according to its convenience which reflects whims and fancy. The learned Single Judge has further dealt with this point in paras 10.4 to 10.6 which are reproduced hereunder:
“10.4. Therefore, if the respondent State has considered it appropriate to (sic) not to take into account the teaching experience in institute / colleges imparting post primary / post secondary education e.g. in B.Ed. college and has considered it appropriate to club only such institutes or course which are essentially related to and concerned with students at primary level, then the said decision or such provision cannot be said to be irrational or arbitrary.
10.5. Furthermore this aspect also is in employer’s domain and it is employer’s prerogative to set the standard and fix the criterion for requisite experience. When the employer is State, the decision may be examined on touchstone of Article 14 of the Constitution and so long as it is not arbitrary court would not interfere with such decision. In present case, the rationale behind the decision is apparent and does not seem to be arbitrary or irrational or unfair. It also does not appear to be designed to exclude otherwise eligible category, without any justification. It is claimed and clarified by the respondent State that all schools / institutes which are clubbed and included in clause (d) of Rule-4, for the purpose of determining 5 years combined experience are imparting education in only primary division or are connected with education at primary division.
10.6. For the reasons discussed above the said decision or provision does not warrant any interference in exercise of Judicial Review. The objection on this count cannot be accepted. The decision to treat the petitioner – teachers who do not meet with and fulfill the criterion related to minimum experience as per Rule 4(d) as “not eligible” is not disturbed”.
We have carefully gone through the above referred paragraphs on the point in question and in our considered view, there is no illegality in arriving at the above findings and we find ourselves in complete agreement with the same.
7. On the point of validity of Rules of 2012, learned Senior Advocate Mr Shalin Mehta, appearing for the appellants in LPA No.826 of 2012, submitted that Rules of 2012 are ultra vires section 63 and section 23 (3) of the Act. Sections 63 and 23 of the Act read as under:
“Section 63:- Power to make rules:-
(1) The State Government may, by notification in the official gazette, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing provision such rules may be made for all or any of the following matters:-
(a) ... ... ...
(b) ... ... ...
(c) ... ... ...
(d) ... ... ...
(e) ... ... ...
(f) ... ... ...
(g) ... ... ...
(h) ... ... ...
(I) ... ... ...
(j) ... ... ...
(3) Rule made under sub-Section (1) and (2) shall be made after previous publication:
[Provided that if the State Government is satisfied that circumstances exist which render it necessary to take immediate action, it may dispense with previous publication of any rules to be made under this Section.]
(4) All rules made under this Act shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made and shall be subject to such modification as the State Legislature may make during the session in which they are so laid or the session immediately following. The modifications so made shall be published in the official gazette and shall thereupon take effect.
Section 23. Staff Selection Committee:-
(1) There shall be a State level staff selection committee constituted by the State Government for all Districts Education Committee and authorized municipalities, consisting of such numbers of members as may be determined by the State Government.
(2) The Director of Primary Education shall be the Chairmen and the Deputy Director of Primary Education shall be the Secretary of the Committee
(3) The Committee shall select candidates for appointment on the posts of Assistant Education Inspector, Supervisor, Vidhyasahayak, Primary Teacher, Head Teacher and such other post as the State Government may, by notification in the official Gazette, specify. The selection of candidates shall be made in accordance with the instructions issued by the State Government.
(4) The Committee shall also select the staff referred to in sub- section (3) for all District Education Committee and authorized municipalities and recommend the names of selected candidates for appointment as per their requisition.
(5) The District Education Committee or authorized municipality or, as the case may be, the Administrative Officer shall make appointments of the candidates so selected in accordance with the directions given by the Committee.”
The main submission of learned counsel for the appellants is that the State of Gujarat is not competent to frame Rules under Section 23 (3) of the said Act. Moreover, for want of previous publication and the Rules having not been laid before the legislature as prescribed under section 63, they are invalid. This issue has been discussed by the learned Single Judge in paras 13.11 to 13.15 of the judgment dated 8.5.2012 which reads as under:
“13.11 Now, therefore, the contention raised against validity of the rules of 2012 is required to be examined with reference to the objection that the procedure of previous publication as prescribed under sub-Section (3) of Section 63 is not complied.
13.12 Before considering the explanation and defence of the respondent it would be appropriate to determine as to whether the prescribed procedure viz. previous publication of Rules, is directory or mandatory, and for that purpose it is necessary to take into account proviso of said sub-Section (3) of Section 63.
13.13 So far as the procedure prescribed under sub-Section (3) of Section 63 i.e. previous publication is concerned, the said provision, like sub-Section (4) of Section 63, does not prescribe any consequence for default in complying the procedure prescribed under sub-Section (3) of Section 63. Furthermore, the sub-Section does not prescribe mode for or manner of publication. Additionally said sub-Section (3) is also coupled with its proviso. The proviso prescribes that if the state government is satisfied that circumstances exist which require immediate action, then the requirement of previous publication may be dispensed with.
13.14 The said proviso is an indication about the intention of the legislature. From the fact that the sub-Section (3) does not employ any negative language and / or it does not provide for any consequence for not making previous publication of the rules and it also does not prescribe the manner or mode for previous publication and the fact that the sub-Section (3) also contains the above mentioned proviso, it would follow that the legislature did not intend to make the requirement of previous publication a mandatory procedure, otherwise the procedure prescribed by sub-section (3) would not be coupled with such proviso (which permits the government to dispense with the procedure) and appropriate consequences for noncompliance would have been prescribed. The conjoint effect of the aforesaid aspects lead to the conclusion that the procedure prescribed under sub-Section (3) is directory and not mandatory. Hence, its noncompliance would not render the Rules of 2012, invalid.
13.15 It is necessary to mention and clarify at this stage that the conclusion as regards the above discussed aspects may not have bearing at this stage in view of the respondents’ defence and explanation to the effect that the Rules are not made under Section 63 but are made in exercise of power under Section 23(3) of the State Act and in view of such defence it is not necessary to make any other observation or pass any directions with reference to the said Rules and compliance of procedure.”
8. Drawing attention to the above referred discussions and findings, learned senior Advocate vehemently argued that learned Single Judge has erred in holding that the requirement of previous publication of Rules enacted under section 63 (3) of the Act was not mandatory. He submitted that learned Single Judge has also erred in observing in para 13.14 of the judgment that the State legislature did not intend to make requirement of previous publication of the Rules enacted under section 63(3) of the Act mandatory and ignored the proviso which stated that if the State Government is satisfied that circumstances exist which require immediate action, the requirement of previous publication may be dispensed with. He further submitted that learned Single Judge has failed to appreciate that the Head Teacher Rules were ultra vires section 63 (3) of the Act and section 63 of the Act provides for notice and thereby inviting comment. This was not done before enacting the Head Teachers' Rules. That the learned Judge has also erred in holding in para 14 of the judgment that the Head Teacher Rules were competent under section 23 (3) and the said Rules purportedly enacted were essentially executive instructions and not rules, though the State Government has chosen to call them Recruitment Rules. He submitted that learned Single Judge has erred in holding that the petition filed by the appellants was premature after answering on the merits of the challenge to the validity of the Head Teachers' Rules.
9. While deciding that the requirement of previous publication of Rules enacted under section 63 (3) of the Act is not mandatory, learned Single Judge has placed reliance on the observations of the Apex Court in Jan Mohammad Noor Mohamad Bagban v. The State of Gujarat (AIR 1966 SC 385) and in M/s. Atlas Cycle Industries Ltd. and Ors v. The State of Haryana [1979 (2) SCC 196] . Considering the entire paragraphs No. 13 to 13.27, we find no illegality in the said findings.
10. In catena of decisions, the Supreme Court as well as this Court has held that employer has absolute discretion to prescribe the required educational qualification and experience to ensure selection of suitable candidates. Court is having limited scope of judicial review when Government policy or administrative action is under challenge, as court is not the appellate authority and the Constitution does not permit the court to interfere in matters of policy unless and until one or the other legal or fundamental right of the citizen is violated. It is always open to the recruiting agency to prescribe eligibility criteria.
11. As discussed hereinabove, we do not find any illegality or legal infirmity in the impugned judgment and order. Therefore, as the appeals are devoid of merits, they are dismissed along with Civil Applications.
[D. H. WAGHELA, J.]
msp [G. B. SHAH, J.]