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SCA/6166/2010 1/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6166 of 2010
=========================================================
DIPAK
MANDAL & 1 - Petitioner(s)
Versus
MANISHA
GOVARDHAN JOSHI & 2 - Respondent(s)
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Appearance :
MS
PARUL P VASAVADA for
Petitioner(s) : 1 - 2.
None for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 15/06/2010
ORAL
ORDER
1. By
way of this petition, the petitioners have prayed for the following
reliefs :-
[A]
Declare that insisting of No Objection Certificate before making
appointment of a teaching staff by respondent-authority on minority
institution tantamount to inroad the right conferred on minority
institution under Article 30 of the Constitution of India.
[B]
Declare that in a matter of appointment and selection of a teacher,
the minority institution is not required to obtain No Objection
Certificate or post appointment approval from the department in view
of the provisions of Section 40A of Gujarat Secondary Education Act.
[C]
Set aside the judgment and order dated 2.3.2006 passed by the
Tribunal in application No. 396/93 and confirmed in Review
Application No. 9/2006 dated 22.6.2009 is against the weight of
evidence and illegal.
[D]
…..
2. The
short facts of the case are that the petitioner is a Trust duly
registered under the provisions of Bombay Public Trust Act. The
petitioner Trust is running a secondary and higher secondary school
in Rajkot District. Respondent no. 1 herein was appointed as an
Assistant Teacher w.e.f. 17.06.2001 by the petitioner-Trust, after
following due process of selection. Pursuant to the said appointment,
the petitioner Trust forwarded the papers of respondent no. 1 to
respondent no. 3 for inclusion of the name in the direct payment of
salary scheme. However, respondent no. 3 insisted for obtaining No
Objection Certificate in order to avail the benefit of salary grant
in respect of respondent no. 1. The petitioner Trust thereafter
applied for No Objection Certificate with respect to respondent
teacher before respondent no. 3, which was granted on 29.10.2001.
2.1.
Thereafter, the petitioner-Trust published another advertisement for
the same post, wherein the respondent no. 1 came to be selected after
due process of selection. However, respondent no. 1 was appointed
vide order dated 17.12.2001. The petitioner-Trust forwarded the
papers of respondent no. 1 to respondent no. 3 for inclusion of name
in the direct payment of salary scheme. However, after a period of
five months, the name of respondent no. 1 came to be included in the
direct payment of salary scheme and from June, 2002, respondent no. 1
has been paid salary as per the direct payment of salary scheme by
the department. As respondent no. 1 was paid less salary than her
entitlement, respondent no. 1 preferred an application u/s. 38 of the
Gujarat Secondary Education Act before the Tribunal. The Tribunal
vide order dated 02.03.2006 directed the petitioner-Trust to pay
fixed salary of Rs.4000/- per month to respondent no. 1 from June,
2001 to June, 2002. The petitioner-Trust thereafter preferred Review
Application before the Tribunal, on the ground that the petitioner
being minority institution, it is not liable to pay the salary to
respondent no. 1. The said review application came to be dismissed
vide order dated 22.06.2009. Being aggrieved by the said orders, the
petitioner Trust has approached this Court by way of this petition.
3. Heard
learned counsel for the respective parties and perused the documents
on record. The certified copy of the judgment and order rendered by
the Tribunal in Application No.396/2003 dated 02.03.2006 is taken on
record. The main contention raised by the petitioners is that it is a
recognized minority institution and that the procedures pertaining to
the day-to-day management, viz. appointment of staff teaching as
well as non-teaching, administrative control & such other matters
lie in the exclusive domain of the institution itself and therefore,
the Government does not have the right to interfere in the same. It
has, therefore, been submitted that the petitioners are not required
to obtain N.O.C. from the Government before initiating the
recruitment procedure.
4. The
question whether a minority institution is required to obtain prior
approval of the Government in matters pertaining to its internal
working is now settled by the Apex Court in a recent decision in the
case of Kolawana Gram Vikas Kendra v. State of Gujarat &
Ors., (2010) 1 S.C.C. 133. In that case, it has been held
that the prior approval of the State Government or the competent
authority is required as per the Government circular with a view to
verify whether there was vacancy as per work load and whether the
candidate possessed minimum prescribed qualification and that such
requirement does not amount to unconstitutional interference with the
internal working of the minority institution. Thus, it is by now
settled that even in matters relating to internal working of minority
institutions, the prior approval of the Government or the competent
authority concerned is mandatory.
5. In
the present case, the first appointment of respondent no.1 made vide
appointment order dated 26.05.2001 was without obtaining the N.O.C.
from the concerned competent authority. Respondent no.1 was continued
in service and had appeared in the second interview held on
13.12.2001. The competent authority had accorded approval to this
appointment only on 29.04.2002. Therefore, for the services rendered
by respondent no.1 for the prior period, i.e. from June 2001 to June
2002, the petitioners are liable to pay respondent no.1 her salary,
i.e. Rs.4,000/- per month. The Government cannot be made liable to
pay salary for the said period since the initial appointment of
respondent no.1 made on 26.05.2001 by the management was without
obtaining the N.O.C. from the Government.
6. Looking
to the facts of the case and keeping in mind the principle laid down
by the Apex Court in Kalawana Gram Vikas Kendra’s case
(supra), I am of the opinion that the petitioners cannot run away
from the liability of making payment of salary to respondent no.1 for
the period from June 2001 to June 2002. The petitioners are directed
to make payment, as per the directions issued by the Tribunal vide
judgment and order passed in Application No.393/2003 dated 02.03.2006
and as confirmed in the Review Application. Consequently, the
petition stands dismissed. No order as to costs.
[K.S.JHAVERI,
J.]
/phalguni/
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