JUDGMENT
Gokulakrishnan, C.J.
1. Appellants original petitioners in Special Civil Application No. 4249 of 1983, being aggrieved by the judgment and order dt. 19-9-1983 rendered by a single Judge of this court have come in appeal challenging the said decision.
2. Petitioners are three teachers of respondent No. 6 Gulf Education Society. Respondent 1-Board has been constituted by the Government of India by various resolutions, the first of which was dt. 1-71929 and institution known as Kendriya Vidyalaya Sanghathan has been impleaded as the respondent No. 2 through its Deputy Commissioner. Respondent No. 4 is Gujarat Secondary Education Board. Respondents 5 and 7 are the Project Manager, O.N.G.C. Cambay Project and Oil and Natural Gas Commission respectively. The reliefs, inter alia, prayed in the petition were as under :
“18(a) a writ of prohibition or writ in the nature of prohibition or any other appropriate writ or direction may be issued restraining the respondents from starting or commencing the Central School, Kendriya Vidyalaya at ONGC Compound, P.O. kansari, Taluka Cambay, District Kheda and restraining the respondents 1 and 2 from registering or affiliating the said central school at ONGC Campus, of its project at Cambay:
(b) Honourable Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus directing the respondents 5, 6 and 7 to issue directions to the Principal, Gulf Higher Secondary School to cancel the transfer certificates already issued and further directing him that he should not issue any transfer certificates and they should see that the Gulf Higher Secondary School functions, and imparts education to the students hitherto done;
(c) Pending the final hearing and dispute of this petition, the Honourable Court be pleased to issue an injunction restraining the respondents or any of them from establishing or help in establishing any Central School as per Exh. A and directing them that the transfer certificates should not be issued to the students and if issued they may be held in abeyance and the students may be continued to be imparted education at the Gulf Higher Secondary School and such other interim orders be passed as may be necessary in the interest of justice;
(d) The Honourable Court may be pleased to issue such other appropriate writ or direction or orders as may be deemed just and proper in the circumstances of the case to protect the interests of the staff employed with the Gulf Higher Secondary School who are in effect the employees of the O.N.G.C. through the Gulf Education Society.”
3. The learned single Judge regarding the prayer that the respondent 4-Board be restrained from registering or affiliating the Central School held that the same was premature, as it was the say of the petitioners themselves that no application was made to the respondents Nos. 1 and 4 for respective affiliation and registration. The learned single Judge saw no substance in the other submissions made on behalf of the petitioners and so rejected the petition summarily. The petitioners have therefore, come by way of the present appeal.
4. At the outset, it may be stated that in any event regarding the aforesaid aspect of affiliation and registration, there is no reason for us to reach a different conclusion in this connection than the one drawn by the learned single Judge.
5. Mr. Zaveri, the learned Advocate for the appellants, has advanced several contentions before us and the foremost of the same is that S. 31 of the Gujarat Secondary Education Act, 1972 governs the situation and it clearly bars any person to impart secondary education through a school, unless such a school is registered under the provisions of the said Act and so Kendriya Vidyalaya Sanghathan, not being so registered, should not be allowed to function.
6. As can be seen from “Education Code for Kendriya Vidyalayas”, 1980 revised Edition, “the Kendriya Vidyalaya Sangathan was registered as a society under the Societies Registration Act (XXI of 1860) on 15th Dec.1965”. The objects for which the Sangathan is established are as per the Memorandum of Association and Rules reproduced at Appendix I in the said Code. One of the principal objects is to provide, establish, endow, maintain, control and manage schools, that is to say, Kendriya Vidyalayas, for the children of transferable employees of the Government of India, floating population and others. As stated in the introduction to the said Code, the idea of encouraging the growth’ of secondary schools with a common syllabus and medium of instruction for the benefit of the children of Central Government employees liable to frequent transfers was first mooted by the Second Central Pay Commission which recommended provision of this facility by the Government for its employees so that the education of their children may not be disrupted due to their frequent and sudden transfers in public interest. Accordingly, in Nov. 1962, the Government of India approved the scheme to provide educational facilities for the children of transferable Central Government employees, including defence personnel. As a first step towards implementation of the scheme, 20 Regimental schools then functioning at places having large concentration of defence personnel were taken over as “Central Schools” or “Kendriya Vidyalayas” during the academic year 196364. The number of Kendriya Vidyalayas has since grown up to 323 by the end of Dec. 1980. In the course of a few years, the Kendriya Vidyalayas have not only grown in number, but have also made rapid strides in all the key areas of present-day educational reforms and have come to be recognised as pivotal institution’s striving to raise the quality of education at school level.
7. The Sanghathan has a Board of Governors, which is charged with the responsibility of carrying out the objects of the Sanghathan. The Minister or Minister of State or Deputy Minister in the Ministry of Education and Culture in-charge of the Kendriya Vidyalaya Scheme is the Chairman of the Sanghathan. The Vice-Chairman is an officer of the Ministrv of Education and Culture, specially nominated by the Government of India. The Sanghathan has its own organisational set-up; has prescribed duties and powers of officers of the Sanghathan; has a Vidyalaya Management Committee; has Rules regarding classification, recruitment, qualification, etc.; has a Code of Conduct for Teachers; and has Rules also for miscellaneous matters relevant to service in Vidyalayas. The Code of the Sanghathan has Rules concerning discipline. The Sanghathan has also specific Rules regarding admission, examination and promotions; and the Sanghathan has a Scheme of its own regarding studies in Kendriya Vidyalayas; teaching of Regional languages; and syllabus. Thus, the Sanghathan has a complete code of its own. The objects and the constitution of the Kendriya Vidhyalayas spell out the independent existence of Kendriya Vidyalaya without being controlled in any manner by the Gujarat Secondary Education Act, 1972. It is also evident that the Gujarat Secondary Education Board has no control or say in determining the subjects and syllabus for the Kendriya Vidyalayas.
8. We will now proceed, in the aforesaid background, to examine the aforesaid contention of Mr. Zaveri. S. 2(u) of the Gujarat Secondary Education Act, 1972 defines Secondary Education as follows:-
“(u) ‘Secondary Education’ means education, including post basic education, in such subjects from eight standard up to such standard, not being higher than the eleventh standard as may, by general or special order from time to time, be determined by the State Government”.
S. 2(v) of the said Act defines ‘secondary school’ as follows:-
“(v) ‘secondary school’ means a school imparting secondary education”
S. 2(q) of the said Act defines ‘recognised school’ and it reads as follows :
“(q) ‘Recognised school’ means a secondary school or a post basic school recognised by the Director of Education, Gujarat State, or an officer authorised by him in this behalf or, a high school registered by any University.”
Ss. 31 and 52 of the said Act provide as f ollows : –
“31. (1) No person shall impart secondary education through a school unless such school is registered under the provisions of this Act.
(2) As soon as may be after the appointed day, the Board shall prepare and maintain thereafter, a register of Secondary Schools in accordance with the provisions of this Act.
(3) ‘The Register shall include such particulars as may be prescribed.
(4) Every person who desires to impart secondary education by establishing a school shall, on an application in such form and on payment of such fee as may be prescribed, be entitled to have the name of the school entered in the register, subject to the fulfilment of the conditions prescribed by the Board for registration of secondary schools.
(5) Notwithstanding anything contained in sub-section (4) the name of every secondary school which immediately I before the appointed day is a recognised school shall be entered in the register and shall be deemed to have seen entered in the register from the appointed day and shall continue thereon until removed under the provisions of this Act.
(6) The Board shall consider and make an inquiry in respect of every such application for registration in such manner as may be prescribed and then decide it within a period of three months from the date of receipt of the application by the Board.
(7) When the register is prepared in accordance with the foregoing provisions, the Board shall publish in the official gazettee and in such newspapers as the Board may select, a notice stating that the register containing the names of secondary schools entered thereunder up to the date specified in the notice has been prepared.
(8) Every registered school shall be given a certificate of registration in the prescribed form.
(9) Where any person in charge of the management of a registered school has been, after due enquiry by the Board in the prescribed manner, found to have committed default in carrying out any of the obligations imposed on such person under this Act or the regulations, or any instructions issued to him by the Board, the Board shall, after giving to such person an opportunity of being heard direct the name of the school to be removed from the register for such period as may be specified in the direction or to be removed from the register permanently.
(10) Any person aggrieved by the decision of the Board tinder sub-section (6) or sub-see. (9) may, within a period of one month from the date on which such decision is communicated to him, appeal to the State Government, and the State Government shall decide the appeal within two months from the date of the presentation of the petition or appeal and the decision in such appeal shall be final.
(11) The Board may, on sufficient cause being shown, direct at any time that the name of the school so removed shall be re-entered in the register on such condition and on payment of such fee as may be prescribed and on such further conditions as the Board may deem fit to impose.
(12) Where the name of any registered school is removed from the register under sub-section (9) the certificate of registration issued to the person in charge of the management thereof. shall be deemed to have been cancelled and such person shall forthwith surrender the certificate to the Board or to an officer authorised by ‘-,he Board in this behalf. The canceIlation of certificate of registration shall be notified by the Board in -the official gazette and in such newspapers as the Board may select.
(13) The Register shall be open to inspection by any person at all reasonable hours in the office of the Board.”
“52. The State Government may, by notification in the official gazette, exempt from all or any of the provisions of this Act any secondary school which is affiliated to the Central Board of Secondary Education, New Delhi or to the Indian Public School Conference, New Delhi or is maintained by any University or by institution recognised by the University Grants Commission or declared by the Central Government as Universities in accordance with the provisions of clause (f) of S. 2 or of S. 3, as the case may be, of the University Grants Commission Act, 1956.”
9. The aforesaid definition of ‘secondaryeducation’ shows – that subjects mentioned therein are to be determined by the State Government from time to time, by general or special orders and that education will be secondary education under the definition which imparts education in such subjects. It was submitted by Mr. Zaveri that the subjects taught in the Kendriva Vidyalaya and in schools covered under the said Act are almost the same and, therefore, the Kendriya Vidyalavas should be taken to have been, covered by the said definition. The submission of Mr. Guarneri in this connection seems to be ill-founded. The similarity, if any, with regard to the syllabus in respect of the standards 8th, 9th and 10th of the school coming under the Gujarat Secondary education Board with that of the standards 8th, 9th and 10th of Kendriya Vidyalaya is nothing more than acoincidence if at all. Learned Advocate General has emphatically submitted that Kendra Vidalia’s are not imparting knowledge in the subjects determined by the State Government, but the Endive Vidalia’s are imparting knowledge in the subjects determined as per their own Rules and not as per the subjects determined by the State Government from time to time. Learned Advocate General has rightly submitted that, it is not the State Government or the Gujarat Secondary Education Board that determines the subjects for Standards 8th 9th and 10th of the schools run by Kendra Vidalia’s. The said definition of secondary education’, therefore, cannot apply to Kendra Vidalia’s under the Sarighathan, It follows that the said definition of ‘secondary school’ also cannot apply to the Kendriva Vidyalayas. The aforesaid definition ‘recognised school’ it also is dependent on the definition of a secondary school under the Act and since Kendriva Vidyalayas, in our opinion, are not secondary schools within the meaning of the said Act, the definition of ‘recognised school’ also cannot apply to them.
10. The aforesaid S. 31 deals With registration of schools under the Act. Section 31 makes it clear that whoever wants to impart secondary education within the definition of secondary education under the Act through a school has to get such a school registered under the provisions of the Act. Kendriya Vidyalaya Sanghathan do not want to impart secondary education as defined under the said Act. It is, therefore, evident that schools such as Kendriva Vidyalayas cannot be said to have been covered under the said S. 31.
11. The said S. 52 is regarding exemptions under the Act. It empowers the State Government to exempt any secondary school as mentioned therein from all or any of the provisions of the Act. It is an enabling section and whoever wants to avail of it, will approach the State Government for such exemption. In the facts and circumstances of the case, it is clear that respondent 2 has not made any application with a view to claim exemption. Application of S. 51 therefore, in the present case does not fall for consideration.
12. Considering all the aforesaid, it seems that the aforesaid contention of Mr. Zaveri has no force and is, therefore, rejected.
13. Mr. Zaveri next relied on Regns. 9(l), 9(7), 9(15), 9(16) and also 10-A. It is not necessary to reproduce all the aforesaid Regulations for the purpose of this judgment. However, Regn. 9(16) provides as follows :
“(16). No new school will ordinarily be allowed to be opened in a locality if the Board is convinced that it is likely to result in unhealthy and/or unfair competition with an existing institution within a reasonable distance, which in rural areas may be taken as 5 kms. If, as a consequence of starting of a new school, any school already in existence in the same locality suffers a loss of more than 20 per cent in its enrolment, this would be considered as a positive proof of unhealthy competition having occurred, and the Board may on this basis alone recommend that no grant should be paid to such a newly opened school.”
Relying on the aforesaid Regulations, inclusive of Regn. 9(16), Mr. Zaveri has submitted that Kendriya Vidyalaya has been opened in the very same building where respondent 6 is running the school. Mr. Zaveri has also submitted that if such a thing was permitted, then it would offend Regn. 9(16) and the same would lead to unhealthy and unfair competition. Mr. Zaveri has emphasised that the management of the respondent 7-Commission has clearly flouted the above Regulations and has also victimised the petitioners, because the petitioners have indulged in labour Union activities. According to Mr. Zaveri, such an action of the respondent No. 7 not only violates the above Regulations, but also spells out mala fides on the part of respondent 7. In the first place, the aforesaid Regulations have been made by the Government of Gujarat in exercise of the powers conferred by S. 54 of the Gujarat Secondary Education Act, 1972 and of all other powers enabling it in that behalf. The said Regulations are, therefore, under the Act. In our opinion, when the aforesaid Act itself, as stated above, does not apply to Kendriya Vidyalayas, much less the said Regulations can apply to Kendriya Vidyalayas, which Regulations have been enacted under the powers given to the Government of Gujarat under the said Act. The said Regulations, in our opinion, can apply only to a school which falls within the four corners of the said Act and not to such schools as Kendriya Vidyalayas. It is, therefore, not possible to accept the submission made by Mr. Zaveri, based on the aforesaid Regulations. It is unnecessary for us to examine the factual background which Mr. Zaveri has pressed into service in support of his submissions on the basis of the said Regulations. It is, therefore, clear that no relief can be granted to the petitioners as against respondents Nos. 2 and 3.
14. We shall now proceed to consider the case of the petitioners against respondent No. 6-Gulf Education Society. Mr. Zaveri has contended that Oil & Natural Gas Commission is a ‘State’ coming under the definition of Art. 12 of the Constitution and as such Gulf Education Society, which is being manned completely by the Oil & Natural Gas Commission, is an extension of service of Oil & Natural Gas Commission and as such the same is also a ‘State’ coming under the definition of Art. 12. Mr. Zaveri further submitted that it was, therefore, incumbent upon the Oil & Natural Gas Commission or Gulf Education Society before permitting Kendriya Vidyalaya Sanghathan to run secondary grade school to see that it is done as per the Rules and Regulations of the Central Board of Education and Gujarat Secondary Education Board. From what has been stated here in above, it is clear that Kendriya Vidyalaya Sanghathan as well as Kendriya Vidyalayas are neither under the Oil & Natural Gas Commission nor under the Gulf Education Society. Kendriya Vidyalaya Sanghathan is a separate entity altogether and, therefore, there is no basis for saying that it is incumbent either upon the Oil & Natural Gas Commission or upon the Gulf Education Society to see to it, before permitting Kendriya Vidyalaya Sanghathan to run secondary grade school, that it is done as per the Rules and Regulations of the Central Board of Education and Gujarat Secondary Education Board. Since the said Act does not apply to Kendriya Vidyalaya Sanghathan, such questions can hardly arise.
15. The relief at para 18(a) of the petition concerns Kendriya Vidyalava. It is not in dispute before us that Kendriya Vidyalaya has already started. Even from this viewpoint also, neither respondent No. I nor respondent 4 can be restrained as prayed in para 18(a), Since the said Act does not apply, no question arises regarding registration or affiliation of the schools run by Kendriva Vidyalaya Sanghathan.
16. So far as relief at para 18(b) of the petition is concerned, in the facts and circumstances of the present case and in view of all the aforesaid no question can arise to issue directions to the Principal of Gulf Higher Secondary School to cancel the transfer certificates already issued and to further direct him that he should not issue any transfer certificate. There is also no question of directing respondents 6 and 7 to the effect that Gulf Higher Secondary School functions and imparts education to the students. In this connection, learned Advocate General brought it to our notice that out of 334 students in Sept. 1983 in the school run by respondent 6, 311 students applied for transfer certificates as early as on 2-9-83 and that as on to-day, there are no students in the school. The said statement is neither refuted by Mr. Zaveri nor by the appellants. It is not shown that the aforesaid submission made by learned Advocate General is factually incorrect.
17. The prayer as per para 18(c) of the petition was for an interim relief.
18. The prayer as per para 18(d) of the petition is for an appropriate writ, direction or order to protect the interests of the staff employed with Gulf Higher Secondary School. So far as the last prayer is concerned, the learned single Judge, considering that it was a petition filed by three petitioners only, has observed that the authorities of Kendriya Vidyalaya Sanghathan should have a sympathetic attitude in case the petitioners come to be relieved by the respondent No. 6, who stated that they had not till then retrenched or relieved any of the teachers and that if at all they had to do so, they would act strictly according to law and that they would try to accommodate the petitioners teachers, as far as it was possible for them to do so, not as a matter of legal obligation, if there be none. but as a matter of moral consideration. It is not possible to put the case of the petitioners at any higher level and it would be in the fitness of things if the authorities, concerned will consider the case o f the petitioners sympathetically in the facts and circumstances of the case.
19. For all these reasons and also in view of the reasons given by the learned single Judge of this court for the disposal of the Special Civil Application, this Letters Patent Appeal is dismissed. In the circumstances of the case, there will be no order as to costs.
20. Mr. Kalpesh Zaveri wants to continue the interim relief granted in this case regarding payment of salary to the teachers working in the Gulf Higher Second School, for a period of six weeks in order to enable the appellants to take the matter to the Supreme Court. This prayer is stoutly opposed by Mr. Rajni H. Mehta, learned counsel appearing for the O.N.G.C. The interim relief was granted on the concession made by the learned Advocate General appearing for the O.N.G.C., at the time of granting such a relief. As at present, there is a petition by the O.N.G.C. seeking to rescind that concession already granted. In those circumstances, the matter was finally heard and the judgment has been passed today, dismissing the Letters Patent Appeal. Hence, we do not think that it is possible to continue the interim relief granted for all the teachers working in the Gulf Higher Secondary School. Nevertheless, the present three appellants may be protected for a period of six weeks as prayed for by Mr. Kalpesh Zaveri. Hence, the interim relief granted will endure to the benefit of the three appellants for a period to six weeks from this date.
21. Appeal dismissed.