Holding

The Gujarat Secondary Education Act, 1972 and its sections 33, 34, 35 and 36 are constitutionally valid, and the President's assent was a full assent, not a qualified one.

Summary

The petitioners challenged the Gujarat Secondary Education Act, 1972 on two grounds: that the President had given only a qualified assent, rendering the Act unenforceable, and that sections 33, 34, 35 and 36 infringed constitutional rights such as the freedom to practice any profession (Art. 19(1)(g)) and the reservation provision under Art. 16(4). The Court examined the legislative history and found that the President had given a full assent, which is not justiciable, and therefore the Act was validly enacted. It held that section 33, allowing temporary state takeover of a private school’s management for up to five years after a reasonable opportunity of hearing, is a permissible public‑interest measure and does not violate Art. 19(1)(g). Section 34’s reservation of 15% teaching posts for Scheduled Castes and Scheduled Tribes was upheld as a legitimate application of Art. 16(4). Sections 35 and 36, which prescribe joint selection committees and protect tenure of teachers and staff, were found to be reasonable regulations with adequate safeguards against arbitrariness. Consequently, all the constitutional challenges were rejected and the petitions and appeal were dismissed.

Issues considered

Whether the President's assent to the Gujarat Secondary Education Act was qualified, rendering the Act invalid.
Whether sections 33, 34, 35 and 36 of the Act violate constitutional provisions, particularly Art. 19(1)(g) and Art. 16(4).
Whether the assent of the President is justiciable.

Legislation cited

Constitution of Indias. Art. 136, s. Art. 139A, s. Art. 16(4), s. Art. 19(1)(g), s. Art. 200, s. Art. 201, s. Art. 213, s. Art. 226, s. Art. 32
Grants-in-Aid Code
Gujarat Secondary Education Act, 1972s. 33, s. 34, s. 35, s. 36, s. 40-A

Subjects

constitutional validitystate legislationeducationreservationmanagement takeoverqualified assentArticle 19(1)(g)Article 16(4)private schools

Judgment

A

BHARAT SEVASHRAM SANGH ETC. ETC.
v.
STATE OF GUJARAT ETC. ETC.
B
AUGUST 18, 1986.

IE.S. VENKATARAMIAH AND RANGANATH MISRA, JJ.I
A·
Gujarat Secondary Education Act 1972, ss. 33, 34, 35 and 36-
c Constitutional validity of.

Constitution of India, Articles 200, 201and213-Assent to Bill- ··(-
Whether justiciable.

The Gujarat Secondary Education Act 1972 (Gujarat Act No. 18
D of 1973) was enacted to provide for the regulation of secondary educa-
tion in the State of Gujarat. Section 33 of the Act provides that
whenever it appears to the State Government that the manager of an~
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
E 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 belong-
ing to the Scheduled Castes and Scheduled Tribes. Section 35(1) re-
quires every registered private secondary school to have two commit-
tees: (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.
(j 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
H otherwise terminated by the manager until he has been given by the

602
B.S. SANGH"'· STATE Or GU.I. 603

A
--~·
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 Gujarat Sec~ndary Edncation Board established under the Act.

The petitioners/appellants, as the case may be challenged the con- B
stitutional validity of the Act and particularly ss. 33, 34, 35 and 36. It
..i was contended ou their behalf: (i) that the assent given to the Act by the
President being a qualified one, the Act was not enforceable; aod (ii)
that ss. 33, 34, 35 and 36 of the Act were contrary to the constitutional

~
provisions.
. I
Dismissing the appeals and the writ petitions, c
HELD: 1. The Act which was duly published in the official
y 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 giv~n by the Governor or the President caonot be
D
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.
E
2. A large number of teachers are employed by the private secon-
dary schools. The protection of their interests is also equally important
from the point of yiew of the State. Jn these circumstaoces, a provision
-~
like s. 33 of the Act which provides that the taking over of the niaoage-
I• ment of a school whenever it is found that the school is not being run in
F
accordance with the statute and the best interest of all the students and
,.l.. 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 thats. 33 of the Act is unconstitutional. G
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 ~he
H
604 SUPREME COURT REPORTS 119861 3 S.C.R.

A 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 reser-
vation of certain percentage of seats for members belonging to the
Scheduled Castes and the Scheduled Tribes under Art. 16( 4) of the
B
Constitution. The insistence on having teachers belonging to the
Scheduled Castes and the Scheduled Tribes in also in the public in-
terest. Children should be brought up in an atmosphere where there is
opportunity to mix freely with students and teachers belonging to tradi-
tionally disfavoured communities also. The opportunity to show rever-
ence to teachers belonging to Scheduled Castes and the Scheduled
Tribes will in the long run enable the child brought up in that
c 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 Act serves the above mentioned laudable purpose. Even the teachers
who belong to the Scheduled Castes or the Scheduled Tribes have to
D
possess the requisite qualifications for the posts. Therefore, there is no
illegality ins. 34 of the Act. [609G-H; 6 IOA-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
E
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. [6118-C]
F
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 wrong-
ful 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
G
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
sufticient guarantee against any arbitrary order of the authorised of-
ficer refusing to grant unreasonably his approval to the termination of
H
B.S. SANGH v. STATE OF GUJ. [VENKATARAMIAH. J.] 605

.. , the services of an employee. Merely because the man~gement cannot
terminate the services of a teacher or a member f)f a n<m-teaching staff forth-
A

with without the approval of the authorised officer, it cannot he said that an
unreasonable restriction has been imposed on the right of the management
guaranteed imder Art. 19(1)(g) of the Constitution. [611E-H; 612A]
B
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. c
S. Srinivasan and B. Mehta for the Respondents.

The Judgment of the Court was delivered by
[)
VENKATARAMIAH, J. ln{these cases the p~titioners 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. E

-
These cases can be divided into three groups. Writ Petition No.
205 of 1975, Writ Petitions Nos. 16988-17055 of 1984 and Writ Peti-
tions Nos. 2837-38 of 1983 are Writ Petitions filed in this Court under
I
......
I .
Article 32 of the Constitution. T.C. Nos. 9 and 10 of 1985 are Writ
Petitions filed under Article 226 of the Constitntion in the High Court F
of Gujarat which have been withdrawn under Article 139A of the
J. 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 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
G
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 H
'
606 SUPREME COURT REPORTS \1986] 3 S.C.R.

A into force at once but its remaining provisions came into force on
October 13, 1973 on the issue of a notification by the State Govern-
ment 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. registra-
ll tion of schools imparting secondary education, taking over of manage-
ment of registered schools, recruitment and cpnditions of service of
persons appointed in registered private schools and certain other ancil-
lary and incidental provisions. Chapter II of the Act contains the pro-
visions 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 Di-
c rector 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
D 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
F special knowledge or practical experience in the field of science, in-
dustry or commerce. Thus it is seen that the Board consists of mem-
bers 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
G
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 disdpline among
students in registered schqpls and to prescribe standards of conditions
H of residence to be provided in hostels, to lay down standards for test-
B.S. SANGH v. STATE OF GUJ. [VENKATARAMIAH, J.] 607

ing students, for conducting examinations and for promotion of stu- A
··~
dents from one standard to the next higher standard of a registered
school and to prescribe the standards. including qualifications. for
appointment of the staff of a registered school and the standard re-
quirements in respect of building, laboratory, library, furniture,
equipment, stationery and other articles for conducting registered B
schools .
.l 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 c
made thereunder the petitioners/appellants in these petitions have
challenged the provisions of the Act and the regulations made there-
under 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 D
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 E
the State on February, 15, )973 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 Constitu- F
tion but he gave a qualified or conditional assent which was not con-
.J tern plated under Article 201 of the Constitution. It is argued that since
the President did not give absolute assent but only a qualified or condi-
tional assent the Bill in question had not become a law. In reply to
these av'erments in the petitions the Under Secretary to the Govern-
ment of Gujarat, Education Department has stated in his counter G
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
· .-4.. 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 H
608 SUPREME COURT REPORTS [19861 3 S.C.R.

A 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
B 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 amend-
ments by promulgating an Ordinance. Accordingly the draft of the

r
Ordinance which was ultimately promulgated as Ordinance No. 6 of
1973 was forwarded for the instructions of the President under Article
c 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 Bill became law on its publi-
D
cation on the very same day. The Ordinance was issued on the 29th of
September, 1973. In the circumstances it cannot he 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
E
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., [19831 3 ~
F ·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 .I...
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
G
section 33. That section provides that notwithstanding anything con-
tained in any Jaw for the time being in force, whenever it appears to
the State Government that the manager of any registered private sec-
ondary 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
H the public interest to take over the management of the school, it may;
B.S. SANGH v. STATE OF GUJ. [VENKATARAMJAH. J.] 609

after giving to the manager of such school a reasonable opportunity o! A
sh~wing 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 aggre-
gate. Under the Grants-in-Aid Code the Government is under an obli- B
gation 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 reglllate the imparting
of secondary education by the registered schools in which the entire
society and in particular the parents of the children are vitally in- c
terested. 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 accord- D
ance 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 E
circumstances it cannot be said that section 33 of the Act which pro-
vides for taking over of management of any registered private secon-
dary school for a temporary period in the public interest is unconstitu-
tional. The said provision is introduced in the interest of the general
public and does· not in any way affect prej.udicially the fundamental
right of the management guaranteed under Article 19(1)(g) of the F
Constitution.

The next section which was attacked before us is section 34 of the
A.ct. Section 34(1) of the Act provides that fifteen per cent of vacan-
cies of the teaching staff of a registered private school shall be filled up
by persons belonging to the Scheduled Castes and the Scheduled G
Tribes. It is argued that the above provision interferes with the m,an- ·
agerial 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 H
610 SUPREME COURT REPORTS 11986] 3 S.C.R.

A of seats for members belonging to the Scheduled Castes and tlie
Scheduled Tribes under Article 16{4) of the Constitution. The insist-
ence 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 fteely
13 with students and teachers belonging to traditionally disfavoured com-
mities 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
c 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.
D
Section 35(1) of the Act requires every registered private secon-
dary school to have two committees (i) a school staff selection commit-
tee 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
E 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 man-
agement 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. Tue special school committee consists of the following
members namely: (i) two representatives of the management of the
G school to be nominated by the management and (ii) two representa-
tives 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
H Court. That however is immaterial for purposes of considering the
B.S. SANGH v. STATE OF GUJ. [VENKATARAMIAH. J.} 611

conte~tion urged before us. The argumenturged on behalf of the A
petitioners/appellants is that the representatives of managem~nts be-
ing 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 subst-
ance in the argument. The two committees which are to be constituted
under section 35 of the Act consist of the representatives of the man- B
agement 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 c
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 o
headmaster, a teacher or a membe~ of non-teaching staff of a regis-
tered 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 op-
portunity of showing cause against tlie action proposed to be taken
against him and the action proposed to be taken has also been ap- E
proved in writing by ah officer authorised in this behalf by the Board.
We do not find any constitutional invalidity in this provision. It pro-
tects the tenure of the teachers and of the non-teaching staff of a
registered private secondary school and acts ~s 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 F
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 establish-
ment 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 suffi- G
cient guarantee against any arbitrary order of the authorised officer
refusing to grant unreasonably his approval to the termination of the
servkes 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 authorjsed officer it cannot be
said that an unreasonable. restriction has been imposed on the right of .H
612 SUPREME COURT REPORTS [1986] 3 S.C. R.

A the management guaranteed under Article 19( l)(g) of the Constitu-
tion.

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
13 sub-sections (2), (3), (4) and (5) of section 36 shall apply to any educa-
tional institution established and administered by a minority whether
based on religion or language. In view of this provision no minority
institution also can complain apout the Act.

We agree with the decision of the High Court on the questions
c raised before it. All the contentions urged before us in these cases,
therefore fail. These P.,titions and the appeal are accordingly dismissed.
There will be no order as to costs.

D M.L..A. Petitions and appeal dismissed.