Judgment S.J. Mukhopadhaya, CJ.—Though two sets of writ petitions were heard on separate dates and judgments were reserved separately, as common question of law being involved, they are dealt with and decided by this common judgment. 2. The petitioners are educational institutions or Trusts/ Managements of educational institutions challenging the validity of Regulation 33(1)(c) of the Gujarat Secondary Education Regulations, 1974, (hereinafter referred to as ‘the Regulations’) made by the State of Gujarat, and inserted by amendment made in exercise of powers conferred under sub-Section (3) of Section 53 of the Gujarat Secondary Education Act, 1972, (hereinafter referred to as ‘the Act’) vide Government Resolution No. MSB/1198/1228-Chh. dated 13th August, 1988 issued by Education Department, State of Gujarat. By the impugned Regulation 33(1)(c), surplus employees of the schools were given protection, and their compensation amount has been ordered to be deposited by the institute with the State Government. Consequential demand notice has also been challenged in some of the writ petitions. 3. For determination of the question of validity of Regulation 33(1)(c) of the Regulations, it is not necessary to discuss the individual facts of each case, except the relevant provisions of law as noticed and discussed here-under. 4. State of Gujarat introduced Grant-in-Aid Code, 1964, with effect from 1st April, 1964, where-under while different provisions were made with regard to Grant-in-Aid Schools, its teaching and non-teaching staff, under Chapter 14, provisions were made protecting the rights of non-permanent employees from termination simplicitor, and providing certain monitory benefits. Under Code 69.1 while it was stipulated that services of non-permanent employees can be terminated at any time by the Board of Directors by giving notice of one calendar month or pay for the notice period in lieu of notice, under Code 69.3, following provision has been made for permanent employees:— “69.3 - The services of a permanent employee who has put in five or more years of service cannot be terminated by the Managing Committee unless by giving six months’ notice or notice pay. Thereafter, one months pay for each complete year shall have to be paid. Such retrenchment shall be subject to prior permission being given by the District Education Officer (DEO) who, after proper study of papers and hearing both the parties and considering justification of proposed action, takes a decision. The DEO shall not give permission if he is not satisfied.” 5. Such retrenchment shall be subject to prior permission being given by the District Education Officer (DEO) who, after proper study of papers and hearing both the parties and considering justification of proposed action, takes a decision. The DEO shall not give permission if he is not satisfied.” 5. Gujarat Secondary Education Act, 1972, was enacted by the State Legislature, and came into force from 28th September, 1973. Under Section 36, while provision was made for dismissal, removal and reduction in rank of an employee, therein, it was stipulated that no Head-master, Teacher or a Member of non-teaching staff of a registered secondary school can be dismissed or removed or reduced in rank, nor shall his service be otherwise terminated, until he has been given a reasonable opportunity showing cause against the action proposed to be taken in writing, and the proposed action has been approved in writing by the Officer authorized in this behalf by the Board. The said provision was also made applicable in a case of ‘termination simplicitor’, as evident from Section 36 and quoted hereunder: “36. (1) No person who is appointed as a head-master, a teacher or a member of non-teaching staff of a registered private secondary school shall be dismissed or removed or reduced in rank nor shall his service be otherwise terminated by the manager until— (a) he has been given by the manager a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, and (b) the action proposed to be taken in regard to him, has been approved in writing by an officer authorised in this behalf by the Board: Provided that nothing in this sub-section shall apply to any person who is appointed for a temporary period only. (2) The officer referred to in Clause (b) of sub-section (1) shall communicate his decision within a period of forty-five days, from the date of receipt by him of the proposal under the said Clause (b) and if such decision is not communicated to the manager by the said officer within such period the action proposed to be taken under the said Clause (b) shall be deemed to have been approved by the said officer. (3) Where a head master, a teacher or a member of non-teaching staff of a registered private secondary school is suspended by the manager of the school pending any inquiry proposed to be held against him, the fact of such suspension together with the grounds therefor, shall be immediately communicated by the manager to an officer authorised in this behalf by the Board, and such suspension shall be subject to ratification by the said officer within a period of forty-five days from the date of the receipt of the communication in this behalf by such officer and if such ratification is not communicated to the manager by the said officer within such period, the suspension under reference shall cease to have effect on the expiry of such period. (4) Where a head master, a teacher or a member of the non-teaching staff of a registered private secondary school desires to submit his resignation, the resignation shall be tendered by him in person to the District Education Officer concerned and shall not be accepted by the manager unless it is so tendered and forwarded to him by such officer duly endorsed. The acceptance of any such resignation tendered in contravention of this sub-section shall be ineffective. (5) Any person aggrieved by an order of the authorised officer under Clause (b) of sub-section (1) may make an appeal to the Tribunal within a period of thirty days from the date of the decision of the authorised officer.” 6. In exercise of the powers conferred by Section 54 of Act, the State of Gujarat framed “The Secondary Education Regulations, 1974” which came into force by Notification dated 16th March, 1974 and gazetted on 24th March, 1974. Under Regulation 33, provision was made to provide compensation to a permanent employee, if his services are terminated by management in accordance with Section 36 of the Act. Clause (1) of Regulation 33 is related to permanent employees, who are entitled to benefits under Sub-clause (a) and (b) therein, whereas Clause (2) of Section 33 related to temporary employees, as evident from Regulation 33 and quoted hereunder:— “Regulation 33. Clause (1) of Regulation 33 is related to permanent employees, who are entitled to benefits under Sub-clause (a) and (b) therein, whereas Clause (2) of Section 33 related to temporary employees, as evident from Regulation 33 and quoted hereunder:— “Regulation 33. Termination of employment.—(1) Where services of a permanent employee is terminated by the management in accordance with the provisions of Section 36, such employee shall be entitled to compensation— (a) equal to 6 months’ salary including allowance if the employee has put in the school for a period not exceeding five years and; (b) equal to 6 months’ salary including allowances for the first five years and a month’s salary for every year of the period exceeding five years, if the employee has put in service in the school for a period exceeding five years. (2) The service of a temporary employee may be terminated by the management at any time without assigning any reason after giving one calendar month’s (Pay and allowances, if any) in lieu of such notice; Provided that no notice shall be given during vacation or so as to cover any part of the vacation or within the first fortnight after the vacation.” 7. On 11th January, 1983, the State of Gujarat came out with a Resolution No. BSS/1382/816/83/G issued from Education Department of the Government of Gujarat, framing scheme to accommodate surplus teachers. It was decided to accommodate all Principals, Teaching and Non-Teaching employees, who became surplus in the academic year 1982-83, in terms with the norms laid down therein and as per necessity of the subjects, vacant posts in the subjects of Maths and Science etc. and the manner in which such absorption be made. Earlier Government Resolution for accommodating surplus employees made by Government Resolution dated 7th October, 1977 was cancelled. 8. In spite of Regulation 33 and Resolution dated 11th March 1983, it was noticed by the State Government that employees were not paid compensation in spite of being rendered surplus. and the manner in which such absorption be made. Earlier Government Resolution for accommodating surplus employees made by Government Resolution dated 7th October, 1977 was cancelled. 8. In spite of Regulation 33 and Resolution dated 11th March 1983, it was noticed by the State Government that employees were not paid compensation in spite of being rendered surplus. In this background, Government of Gujarat from its Education Department issued Memorandum No. BMS/1183/558/(87)/G dated 15th June, 1987, intimating the Secretary, Gujarat Secondary Education Board, that a provision is made to accommodate those employees, who are rendered surplus on account of reducing strength of classes or closure of schools in other schools, and until such employees are accommodated in other schools, such surplus employees should be given pay and allowances to ensure continuity of services. It was made clear that such employees do not become surplus, and according to Regulation 33, their services are not terminated, and hence, the question of paying compensation to them under Regulation 33 does not arise. The English version of the Memorandum dated 15th June, 1987 is as follows:— “Memorandum - With reference to above referred subject, I am directed to state that a provision is made to accommodate those employees who are rendered surplus on account of reduction in strength of classes or closure of schools in government secondary schools in other schools, and until such employee is accommodated in other school he is paid pay and allowances. Thus continuity of his service is maintained. Therefore, in fact, such employees do not become surplus, and according to regulation 33 of The Gujarat Secondary Education Regulations, 1974, their service is not terminated. Hence question of paying them compensation under above Regulation 33 does not arise. Therefore Gujarat Secondary Education Board is hereby directed under Section 48 of the Gujarat Secondary Education Act, 1972 to take proper action to ensure that employees availing the benefit of provision of surplus should not be paid compensation.” 9. Subsequently, the State Government in exercise of powers conferred by Sub-section (3) of Section 53 of the Act, made amendment in the Regulation by adding Sub-clause (c) in the existing Regulation 3(1)(a)(b) by impugned Resolution No. MSB/1198/1228-Chh. Subsequently, the State Government in exercise of powers conferred by Sub-section (3) of Section 53 of the Act, made amendment in the Regulation by adding Sub-clause (c) in the existing Regulation 3(1)(a)(b) by impugned Resolution No. MSB/1198/1228-Chh. dated 13th August, 1998 issued from Education Department, Government of Gujarat and quoted hereunder:— “Regulation 33(1)(c) - Those employees who are discharged from the school and are given the benefit of surplus, the Trust, institute concerned shall deposit the amount of compensation mentioned in the Clauses (a) and (b) of the said Regulation with the Government.” 10. In view of the aforesaid amendment made by Resolution dated 13th August, 1998, Regulation 33(1) now reads as follows:— “Regulation No. 33. Termination of employment—(1) Where services of a permanent employee is terminated by the management in accordance with the provisions of Section 36, such employee shall be entitled to compensation— (a) equal to 6 months’ salary including allowance if the employee has put in the school for a period not exceeding five years and; (b) equal to 6 months’ salary including allowances for the first five years and a month’s salary for every year of the period exceeding five years, if the employee has put in service in the school for a period exceeding five years; (c) Those employees who are discharged from the school and are given the benefit of surplus, the Trust, institute concerned shall deposit the amount of compensation mentioned in the Clauses (a) and (b) of the said Regulation with the Government.” 11. From the challenge made by the petitioners - management of schools, it will be evident that they have no grievance with regard to compensation to be paid under Sub-clauses (a) and (b) of Clause (1) of Regulation 33 to the employees, who have put in certain period of service. The main grievance is against Sub-clause (c) of Clause (1) of Regulation 33, whereby the management has been asked to deposit the amount of compensation mentioned in Clauses (a) and (b) with the State Government. 12. The main grounds of assailing impugned amendment as made by Resolution dated 12th August, 1998 are as follows: 13. The main grievance is against Sub-clause (c) of Clause (1) of Regulation 33, whereby the management has been asked to deposit the amount of compensation mentioned in Clauses (a) and (b) with the State Government. 12. The main grounds of assailing impugned amendment as made by Resolution dated 12th August, 1998 are as follows: 13. According to Counsel for the petitioners, Clause (c) of Regulation 33(1) is arbitrary on following counts:— (a) A surplus teacher remains in service till he is absorbed; (b) A surplus teacher retains lien of service on his parent school and hence, there is no termination; (c) A surplus teacher is never removed, but he is relieved. 14. Learned Counsel would contend that after declaration of surplus teacher, the teacher continues in service with the management, till he is absorbed, and the compensation equal to retrenchment compensation under Industrial Disputes Act may be permissible in an appropriate case, but not permissible in the present case, as the teacher continues to get salary. The compensation can be paid to an employee, but there is no nexus with the object sought to be achieved while directing to deposit the amount with the State Government. 15. Further, according to the petitioners, surplus teacher is a creature of the Government policy, and therefore, the liability to pay compensation cannot be fastened on the management. In the case of surplus teacher, as no Departmental enquiry is conducted, nor any penal action is taken, the question of paying compensation and keeping the same with the State Government does not arise. 16. Learned Counsel would further contend that subsequent to retrenchment, the surplus teachers are not appointed by the school under Section 35, they are simply accommodated and are not fresh appointees. For accommodating such surplus teachers in one or the other school, having separate block for grant, the question of payment of compensation does not arise. The Government has assured the management for exemption in paying compensation in case of surplus teacher and absorption by other management, and therefore, the Government cannot approbate or reprobate the task. For accommodating such surplus teachers in one or the other school, having separate block for grant, the question of payment of compensation does not arise. The Government has assured the management for exemption in paying compensation in case of surplus teacher and absorption by other management, and therefore, the Government cannot approbate or reprobate the task. Reliance was placed on a decision of this Court in Atladara Kelavani Mandal vs. State of Gujarat, reported in 2004 (1) GLR p. 244, wherein the learned Single Judge held that entitlement of grant-in-aid is not a right, – where there is no discrimination by the State in imposing conditionalities, there would hardly be a scope to complain violation of Article 19(1)(g) of the Constitution of India. 17. Learned Counsel appearing in the case of “Yogeshwar Kelavani Mandal Trust” – SCA No. 2130 of 2001 would contend that object of declaring a teacher surplus is to see to it that services of the teachers are not terminated for no fault of theirs, and they should not undergo the entire gamut of fresh selection, when they seek appointment in different schools. Even the Government is spared of efforts of looking for qualified/experienced teachers, and can avail services of all teachers who were earlier selected through due process of selection. The net effect of teachers being declared surplus results in to continuation of service and payment of salary, which is borne by the State Government, till they are absorbed in different institutions. 18. Learned Counsel would submit that by amending Regulation 33 and incorporating Sub-clause (c) therein, the Government has committed grave illegality, which has not been made as per due process of law as recognized by the Constitution, and on such ground also, the incorporation of Sub-clause (c) of Regulation 33(1) being illegal, it is required to be held invalid. 19. He would further contend that while seeking amendment of Regulation 33, the Government has not been able to demonstrate the object sought to be achieved. The policy of protecting services of duly selected candidates by declaring them surplus from the institutions where their need is no longer there, introduced much after Regulation 33 was framed. That initially there was no policy of declaring them surplus and no need felt to protect employees who were duly selected. The policy of protecting services of duly selected candidates by declaring them surplus from the institutions where their need is no longer there, introduced much after Regulation 33 was framed. That initially there was no policy of declaring them surplus and no need felt to protect employees who were duly selected. Regulation 33 while initially was incorporated for the benefit of the teachers, but by the impugned amendment, the benefit now goes to the State Government at the cost of the institution. 20. Learned Counsel appearing on behalf of petitioner Amreli Vibhag Kelavani Sangh in SCA No. 1333 of 2001 submitted that as surplus teachers are immediately absorbed in another school, there is no question of giving any protection as per Regulation 33(1)(c). The main object of insertion of Sub-clause (c) in Regulation 33(1) is to see that teachers who are declared surplus or whose services have been terminated as per provisions of Section 36 of the Act on account of closure of the school or for any other reason, may not have to suffer financial loss, as it provides for depositing the amount of compensation with the State Government. According to them, there is no termination of services of persons declared surplus on account of closure of an institute, resulting into financial loss to them, as the relationship of employer-employee exists even, after they are accommodated in another school. 21. Ms. Mamta R. Vyas, Counsel appearing on behalf of petitioners in SCA No. 6451 of 2001, SCA No. 17014/04 and SCA No. 17052 of 2004 submitted that though the institutions run by the petitioners receive 100% grant from the State, the entire amount of fees is required to be deposited before the concerned District Education Officer. The salaries are paid under direct payment scheme to the employees concerned, and the maintenance grant is provided on the basis of the total salary only for maintaining the school and miscellaneous expenses. Thus, managements have no source of income for other expenses. She would also contend that as the surplus teachers are adjusted and accommodated against the vacancies in the grantable schools, once such teacher is absorbed in the other school, services of such teachers would continue in other schools against which they are accommodated. Thus, the Government do not bear any extra financial burden, as the surplus teachers are accommodated against the vacancies in other schools. Thus, the Government do not bear any extra financial burden, as the surplus teachers are accommodated against the vacancies in other schools. She would further contend that the question of compensation will arise only in cases where services of teachers are terminated, and if they do not get any protection as surplus teacher. Therefore, inclusion of a new Clause as Regulation 33(1)(c) is not only contrary to the Government Rules, but also frustrate the whole purpose of the scheme where-under teachers are given protection, if declared surplus. 22. In all cases, learned Counsel also highlighted their individual merit while assailing amendment made in Regulation 33(1) by inserting Sub-clause (c) by Resolution dated 13th August, 1988, but it is not necessary to discuss the individual cases, as we are only deciding the question of validity of Regulation 33(1)(c). 23. Learned Government Pleader would contend that with a view to ensure recovery of compensation to be paid to the employees under Sub-clause (a), (b) of Regulation 33(1), the aforesaid provision was made. 24. We have heard learned Counsel for the parties, noticed the relevant provisions of the Acts, Regulations and Guidelines issued by the State Government from time to time. 25. Section 36 of the Act deals with dismissal, removal, reduction in rank of certain persons, removal of Head-master, Teacher or a member of the non-teaching staff. The said provision is applicable not only in regard to penal action by way of reduction in rank, but also to an action which results in termination of service of teachers otherwise than by way of disciplinary proceedings i.e. termination simplicitor. Thus, it will be evident that said Section 36 is applicable also in a case where services of a teacher are terminated on the ground of closure or surplus. In the case of surplus teachers, normally the word “discharge” is used for terminating the services. 26. Regulation 33(1) deals with compensation to be paid to a permanent employee whose services are terminated by the school management as per the provisions of Section 36 of the Act. In the case of surplus teachers, normally the word “discharge” is used for terminating the services. 26. Regulation 33(1) deals with compensation to be paid to a permanent employee whose services are terminated by the school management as per the provisions of Section 36 of the Act. They are entitled to an amount equivalent to the salary of six months including allowances, if he had put in service for a period not more than 5 years in the school, and in case such permanent employee may have completed more than 5 years, an amount equivalent to salary of six months including allowance in first five years, and thereafter one month salary for each completed years under Clause (b). Therefore, it will be evident that a permanent employee even if declared surplus, but terminated from service including discharge, is entitled for the benefit of compensation as prescribed under Sub-clause (a) or Sub-clause (b), as the case may be, of Regulation 33(1). The aforesaid provisions were already in vogue under Code 69.3 of Chapter 14 of “Grant-in-Aid Code 1964” where-under managing committee was required to give six months notice or notice pay and thereafter one month’s pay for each completed years, if the services of permanent employee put in five or more years is terminated. The aforesaid provisions being welfare legislation against any arbitrary action of the management, it cannot be held arbitrary nor the said provision is under challenge in any of the writ petitions. 27. By Resolution dated 11th January, 1983, the State of Gujarat from Education Department intimated that all the Principals, Teachers and Non-teaching employees, who have become surplus on account of closure of classes or closure of non-governmental secondary schools in academic year 1982-83, will be accommodated. However, we find that while memorandum dated 15th June, 1987 was issued by Education Department of Government of Gujarat, it was intimated that provision has been made to accommodate surplus employees, and until such employees are accommodated in other schools, they be given pay and allowances and thereby continuity of service was ordered to be maintained. But, thereafter no amendment was made in the Act, particularly Section 36 therein, or Regulation 33 of the Regulations, enabling the surplus employees to continue after termination, and to pay salaries till their absorption in other schools. But, thereafter no amendment was made in the Act, particularly Section 36 therein, or Regulation 33 of the Regulations, enabling the surplus employees to continue after termination, and to pay salaries till their absorption in other schools. No such provision was made either under the Act or the Regulations framed thereunder that the surplus permanent teacher shall be paid full pay and allowances, even during the period he is out of service. In absence of any such amendment in the Act and/or Regulation 33 of Regulations, once services of a permanent employee are terminated on any ground, including the ground of surplus teacher or closure of the school, such permanent employee, on such termination, has a right to claim compensation as per Clause (a) or (b) of the Regulation 33(1), apart from right to claim absorption under the Scheme for absorption. Once the employee accrues such right to claim compensation under Regulation 33(1)(a) or (b), for protection of such right, and to ensure that the amount reaches to such employees, who were declared surplus, it is always open to the State to take protective measure to ensure recovery of compensation for payment in favour of such terminated employees, who have even a right to claim compensation and absorption. In this background, if the State Government has amended Regulation 33(1) by inserting Sub-clause (c) therein, protecting the right of surplus employees, whose services have been terminated, and asked the school to deposit such amount with the State Government in order to hand over the compensation to the retrenched employees, such provision cannot be held to be arbitrary as having passed for the welfare of the retrenched employees. If one or other institution has failed to pay such compensation to employees as per Section 36 or Regulation 33(1)(a) or (b), it is well within the jurisdiction of the State Government to compel such institution to pay the compensation by asking the management to deposit the amount with the State government to ensure payment in favour of a retrenched employee. 28. It is needless to say that no surplus employee can be retained in a school, and in absence of order of termination, the question of absorption in other schools would not arise. 29. 28. It is needless to say that no surplus employee can be retained in a school, and in absence of order of termination, the question of absorption in other schools would not arise. 29. In this background, if demand has been made by the State authorities for payment of the outstanding dues of compensation to which the employees are entitled under Regulation 33(1)(a) or (b) in terms with Regulation 33(1)(c), no interference is called for. However, in a particular case, if one or another petitioner has not been given opportunity to show that they are not liable to deposit such amount, as having paid the amount to the concerned retrenched employee, it is always open to such petitioner to bring such fact to the notice of the authority, who in turn is required to decide such dispute. 30. For the reason aforesaid, while we uphold the amendment as made by Government Resolution No. MSB/1198/1228-Chh dated 13th August, 1988 to add Clause (c) to such Regulation 33(1) of Gujarat Secondary Education Regulations, 1974, give liberty to such petitioners, who were not given opportunity, and who have already paid such dues in favour of a terminated employee under Regulation 33(a) or (b), to bring such facts to the notice of the competent authority, who may decide such claim on their individual merit. We may only observe that we have not decided the validity of one or other demand notice, which is required to be decided by the authority, if any petitioner disputes the demand, and if final determination has not yet been made. All the writ petitions are accordingly dismissed with the observations aforesaid. No costs.