JUDGMENT : (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA) 1. By this Special Civil Application, the writ-petitioners, the different Schools registered as linguistic minority Secondary and/or Higher Secondary Schools, receiving grant-in-aid from the Government, have prayed for a mandamus or any other appropriate writ, order or direction holding that the new amendment made by the respondent authorities by the Resolution dated 17th August 2011 as also the amendment in Regulation 43 of the Regulations deleting Regulation 20 framed under the Gujarat Secondary and High Secondary Education Act as ultra vires and inconsistent with Section 40A of the Gujarat Secondary & High Secondary Education Act, 1972 [hereinafter referred to as the Act]. 2. The case made out by the petitioners may be summed up thus:- [a]. The petitioners are the Schools which are recognized and registered as linguistic minority Secondary and/or High Secondary Schools receiving grant-in-aid from the Government and they are categorized as grant-in-aid linguistic minority schools and are governed by the Regulations with exemption from certain conditions prescribed in the Regulations as per Regulation 20. [b]. The State of Gujarat, by a resolution dated 5th August 2011, amended Regulation 20 by adding Regulation 20(C) which stipulates that the qualification of Teachers Aptitude Test [T.A.T.] Examination for Teachers and Head Masters is mandatory. [c]. Although Minority Institutions are exempted from the operation of Regulation 20 and any amendment would not be applicable to them, on 5th December 2011, the Government issued directions to see that the candidates possessing qualifications of T.A.T. are only appointed as Teachers and Head Masters in all the Schools. [d]. Pursuant to the aforesaid directions, on 12th April 2012, one of the Minority Schools of Ahmedabad was granted NOC with the amended condition, although it was a Minority Institution. [e]. The petitioner No.1 had, on 18th December 2011, represented on behalf of its members clarifying the conditions that since the petitioner-institutions are Minority Institutions, they are exempted from Regulation 20 and, therefore, the amendment made therein cannot be made applicable in the case of Minority Institutions and sought a clarification from the authorities in this regard. [f]. On 16th October 2012, the petitioners filed a Special Civil Application being No. 13269 of 2012 before this Court wherein Rule was issued but interim relief was refused. [g]. [f]. On 16th October 2012, the petitioners filed a Special Civil Application being No. 13269 of 2012 before this Court wherein Rule was issued but interim relief was refused. [g]. The petitioners, therefore filed a Letters Patent Appeal being No. 1558 of 2012 challenging the refusal to grant interim relief wherein this Court issued notice to the respondents. However, during the pendency of the Letters Patent Appeal, it came to the knowledge of the petitioners that in violation of Section 17 (26) and Section 40A of the Act, the Government has deleted the exemption given in the Regulation 20 by Resolution dated 17th August 2011. The petitioners, therefore, withdrew the Letters Patent Appeal with a view to file a fresh writ-petition. [h]. Now, an amendment has been made to the effect that the exemption granted under Regulation 20 to the Minority Institutions will be inapplicable and they are to be treated equally with the other institutions without any exemption conferred in the Constitution of India and the Act, and hence, the present writ-application has been filed. 3. The State of Gujarat has opposed this writ-application by filing an affidavit-in-reply and its defence may be summed up thus:- [i]. For the purpose of dealing with formation of Schools, appointment of Teachers, Principals etc., and all other requisite functions of the Government Schools as well as the grant-in-aid schools, the Education Department had earlier prepared “Grant in Aid Code, 1964”. The said Code dealt with all aspects of the formation and administration of Government and grant-in-aid Schools. Thereafter, the State of Gujarat had enacted Gujarat Secondary and Higher Secondary Education Act, 1972 and in pursuance of the said Act, an Education Board came to be established. Thereafter, in 1974, Regulations were framed which deal with the appointment of Teachers, registration of Schools, Board examination and other activities, including the power and duties. [ii]. In view of the Act and the Regulations, the State administers and discharges its functions and obligation of providing for education to its citizens and society at large. [iii]. “No Objection Certificates” [NOC, hereafter], are issued only if the candidate to be appointed has the requisite qualifications in accordance with the 1972 Act and the Rules framed there under. [ii]. In view of the Act and the Regulations, the State administers and discharges its functions and obligation of providing for education to its citizens and society at large. [iii]. “No Objection Certificates” [NOC, hereafter], are issued only if the candidate to be appointed has the requisite qualifications in accordance with the 1972 Act and the Rules framed there under. If the appointment of the Head Master or Teacher has to be given, the said grant cannot be accorded if the Head Master or Teacher does not possess qualifications of having cleared the TAT. TAT was introduced with the aim of maintaining certain minimum and uniform standard of academics as far as the Head Masters and Teachers are concerned in order to maintain quality standards of imparting better education in educational institutions. [iv]. It is incumbent upon the educational institutions to obtain NOC for the appointment of a Head Master or a Teacher, in accordance with the policy of the State Government published vide Circular dated 6th October 1998. The Government has framed a policy in the year 1998 making it obligatory for the minority institutions to obtain NOC from the concerned authority before making them eligible for grant of a new staff, and such requirement of NOC before any recruitment is in public interest since it is the State which incurs the expenditure of the salaries which are paid to such appointees. The requirement of NOC is put in place in order to regulate the recruitment process and, therefore, it cannot lawfully be contended that the said requirement of securing NOC violates the constitutional mandate of minority institutions. [v]. Section 40A of the Act provides for certain exemptions to the minority institutions inasmuch as it can regulate itself by its own procedure for the purpose of imparting education. However, in order to obtain Government aid and assistance by way of grant for the purpose of Schools, the State is within its powers to impose such condition of insisting on NOC. [vi]. The policy of the State to seek NOC was subject of challenge before this High Court in Letters Patent Appeal No. 1183 of 2002 wherein a Division Bench upheld the requirement of NOC even from minority institutions after considering the exemption as granted under section 40A of the Act. [vi]. The policy of the State to seek NOC was subject of challenge before this High Court in Letters Patent Appeal No. 1183 of 2002 wherein a Division Bench upheld the requirement of NOC even from minority institutions after considering the exemption as granted under section 40A of the Act. The said judgment of the Division Bench was challenged before the Supreme Court but the Supreme Court upheld the said order. [vii]. In the case of TMA Pai reported in (2002) 8 SCC 481 , the Supreme Court observed that once the aid is granted to a private professional educational institution, the Government or the State agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. Therefore, the State has powers to regulate the matters relating to selection and appointment of Teachers after prescribing the requisite qualification for the same, and thus, the State is within its competence to impose conditions for grant of NOC. 4. The Gujarat Secondary and Higher Secondary Board, the respondent No.2, has also opposed this application by filing affidavit-in-reply and it’s stance may be summed up thus:- [A]. Section 17 of the Act of 1972 provides for the powers and duties of the Board which have been elaborately described with a view to regulating the Secondary and Higher Secondary Education in the State of Gujarat. So far as the role of the Board is concerned, it also includes conducting TAT whilst maintaining high standard of merit and transparency. After the publication of the Regulations in the official gazette on 11th February 2011 by the State Government, it became mandatory for the Board to conduct TAT to facilitate initiation of selection procedure of the candidates to be selected and appointed as Teachers and Head Masters. [B]. Number of cases of large-scale corruption, nepotism and malpractices were found prior to 1972 and with a view to curtailing such anarchy, the provision with regard to recruitment of staff were provided under section 35 of the Act of 1972. [B]. Number of cases of large-scale corruption, nepotism and malpractices were found prior to 1972 and with a view to curtailing such anarchy, the provision with regard to recruitment of staff were provided under section 35 of the Act of 1972. In view of the provisions of the 1972 Act, the powers were vested in the Government for framing the First Regulation, and thereafter, powers are vested in the Board to alter, amend or delete any Regulations and accordingly, Gujarat Secondary Education Regulations, 1974 came into existence wherein the rules for recruitment, condition of service have been provided and for the purpose of maintaining the method of selection, by way of different circulars, the Board has issued instructions so that the recruitment process can be regulated in a proper manner. [C]. Prior to the enactment of the Act, certain school managements including the minority schools were not paying full salaries to its employees including Teachers but were taking signatures as if the full salary has been paid. In these circumstances, the Government introduced a Scheme known as ‘Direct Payment Salary Scheme’. After introduction of this scheme and implementation of the provisions of the Act, the Regulations and Resolution of the Board with respect to the recruitment of the staff, certain managements started malpractice by taking advance amount by way of donation from the Teachers to the tune of Rs.2 lakh and more prior to the year 1985. In other words, earlier managements were deducting the amount from the salaries and the teachers were also underpaid and due to enactment of the 1972 Act and Regulations, the employees got security of job. [D]. The amended Section 35 of the Act is, thus, absolutely just, reasonable and is in consonance with the law. In exercise of powers conferred by section 35 of the Act, the Government framed Rules known as “The Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools [Procedure for Selection] Rules, 2011 which is also absolutely just, rational, reasonable and is in consonance with the law. [E]. As there were complaints of irregularity in the earlier selection procedures, with a view to bringing transparency to regulate and regularize the proper method of selection and appointment, the Government has introduced the Rules impugned in this petition and the Regulations were accordingly amended by the Board. [E]. As there were complaints of irregularity in the earlier selection procedures, with a view to bringing transparency to regulate and regularize the proper method of selection and appointment, the Government has introduced the Rules impugned in this petition and the Regulations were accordingly amended by the Board. The section 35 so amended and the Rules so framed are absolutely just, proper and correct and the same is within the frame work of law and the basic purpose for amending the law and framing the Rules is to curb illegality, arbitrariness, favouritism and unfair practice in the matter of selection of teaching staff in the grant-in-aid schools. [F]. The basic purpose of amending the law and framing the Rules as stated above is to curb illegality, arbitrariness, favouritism and unfair practice in the selection of teaching staff in the grant-in-aid schools so that undeserving or ineligible candidates for the posts of Teachers and Head Masters may not get a march over the eligible and suitable candidates. The Special Civil Application should therefore be dismissed. 5. Therefore, the only question that falls for determination in this Special Civil Application is whether the resolution dated 17th August 2011 and also the amendment in Regulation 43 deleting Regulation 20 there from is ultra vires and inconsistent with Section 40A read with Section 17 (26) of the Act. 6. In order to appreciate the aforesaid questions, it will be profitable to refer to the following provisions of the Act and the Regulations which are quoted below: 2(o). “private secondary school” means a higher secondary school which is not owned, managed or sponsored by the Central or State Government. 2(q) “recognised school” means a secondary school or a post basic school recognized by the Director of Education, Gujarat State, or an officer authorised by him in this behalf, or a high school registered by any University. Section 17: Powers and duties of the Board. Subject to the provisions of this Act, the powers and duties of the Board shall be as follows, namely. (1) to (10) xxx xxx xxx (11). to prescribe the standards, including qualifications, for appointment of the staff of a registered school and the standard requirements in respect of building, laboratory, library, furniture, equipment, stationery and other articles for conducting registered schools. (12) to (25) xxx xxx xxx (26). (1) to (10) xxx xxx xxx (11). to prescribe the standards, including qualifications, for appointment of the staff of a registered school and the standard requirements in respect of building, laboratory, library, furniture, equipment, stationery and other articles for conducting registered schools. (12) to (25) xxx xxx xxx (26). to lay down qualifications, methods of selection and conditions of appointment, promotion and termination of employment and rules for conduct and discipline of the headmaster and the teaching & non teaching staff of registered private secondary schools and registered private higher secondary schools. Section 40A : Savings Nothing contained in clause (26) of Section 17, sections 34 and 35 and clause (b) of sub-section (1) and sub-sections (2), (3), (4) and (5) of section 36 shall apply to any educational institutions established and administered by a minority, whether based on religion or language. Section 53 : Power of Board to make regulations (1). The Board may make regulations for the purpose of carrying into effect the provisions of this Act. (2). In particular and without prejudice to the generality of the foregoing power such regulations may provide for all or any of the following matters, namely:- (a). the constitution, powers and functions of committees appointed under section 18 and the term of office of members thereof; (b). the subjects for the annual examinations of all standards in registered schools; (c). the admission of candidates to the annual examinations and conditions governing such admissions; (d). The marks earned for passing in any subject and all the annual examination as a whole for exemption, credit and distinction in any subject. (e). the fees for admission to the examinations conducted by the Board and other fees and charges payable in respect of other matters connected with these examinations; (f). the arrangements for conduct of Secondary School Certificate Examination, Higher Secondary School Certificate Examination and other examinations and publication of results; (g). the appointment of examiners, their powers and duties in relation to the examinations and their remuneration; (h). the qualifications and disqualifications of examiners; (i). the award of certificates; (j). the control, administration, safe custody and management in all respects of the finances of the Board; (k). the date which and the manner in which the Board shall prepare its budget estimates. (l). any other matter which is to be or may be prescribed under this Act. (3). the qualifications and disqualifications of examiners; (i). the award of certificates; (j). the control, administration, safe custody and management in all respects of the finances of the Board; (k). the date which and the manner in which the Board shall prepare its budget estimates. (l). any other matter which is to be or may be prescribed under this Act. (3). No regulation or alteration or revocation of a regulation made under this Section shall have effect until the same has been sanctioned by the State Government. Regulation 20. (1). No person shall be appointed as a Head-master or a second Head unless he is a trained graduate (B.T. Or B. Ed) or its equivalent as declared by the State Government with post-training teaching/inspecting experience of not less than five years of which atleast three years’ teaching experience must be in a secondary school. Provided that in a school having exclusively girl students, no person other than a woman having the aforesaid qualifications shall be appointed as Head or second Head. (2). The qualifications for being appointed as a Supervisor shall be the same as those prescribed for the Headmaster, in clause (1). (3). No person shall be appointed as a teacher unless he-(a). has attained the age of eighteen years, and (b). possesses - (i). a degree in any faculty of any university in India established by law, and, (ii). a degree of Bachelor in Teaching or Bachelor in Education or any degree recognised by the Board as equivalent thereto, or (iii). a Diploma in Education given by the aforesaid qualifications Graduates Basic Training Centre, or, (iv). any other degree, diploma or certificate which the State Government or the Inter-University Board has sanctioned as equivalent to any of the qualifications mentioned in paragraphs (i) to (iii). (4). No person shall be appointed as a Drawing Teacher unless he:- (a) has attained the age of eighteen years and (b). possesses (i). a degree in Fine Arts of any University in India established by law or (ii). Drawing Teacher or Drawing Master’s diploma or certificate (iii). an Art Master’s Certificate (5). No person shall be appointed as a Craft Teacher unless he - (a). has attained the age of eighteen years, and (b). possesses (i). a secondary school certificate, and (ii). a Diploma in Mechanical, Electrical, Automobile or, as the case may, Civil Engineering or (iii). Drawing Teacher or Drawing Master’s diploma or certificate (iii). an Art Master’s Certificate (5). No person shall be appointed as a Craft Teacher unless he - (a). has attained the age of eighteen years, and (b). possesses (i). a secondary school certificate, and (ii). a Diploma in Mechanical, Electrical, Automobile or, as the case may, Civil Engineering or (iii). a Diploma in Tailoring or, as the case may be, embroidery, both or in courses of various crafts. (6). No person shall be appointed as Language Teacher (Arabic, Hindi, Persian, Sanskrit. Etc) unless he (a). has attained the age of eighteen years, and (b). possess qualifications prescribed in clause (3) for being appointed as a teacher or such qualifications which are recognised by the State Government or Inter-University Board as equivalent to the (7). No person shall be appointed as a Music Teacher, unless he- (a). has attained the age of eighteen years, and (b). is a Sangeet Visharad (8). No person shall be appointed as a Physical Instructor unless he- (a). has attained the age of eighteen years, and (b). possesses - (i). Matriculation or S.S.C. with one year’s certificate course in physical education, or, (ii). a degree in any faculty of any university in India established by a law and a diploma in physical education or any diploma equivalent thereto recognised by the Board. (9). No person shall be appointed a member of the clerical staff unless he- (a). has attained the age of eighteen years, and (b). possesses Matriculation or S.S.C. Certificate with Mathematics as one of the subjects. 7. It will also be profitable to reproduce the statement showing the present as well as the amended provisions of Regulation 43: Regulation No. Present provision Amended provision 43 None of sub-clauses [4], [5] and [6] of Regulation 19, 20, 21, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 40 and Regulation 41 will be applicable to any educational institutions established or managed by the minority on the basis of religion or language. None of sub-clauses [4], [5] and [6] of Regulations 19, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 40 and Regulation 41 will be applicable to any educational institutions established or managed by the minority on the basis of religion or language. 8. None of sub-clauses [4], [5] and [6] of Regulations 19, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 40 and Regulation 41 will be applicable to any educational institutions established or managed by the minority on the basis of religion or language. 8. After hearing the learned counsel for the parties and after going through the aforesaid materials, we find that by virtue of the amendment in Regulation 43, the State Government has deleted reference of Regulation 20 which was in existence in the said Regulations and by taking aid of such amendment, the respondents have sought to enforce the additional qualification of passing TAT also to the schools managed by minority institutions. 9. As pointed out above, Section 40A of the Gujarat Secondary & Higher Secondary Education Act itself provides that nothing contained in clause (26) of Section 17, sections 34 and 35 and clause (b) of sub-section (1) and sub-sections (2), (3), (4) and (5) of section 36 shall apply to any educational institutions established and administered by a minority, whether based on religion or language. It is true that in exercise of power conferred under Section 17[26], power has laid down to add the fresh additional qualification for the post of Head Master and teaching and non-teaching staff of the registered private secondary schools and registered private higher secondary schools. The schools which are involved in this application are private secondary schools, meaning, a higher secondary school which is not owned, managed or sponsored by the Central or the State Government. Therefore, by virtue of the provision contained in Section 17[26], the State Government is authorized to add further qualification of Head Master or other teachers or non-teaching staff in such private higher secondary schools or registered private higher secondary schools. At the same time, we find that in the Act itself, Section 40A specifically excludes the operation of clause [26] of Section 17 to any educational institutions established and administered by a minority institution, whether based on religion or language. Such being the position, we find substance in the contention of Mr. At the same time, we find that in the Act itself, Section 40A specifically excludes the operation of clause [26] of Section 17 to any educational institutions established and administered by a minority institution, whether based on religion or language. Such being the position, we find substance in the contention of Mr. Patel, the learned advocate appearing on behalf of the petitioners that so long Section 40A is existing in the Gujarat Secondary & Higher Secondary Education Act, 1972, by merely amending Regulation 43 and deleting the reference of Regulation 20 there from, the new amendment furnishing additional qualification cannot be made applicable atleast to a school which is established and administered by a minority institution. Those amendments will be applicable to all other schools which are not established and administered by a minority, whether based on religion or language. 10. It is well-known that by virtue of power conferred under the statute, a delegatee cannot enact any provision which is inconsistent with the substantive provisions of the statute enacted by the Legislature of the State or the Parliament. The rule-making power is a species of delegated legislation. A delegatee, therefore, can make rules only within the four corners thereof. [see Mahabir Vegetable Oils (P) Ltd. vs. State of Haryana reported (2006) 3 SCC 620 ]. 11. Therefore, the effect of the amendment introduced by Regulation 43 notwithstanding the deletion of reference of Regulation 20 there from cannot affect the schools established and administered by the minority institutions. We, therefore, find substance in this Special Civil Application and hold that the Resolution dated 17th August, 2001 as also the amendment of Regulation 43 deleting the reference of Regulation 20 there from is ultra vires and inconsistent with Section 40A read with Section 17[26] of the Act and the said provisions should not be made applicable to the private schools established and administered by a minority category, whether based on religion or language. 12. The Special Civil Application is allowed to the above extent. There will be, however, no order as to costs. Appeal partly allowed.