# C/M Sri Satya Narain Junior High School & Anr v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 481
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-16
- **Case number:** Writ-C No. 24767 of 2018
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-sri-satya-narain-junior-high-school-anr-v-state-of-u-p-ors-46584
- **Pages:** 11

## Headnote

C.S.C., Sri Pranesh Dutt Tripathi, Sri P.D. Tripathi

A.
Junior
High
School
-
Grant-in-aid
-
Entitlement of being enlisted - Application
made in the year 2006 - GO dated 13.07.2017
issued
with
new
policy
restricting
the
institution from being enlisted in grant-in-aid
list
-
Applicability
-
Prospectively
or
retrospectively - Held, any policy decision
taken
by
the
St.
Government
or
any
Government
Order
issued
by
the
St.
Government is given effect prospectively and
not retrospectively. Any government decision
or order will have prospective effect and not
retrospective effect. The same will have effect
with
effect
from
its
date
of
enforcement/issuance not before the said date.
(Para 8 and 13)
B.
Jurisprudence
-
Substantial
justice
-
Procedural technicalities - It's extent - Held,
all
Courts
of
law
are
established
for
furtherance of interest of substantial justice
and not to obstruct the same on technicalities -
No procedure in a Court of law should be
allowed to defeat the cause of substantial
justice on some technicalities. (Para 18)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,842 of 43,073. This is a partial read: ask again with offset=39842 for what follows._

11 All. C/M Sri Satya Narain Junior High School & Anr. Vs. State of U.P. & Ors.
481
directed that the State of U.P. through the
District Magistrate shall be made necessary
parties in all disputes pertaining to the Gaon
Sabha's lands and in particular in proceedings
under Section 161. It shall be mandatory for the
State through the District Magistrate to file their
affidavits in all such disputes.

23. In light of the of preceding discussions
the writ petition is devoid of merit and is liable
to be dismissed and is dismissed.

Copy of this order shall be communicated by the
Chief Standing Counsel to:

(1)
Principal
Secretary
Panchayat
Raj,
Government of U.P., Lucknow.

(2) Commissioner Prayagraj Division, Prayagraj.

(3) District Magistrate, Prayagraj.

(4) Sub Divisional Magistrate, Handia, Prayagraj.
----------
(2021)12ILR A481
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2021

BEFORE

THE HON'BLE MRS. MANJU RANI CHAUHAN, J.

Writ-C No. 24767 of 2018

C/M Sri Satya Narain Junior High School & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shivendu Ojha, Sri Radha Kant Ojha (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Pranesh Dutt Tripathi, Sri P.D. Tripathi

A.
Junior
High
School
-
Grant-in-aid
-
Entitlement of being enlisted - Application
made in the year 2006 - GO dated 13.07.2017
issued
with
new
policy
restricting
the
institution from being enlisted in grant-in-aid
list
-
Applicability
-
Prospectively
or
retrospectively - Held, any policy decision
taken
by
the
St.
Government
or
any
Government
Order
issued
by
the
St.
Government is given effect prospectively and
not retrospectively. Any government decision
or order will have prospective effect and not
retrospective effect. The same will have effect
with
effect
from
its
date
of
enforcement/issuance not before the said date.
(Para 8 and 13)
B.
Jurisprudence
-
Substantial
justice
-
Procedural technicalities - It's extent - Held,
all
Courts
of
law
are
established
for
furtherance of interest of substantial justice
and not to obstruct the same on technicalities -
No procedure in a Court of law should be
allowed to defeat the cause of substantial
justice on some technicalities. (Para 18)
Writ petition allowed. (E-1)
Cases relied on :-
1. U.O.I. & ors. Vs G.S. Chatha Rice Mills & anr.;
(2021) 2 SCC 209,
2. Jai Jai Ram Manohar Lal Vs National Building
Material Supply; AIR 1969 SC 1267
3. Ghanshyam Dass & ors. Vs Dominion of India &
ors; (1984) 3 SCC 46)
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Nobody is present on behalf of
respondent nos. 4 and 5 even in the revised
reading of the list.

2. Heard Mr. R.K. Ojha, learned Senior
Advocate assisted by Mr. Shivendu Ojha,
learned counsel for the petitioners and Dr. Amar
Nath Singh, learned Standing Counsel for the
State-respondents.

3. Since the pleadings have been
exchanged between the learned counsel for the
petitioners and the learned Standing Counsel for
the State-respondents, who are the contesting
482 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents, both the parties agree that the
present writ petition may be decided at this stage
without calling for any further affidavits,
specifically in view of the order proposed to be
passed today.

4. By means of the present writ petition,
the petitioners have prayed for quashing the
impugned order dated 23/24th May, 2018
(Annexure-16 to the writ petition) passed by the
Director of Education (Basic), U.P. Lucknow i.e.
respondent no.4 herein. They have further
prayed for a mandamus commanding the
respondents to consider the case of the
petitioners for taking the institution into grantin-aid list since December, 2006 by ignoring the
Government Order dated 13th July, 2017 and
also to make payment of salary to the teachers
and other employees working in the institution
under the U.P. Junior High School (Payment of
Salaries of the Teachers and Other Employees)
Act, 1978 including the arrears of salary since
2006 as well as current salary as and when it
comes due.

5. The factual matrix of the case is as
follows:

The petitioner-institution is a recognized
Junior High School and pursuant to government
policy embodied in the Government Order dated
07.09.2006, it applied for the benefit of grant-inaid from the State Exchequer. The cases of all
the applicants were to be considered as per the
prescriptions available in the said Government
Order dated 07.09.2006 and final list of the
institutions brought under grant-in-aid list was
published
on
02.12.2006.
The
petitionerinstitution was, however, denied the said benefit
and its name did not figure in the said list
finalized
by
the
State
Government
on
02.12.2006, which led the petitioner-institution
to institute a writ petition, which was dismissed
by the Hon'ble Single Judge on 02.02.2009.
Challenging the said order dated 02.02.2009, the
petitioner filed a Special Appeal which was
disposed of by the Division Bench of this Court,
vide its judgment and order dated 17.03.2009
permitting the petitioner-institution to file an
appropriate application before the State Level
Committee and it was further directed that in
case such an application is filed, the appropriate
authority shall pass appropriate order after
examining the facts of the case and after giving
opportunity of hearing to the parties concerned.
It is in compliance of this order dated
17.03.2009, passed by the Division Bench of
this Court that the impugned order dated
05.07.2009 has been passed by the Director of
Basic Education, U.P., Lucknow.

For the purposes of bringing 1000 unaided
Junior
High
Schools
having
permanent
recognition on the grant-in-aid list of the State
Government, a Government Order was issued on
07.09.2006, a copy of which has been annexed
as Annexure No.2 to the writ petition. In the said
Government Order dated 07.09.2006, a detailed
procedure was prescribed for the purpose of
consideration of the cases of the Junior High
Schools for giving them the benefit of grant-inaid. The conditions mentioned in the said
Government Order for Junior High Schools
seeking the benefit of grant-in-aid were that the
institution concerned should have permanent
recognition, the Society running the institution
should be registered, whose registration should
be renewed and the institution should have
student strength in Classes 6, 7 and 8 in last
three years, as on 30.09.2006, not less than 105.
Certain other conditions were also prescribed in
the said Government Order and the conditions
were that the finances of the institution should
be managed as per rules, that institution should
have the building of its own, that management of
the institution should pass a resolution that in
case the institution is taken on grant-in-aid list, it
shall abide by the terms and conditions of the
grant, that there should not be any dispute in the
management and that in case the institution is
brought in grant-in-aid list such institution shall
11 All. C/M Sri Satya Narain Junior High School & Anr. Vs. State of U.P. & Ors.
483
be required to fulfill the aforesaid eligibility
conditions even in future.

Three committees were also constituted for
the purposes of processing the applications for
grant of benefit of grant-in-aid. The first such
Committee was constituted at the directorate level
comprising of various members and the Director of
Basic
Education/Chairman,
Basic
Shiksha
Parishad was to be its chairperson. The second
Committee constituted was a Committee at the
Regional Level to be chaired by the Assistant
Regional Director of Basic Education. The said
Regional Level Committee also comprised of
various officers and was headed by the Assistant
Regional Director of Basic Education. The third
Committee was headed by the District Basic
Education Officer which was known as District
Level Committee.

The Government Order dated 07.09.2006
further provided a schedule/time table for the
purpose of making selection of the institutions for
being extended the benefit of grant-in-aid,
according to which, Directorate of Basic Education
was required to publish a Notification and
advertisement till 10.09.2006. The last date for
making applications before the District Basic
Education Officer was 03.10.2006. By 20.10.2006,
an inspection team consisting of District Basic
Education Officer, Deputy Basic Education Officer
and two senior-most Assistant Basic Education
Officers was required to conduct the spot
inspection and accordingly thereafter the proposals
were to be submitted for scrutiny before the
Regional Level Committee. The Regional Level
Committee was required to scrutinize the
proposals till 01.11.2006. The Regional Level
Committee was also required to intimate the
deficiencies found while examining the proposals
received from the institutions. The institutions in
whose cases deficiencies were intimated, were
required
to
make
their
representation
by
10.11.2006
removing
the
deficiencies
and
thereafter Regional Level Committee was required
to finalize the list and send the same to the
Directorate Level Committee by 15.11.2006. The
Directorate Level Committee was to consider all
the proposals received by it in the meeting to be
convened on 20.11.2006 and thereafter the matter
was to be referred for final decision to the State
Government.

The petitioner-institution submitted its
application in terms of the Government Order
dated 07.09.2006 for consideration of its case for
being brought on grant-in-aid list. However, it
appears that a letter dated 01.11.2006, on
consideration of the proposal by the Regional
Level Committee, was written by the Assistant
Regional Director of Basic Education, Allahabad
pointing out certain deficiencies in the proposal
of
the
petitioner-institution
including
the
deficiency that there is some dispute in the
management of the institution. In response to the
said letter dated 01.11.2006, a reply dated
10.11.2006 is said to have been submitted by the
petitioner-institution on 13.11.2006, though the
last date for receipt of the representation from
the applicants-institutions for removal of the
deficiencies was 10.11.2006 as prescribed in the
Government Order dated 07.09.2006. However,
when final list of the institution brought on
grant-in-aid list was published on 07.12.2006
and the petitioner-institution did not figure in the
said list, the petitioner-institution filed a writ
petition before this Court which was dismissed
on 02.09.2009 by Hon'ble Single Judge and
thereafter in the Special Appeal preferred by the
petitioner-institution, namely, Special Appeal
No. 352 of 2009, certain directions were issued
permitting the petitioner-institution to file
appropriate application before the State Level
Committee which was to be examined and
decided by the competent authority.

Pursuant to the aforesaid order, on 2nd
April,
2009,
the
petitioners
have
made
representation before the competent authority
i.e. Director of Education (Basic), U.P. at
Lucknow. However, the Director of Education
(Basic) has rejected the claim of the petitioners
vide order dated 5th July, 2009, nearly on the
same grounds.
484 INDIAN LAW REPORTS ALLAHABAD SERIES

Perusal of the order dated 5th July, 2009
reveals that the first ground, which had been
mentioned by the Director of Education (Basic)
for rejecting the claim of the petitioner, was that
the last date for submission of the application
form provided under Government order dated
7th September, 2006 before the District Basic
Education Officer, Kaushambi was 3rd October,
2006 and on which date, there was a dispute
between two groups of management of the
petitioners' institution and both these rival
groups had submitted two different management
returns. Second ground mentioned in the order
dated 5th July, 2009 was that the petitioners'
institution
was
required
to
remove
the
deficiencies by 10th November, 2006. However,
by the last date, the petitioners' institution failed
to submit their representation intimating the
removal of deficiencies, which were pointed out
by the Regional Level Committee in its
communication letter dated 1st November, 2006,
when as a matter of fact the representation in
that regard was made on 13th November, 2006.
The other ground mentioned in the order dated
5th July, 2009 for rejecting the claim of the
petitioner was that on the last date of submission
of the application form to be precise on 3rd
October, 2006, the registration of the society of
the petitioners' institution was not renewed.

6. Feeling aggrieved, the petitioners have
approached this Court by means of Writ-C No.
44345 of 2009 (C/M Sri Satya Narain Junior
High School & Another Vs. State of U.P. &
Others) and a Coordinate Bench of this Court
vide judgment and order dated 11th October,
20017, while allowing the said writ petitioner,
quashed the order dated 5th July, 2009 and
remitted the matter back before the Director of
Education (Basic) to consider and decide claim
of the petitioners' institution afresh in light of the
observations made in the judgment and order
dated 11th October, 2017 itself. However, the
Coordinate Bench while passing the judgment
and order dated 11th October, 2017, has given
liberty to the Director of Education (Basic) to
call for reports, material and other documents as
may be necessary from the District Level
Education Authorities, while considering the
claim of the petitioner.

7. Thereafter the petitioners' institution
have made a representation dated 24th October,
2017 before respondent no.2 i.e. Director of
Education (Basic) along with a copy of the
judgment and order dated 11th October, 2017 for
taking appropriate decision.

8. Respondent no.2-Director of Education
(Basic), has again rejected the claim of the
petitioner vide order dated 23/24th May, 2018
on the ground that under the Government Order
30th July, 2017, the State Government has taken
a new policy decision and in view of the said
policy decision, the petitioners' institution
cannot
be
recommended
to
the
State
Government for taking the same into grant-inaid list. It is against this order dated 23/24th
May, 2018 that the present writ petition has been
filed.

9. In the order impugned dated 23/24th
May, 2018, the other grounds mentioned for
rejecting the claim of the petitioners' institution,
are the same, as were mentioned in the judgment
and order of the Coordinate Bench dated 11th
October, 2017 passed in Writ-C No. 44345 of
2009.

10. Challenging the impugned order dated
23/24th May, 2018, following arguments have
been advanced by Mr. Radha Kant Ojha, learned
Senior Advocate appearing on behalf of the
petitioners:

i). The order dated 23/24th May, 2018 is
patently erroneous, illegal and arbitrary;

ii). The Policy Decision taken by the State
Government under the Government Order dated
13th July, 2017 is not applicable to the case of
11 All. C/M Sri Satya Narain Junior High School & Anr. Vs. State of U.P. & Ors.
485
the petitioners' institution, as the petitioners'
institution had applied for taking the institution
into grant-in-aid list from the very beginning i.e.
in the year 2006 itself and aforesaid policy
decision was taken in the year 2017, therefore,
any policy decision taken by the State
Government or any Government Order issued by
the
State
Government
is
given
effect
prospectively and not retrospectively;

iii). Two different Coordinate Benches of
this Court vide judgment and orders dated 27th
September, 2019 and 23rd May, 2019 passed in
Writ-C No. 4735 of 2017 (Committee of
Management of Ram Daun Ram Raj PreSecondary School & Another VS. State of U.P.
& 2 Others) and Writ-C No. 38992 of 2017
(Writ-A No. 38992 of 2017 (Jai Ram Singh & 11
Others Vs. State of U.P. & 3 Others) along with
connected petitions respectively, have set aside
the Government Order dated 13th July, 2017,
therefore, the same has no relevance at present;

iv) The petitioners' institution initially
granted temporary recognition and thereafter
after completing the requisite formalities, the
institution
has
been
granted
permanent
recognition in the year 1986, furthermore, in
pursuance of the Government Order dated 7th
September, 2006, the petitioners' institution has
fulfilled all requirements and also they are
pursuing their claim since 2006 for taking the
petitioners' institution into grant-in-aid list.
Initially, the petitioners have approached this
Court earlier by means of a writ petition, which
was dismissed and against the order of
dismissal, the petitioners have preferred Special
Appeal before the appellate court. In the said
Special Appeal, the appellate court has directed
that claim of the petitioners be considered by a
State Level Committee. In pursuance of the
aforesaid, the petitioners have represented their
claim and on the same ground, the Director of
Education (Basic) U.P. Lucknow has rejected
their claim vide order dated 5.7.2009 against
which the petitioners have approached the Writ
Court again by filing Writ-C No. 44345 of 2009,
wherein the order of the Director of Education
(Basic) U.P. Lucknow was set aside and matter
was remitted back before him to decide the same
afresh. However, the Director of Education
(Basic) U.P. Lucknow has passed impugned
order dated 23/24.5.2018 by recording that now
the State Government has taken a policy
decision
vide
Government
Order
dated
13.7.2017 and against the said policy decision
institution in question cannot be recommended
to the State Government for putting the same
into grant-in aid list, therefore, order impugned
passed by the Respondent no. 2 is without the
application of mind and also not sustainable in
the eyes of law;

v). On the similar facts and circumstances,
a writ petition bearing Writ-C No. 17883 of
2008 (Committee of Management Mohan Lal
Adarsh Purva M.V. Salempur Vs. State of U.P.
and others), was also filed before a Writ Court,
in which the Writ Court was pleased to pass
judgment and order dated 3.11.2017 and in
pursuance of the aforesaid order, now as per
information of the petitioners, the Authority
concerned has passed order dated 6.6.2018
taking the aforesaid petitioners' institution into
grant-in-aid list. Therefore, when the case of the
petitioners' institution is similar to that of the
said institution, the order impugned rejecting
claim of the Petitioners is not sustainable in the
eyes of law and also discriminatory in nature;

vi). From perusal of the impugned order, it
is apparently clear that the petitioners have
submitted requisite forms on a prescribed format
by means of the letter dated 3.10.2006, whereas,
another
person,
namely,
Shashi
Bhushan
Dwivedi has also submitted the form before the
District Basic Education Officer, Kaushambi,
therefore, there is no question that form has not
been submitted within time, though, it was
submitted by two persons claiming to be rival
Committee of Management;

vii) The dispute of the Committee of
Management of the petitioners' institution has
already been decided by the Assistant Registrar,
486 INDIAN LAW REPORTS ALLAHABAD SERIES
Firms, Societies and Chits, Allahabad vide order
dated 4.11.2006 and it was decided in favour of
the Petitioners' side. The Writ Court in its
judgment and order dated 11th October, 2017
referred to above, while setting aside the earlier
order of the Director of Education (Basic) dated
5th July, 2009, has opined that on passing of the
order of the Assistant Registrar, Firms, Societies
and Chits, Allahabad dated 4th November, 2006,
there is no difficulty for conclusively holding
that as on 10th November, 2006, there was no
dispute in respect of the Committee of
Management. Along with aforesaid order as well
as certificate of renewal of the Committee of
Management, the Petitioners have submitted a
detailed reply to the District Basic Education
Officer, Kaushambi on 10.11.2006, who inturn
has assured that he will give receiving on the
same date but by 4 o'clock, he has refused to
receive the documents and also said that he will
not provide receiving of the same. Therefore,
there is no fault on the part of the petitioners to
submit necessary reply in the office of District
Basic Education Officer, Kaushambi, as required
in the objections;

viii). Just after 4 o'clock, on 10th
November, 2006, Mr. Ambika Prasad Tripathi,
being
Manager
of
the
Committee
of
Management, reached the office of Assistant
Director of Education (Basic), IVth Regional,
Allahabad at 5.30 p.m. from the office of the
District Basic Education Officer, Kaushambi but
the said office was closed and on the next day
i.e. 11th November, 2006, there was holiday due
to Second Saturday and again on the next day
i.e. 12.11.2006, there was holiday due to
Sunday, thereafter the petitioners have served all
documents, as per the objection, in the office of
the Assistant Director of Education (Basic) 4th
Region, Allahabad on 13.11.2006;

ix). From perusal of the Government Order
dated 7.9.2006, it is clear that the objection has
to be decided by a Committee headed by the
Assistant Director of Education (Basic) 4th
Region, Allahabad at the Regional Level on 15th
November, 2006, therefore, in all probability, the
objection has strictly been placed in the office of
Assistant Director of Education (Basic) 4th
Region, Allahabad on 13.11.2006, which has
been admitted by the Director of Education
(Basic) himself, therefore, all formalities, as
required in the objection, have been completed
by the petitioners and objections have already
been removed on or before 15th November,
2006;

x). Since the then District Basic Education
Officer, Kaushambi, namely, Ashok Nath Tiwari,
was under pressure of Mr. Shashi Bhushan
Dwivedi, who has highly political relations, as
one of his brothers is a Member and Vice
President of All India Congress Committee,
U.P., therefore, he has not received the
application forms of the petitioners' institution
along with other documents removing the
deficiencies pointed out in the objection, on
10.11.2006 by 4 o'clock. Therefore, the
petitioner had no fault in submitting the
aforesaid document by 10th November, 2006;

xi). The Director of Education (Basic) U.P.
Lucknow has passed the impugned order dated
23/24th May, 2018 almost on the same lines and
grounds, as on the basis of which earlier order
dated 5th July, 2009 was passed and the Writ
Court, while setting aside the order dated 5th
July, 2009, has directed the Director of
Education (Basic) to reconsider the claim of the
petitioners' institution afresh in light of the
observations made in the said judgment, as
several institutions, which have been recognized
later on, have been taken into grant-in-aid list,
therefore, not taking the petitioners' institution
into grant-in-aid list, is absolutely arbitrary and
in violation of the Article 14 of the Constitution
of India.

On the cumulative strength of the aforesaid
submissions, learned counsel for the petitioners
submits that the order impugned dated 23/24th
May, 2018 be set aside and the Director of
Education (Basic) be directed to consider the
claim of the petitioners afresh for taking the
11 All. C/M Sri Satya Narain Junior High School & Anr. Vs. State of U.P. & Ors.
487
petitioners' institution in the grant-in-aid list
within stipulated period fixed by this Court.

11. On the other hand, the learned Standing
Counsel makes following submissions:

(a) The order impugned is legal and valid,
therefore, no interference is warranted by this
Court while exercising its powers under Article
226 of the Constitution of India;

(b) It is not in dispute that the petitioners'
society, namely, Sri Satya Narain Junior High
School Marhi, Post Office-Dhuksha, Allahabad is
a
registered
society
under
the
Societies
Registration Act, 1860. The said society was
renewed on 3rd November, 2005 for a period of
five years and thereafter it could not be renewed.
On 4th March, 2006, the renewal fees had been
deposited in the office of the Assistant Registrar,
Firms Societies and Chits, Allahapur, Allahabad. In
the meantime, by showing the resignation of
Ambika Prasad Tripathi, Shashibhushan Dwivedi
had deposited the fees for renewal of the said
society in the office of Assistant Registrar, Firms,
Societies and Chits due to which a dispute was
arisen after which Ambika Prasad Tripathi, for his
renewal of the society, filed Writ Petition No.
54919 of 20016 before the Writ Court and the Writ
Court vide order dated 1st October, 2006 directed
to Assistant Registrar, Firms Societies and Chits to
decide the matter. The Assistant Registrar passed
an order dated 4th November, 2006 in favour of
Ambika Prasad Tripathi. Against the order dated
4th November, 2006, Shashibhushan Dwivedi filed
Writ Petition No. 64232 of 2006, which was
dismissed in default vide order dated 26th
February, 2013;

(c) The State Government issued a
Government Order dated 7th September, 2006
for taking the non-Government permanent aided
institutions into grant-in-aid list. In the said
Government Order, procedure as well as terms
and conditions have also been determined;

(d) The Committee of Management of the
said society made available two Manager
Returns (M.R.) applications on 3rd October,
2006, on one application, Ambika Prasad
Tripathi has put his signature under the capacity
of Manager, whereas on the second application,
Shahshibhuhsan Dwivedi has put in signatures
under the
capacity
of
Manager
of the
"Committee of Management of the said society.
Since the entries on both the manager returns
were different, the Committee of Management
of the said society was disputed;

(e) Apart from the above, on the application
submitted by the Committee of Management of
the said society for taking the petitioners'
institution in grant-in-aid list, the Divisional
Director of Education (Basic), Allahabad vide
his letter dated 1st November, 2006 informed the
Manager and Principal of the petitioners'
institution that for taking the institution in grantin-aid list, following conditions have not been
fulfilled:

(I) There is management dispute in the
institution;

(II) The teaching rooms of the said
institution were less than that prescribed under
the norms;

(III)
The
necessary
information/records about of the students and
the account of the institution were not enclosed.

In the said letter dated 1st November, 2006,
it has also been directed that the Manager and
the Principal of the institution shall also ensure
that a representation along with the copies of
relevant records of removing the aforesaid
deficiencies is made available in the office of the
Divisional Director of Education (Basic),
Allahabad by 10th November, 2006 through the
office of the District Basic Education Officer. By
the said letter it has also been informed that upto
10th November, 2006, if the representation is
not received, then it may be presumed that they
did not want to say anything in that regard and
further proceedings may be ensured in the
concerned matter. As per the said letter, the
petitioner upto said fixed date, had not made
488 INDIAN LAW REPORTS ALLAHABAD SERIES
available the representation along with the
necessary
documents
qua
removal
the
deficiencies in the office of the District Basic
Education Officer, Kaushambi nor he could
submit any document on the basis of which it
could be said that he had removed the
deficiencies as pointed in the letter of the
Divisional Director;

(f) As per the Government Order dated 7th
September, 2006, the papers/documents must be
received in the office of District Basic Education
Officer upto 10th November, 2006 but the
petitioner did not submit his representation after
removing deficiencies to the District Basic
Education
Officer,
Kaushambi
upto
10th
November, 2006. It was not required to sent the
papers directly to the office of Director of
Education (Basic);

(g) Against the order dated 4th November,
2006 passed by the Assistant Registrar, Firms
Societies and Chits directing renewal of the
Committee of Management headed by Ambika
Prasad Tripathi, Shashi Bhushan Dwivedi filed
Writ Petition No. 64232 of 2006 and the same
was dismissed in default on 26th February, 2013
from which it is clear that the dispute of the
Committee of Management of the petitioners'
society was pending upto 26th February, 2013;

(h) Along with the application for taking
the petitioners' institution in the grant-in-aid list,
they have not disclosed about the roofs of the
teaching rooms of the institution as to which
have been constructed by Tinshed or cemented
linter and because of the same, the Division
Assistant Director of Education (Basic) has
raised objection in his letter dated 1st November,
2006 addressed to the Manager and Principal of
the petitioners' institution;

(i) Since the institution had not fulfilled the
terms and conditions of Government Order
dated 7th September, 2006 as well as there was
managerial dispute in the committee of
management, the institution was not taken in the
grant-in-aid list and information in that regard
has already been issued to the petitioners by the
Divisional Assistant Director of Education
(Basic) vide letter dated 8th January, 2007;

(j) In compliance of the judgment and order
of the Writ Court dated 11th October, 2017 the
Director of Education (Basic), U.P. at Lucknow
by his order dated 24th May, 2018 had afforded
opportunity of hearing to the parties concerned
and decided the matter in accordance with law
while passing the order impugned.

On the cumulative strength of the aforesaid,
learned Standing Counsel submits that all the
submissions made by the learned counsel for the
petitioners are incorrect and not tenable in the
eyes of law, petitioner is not entitled to get any
relief from this Court under Article 226 of the
Constitution of India. Hence the present writ
petition is liable to be rejected.

12. I have considered the submissions
made by the learned counsel for the parties and
have examined the entire records available
before this Court.

13. This Court finds substance in the
submission made by the learned counsel for the
petitioner that the policy decision taken by the
State Government under the Government Order
dated 13th July, 2017 is not applicable to the
case of the petitioners' institution, as the
petitioners' institution had applied for taking the
institution into grant-in-aid list from the very
beginning i.e. in the year 2006 itself and the
aforesaid policy decision was taken in the year
2017, therefore, any policy decision taken by the
State Government or any Government Order
issued by the State Government is given effect
prospectively and not retrospectively. Any
government decision or order will have
prospective effect and not retrospective effect.
The same will have effect with effect from its
date of enforcement/issuance not before the said
date.

14. The Apex Court in its latest judgment
in the case of Union of India & Others Vs.
11 All. C/M Sri Satya Narain Junior High School & Anr. Vs. State of U.P. & Ors.
489
G.S. Chatha Rice Mills & Another reported in
(2021) 2 SCC 209, has opined that a rule framed
by the delegate of the legislature does not have
retrospective
effect
unless
the
statutory
provision, under which it is framed, allows it so,
either by the use of specific words to that effect
or by necessary implication. The Apex Court has
further opined that the Central Government or
the State Government (for any other authority)
cannot make a subordinate legislation having
retrospective effect unless the parent statute,
expressly
or
by
necessary
implications,
authorities it do so. For ready reference,
paragraph nos. 104 & 106 of the aforesaid
judmgent read as follows:

"104. A rule framed by the delegate of the
legislature does not have retrospective effect unless
the statutory provision under which it is framed
allows retrospectivity either by the use of specific
words to that effect or by necessary implication. In
Hukum Chand vs. Union of India32, a three judge
Bench of this Court held that:

"8...The extent and amplitude of the rulemaking power would depend upon and be
governed by the language of the section. If a
particular rule were not to fall within the ambit
and purview of the section, the Central
Government in such an event would have no
power to make that rule. Likewise, if there was
nothing in the language of Section 40 to
empower
the
Central
Government
either
expressly or by necessary implication, to make a
rule retroactively, the Central Government
would be acting in excess of its power if it gave
retrospective effect to any rule. The underlying
principle is that unlike Sovereign Legislature
which
has
power
to
enact
laws
with
retrospective operation, authority vested with
the power of making subordinate legislation has
to act within the limits of its power and cannot
transgress the same. The initial difference
between subordinate legislation and the statute
laws lies in the fact that a subordinate lawmaking body is bound by the terms of its
delegated or derived authority and that Court of
law, as a general rule, will not give effect to the
rules, thus made, unless satisfied that all the
conditions precedent to the validity of the rules
have been fulfilled."

(emphasis supplied)

106. In Federation of Indian Minerals
Industries vs. Union of India34, a three judge
Bench of this Court formulated the principles on
the subject. Justice Madan B. Lokur observed
that the power to frame subordinate legislation
is not retrospective unless it is authorized
expressly or by necessary implication by the
parent statute. The Court observed:

"26...The relevant principles are:

(i) The Central Government or the State
Government (or any other authority) cannot
make
a
subordinate
legislation
having
retrospective effect unless the parent statute,
expressly
or
by
necessary
implication,
authorises it to do so. [Hukam Chand v. Union
of India [Hukam Chand v. Union of India,
(1972) 2 SCC 601] and Mahabir Vegetable Oils
(P) Ltd. v. State of Haryana [Mahabir Vegetable
Oils (P) Ltd. v. State of Haryana, (2006) 3 SCC
620] ].

(ii) Delegated legislation is ordinarily
prospective in nature and a right or a liability
created for the first time cannot be given
retrospective effect. (Panchi Devi v. State of
Rajasthan [Panchi Devi v. State of Rajasthan,
(2009) 2 SCC 589 : (2009) 1 SCC (L&S) 408] )

(iii) As regards a subordinate legislation
concerning a fiscal statute, it would not be
proper to hold that in the absence of an express
provision a delegated authority can impose a tax
or a fee. There is no scope or any room for
intendment in respect of a compulsory exaction
from a citizen. [Ahmedabad Urban Dev.
Authority
v.
Sharadkumar
Jayantikumar
Pasawalla [Ahmedabad Urban Dev. Authority v.
Sharadkumar Jayantikumar Pasawalla, (1992) 3
SCC 285] and State of Rajasthan v. Basant
Agrotech (India) Ltd. [State of Rajasthan v.
Basant Agrotech (India) Ltd., (2013) 15 SCC 1]"
490 INDIAN LAW REPORTS ALLAHABAD SERIES

The judgment of Justice Dipak Misra (as he
then was) speaking for a two judge Bench
decision in State of Rajasthan vs. Basant
Agrotech (India) Ltd35 adopts the same
position."

15. This Court also finds substance in the
submission made by the learned counsel for the
petitioner that on the date, when the petitioners'
institution have made application for taking the
institution in the grant-in-aid list as per the
Government Order dated 7th September, 2006
between September, 2006 to November, 2006 and
thereafter, there is no managerial dispute in the
Committee of Management of the petitioners'
institution as is evident from the observations made
by the Writ Court in its judgment and order dated
11th October, 2017 passed in Writ-C No. 44345 of
2009. For ready reference, the said observations
made by the Writ Court read as follows:

"So far as the facts of this case are concerned,
there is no dispute that the shadow of doubt in
relation to there being any dispute in management
was cleared only on 04.11.2006 when the Assistant
Registrar, Firms, Societies and Chits, Allahabad
passed an order for renewal of the registration of the
Society on the basis of the papers presented by late
Ambika Prasad Tripathi. However, on passing of the
aforesaid order on 04.11.2006, there is no difficulty
for conclusively holding that as on 10.11.2006, there
was no dispute in respect of the management."

16. The submission made by the learned
Standing Counsel for the State-respondents that
against the order dated 4th November, 2006 passed
by the Assistant Registrar, Firms Socialites and Chits
directing renewal of the Committee of Management
headed by Ambika Prasad Tripathi, Shashi Bhushan
Dwivedi filed Writ Petition No. 64232 of 2006 and
the same was dismissed in default on 26th February,
2013 from which it is clear that the dispute of the
Committee of Management of the petitioners' society
is pending upto 26th February, 2013 cannot be
accepted by this Court on the ground that an interim
order staying the effect and operation of the order
dated 4th November, 2006 was passed in Writ
Petition No. 64323 of 2006 and the same was in
operation till 26th February, 2013 i.e. dismissal of the
said writ petition in default, has not been brought on
record nor the same has been shown to this Court.

17. This Court is disgruntled with the
submission of the learned Standing Counsel for the
State-respondents that since the petitioners' institution
had made their representation along with the
documents removing the deficiencies as pointed out
by the Divisional Assistant Director of Education
(Basic), Allahabad in his letter dated 1st November,
2006, before the Divisional Assistant Director of
Education (Basic), Allahabad/Director of Education
(Basic), U.P. at Lucknow directly and not through the
office
of
District
Basic
Education
Officer,
Kaushambi, as is required under the Government
Order dated 7th September, 2006, the claim of the
petitioners' institution for taking the institution in
grant-in-aid list could not be granted, is too technical
in nature. For furtherance of interest of substantial
justice, the representation along with the documents
removing the deficiencies, made by the petitioners'
institution for taking the institution in grant-in-aid list
should have been considered.

18. It is settled law that all Courts of law are
established for furtherance of interest of substantial
justice and not to obstruct the same on technicalities.
In the case of Jai Jai Ram Manohar Lal vs.
National Building Material Supply reported in
AIR 1969 SC 1267, wherein it has been held that if
substantial justice and technicalities are pitted against
each other, the cause of substantial justice should not
be defeated on technicalities.

No procedure in a Court of law should be
allowed to defeat the cause of substantial justice on
some technicalities (Reference-Ghanshyam Dass &
Ors. vs. Dominion of India & Ors; reported in
(1984) 3 SCC 46).

19. This Court may also record that if the
submission of the learned counsel for the petitioners
11 All. General Manager, N.C.R. & Anr. Vs. Sri Jagrup & Anr.
491
that on the similar facts and circumstances, in
compliance of the order of a Writ Court dated 3rd
November, 2017 passed in Writ-C No. 17883 of
2008 (Committee of Management Mohan Lal
Adarsh Purva M.V. Salempur Vs. State of U.P. and
others), the authority concerned has passed order
dated 6.6.2018 taking the aforesaid petitioners'
institution into grant-in-aid list, is correct, why the
petitioners' institution could not be taken in the grant
in-aid list by the respondents herein.

20.