# Committee of Management LB B M. Inter College, Lodipur & another v. State of U.P. & others

- **Citation:** (2012) 1 ILRA 299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-03-21
- **Case number:** Civil Misc. Writ Petition No. 11760 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-management-lb-b-m-inter-college-lodipur-another-v-state-of-u-p-42124
- **Pages:** 18

## Headnote

Constitution of India, Article 14 and 16vires
of
G.O.
Imposing
ban
an
appointment of class 4th employee-in
recognizes
institution-governed
by
Board-except from out sourcing-being
300 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
contrary
to
the
provision
of
Inter
Mediate education Act-without abolition
of class to 4th post duly created-violation
of Art. 14 and 16 of constitutionevidently-explosive arbitrary, irrational,
illogical unreasonable-held ultra vires.

Held: Para 64

In my view, therefore, though the
concept of making available the staff to
perform Class-IV job by outside agency
though termed "Outsourcing" but it is
nothing but a system of supply of work
force through a contractor or a person
who satisfy the term "contractor" for all
purposes
though
termed
as
"outsourcing". Hence the system as
contemplated in Para 2 of impugned G.O.
is
evidently
exploitative,
arbitrary,
unreasonable, irrational, illogical, hence
violative of Article 14 and 16 of the
Constitution.
Case law discussed
Writ Petition No. 36249 of 2011, Luv Kush
Pandey Vs. State of U.P. Others, 2006(4) ESC
2786(para34), JT 2008(4) SC 317, AIR 1962
Alld 413, AIR 1957 ALL 70, 1993 Supp.(3) SCC
181, 1994 Supp. (I) SCC 44, 1970(1) SCC 108,
1977 (1) SCC 554, 1977(2) SCC 457, 1979 (2)
SCC 124, 1993(3) SCC 575, 1975(3) SCC 76,
1970
SLR
768,
State
of
Mysore
Vs.
G.B.Puroshit,C.A. No. 1965, 1974(1) SCC 317,
2008 (1) ESC 595, 1970 (1) SCC 108,
1997(1)SCC 554, 1993 Supp(3) SCC 575,
Devendra Nayak and another Vs. State of U.P.
And others, Writ Petition No. 55988 of 2009,
A.J.Patel and others Vs. The State of Gujrat
and others, AIR 1965 Guj 234a.,

## Text

_Characters 0–39,894 of 60,539. This is a partial read: ask again with offset=39894 for what follows._

1 All] Committee of Management LB B M. Inter College, Lodipur & another V. State of U.P. & others 299
this Court will be failing in its constitutional
obligation of doing justice in all perspective
so as to uphold confidence of the people in
the system of administration of justice and
also to maintain their faith that ultimately
they would get wholesome justice in the
hands of law. The respondents have denied
appointment to petitioner on wholly nonest,
illegal and unfounded reasons despite
having discriminated him in the matter of
appointment and thereby denying his
constitutional right of earning livelihood by
getting employment without any fault on his
part. The petitioner therefore is entitled for a
direction with respect to his appointment
and consequential benefits.

10. In view of the above, this writ
petition is allowed. The respondents are
directed to consider and appoint petitioner
on the post of Seenchpal from the date
persons lower in merit to him were so
appointed with all consequential benefits. It
is made clear that for all purposes
petitioner's appointment shall be from the
date when persons lower in merit to him
were appointed. The petitioner shall also be
entitled to all consequential benefits
including arrears of salary for the entire
period. Since non payment of salary to
petitioner is the outcome of an illegal and
patent discriminatory act on the part of
appointing authority by ignoring merit list
and making appointments of persons lower
in merit, State Exchequer should not be
allowed to be burdened of payment of
salary for the period an incumbent has not
worked and person responsible for such a
situation must be accountable for the same.

11. I, therefore, further direct that
respondent no.1 shall be at liberty to recover
amount of salary which would be paid to
the petitioner in view of his appointment
from the date persons lower in merit were
appointed, i.e. the amount payable to the
petitioner pursuant to this judgment for the
period he actually could not perform any
work, from the officer concerned namely
appointing authority who made illegal
appointments ignoring merit after making
such enquiry as permissible in law.
Proportionate realisation can also be made
from higher authorities who despite of
knowledge failed to take any corrective
measure.

12. The writ petition is accordingly
allowed in the manner and as per the
observations/directions made above.

13. The petitioner shall also be
entitled to cost which I quantify to
Rs.5,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 11760 of 2011

Committee of management Lala Babu
Baijal Memorial Inter College, Lodipur,
District Ghaziabad and another

 ...Petitioner
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri N.L.Pandey
Sri N.N.Pandey.

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 14 and 16vires
of
G.O.
Imposing
ban
an
appointment of class 4th employee-in
recognizes
institution-governed
by
Board-except from out sourcing-being
300 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
contrary
to
the
provision
of
Inter
Mediate education Act-without abolition
of class to 4th post duly created-violation
of Art. 14 and 16 of constitutionevidently-explosive arbitrary, irrational,
illogical unreasonable-held ultra vires.

Held: Para 64

In my view, therefore, though the
concept of making available the staff to
perform Class-IV job by outside agency
though termed "Outsourcing" but it is
nothing but a system of supply of work
force through a contractor or a person
who satisfy the term "contractor" for all
purposes
though
termed
as
"outsourcing". Hence the system as
contemplated in Para 2 of impugned G.O.
is
evidently
exploitative,
arbitrary,
unreasonable, irrational, illogical, hence
violative of Article 14 and 16 of the
Constitution.
Case law discussed
Writ Petition No. 36249 of 2011, Luv Kush
Pandey Vs. State of U.P. Others, 2006(4) ESC
2786(para34), JT 2008(4) SC 317, AIR 1962
Alld 413, AIR 1957 ALL 70, 1993 Supp.(3) SCC
181, 1994 Supp. (I) SCC 44, 1970(1) SCC 108,
1977 (1) SCC 554, 1977(2) SCC 457, 1979 (2)
SCC 124, 1993(3) SCC 575, 1975(3) SCC 76,
1970
SLR
768,
State
of
Mysore
Vs.
G.B.Puroshit,C.A. No. 1965, 1974(1) SCC 317,
2008 (1) ESC 595, 1970 (1) SCC 108,
1997(1)SCC 554, 1993 Supp(3) SCC 575,
Devendra Nayak and another Vs. State of U.P.
And others, Writ Petition No. 55988 of 2009,
A.J.Patel and others Vs. The State of Gujrat
and others, AIR 1965 Guj 234a.,

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. With the consent of learned counsel
for the parties since common questions of
law and facts have been raised in all these
matters, I proceed to decide these matters
finally under the Rules of this Court at this
stage by this common judgment.

2. In this bunch of writ petitions the
core issue relates to the Government Order
(hereinafter referred to as the "G.O.") No.
Ve.Aa-2-27/Dus-59(M)/2008,
dated
06.01.2011 issued by Sri Anoop Mishra,
Principal
Secretary,
Finance
U.P.
Government, Lucknow addressed to various
Principle
Secretaries
of
different
departments and Directors of different
departments. The subject of G.O. is
sanctioned Pay Band and Grade Band as
modified/upgraded for Class-IV cadre of
aided
educational/technical
educational
institutions in the revised pay scale pursuant
to 6th Pay Commission recommendation.
Though in the writ petitions entire G.O. is
challenged but during the course of
arguments
the
learned
counsels
for
petitioners have confined their attack only
to Para 2 thereof. Para 2 says that in future
no appointment on Class-IV posts (except
the junior cadre of technical posts) shall be
made and vacancies of Class-IV posts shall
be managed by the system of outsourcing.

3. The relevant para 2 of G.O. dated
06.01.2011 reads as under:

^^2- eq>s ;g dgus dk funsZ'k gqvk gS fd Hkfo";
esa prqFkZ Js.kh ds fdlh Hkh in 1⁄4dfu"B oxZ ds izkfof/kd
inksa dks NksM+dj1⁄2 ij fu;qfDr ugha dh tk;sxh rFkk
prqFkZ Js.kh ds fjDr gksus okys inksa ds lEcU/k esa dsoy
vkmV lksflZax ds ek/;e ls O;oLFkk dh tk;A

ijUrq mDr O;oLFkk mRrj izns'k lsok dky esa e`r
ljdkjh lsodksa ds vkfJrksa dh HkrhZ fu;ekoyh 1974 ds
vUrxZr lewg ^^?k** ds inks ij dh tkus okyh fu;qfDr
ds laca/k esa ykxw ugha gksxhA**

"2. I am directed to say that in future
appointments shall not be made on any
Class IV posts (except on the junior cadre of
technical posts ) and the Class IV posts
falling vacant shall be managed only by
outsourcing.

But the said provision shall not apply
to the appointments to be made on the
1 All] Committee of Management LB B M. Inter College, Lodipur & another V. State of U.P. & others 301
Group D posts under the Uttar Pradesh
Recruitment of Dependents of Government
Servants Dying in Harness Rules 1974."
( English translation by the Court)

4. Some of the writ petitions have
been filed by Committee of Managements
of
Secondary
Schools
and
Colleges
challenging
para
2
of
G.O.
dated
06.01.2011 as it deny them power of
appointment on Class-IV posts in their
respective educational institutions. Some of
the writ petitions have been filed by
candidates who have been selected for
appointment on Class-IV posts for various
secondary
educational
institutions
but
educational
authorities
have
denied
approval or recognition to such selection in
view of the ban imposed vide para 2 of
G.O. dated 06.01.2011.

5. The respondents-State of U.P. and
its authorities have filed counter affidavit in
some of the writ petitions and learned
counsels for the parties have agreed to read
the said counter affidavits in all matters. For
referring the pleadings in counter affidavit,
the parties have referred to Writ Petition
No. 27387 of 2011 and this Court shall also
proceed to refer pleadings in the aforesaid
counter affidavit.

6. Sri Ashok Khare, Senior Advocate
has advanced his submissions in Writ
Petition No. 62476 of 2011, 62616 of 2011
and 74197 of 2011. Sri N.L. Pandey,
Advocate in Writ Petition No. 11760 of
2011; Sri A.N. Rai, Advocate in Writ
Petition No. 63197 of 2011 and Sri G.K.
Singh, Advocate in Writ Petition No. 8492
of 2012 have made their submisisons. The
other learned counsels appearing for
petitioners have adopted the submissions
advanced by the above learned counsels.

7. The basic ground of challenge is
that the impugned G.O. is ultra vires of
Section
16(G)
of
U.P.
Intermediate
Education Act, 1921 (hereinafter referred
to as the "Act, 1921") and Regulation 100
Chapter III of Regulations framed under
Act, 1921. It is even otherwise arbitrary,
irrational and violative of Article 14 and 16
of the Constitution of India. Constituting an
encroachment on managements' right to
manage their institutions, it is also violative
of Article 19 of the Constitution. It is also
submitted that correctness of G.O. came to
be examined by this Court in Writ Petition
No. 36249 of 2011, Luv Kush Pandey Vs.
State of U.P. and others, decided on
14.10.2011 wherein the Court did not
decide the question of vires of aforesaid
G.O. but held that the cases where
vacancies occurred and selections were
made before issuance of aforesaid G.O., the
same would not be governed by aforesaid
G.O.

8. Sri Ashok Khare, learned Senior
Advocate submitted that Writ Petitions No.
62467 of 2011 and 74179 of 2011 are
squarely covered by aforesaid judgment of
Lucknow Bench in Luv Kush Pandey
(supra).

9. Sri G.K. Singh, Advocate in
particular submitted that G.O. is also not
protected by reference to Section 9 of Act,
1921 inasmuch as every order is not
referable to the said provision. It is
applicable where immediate action is
needed. The present G.O. is addressed to all
the departments and not confined to
educational institutions. By no stretch of
imagination, even otherwise, it touches
upon Section 9 of Act, 1921. He also placed
reliance on a Division Bench judgment of
this Court in Satish Kumar Vs. State of
302 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
UP and others, 2006(4) ESC 2786 (para
34).

10. As already said, the respondents
have filed their counter affidavits in some of
the cases and the counter affidavit filed in
Writ Petition No. 27387 of 2011 has been
referred. It is pleaded therein that Chapter
2.2 para 2.2.9 of 6th Central Pay
Commission Report Vol. 1 provides that a
separate running Pay Band, designated as
1S scale is being recognized for posts
belonging to Group-D. However, the same
shall not be counted for any purpose as no
future recruitment is to be made in this
grade. All the present employees belonging
to Group-D, who possess prescribed
qualification, for entry level in Group-C,
will be placed in Group-C Running Pay
Band straightaway w.e.f. 01.01.2006. Other
Group-D employees who do not possess
qualification are to be retrained and
thereafter be upgraded and placed in GroupC Running Pay Band. Till such time they
are retrained and redeployed, they will be
placed in 1S scale. The Pay Commission
has said that 1S scale is not a regular or
permanent pay scale and for the existing
employees it shall operate only till the time,
existing Group -D staff is placed in GroupC Running Pay Band. The mechanism for
placing Group-D staff in revised Group-C
Running Pay Band has been discussed in
detail in Chapter 3.7 relating to Group-D
staff. Group-D employees who are not
placed in Group-C Pay Band straightaway
will be given the band after retraining
without any loss of seniority vis a vis those
in
Group-D
who
possessed
higher
qualification, redeployed and were placed in
Group-C
Running
Pay
Band
w.e.f.
01.01.2006. It also refers to para 2.2.10 of
6th Pay Commission Report providing that
so far as future recruitment is concerned no
direct recruitment in 1S scale will take place
and this scale will be operated for regulating
emoluments during training period of
candidates who do not possess the
minimum qualification of matric. The
Commission expressed its view that
candidates
not
possessing
minimum
qualification of matric and/or ITI cannot be
recruited in Government as all jobs in
Government requires same level of skill.

11. Respondents have further pleaded,
that,
Since
6th
Pay
Commission
Recommendations were implemented by
State Government in respect to its
employees also, a policy decision was taken
regarding pay revision and the State
Government issued G.O. No. Ve.Aa.-22052/Dus-59(M)/2008 dated 08.09.2010
applicable to various departments of State
Government providing therein that no
recruitment in future on Class-IV posts
(except the lowest cadre of technical post)
shall be made and future vacancies in ClassIV shall be managed by "outsourcing". The
aforesaid G.O. was clarified by subsequent
G.O. No. Ve.Aa.-2-3226/Dus-59(M)/2008
dated 04.01.2011 that restriction against
future recruitment in Class-IV posts shall
not be applicable for compassionate
appointments. It was further clarified by
another
G.O.
No.
Ve.Aa.-2-26/Dus59(M)/2008 dated 06.01.2011 (AnnexureCA-4 to the counter affidavit) issued to
various departments of Government stating
that benefit of revised pay and Grade Band
would be notionally applicable from
01.01.2006 and actual benefit/payment shall
be admissible w.e.f. 08.09.2010. In respect
to educational institutions aided by State
Government similar G.O. No. Ve.Aa.-227/Dus-59(M)/2008, dated 06.01.2011 was
issued and in furtherance thereof the
impugned G.O. dated 06.01.2011 has also
been issued. By another G.O. No. 4/1/2008Ka-2/2008 (Annexure-CA-6 to the counter
1 All] Committee of Management LB B M. Inter College, Lodipur & another V. State of U.P. & others 303
affidavit)
it
was
also
clarified
by
Government that in outsourcing, provision
of reservation shall also be observed strictly.

12. It is said that the G.O. dated
06.01.2011
having
been
issued
in
furtherance of acceptance of 6th Pay
Commission, the recommendations whereof
have been accepted by Government, it is not
open to petitioners to challenge the same
partly
while
retaining
benefit
of
recommendations of 6th Pay Commission
in all other aspects.

13. So far as recommendations
relating to Pay Revision as made by 6th Pay
Commission and accepted by Government
that is a different matter since it is not the
case of respondents that Pay Commission
had the jurisdiction to deal with matter of
recruitment and appointment of employees
and officers of Government. In my view, it
would not be necessary for this Court to
look into this aspect further for the reason
that validity of Para 2 of G.O. dated
06.01.2011 has to be considered in the light
of statutory provisions of Act, 1921, the
Regulations framed thereunder and also the
Constitutional provision, i.e., Articles 14, 16
and 19.

14. Before coming to other aspects of
the matter the Court finds it prudent to
examine
the
meaning
of
the
term
"Outsourcing". It is neither a technical term
nor a term of art. I also could not find its
origin in the ancient times but appears to
have gain momentum in recent past, i.e.,
with the advancement of managerial
policies in the field of information
technology etc. It is only when the scope,
extent,
purpose
and
objective
of
"Outsourcing" would be clear, it would be
more convenient to examine the correctness
of Para 2 of G.O. in the light of statutory
provisions as referred to hereinabove and
other relevant provisions which this Court
shall discuss a bit later.

15. When this Court enquired from
the learned Additional Advocate General as
to what the Government mean by asking the
educational
institutions
to
go
for
"Outsourcing"
instead
of
making
recruitment of Class-IV posts, he simply
replied that educational institutions shall not
have to recruit any Class-IV employee on
their own but may have their work done,
meant to be performed by Class-IV
employees, by employing persons from
labour suppliers or the organizations
engaged in the work of "Outsourcing". He
was immediately confronted, whether it
amounts to a contract labour supply to
which he said that exactly that is not the
purpose but to some extent there may be
some similarity.

What is Outsourcing

16. When this Court proceed to
consider the meaning and ambit of the term
"Outsourcing"; immediate questions arise
(a) what is outsourcing; (b) what can be
outsourced; (c) where one can find
outsourcing resources; and, (d) is it a
unikind of system or multiple kind.

17. The term "outsourcing" is not a
very commonly recognized term in various
Dictionaries but some recent and revised
editions contain this term and define it.

18. The "Concise Oxford English
Dictionary Indian Edition" (11th Edition
Revised) (2008) published by Oxford
University Press, New Delhi at page 1017
defines the term "outsourcing" as under:

"Outsourcing-obtain by contract from
an outside supplier."
304 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

19. "Wikipedia" describes the term
"outsourcing" as "the process of contracting
a business function to someone else". In the
commercial word particularly among the
managerial class, the term "Outsourcing" is
known in various ways. According to some
"Outsourcing" is any task, operation, job or
process that can be performed by employees
of company, but is instead, contracted to a
third party for a significant period of time.
Hiring a temporary employee when a
regular employee in an institution is on
leave is not "Outsourcing". According to
some others "Outsourcing" is contracting
with other company or persons to do a
particular function. Normally outsourcing is
resorted to such functions which are
considered "non-core to the business".
Another
definition
or
meaning
of
"Outsourcing" is that it is simply farming
out of services to a third party. The central
idea, therefore, discerned from above is,
that, "Outsourcing" is the process of
contracting a function to someone else. Its
opposite is "Insourcing".

20. "Insourcing" has been identified as
a mean to ensure, control, compliance and
to gain competitive differentiation through
vertical integration or the development of
shared services. "Insourcing" is also called
as vertical integration.

21. "Outsourcing" is considered to be
something more than purchasing and more
than consulting. It is a long term results
oriented relationship for a whole activity
normally commercial over which the
Provider has a large amount of control and
managerial discretion. "Outsourcing" is the
use of outside business relationship to
perform necessary business activities and
processes in lieu of internal capabilities. The
most common forms
of outsourcing
presently
known
are
"Information
Technology Outsourcing" (ITO), "Business
Process
Outsourcing"
(BPO)
and
Knowledge Process Outsourcing" (KPO).
Business
Process
Outsourcing
encompasses, Call Center Outsourcing,
Human Resources Outsourcing, Finance
and Accounting Outsourcing and Claims
Processing Outsourcing.

22. The organizations want to seek
"Outsourcing" normally take into account
the issues like, cost savings, focus on core
business, cost restructuring, improvement of
quality, access and availability of better
knowledge and experience, operational
expertise,
access
to
talent,
capacity
management,
catalyst
for
change,
enhancement for capacity of innovation,
reduction of time in production of a product
for supply to the market, Commodification,
Risk Management, Tax Benefit, Venture
Capital, Scalability, Creating Leisure Time,
Reducing Liability, Revenue etc.

23. "Outsourcing", therefore, is the
use of outside business relationship to
perform necessary business activities and
processes in lieu of internal capabilities.
Those who provide "Outsourcing" facilities
are
called
Outsourcing
Partners,
Outsourcing Suppliers and Providers. Those
who go to purchase outsourcing services are
called "Buyers" and "Users" in common
parlance. The key to the definition of
"Outsourcing" is the aspect of transfer of
control. In Outsourcing, the Buyer normally
does not instruct Supplier how to perform
its
task
but,
instead,
focuses
on
communicating what results it want to buy.
It leaves the process of accomplishing those
results to supplier.

24. There are different kinds of
outsourcing, namely, Tactical Outsourcing,
1 All] Committee of Management LB B M. Inter College, Lodipur & another V. State of U.P. & others 305
Strategic Outsourcing, Transformational
Outsourcing etc.

25. Though the term "outsourcing" as
such has not been considered in detail by
Courts but its purport and object can be
discerned in the context the same has been
referred to in certain decisions.

26. In Common Cause (A Regd.
Society) Vs. Union of India and others,
JT 2008 (4) SC 317 the Court considered a
situation where a committee is appointed by
the Court but with a further authority to
issue orders to authorities or to public.
Deprecating this practice in para 36 of the
judgement the Court said:

"36. We would also like to advert to
orders
by
some
Courts
appointing
committees giving these committees power
to issue orders to the authorities or to the
public. This is wholly unconstitutional. The
power to issue a mandamus or injunction is
only with the Court. The Court cannot
abdicate its function by handing over its
powers under the Constitution or the C.P.C.
or Cr.P.C. to a person or committee
appointed by it. Such 'outsourcing' of
judicial functions is not only illegal and
unconstitutional, it is also giving rise to
adverse public comment due to the alleged
despotic behaviour of these committees and
some other allegations. A committee can be
appointed by the Court to gather some
information and/or give some suggestions
to the Court on a matter pending before it,
but the Court cannot arm such a committee
to issue orders which only a Court can do."
(emphasis added)

27. The above discussion clearly
suggest and demonstrate that outsourcing
does contemplate performance of job or
function or work by a body outside the
buyer or purchaser and the service provided
himself perform the job through its own
agencies and it cannot be equated with the
supply of labour or employees by a third
party. The two connote different situations,
functions and idea. They are not same and
identical. In the system of labour supplier
there is an introduction of middleman who
make the workers available as a commodity
without
creating
any
employer
and
employee
relationship
with
principle
employer and the contract labour but
outsourcing as such is not the involvement
of a middleman for arranging the labour
force bit it is the system where a particular
kind of job or performance itself is
performed by third party, i.e., the service
provided through his own man and it is the
own result which is made available to
purchaser or buyer.

28. Regarding the merits and demerits
of outsourcing there are different views but
this Court is not required to go therein since
the discussion about "Outsourcing" made
above was only in furtherance to understand
what the G.O. intend to do, in effect, and,
whether in view of relevant provisions of
statute, it is permissible to do so.

Relevant Statutes

29. The relevant statutes which have
been referred to by both sides are Act, 1921
and U.P. High Schools and Intermediate
Colleges (Payment of Salaries of Teachers
and
other
Employees)
Act,
1971
(hereinafter referred to as the "Act, 1971").

30. Act, 1921 is pre-constitutional
enactment. Prior thereto the secondary
education was also governed and managed
by Allahabad University. Act 1921 was
enacted to establish a Board to take place of
Allahabad University for regulating and
306 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
supervising High School and Intermediate
Education system in U.P. and prescribe
courses therefor. It constituted Board of
High Schools and Intermediate, U.P.
(hereinafter referred to as the "Board").

31. Here a question incidentally may
also arise as to the status of "Board". This
came up for consideration before a Division
Bench of this Court in Ghulam Haqqani
Khan Vs. State Of Uttar Pradesh And
Ors, AIR 1962 Alld. 413. Two separat but
concurrent judgments were rendered by
Hon'ble B. Mukerji and S.C. Manchanda,
JJ. The two questions formulated by Bench
are stated in para 33a of the judgment, reads
as under:

"(1) Whether the Board is a statutory
authority, and if so, whether it is possible to
create a statutory body as a department of
Government?

(2) If the Legislature under Act II of
1921; has fixed the ambit and scope of the
powers to be exercised by such statutory
body can any one else interfere therewith or
enlarge their scope?"

32. Hon'ble Manchanda, J. observed
that the Legislature intended the Board to be
independent only in certain respects subject
to
overriding
fiscal
and
general
administrative control of Government. It
referred to and relied on a G.O. dated
13.04.1951 stating that the office of Board
of High School is separate from that of
Director of Education and appointments to
higher clerical posts in any one of those
offices are to be confined to clerks of that
office only. This means that for certain
purposes Board is treated separate from
Education Department and normally higher
clerical posts are not interchangeable. It
further observed that there is no inherent
impossibility in a statutory authority being
at the same time a department of
Government unless the Act itself, which
creates the authority, gives it a separate
legal status, i.e., provides it with the right of
perpetual succession, a common seal, right
to sue and to be sued in its own name. Such
a body as the Board, cannot have a separate
legal existence for all purposes. It must,
necessarily, in the matter of administration
and fiscal control, be under the authority of
someone else. His Lordship also observed
that:

"It is true that the Act itself nowhere
says that it shall be a department of
Government but when the historical
background is taken into consideration the
appointments of the staff from the very
inception of the Board were made by the
Government, salaries to the ministerial staff
were paid by the Government; the
appointments, transfers, suspension and
removal were always by the Government--
the budget provisions for the Board were
made by the State Government--shows that
the Board was always treated as a
department of Government for all purposes
other than those powers which the Act itself
had specifically conferred and made the
Board autonomous to that extent."

33. In the concurring judgment,
Hon'ble B. Mukerji, J. in para 10 said:

"10. It was not shown to us that the
Board was ever treated as a Corporation or
a body incorporated or it exercised any
privileges peculiar to such bodies. I could
think of no law, and none was shown to us,
on which it could be contended that simply
because a certain body was created by
statute that body could not function as a
Department of Government so as to be
outside the scope of the executive power of
1 All] Committee of Management LB B M. Inter College, Lodipur & another V. State of U.P. & others 307
the Governor under Article 154 of the
Constitution. Clause (2) (b) of this Article
conferred powers on Parliament and the
State Legislature under which either could
confer by law functions on any authority
subordinate to the Governor but because of
the provisions of Clause (2) (a) the
Governor could not exercise 'Executive
power' where such functions had been,
conferred on any other authority by any
existing law."

34. Again a Hon'ble Single Judge of
this Court in Sangam Lal Dube Vs.
Director of Education and another, AIR
1957 All 70 considered "Board's" status.
Therein an order was passed by Director of
Education transferring Sri Sangam Lal
Dube who was working as Clerk in Board
to the office of Government Normal
School, Aligarh. The power of Director was
challenged on the ground that Board is not
part
of
Education
Department
and,
therefore, Director has no such power. The
contention was upheld in para 30 of the
judgment, which reads as under:

"30. Various provisions of the Code
and Financial Hand Book were placed
before me to show that the powers of the
Director and that of the Board are mutually
exclusive. District powers are given to the
Secretary of the Board and to the Deputy
Director of Education. It is not necessary
for me to refer to all of them, but in my
opinion the Board cannot be regarded as a
part of the Education Department of the
State so as to be under the control of the
Director of Education.

Apart from it as I have already
indicated the power to punish the staff of
the Board has been given to the Secretary
and I find that in the present case the
transfer was in fact punishment awarded to
the petitioner. The Director had in my
opinion no power to transfer him. There is
another aspect of the matter to be
considered. If the Board of Education is a
body created under the Act the staff of the
Board is not a part Of the Education
Department. The transfer to some other
office in fact amounts to termination of the
services of the petitioner in the office and
re-employment in another office and in that
view of the matter also the opportunity
should have been given to the petitioner."

35. I, however, do not find any
contradictory opinion expressed in the later
two judgment for the reason that the
Hon'ble Single Judge has simply held that
Board is not a part of Education Department
but did not held that it cannot be treated to
be a Department of Government for any
purpose whatsoever which was the decision
taken by Division Bench in Ghulam
Haqqani Khan (supra).

36. Section 2 sub-section (a) of Act,
1921 defines "Board" as the Board of High
School and Intermediate Education and its
constitution is provided in Section 3. The
members of Board can be removed by the
State Government as provided in Section 3A and the term of the office of members is
provided
in
Section
4.
Section
5
contemplates that the Board shall be
reconstituted before expiry of term of office
of
members
under
Section
4.
The
constitution of Board in Section 3 and its
functions as provided in Section 7 makes it
clear that Board is a statutory body,
independent of Government, having several
members connected with Government or its
various
institutions
but
also
several
members belonging to other bodies like,
Kendriya
Vidyalaya
Sangathan,
State
Legislative Assembly, State Legislative
Council and private recognised institutions
308 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
not maintained by the State Government
etc. The State Government, however, has
been conferred with power to address the
Board with reference to any of the work
conducted or done by Board and also to
communicate it the Government views on
any matter with which the Board is
concerned. Under sub-section (3) and (4) of
Section 7 of Act, 1921 the State
Government can issue directions "consistent
with the Act" which the Board shall be
obliged to comply. The State Government
also has power to make amendment in the
regulations without making any reference to
Board.

37. Thus, initially when Act, 1921
was enacted, power and authority enjoyed
by private managements of educational
institutions
left
intact, i.e.,
remained
untouched. However, subsequently, it was
found that protection is needed to avoid
mismanagement
of
institutions
and,
therefore, a major amendment was made in
1958 extending and enlarging statutory
power of supervision by the educational
authorities upon the private management.
This included provisions relating to framing
of scheme of administration which would
include provisions relating to management
and conduct all the affairs of institution
concerned, Power of approval of scheme of
administration, and certain matters relating
to staff of the College. In fact Section 16-A
to 16-G were inserted by U.P. Act No. 36 of
1958.

38. For the purpose of present case
Section 16-G is relevant which has also
been relied, referred to and read repeatedly
by learned counsels for the parties.

39.

Section
16-G
deals
with
"conditions of service of Heads of
institutions, teachers and other employees".
Sub-section (1) and (2) thereof reads as
under:

"16-G. Conditions of service of
Heads of institutions, teachers and other
employees.- (1) Every person employed in
a recognized institution shall be governed
by such conditions of service as may be
prescribed
by
regulations
and
any
agreement between the management and
such employee in so for as it is inconsistent
with the provisions of this Act or with the
regulations shall be void.

(2) Without prejudice to the generality
of the powers conferred by sub-section (1),
regulations may provide for-

(a) the period of probation, the
conditions
of
confirmation
and
the
procedure and conditions for promotion
and punishment, including suspension
pending or in contemplation of inquiry or
during the pendency of investigation,
inquiry or trial in any criminal case for an
offence involving moral turpitude and the
emoluments for the period of suspension
and termination of service with notice;

(b) the scales of pay and payment of
salaries;

(c) transfer of service from one
recognized institution to another;

(d) grant of leave and Provident Fund
and other benefits; and

(e) maintenance of record of work
and service."
(emphasis added)

40. The conditions of service for
which Regulations framed under Section
1 All] Committee of Management LB B M. Inter College, Lodipur & another V. State of U.P. & others 309
16-G, are provided in Chapter-III of the
Regulations under Act, 1921.

41. Chapter I deals with "Scheme of
Administration" and contains provisions in
respect to subject covered by Sections 16-A,
16-B and 16-C. Chapter-II deals with
"Appointments of Heads of institutions and
teachers" with reference to Section 16-E,
16-F and 16-FF". The "conditions of
service" with reference to Section 16-G are
contained in Chapter-III.

42. Regulation 100 apply various
provisions of Chapter-III to Class-III and
Class-IV staffs of Secondary Schools and
Colleges. This provision was inserted by
notification No. 7/562-5-8 dated 10.03.1975
and reads as under:

^^100- fyfid] ftlesa iqLrdky;k/{k Hkh lfEefyr
gS] ds lEcU/k esa izcU/k lfefr rFkk prqFkZ Js.kh deZpkjh
ds lEcU/k esa vkpk;Z@ iz/kkuk/;kid fu;qfDr izkf/kdkjh
gksxkA fyfidksa] ftlesa iqLrdky;k/;{k Hkh lfEefyr gSa]
rFkk prqFkZ Js.kh deZpkfj;ksa dh fu;qfDr] ifjoh{kk]
ftldh vof/k ,d o"kZ dh gksxh] LFkk;hdj.k ,oa lsok
'krksZa vkfn ds laca/k esa vko';d ifjorZu lfgr Åij
ds fofu;e 1] 4 ls 8] 10] 11] 15] 24 ls 26] 30] 32
ls 34] 36 ls 38] 40 ls 43] 45 ls 52] 54] 66] 67] 70
ls 73 rFkk 76 ls 82 ds izko/kku ykxw gksaxs] fdUrq prqFkZ
Js.kh deZpkfj;ksa ds lEcU/k esa fofu;e 77 ls 82 ds
izko/kku rHkh ykxw gksaxs tc bl lEcU/k esa jkT; ljdkj
}kjk vko';d funsZ'k fuxZr fd;s tk;saxsA bu
deZpkfj;ksa ds lEcU/k esa fofu;e 9] 12] 13] 14] 16 ls
20] 27] 28] 54] 55 ls 65 rFkk 97 ds izko/kku ykxw
ugha gksaxsA**"

43. These Regulations talk of
probation, confirmation etc., i.e., the
provisions relating to conditions of service
and confirmation. The existing provisions,
therefore, under Act, 1921 read with
Regulations framed thereunder nowhere
control, check or obstruct the power of
management of a Secondary institution
regarding recruitment and appointment of
Class-III and Class-IV staff in any manner
except to the extent of providing conditions
relating to eligibility etc. and that too in the
context of the fact that in recognised and
aided educational institutions the payment
of salary to the staffs is the responsibility of
State Government and, therefore, the
number of posts of Class-III and Class-IV
staffs
is
also
regulated
by
State
Government, otherwise in all matters
management of an educational institution
(Secondary) is free and enjoy the power of
recruitment and appointment of Class-III
and Class-IV staff to the extent it requires
for smooth working and functioning of
institution.

44. The regulation of payment of
salary is vide Act, 1971 which is applicable
to the institutions which are recognised and
receiving maintenance grant from the State
Government. Section 10 of Act, 1971
makes the State Government liable for
payment
of
salary
of
teachers
and
employees of every institution in respect of
any period after 31.03.1971. It is in this
context vide Section 9 a restriction has been
imposed upon an institution not to create a
new post of teacher or other employee
except with the previous approval of
Director or such other Officer as may be
empowered in that behalf by Director. Here
also the power of creation of post has been
left with institution but in order to attract the
provisions of Act, 1971 for a valid creation
of post, an approval by Director or other
officer as empowered by Director, is
necessary. There is no power of abolition of
any post in an institution conferred upon the
Director or any officer. Power of appeal
cannot be identified with power of creation
but it is only regulatory.

45. A comprehensive reading of
various provisions of Act, 1921 and in
310 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
particular Section 16-G it is thus evident
that power to frame Regulations has been
conferred in respect to matters relating to
"conditions of service" and nothing else.
The term "conditions of service" is not wide
enough to include every stage commencing
from recruitment or appointment and
thereafter. There is a distinction between the
term "recruitment" and "conditions of
service". It is worthwhile to mention that in
Article 309 of the Constitution both these
terms have been used in respect to
Legislative power and in that context have
been considered by Courts.

46. In service jurisprudence three
terms are of wide application, have a
definite concept and well known to those
who deal in the subject. This is called
"common parlance". These three terms are
"recruitment",
"appointment"
and
"conditions of service".

47.

The
meaning
of
term
"recruitment" and its distinction vis a vis
"appointment" came to be considered in
Prafulla Kumar Swain Vs. Prakash
Chandra Misra, 1993 Supp. (3) SCC 181
and
the
Court
said
that
the
term
"recruitment"
connotes
and
signifies
enlistment,
acceptance,
selection
or
approval for appointment. Certainly, this is
not actual appointment or posting in service.
In
contradiction
thereto
the
word
"appointment" means the actual act of
posting a person to a particular office.
Similarly, in K. Narayanan Vs. State of
Karnataka, 1994 Supp. (I) SCC 44 the
Court said that "recruitment" according to
dictionary meaning "enlistment". It is a
comprehensive term and includes any
method provided for inducting a person in
public service. However, in the context of
the case the Court proceeded to observe that
appointment,
selection,
promotion,
deputation are well known methods of
recruitment and even appointment can be
made by transfer.

48. The term "conditions of service" is
also no more res integra having been
considered and defined by Courts time and
again.

49. One of the earliest known case
considering the term "conditions of service"
is North West Frontier Province Vs.
Suraj Narain Anand, Vol. LXXV Indian
Appeals 343. Therein Privy Council
considered the term "conditions of service"
as mentioned in Section 243 of Government
of India Act, 1935. It says that the term
"conditions of service" must mean all the
conditions on which a man serves and they
must include inter alia the tenure of his
service, the method by which he may be
dismissed or reduced in rank etc.

50. In State of Madhya Pradesh Vs.
Shardul Singh, 1970(1) SCC 108 the
Court explain the expression "conditions of
service" as under:

"The
expression
"conditions
of
service" is an expression of wide import.