# Dr. Manohar Lal & Ors v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-23
- **Case number:** Writ A No. 14185 of 2020
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-manohar-lal-ors-v-state-of-u-p-ors-46345
- **Pages:** 32

## Headnote

A. Service Law - UP State Universities Act,
1973
-
Self
Financing
Courses
-
Contractual appointment - Appointment
letter provided that the tenure would be
subject to the decision of the government
-
Non-payment of
salary
-
Validity
challenged - Held, the recital in the
appointment letters that the tenure of the
petitioners was subject to the decision of
the government was a representation, a
promise, held out by the University to the
petitioners - The University intends to
renege from the assurance given to the
petitioners. It cannot and the University
has to be scrupulously held to its promise.
(Para 44)
B. Constitution of India - Article 12 -
State
and
other
instrumentality
-
Definition - The University is a State
under Article 12 of the Constitution and
imparts higher education to students
which is a public function and primarily a
government function - The University
being 'State', its acts are to be in
consonance
with
Part
III
of
the
Constitution and have to confirm to the
requirements
of
Article
14
of
the
Constitution
and
the
rule
inhibiting
arbitrariness. (Para 38 and 39)
C. Constitution of India - Article 14 -
Right
to
equality
-
Right
against
arbitrariness
and
unreasonableness
-
Ambit and Scope - Arbitrariness and
equality were incompatible and inequality
is implicit in any arbitrary act of the State
and every arbitrary act of the State
violates Article 14 - Requirement of nonarbitrariness in State actions demands
that the action should be based on
relevant considerations and must not be
guided by any extraneous or irrelevant
considerations and State action would
amount to mala fide exercise of power and
would be hit by Article 14 if the reason for
the action was not legitimate and relevant
but extraneous and outside the area of
permissible
considerations
-
E.P.
Royappa's case followed. (Para 32)
D. Constitution of India - Article 14 -
Doctrine of legitimate expectation - Right
of hearing - Procedural fairness - Right
against non-arbitrariness - Where the
432 INDIAN LAW REPORTS ALLAHABAD SERIES
decision maker, by his representation or
past actions, had led the affected person
to believe that any benefit enjoyed by the
person would not be withdrawn without
giving him an opportunity to represent in
the matter - With the passage of time the
doctrine has been extended to bind the
public authorities to their representations
assuring any benefit of a substantive
nature unless some overriding public
interest comes in way. (Para 45)
E. Constitution of India - Article 226 -
Writ - Nature of State - Interference,
when warranted - It is not the nature of
the function of the State, contractual or
otherwise,
but
the
nature
of
its
personality
as
State
which
must
characterise all its actions and is decisive
of the nature of scrutiny permissible for
examining the validity of its acts. (Para
37)
F. Constitution of India - Article 226 -
Writ - Judicial review - Contractual
matter, when can be interfered with -
Held, relief under Article 226 of the
Constitution of India can be granted in
disputes arising out of such contracts -
There is no bar on the writ courts to direct
specific performance of contract of service
when State or any 'other authority' which
is a State under Article 12 of the
Constitution is the employer and one of
the contracting party - Writ Courts can
even strike down or declare as void a term
in the contract if it violates any of the
guarantees embodied in Article 14 of the
Constitution. (Para 20, 25 and 37)
G. Constitution of India - Article 14 and
226 - Writ - Contractual employment by a
public authority - Termination - Validity
challenged - Held, with the development
of law relating to judicial review of
administrative actions a writ court can
now
examine
the
validity
of
the
termination of a contractual employment
by a public authority and determine
whether
there
was
any
illegality,
perversity, unreasonableness, unfairness
or irrationality that would vitiate the
action. (Para 28)
H. Co

## Text

_Characters 0–39,952 of 109,931. This is a partial read: ask again with offset=39952 for what follows._

10 All. Dr. Manohar Lal & Ors. Vs. State of U.P. & Ors.
431
discharging public function/public duty, if
the controversy pertains to the private law
such as a dispute arising out of contract or
under the common law.

(2) The judgment of this Court in
the case of Rajesh Kumar Srivastava
(supra)
is
not
against
the
ration
pronounced by the Larger Bench in the
case of Roychan Abraham (supra) rather
it has followed the judgment of the Apex
Court in the case of K. K. Saksena (supra).

23. Since the questions have been
answered by the Larger Bench, the Registry
is directed to place this order before the
learned Single Judge where the writ
petition is pending for hearing.
----------
(2021)10ILR A431
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2021

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ A No. 14185 of 2020
AND
Writ A No. 1429 of 2021
AND
Writ A No. 14504 of 2020

Dr. Manohar Lal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mritunjay Mohan Sahai

Counsel for the Respondents:
C.S.C., Sri Ajeet Kumar Singh, Sri Shashi
Prakash Rai

A. Service Law - UP State Universities Act,
1973
-
Self
Financing
Courses
-
Contractual appointment - Appointment
letter provided that the tenure would be
subject to the decision of the government
-
Non-payment of
salary
-
Validity
challenged - Held, the recital in the
appointment letters that the tenure of the
petitioners was subject to the decision of
the government was a representation, a
promise, held out by the University to the
petitioners - The University intends to
renege from the assurance given to the
petitioners. It cannot and the University
has to be scrupulously held to its promise.
(Para 44)
B. Constitution of India - Article 12 -
State
and
other
instrumentality
-
Definition - The University is a State
under Article 12 of the Constitution and
imparts higher education to students
which is a public function and primarily a
government function - The University
being 'State', its acts are to be in
consonance
with
Part
III
of
the
Constitution and have to confirm to the
requirements
of
Article
14
of
the
Constitution
and
the
rule
inhibiting
arbitrariness. (Para 38 and 39)
C. Constitution of India - Article 14 -
Right
to
equality
-
Right
against
arbitrariness
and
unreasonableness
-
Ambit and Scope - Arbitrariness and
equality were incompatible and inequality
is implicit in any arbitrary act of the State
and every arbitrary act of the State
violates Article 14 - Requirement of nonarbitrariness in State actions demands
that the action should be based on
relevant considerations and must not be
guided by any extraneous or irrelevant
considerations and State action would
amount to mala fide exercise of power and
would be hit by Article 14 if the reason for
the action was not legitimate and relevant
but extraneous and outside the area of
permissible
considerations
-
E.P.
Royappa's case followed. (Para 32)
D. Constitution of India - Article 14 -
Doctrine of legitimate expectation - Right
of hearing - Procedural fairness - Right
against non-arbitrariness - Where the
432 INDIAN LAW REPORTS ALLAHABAD SERIES
decision maker, by his representation or
past actions, had led the affected person
to believe that any benefit enjoyed by the
person would not be withdrawn without
giving him an opportunity to represent in
the matter - With the passage of time the
doctrine has been extended to bind the
public authorities to their representations
assuring any benefit of a substantive
nature unless some overriding public
interest comes in way. (Para 45)
E. Constitution of India - Article 226 -
Writ - Nature of State - Interference,
when warranted - It is not the nature of
the function of the State, contractual or
otherwise,
but
the
nature
of
its
personality
as
State
which
must
characterise all its actions and is decisive
of the nature of scrutiny permissible for
examining the validity of its acts. (Para
37)
F. Constitution of India - Article 226 -
Writ - Judicial review - Contractual
matter, when can be interfered with -
Held, relief under Article 226 of the
Constitution of India can be granted in
disputes arising out of such contracts -
There is no bar on the writ courts to direct
specific performance of contract of service
when State or any 'other authority' which
is a State under Article 12 of the
Constitution is the employer and one of
the contracting party - Writ Courts can
even strike down or declare as void a term
in the contract if it violates any of the
guarantees embodied in Article 14 of the
Constitution. (Para 20, 25 and 37)
G. Constitution of India - Article 14 and
226 - Writ - Contractual employment by a
public authority - Termination - Validity
challenged - Held, with the development
of law relating to judicial review of
administrative actions a writ court can
now
examine
the
validity
of
the
termination of a contractual employment
by a public authority and determine
whether
there
was
any
illegality,
perversity, unreasonableness, unfairness
or irrationality that would vitiate the
action. (Para 28)
H. Constitution of India - Article 226 -
Writ - Question of facts, when can be
interfered with - Judicial Review - Scope
- Held, the Court may also adjudicate
disputed questions of fact though the
remedy
under
Article
226
of
the
Constitution,
being
a
discretionary
remedy,
the
Courts
may,
in
certain
circumstances, refrain from exercising
their powers. (Para 20)
Writ petition allowed. (E-1)
Cases relied on :-
1. Dr. Suresh Kumar Pandey Vs St. of U.P. &
ors.; (2013) 3 A.D.J. 505
2. St. of Har. Vs Piyara Singh; (1992) 4 SCC 118
3. Mohd. Abdul Kadir Vs Director General of
Police & ors.; (2009) 6 SCC 611
4. Kumari Shrilekha Vidyarthi Vs St.of U.P. &
ors.; (1991) 1 SCC 212
5. Vinod Kumar Singh Vs St. of U.P. & ors.;
(2017) 5 ADJ 808 (DB) (LB)
6. M/s. Bio Tech System Vs S. of U.P. & ors.;
(2020) 11 ADJ 488 (DB)
7. Writ A No. 1097 of 2019; Dr. Ritu Verma Vs
St. of U.P. & 4 ors. decided on 24.1.2019
8. Sirsi Municipality by its President Vs Cecilia
Kom Francis Tellis; 1973 (1) SCC 409.
9. E.P. Royappa Vs St. of T.N. & ors.; (1974) 4
SCC 3
10.
R.D.
Shetty
Vs
International
Airport
Authority of India & ors.; (1979) 3 SCC 489
11. Gujarat State Financial Corporation Vs Lotus
Hotels Pvt. Ltd.; (1983) 3 SCC 379
12. Central Inland Water Transport Corp. Ltd. &
anr. Vs Brojo Nath Ganguly & anr.; (1986) 3
SCC 156
13. A.B.L. International Ltd. & ors. Vs Export
Credit Guarantee Corporation of India Ltd. &
ors.; (2004) 3 SCC 553
10 All. Dr. Manohar Lal & Ors. Vs. State of U.P. & Ors.
433
14. Gridco Ltd. & anr. Vs Sadanand Doloi & ors.;
(2011) 15 SCC 16
15. Unitech Ltd. & ors. Vs Telangana State
Industrial Infrastructure Corporation (TSIIC) &
ors.; (2021) SCC OnLine SC 99
16. K.K. Saxena Vs International Commission On
Irrigation and Drainage & ors.; (2015) 4 SCC
670
17. Janet Jeyapaul Vs S.R.M. University; (2015)
16 SCC 530
18. Roychan Abraham Vs St. of U.P. & ors.;
2019(3) ADJ 391 (FB)
19. Punjab Communications Ltd. Vs U.O.I. &
ors.; (1999) 4 SCC 727
20. National Buildings Construction Corp. Ltd. Vs
S. Raghunathan & ors.; (1998) 7 SCC 66
21. S. of Jharkhand & ors. Vs Brahmputra
Metallics Ltd. & ors.; 2020 SCC OnLine SC 968
(Delivered by Hon'ble Salil Kumar Rai, J.)

1. Heard Shri M.M. Sahai and Shri
Komal Mehrotra, learned counsel for the
petitioners as well as Shri Ajeet Kumar
Singh, Senior Counsel, assisted by Shri
Shashi Prakash Rai, Advocate, representing
Mahatma
Gandhi
Kashi
Vidyapeeth,
Varanasi
(hereinafter
referred
to
as,
'University') and its Vice Chancellor and
Registrar, i.e., respondent Nos. 2 to 4.

2. In order to systemize the running of
Self
Financing
Courses
in
different
Universities and the degree colleges
governed by the Uttar Pradesh State
Universities Act, 1973 (hereinafter referred
to as, 'Act, 1973'), the Government of Uttar
Pradesh issued Government Orders dated
28.6.1999 and 4.2.2000, which provided
that the teaching as well as non-teaching
staff in the Self Financing Courses shall be
appointed on contract basis according to
the prescribed norms and their services
shall come to an end on the discontinuation
of the Self Financing Course.

3. In 2013 a Division Bench of this
Court through its order dated 1.3.2013,
passed in Dr. Suresh Kumar Pandey Vs.
State of U.P. & Others, (2013) 3 A.D.J.
505 laid-down certain norms for the Self
Financing Courses run by the Universities
and the Degree Colleges. The Division
Bench directed that the services of teachers
appointed under the Self Financing Scheme
shall continue till the continuance of the
course or till the satisfactory discharge of
duty by the teacher. The relevant portion
from paragraph No. 53 of the aforesaid
judgment is reproduced below :-

"53(iii) All those courses which
are open under self-financing scheme, the
universities as well as colleges shall at least
pay minimum pay scale admissible to
teachers in accordance with Rules. The
service of teachers appointed under the
self-financing
scheme,
should
be
permitted to continue till continuance of
course or satisfactory discharge of duty.

(iv) Since 2000 and onward, the
Government has stopped the grant-in-aid
and sanction of new course, even then
Government shall ensure that Committee of
Managements do not exploit the teachers
and pay reasonable salary in contractual
and ad hoc appointments in the recognized
and affiliated colleges."(Emphasis added)

4. In pursuance to the order of the
Division Bench in Suresh Kumar Pandey
(Supra),
a
Government
Order
dated
15.7.2015 was issued prescribing the norms
for Self Financing Courses run by the
Universities.
The
Government
Order
specifically referred to the order of the
Division Bench of this Court and provided
that
the
teachers
appointed
in
the
Universities in the Self Financing Courses
shall be appointed on a contract basis for
434 INDIAN LAW REPORTS ALLAHABAD SERIES
five years and on the expiry of the
aforesaid period, the concerned teacher
would be entitled to be considered for reappointment before any fresh process of
selection is started and the contract shall be
renewed for another five years if the work
and conduct of the teachers was found
satisfactory. The Universities were also
asked to appropriately amend their Statutes
to enforce the norms provided in the
Government Order dated 15.7.2015. The
relevant portions of the Government Order
dated 15.7.2015 are reproduced below :-

"mPp f'k{kk vuqHkkx&4 y[kuÅ%
fnukad 15 tqykbZ] 2015

fo"k;%& fo'ofo/kky;ksa esa LofoRriksf"kr
ikB~;dzeksZa ds vUrxZr fofHkUu 'kSf{kd@f'k{k.ksRrj
inksa ds lEcU/k esa ekudA

egksn;]

LofoRriksf"kr ikB~;dze ds lafonk f'k{kdksa
}kjk osru Hkqxrku o vU; lqfo/kk;sa iznku fd; tksu
ds lEcU/k esa ;ksftr fjV ;kfpdk la[;k&729
1⁄4,l0ch01⁄2@2012 Mk0 lqjs'k dqekj ik.Ms; cuke
mRrj izns'k jkT; ,oa vU; esa ek0 mPp U;k;ky;]
y[kuÅ csap] y[kuÅ }kjk fnukad 01-03-2013 dks
ikfjr fd;s x;s vkns'k dk fdz;kRed va'k fuEuor~
gS %&

53. We have noticed that not only
in the respondent's college, but in other
colleges of the State of U.P., the students are
admitted without following the norms
prescribed by the Statute as well as UGC.
Accordingly, we are of the view that the
Government should look into it and
appropriate orders/circulars should be issued
immediately
commanding
different
universities and colleges aided as well as notaided, containing following directions :-

(i) ...

(ii)...

(iii) All those courses which are
open under self-financing scheme, the
universities as well as colleges shall at least
pay minimum pay scale admissible to
teachers in accordance with Rules. The
services of teachers appointed under the
self-financing scheme, should be permitted
to continue till continuance of course or
satisfactory discharge of duty.

(iv) Since 2000 and onward, the
Government has stopped the grant-in-aid
and sanction of new course, even then
Government shall ensure that Committee of
Managements do not exploit the teachers
and pay reasonable salary in contractual
and ad hoc appointments in the recognized
and affiliated colleges.

1⁄421⁄2 ---

3& vr% ek0 mPp U;k;ky; ds mDr
vkns'kksa
ds
vuqikyu
esa
'kklukns'k
la[;k&214@70&4@2000&7 1⁄471⁄2@94] fnukad 04
Qjojh] 2000 esa vkaf'kd la'kks/ku djrs gq, 'kklu
}kjk lE;d fopkjksijkUr jkT; fo'ofo/kky;ksa esa
lapkfyr LofoRriksf"kr ikB~;deksZa esa dk;Zjr
f'k{kdksa ds leL;kvksa ds fujkdj.k gsrq iqu%
fuEuor~ ekxZn'kZu@fn'kk&funsZ'k fuxZr fd;s tkrs
gS%&

1⁄411⁄2 ---

1⁄421⁄2 ---

1⁄431⁄2 jkT; fo'ofo/kky; esa lapkfyr
LofoRriksf"kr ikB~;dzeksZ eas lafonk ij fu;qDr
f'k{kdksa dh lafonk vof/k 5 o"kZ gksxhA izFke ikap
o"kZ dh lafonk lekIr gksus ij fo'ofo/kky; fQj
ls p;u dh dk;Zokgh izkjEHk djus ls iwoZ dk;Zjr
f'k{kdksa] ftudk dk;Z ,oa vkpj.k larks"ktud gks
vkSj muds fo:) dksbZ vuq'kkfld dk;Zokgh
izpfyr u gks] ds uke ij fuf'pr :i ls fopkj
10 All. Dr. Manohar Lal & Ors. Vs. State of U.P. & Ors.
435
fd;k tk;sxk vkSj izR;sd ikap o"kZ ds i'pkr~
mudh lafonk dks vxys ikap o"kZ ds fy,
uohuhdj.k fd;k tk;sxkA lafonk ij fu;qDr
fdlh f'k{kd@f'k{k.ksRrj deZpkjh dk dk;Z ,oa
vkpj.k larks"kizn u gksus ij mugsa fdlh Hkh le;
gVk;k tk ldsxkA dksbZ Hkh izfrdwy fLFkfr mRiUu
gksus ij lEcfU/kr fo'ofo/kky; ds dqyifr dk
fofu'p; vfUre gksxkA

---

---

---

1⁄471⁄2 jkT; fo'ofo/kky; esa lapkfyr
fdlh LofoRriksf"kr ikB~;dze esa Nk=ksa dh la[;k
'kwU; gks tkrh gS rks fo'ofo/kky; dh dk;Zifj"kn~
,oa dqyifr rFkk dqykf/kifr ds vuqeksnuksijkUr
gh ,sls ikB~;dze dks cUn fd;k tk ldrk gSA

4- ---

5& mijksDr mfYyf[kr O;oLFkkvksa dks
ykxw djus ds lEcU/k esa jkT; fo'ofo/kky; dh
ifjfu;ekoyh esa rnuqlkj izkfo/kku djus dk d"V
djsaA

---

---

---"

(Emphasis added)

5. The petitioners were appointed
between 2008 to 2015 as teachers in
different Self Financing Courses run by the
University. It appears that the initial
appointments were made for a period of
one year or till the end of the academic
session,
whichever
was
earlier.
The
appointments were extended every year till
2015. The appointment letters issued to the
petitioners in 2015, provided that the
appointments were for a period of five
years or till 30.6.2020, whichever was
earlier and the petitioners were asked to
sign the prescribed contract of service. The
appointment letters also provided that the
issue regarding the tenure of the appointees
had been referred to the Government and
the term in the contract fixing the tenure of
the appointees to five years was subject to
the decision of the Government.

6. On 13.3.2020 another Government
Order was issued which prescribed fresh
norms regarding the conditions of service
of the teaching and non-teaching staff
employed in the Self Financing Courses.
The subject of the Government Order dated
13.3.2020 specified that the Government
Order applied to the 'working' teaching and
non-teaching staff employed in the Self
Financing
Courses.
The
Government
Order, after referring to paragraph No.
53(iii) and (iv) of the judgement of the
Division Bench of this Court in Dr. Suresh
Kumar Pandey (Supra), repealed certain
Government orders on the subject and
provided that the services of the teaching
and non-teaching staff in the Self Financing
Course shall continue till the satisfactory
discharge of their duty. The Government
Order dated 13.3.2020 did not repeal the
Government Order dated 15.7.2015. In
Clause 9 of the Government Order it was
stated that it was being issued by the State
Government in exercise of its powers under
Section 50(6) of the Act, 1973 and the
Universities were asked to appropriately
modify their Policies/Rules/Statutes in
order to comply with the norms laid-down
in the Government Order. The relevant
portions of the Government Order dated
13.3.2020 are reproduced below :-

"fo"k;%&mPp f'k{kk foHkkx ds v/khu
mRrj izns'k jkT; fo'ofo/kky;ksa ,oa v'kkldh;
436 INDIAN LAW REPORTS ALLAHABAD SERIES
vuqnkfur egkfo/kky;ksa esa lapkfyr LofoRriksf"kr
;kstukUrxZr ikB~;deksZa eas rFkk v'kkldh;
vukuqnkfur LofoRriksf"kr egkfo/kky;ksa esa dk;Zjr
f'k{kdksa ,oa f'k{k.ksRrj deZpkfj;ksa ds osru ,oa
lsok 'krksZa ds ekud vkfn ds laca/k esaA

---

2&
fjV
;kfpdk
la[;k&729
1⁄4,l0ch01⁄2@2012] Mk0 lqjs'k dqekj ik.Ms; cuke
mRrj izns'k ljdkj o vU; esa ek0 mPp U;k;ky;
}kjk ikfjr vkns'k fnukad 01-03-2013 dk lqlaxr
va'k fuEuor~ gS%&

53. (iii) All those courses which
are open under self-financing scheme, the
universities as well as colleges shall at least
pay minimum pay scale admissible to
teachers in accordance with Rules. The
services of teachers appointed under the
self-financing scheme, should be permitted
to continue till continuance of course or
satisfactory discharge of duty.

(iv) Since 2000 and onward, the
Government has stopped the grant-in-aid
and sanction of new course, even then
Government shall ensure that Committee of
Managements do not exploit the teachers
and pay reasonable salary in contractual
and ad hoc appointments in the recognised
and affiliated colleges.

fjV
;kfpdk
la[;k&729
1⁄4,l0ch01⁄2@2012 esa ikfjr vkns'k fnukad 01-032013 ds vuqikyu esa 'kklukns'k la[;k
968@lRrj&02&2013&18 1⁄4991⁄2@2013] fnukad
30 ebZ] 2013 }kjk fn'kk funsZ'k tkjh fd;s x;s
gSaA

3& ekuuh; mPp U;k;ky; ds vkns'kksa
ds leknj eas mRrj izns'k esa leLr LofoRriksf"kr
ikB~;deksZa dh O;oLFkk dks vf/kd lqpk: ,oa lqn`<+
cukus ds mn~ns'; ls izLrj&1ds ik'okZfdr leLr
'kklukns'kksa dks vodzfer djrs gq;s 'kklukns'k
la[;k 1960@lRrj&02&97&2 1⁄4851⁄2@97] fnukad
11 uoEcj] 1997 ds dze esa dfri; ubZ O;oLFkk;sa
ykxw dh tk jgh gS] ftudk mYys[k fuEufyf[kr
izLrjksa esa fd;k tk jgk gSA

---

---

---

7&f'k{kdksa@f'k{k.ksRrj deZpkfj;ksa dh
lsok 'krksZa ds lEcU/k esa%&

1⁄411⁄2 f'k{kdksa ,oa f'k{k.ksRrj deZpkfj;ksa
dh lsok lEcfU/kr fo"k; ds ikB~;dze ds pyrs
jgus vFkok larks"ktud lsok jgus rd tkjh
jgsxhA vlUrks"ktud lsok gksu dh fLFkfr esa lsok
lEcU/kh lafonk dk fo[k.Mu djus ls iwoZ uSlfxZd
U;k; ds fl)kUrksa dk vuqikyu lqfuf'pr djrs
gq;s lEcfU/kr fo'ofo/kky; ds dqyifr dk
vuqeksnu izkIr fd;k tkuk vfuok;Z gSA

9& ;g vkns'k mRrj izns'k jkT;
fo'ofo/kky; vf/kfu;e] 1973 dh /kkjk 501⁄461⁄2 esa
jkT; ljdkj dks iznRr 'kfDr;ksa dk iz;ksx djrs
gq;s bl funsZ'k ds lkFk fuxZr fd;s tk jgs gSa fd
leLr LofoRriksf"kr ikB~;dzeksZa ds lEcU/k esa
fo'ofo/kky; dh uhfr@fu;e@ifjfu;e vkfn esa
;Fkko';d izkfo/kku djds mDr funsZ'kksZa dk
vuqikyu lqfuf'pr djk;k tk,xkA

---""
 (Emphasis added)

7. The main difference between the
Government Orders dated 13.3.2020 and
15.7.2015 was regarding the tenure of
service of the appointees. While Clause
3(3) of the Government Order dated
15.7.2015 provided that the tenure of the
appointees would be for five years and they
shall
entitle
to
be
considered
for
reappointment before starting a fresh
process of recruitment; while Clause 7(1)
10 All. Dr. Manohar Lal & Ors. Vs. State of U.P. & Ors.
437
of the Government Order dated 13.3.2020
provides that the tenure of the appointees
would be till the satisfactory discharge of
their duties or till the continuance of the
Self Financing Course, whichever was
earlier.

8. The Government Order dated
13.3.2020 used the word 'salary' for the
payments to be made to the staff in lieu of
their services under the contract and,
therefore,
the
said
payments
shall
hereinafter be referred as 'salary' in the
judgement.

9. The Executive Council of the
University in its meeting held on 3.5.2020,
accepted the norms laid-down in the
Government Order dated 13.3.2020 and
decided to incorporate them in the Statutes
of the University. However, it has been
stated by the counsel for the parties, that
the relevant amendments have not yet been
made in the statutes because the proposal of
the Executive Council has not yet received
the assent of the Chancellor.

10. It has been stated by the
petitioners that, till 30.6.2020, no notice
was issued to the petitioners indicating that
they were not satisfactorily discharging
their duties and no order was passed
terminating
their
services,
but
the
University
has
stopped
paying
the
petitioners their salary and has asked the
petitioners to execute a fresh contract for
another five years after getting their work
reviewed by the University. The University
has stopped paying salary to the petitioners
on the ground that their services came to an
end on 30.6.2020. It has been stated in the
writ petitions and also in the rejoinder
affidavit filed by the petitioners that even
after 30.6.2020, the University is taking
work from the petitioners treating them to
be in service but is not paying them their
salary. Certain documents have been
annexed by the petitioners with the
rejoinder affidavit filed in Writ-A No.
14185 of 2020 to show that the University
had taken services from the petitioners for
examination and research purposes even
after 30.6.2020.

11. Aggrieved by the action of the
University in not paying salary to them, the
petitioners have filed the present writ
petitions for a mandamus commanding the
University and its Officers to pay salary to
the petitioners from July, 2020 onwards
and ensure payment in the subsequent
months without any delay.

12. After the hearing in the case was
concluded and judgment was reserved, the
petitioners in Writ - A No. 14185 of 2020
filed Application No. 4/2021 bringing on
record an order dated 10.8.2021 issued by
the Registrar of the University, which
provides that the services of the teachers
referred in the said order shall continue till
the continuance of the relevant Self
Financing Course or till the satisfactory
discharge of duty by the concerned teacher
or till the age of his superannuation,
whichever was earlier. The order has been
passed to implement the decision of the
Vice-Chancellor taken in pursuance to the
decision of the Executive Council in its
meeting held on 3.5.2020 referred earlier.
The order has been made effective from
1.7.2021.

13. The respondent Nos. 2, 3 and 4
have filed their counter affidavit in which
they have admitted the contract of service
executed by the petitioners in July, 2015
which provided that services of the
petitioners was on a contract basis for a
period of five years. The respondents
438 INDIAN LAW REPORTS ALLAHABAD SERIES
justify their act in not paying salary to the
petitioners since July, 2020 on the ground
that, as per their contract and appointment
letters, the services of the petitioners came
to an end on 30.6.2020. In their counter
affidavit, the respondents have stated that if
the petitioners approach the University, the
University
would
consider
their
reappointment
according
to
the
Government Order dated 15.7.2015 read
with Government Order dated 13.3.2020
and shall execute a fresh agreement with
such petitioners. It has been further stated
in the counter affidavit that the University
was ready to extend the services of the
petitioners if they were willing to sign fresh
agreements with the University but shall be
paid honorarium from the date of execution
of the fresh agreement. It has been further
stated in the counter affidavit that petitioner
Nos. 3, 5, 8, 9, 11, 12, 14, 16, 19, 20, 24,
26, 27, 28, 29, 30, 32, 33, 35 and 37 have
already executed fresh agreements with the
University and are being paid honorarium
from the date of the execution of the fresh
agreement. The fresh agreements executed
by the aforesaid petitioners have been
annexed with the counter affidavit.

14. A perusal of the agreements
annexed with the counter affidavit shows
that even though the agreement provides
that the contract period was till 30.6.2025,
but at the same time it inverbatim
incorporates
Clause
7(1)
of
the
Government Order dated 13.3.2020. It also
appears from the documents annexed with
the counter affidavit that fresh agreements
were executed by the University only after
the said petitioners had agreed for a review
of their work by the University.

15. It was argued by the counsel for
the petitioners that Clause 7(1) of the
Government
Order
dated
13.3.2020
impliedly repealed the conditions stipulated
in Clause 3(3) of the Government Order
dated 15.7.2015 and by virtue of Clause
7(1) of the Government Order dated
13.3.2020, the petitioners were entitled to
continue
in
service
till
satisfactory
discharge of their duties without executing
any fresh agreement and were to be treated
in service as Lecturer under the contract
executed in 2015 itself and be paid their
salary as Clause 7(1) of the Government
Order dated 13.3.2020 overrides the terms
in contract restricting the period of service
of the petitioners to five years. It was
argued that the norms prescribed in the
Government Order dated 13.3.2020 were
accepted and adopted by the Executive
Council in its meeting held on 3.5.2020 and
in light of the directions of this Court in Dr.
Suresh Kumar Pandey (Supra), the act of
the University in treating the services of the
petitioners as having come to an end on
30.6.2020 and not paying salary to the
petitioners is arbitrary and violative of
Article 14 of the Constitution. It was
argued that in any case one ad hoc
employee can not be replaced with another
ad hoc employee. In support of their
arguments, the counsel for the petitioners
have relied on the judgements of the
Supreme Court reported in State of
Haryana Vs. Piyara Singh, (1992) 4 SCC
118, Mohd. Abdul Kadir Vs. Director
General of Police & Others, (2009) 6 SCC
611, Kumari Shrilekha Vidyarthi Vs. State
of Uttar Pradesh & Others, (1991) 1 SCC
212 and the Division Bench of this Court
in Dr. Suresh Kumar Pandey Vs. State of
U.P. & Others, 2013 (3) ADJ 505.

16. Rebutting the argument of the
counsel for the petitioners, the counsel
for the respondents have argued that the
Government Order dated 13.3.2020 has
not repealed the Government Order dated
10 All. Dr. Manohar Lal & Ors. Vs. State of U.P. & Ors.
439
15.7.2015 and the Government order
dated 13.3.2020 has not been given a
retrospective effect. It was argued that the
services of the petitioners were governed
by the terms of the contract and not by
statutory rules and therefore their services
have
not
been
terminated
but
automatically came to an end, as per their
contract, on 30.6.2020 and they were not
entitled to any payments after 30.6.2020
without executing a fresh agreement with
the University. It was also argued by the
counsel for the respondent University that
the relationship between the University
and the petitioners was a master- servant
relationship, therefore the termination of
the services of the petitioners cannot be
declared a nullity by the courts and the
courts cannot direct their reinstatement in
service which would be the obvious
consequence if the relief prayed by the
petitioners for payment of their salary for
the period after 30.6.2020 is allowed by
the court. It was further argued by the
counsel for the respondents that the
dispute as raised in the writ petitions
relates to contractual employment and the
writ petitions are not maintainable in
contractual matters. It was also argued
that the services of the petitioners were
governed by the terms of the contract and
the Court under Article 226 of the
Constitution of India can not go beyond
the terms of the agreement/contract
executed by the petitioners. In support of
their arguments, the counsel for the
respondents
have
relied
on
the
judgements of this Court passed in Vinod
Kumar Singh Vs. State of U.P. &
Others, (2017) 5 ADJ 808 (DB) (LB),
M/s. Bio Tech System Vs. State of U.P.
& Others, (2020) 11 ADJ 488 (DB),
Judgement and order dated 24.1.2019
passed in Writ-A No. 1097 of 2019 (Dr.
Ritu Verma Vs. State of U.P. & 4
Others) as well as the Judgement of the
Supreme Court in Sirsi Municipality by
its President Vs. Cecilia Kom Francis
Tellis, 1973 (1) SCC 409.

17. I have considered the submissions
of the counsel for the parties.

18. Admittedly, the services of the
petitioners are contractual in nature. It is
also admitted that the contract executed
between the petitioners and the University
in 2015 provided that the services of the
petitioners was for five years or till
30.6.2020, whichever was earlier.

19. The issue before this Court is as to
whether the petitioners were entitled to
continue
in
service
till
satisfactory
discharge of their duties or till continuance
of the self Financing Course without
executing a fresh contract for the said
purpose in light of Clause 7(1) of the
Government Order dated 13.3.2020 or their
services cam to an end, as per their contract
on 30.6.2020. The other issue before this
Court is regarding the maintainability of
the petitions under Article 226 of the
Constitution of India as the salary payable
to the petitioners is a contractual obligation
of the University.

20.

The
issue
regarding
maintainability
of
writ
petitions
in
contractual matters where State or its
instrumentality are a party to the contract
has been examined by the Supreme Court
in numerous cases. The recent trend is that
relief under Article 226 of the Constitution
of India can be granted in disputes arising
out of such contracts and in the process the
Court
may
also
adjudicate
disputed
questions of fact though the remedy under
Article 226 of the Constitution, being a
discretionary remedy, the Courts may, in
440 INDIAN LAW REPORTS ALLAHABAD SERIES
certain
circumstances,
refrain
from
exercising their powers.

21. The scope of judicial review of
State actions has widened after the
judgement of the Supreme Court in E.P.
Royappa Vs. State of Tamil Nadu and
Others, (1974) 4 SCC 3 which held that
non-arbitrariness in State actions was
indispensable to the right to equality
protected by Article 14 of the Constitution.
In E.P. Royappa (Supra), the court held
that equality was antithetic to arbitrariness
and 'where an act is arbitrary it is implicit
that that it is unequal both according to
political logic and constitutional law and
therefore violative of Article 14 of the
Constitution of India, and if it affects any
matter relating to public employment it
would also be violative of Article 16 of the
Constitution.' The court further held that
where the operative reason for State action
was not relevant and legitimate but was
extraneous and outside the permissible
considerations the same would be mala fide
exercise of power which is a feature of
arbitrariness and thus hit by Article 14. It
was observed that:-

"85. ... The basic principle which,
therefore, informs both Articles 14 and 16
is
equality
and
inhibition
against
discrimination. Now, what is the content
and reach of this great equalising principle?
It is a founding faith, to use the words of
Bose. J., "a way of life", and it must not be
subjected
to
a
narrow
pedantic
or
lexicographic
approach.
We
cannot
countenance any attempt to truncate its allembracing scope and meaning, for to do so
would be to violate its activist magnitude.
Equality is a dynamic concept with many
aspects and dimensions and it cannot be
"cribbed, cabined and confined" within
traditional and doctrinaire limits. From a
positivistic point of view, equality is
antithetic to arbitrariness. In fact equality
and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic
while the other, to the whim and caprice of
an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is
unequal both according to political logic
and constitutional law and is therefore
violative of Article 14, and if it effects any
matter relating to public employment, it is
also violative of Article 16. Articles 14 and
16 strike at arbitrariness in State action
and ensure fairness and equality of
treatment. They require that State action
must be based on valid relevant principles
applicable alike to all similarly situate and
it must not be guided by any extraneous or
irrelevant
considerations
because
that
would be denial of equality. Where the
operative reason for State action, as
distinguished from motive inducing from
the antechamber of the mind, is not
legitimate and relevant but is extraneous
and outside the area of permissible
considerations, it would amount to mala
fide exercise of power and that is hit by
Articles 14 and 16. Mala fide exercise of
power and arbitrariness are different lethal
radiations emanating from the same vice: in
fact the latter comprehends the former.
Both are inhibited by Articles 14 and 16.

86. It is also necessary to point
out that the ambit and reach of Articles 14
and 16 are not limited to cases where the
public servant affected has a right to a
post. Even if a public servant is in an
officiating position, he can complain of
violation of Articles 14 and 16 if he has
been arbitrarily or unfairly treated or
subjected to mala fide exercise of power by
the State machine. It is therefore, no
answer to the charge of infringement of
Articles 14 and 16 to say that the
10 All. Dr. Manohar Lal & Ors. Vs. State of U.P. & Ors.
441
petitioner had no right to the post of Chief
Secretary but was merely officiating in
that post. That might have some relevance
to Article 311 but not to Articles 14 and 16.
..."

22. The principle formulated in E.P.
Royappa (Supra) was applied by the
Supreme
Court
in
R.D.
Shetty
Vs.
International Airport Authority of India
and Others, (1979) 3 SCC 489 to hold, as
invalid, the act of the International Airport
Authority of India in awarding contract to
someone who did not fulfill the eligibility
requirements prescribed in the tender
documents. The court, while rejecting the
contention that the eligibility requirements
had no statutory force and hence the
departure from them was not justiciable,
held that principles of reasonableness and
rationality were essential element of nonarbitrariness and must characterise every
State action, whether it be under authority
of law or in exercise of executive power
without making of law and the State cannot
act arbitrarily and as a private individual in
entering into relationship, contractual or
otherwise with a third party. The court,
while holding that International Airport
Authority of India was a State under Article
12 of the Constitution, held the act of the
Airport Authority as being violative of the
equality clause of the Constitution and the
rule of administrative law inhibiting
arbitrary action. It was observed by the
court that:-

"12.
We
agree
with
the
observations of Mathew, J., in V. Punnan
Thomas v. State of Kerala [AIR 1969 Ker
81] that:

"The Government, is not and
should not be as free as an individual in
selecting the recipients for its largesse.
Whatever its activity, the Government is
still the Government and will be subject to
restraints, inherent in its position in a
democratic
society.
A
democratic
Government cannot lay down arbitrary and
capricious standards for the choice of
persons with whom alone it will deal."

... It must, therefore, be taken to
be the law that where the Government is
dealing with the public, whether by way of
giving jobs or entering into contracts or
issuing quotas or licences or granting other
forms of largesse, the Government cannot
act arbitrarily at its sweet will and, like a
private individual, deal with any person it
pleases, but its action must be in
conformity with standard or norms which is
not arbitrary, irrational or irrelevant. The
power or discretion of the Government in
the matter of grant of largesse including
award of jobs, contracts, quotas, licences,
etc. must be confined and structured by
rational, relevant and non-discriminatory
standard or norm and if the Government
departs from such standard or norm in any
particular case or cases, the action of the
Government would be liable to be struck
down, unless it can be shown by the
Government that the departure was not
arbitrary, but was based on some valid
principle which in itself was not irrational,
unreasonable or discriminatory.

...

...

...

20. Now, obviously where a
corporation is an instrumentality or agency
of Government, it would, in the exercise of
its power or discretion, be subject to the
same
constitutional
or
public
law
limitations as Government. The rule
442 INDIAN LAW REPORTS ALLAHABAD SERIES
inhibiting arbitrary action by Government
which we have discussed above must apply
equally where such corporation is dealing
with the public, whether by way of giving
jobs
or
entering
into
contracts
or
otherwise, and it cannot act arbitrarily and
enter into relationship with any person it
likes at its sweet will, but its action must be
in conformity with some principle which
meets the test of reason and relevance.

21. This rule also flows directly
from the doctrine of equality embodied in
Article 14. It is now well-settled as a result
of the decisions of this Court in E.P.
Royappa v. State of Tamil Nadu [(1974) 4
SCC 3 : (1974) 2 SCR 348] and Maneka
Gandhi v. Union of India [(1978) 1 SCC
248] that Article 14 strikes at arbitrariness
in State action and ensures fairness and
equality of treatment. It requires that State
action must not be arbitrary but must be
based on some rational and relevant
principle which is non-discriminatory: it
must not be guided by any extraneous or
irrelevant considerations, because that
would be denial of equality. The principle
of reasonableness and rationality which is
legally as well as philosophically an
essential element of equality or nonarbitrariness is projected by Article 14 and
it must characterise every State action,
whether it be under authority of law or in
exercise of executive power without
making of law. The State cannot, therefore,
act arbitrarily in entering into relationship,
contractual or otherwise with a third party,
but its action must conform to some
standard or norm which is rational and nondiscriminatory...."

23. The judgement of the Supreme
Court in R. D. Shetty (Supra) settled the
issue regarding justiciability of State
actions at the time of entering into
contracts. However, in later cases the
governments and entities held to be State
under Article 12 of the Constitution argued
against judicial review of their actions
during the subsistence of the contract and
against the maintainability of actions in
writ courts for enforcement of their
contractual obligations. The thrust of the
arguments on behalf of the State had been
that after the making of the contract,
whether a commercial agreement or a
service contract, any dispute between the
parties was in the realm of contract and the
State, if it defaults in performing its part of
the contract can, at best, be charged with
breach of contract for which the remedy
was by way of damages or any other
remedy available for breach of contract but
a writ of mandamus cannot be issued
compelling the State to perform its part of
the contract. The argument has been that
public law remedies cannot be invoked in
disputes arising out of contract and the
doctrine of fairness and reasonableness
applies only in the exercise of statutory or
administrative actions of the State and not
for fulfillment of contractual obligations
which have to be decided on the basis of
law of contract. The arguments have been
that in contractual matters, writ remedy
can, at the most, be invoked only in cases
of statutory contracts where actions of the
State involve a public duty and when the
State action has a public law character
attached to it. The aforesaid arguments
have been repeatedly rejected by the
Supreme Court as would be evident from
its judgements referred to subsequently.

24. The issue regarding judicial
review of State actions in contractual
matters and powers of the courts to enforce
the contractual obligations of the State or
its instrumentality was also considered by
the Supreme Court in Gujarat State
10 All. Dr. Manohar Lal & Ors. Vs. State of U.P. & Ors.
443
Financial Corporation Vs. Lotus Hotels
Pvt.