# Pandit Prithi Nath Memorial Society,Kanpur Nagar v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 595
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-15
- **Case number:** Writ A No. 14563 of 2021
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pandit-prithi-nath-memorial-society-kanpur-nagar-v-state-of-u-p-ors-47595
- **Pages:** 11

## Headnote

A. Service Law - UP Higher Education
Services Commission Act, 1980 -Selection
and appointment of Teachers in private
aided
institution
-
Power
of
State
Government to regulate it - Legislative
competence - Held, the State Legislature
has ample power to legislate on the
subject, dealt with by the Act, 1980. Thus,
596 INDIAN LAW REPORTS ALLAHABAD SERIES
there is no lack of legislative competence
to enact Act, 1980 - Further held, the
State Government, in case of such an
aided institution, has ample power to
regulate
method
of
selection
and
appointment of the teachers. (Para 11 and
12)
B. Constitution of India - Article 19(1)(g)
- Breach of Fundamental Rights - Field of
legislation, when interference called for -
Held, the constitutional validity of an Act
can be challenged only on two grounds,
viz. (i) lack of legislative competence; and
(ii) violation of any of the Fundamental
Rights guaranteed in Part III of the
Constitution or of any other constitutional
provision. Except the above two grounds,
there is no third ground on the basis of
which the law made by a competent
legislature can be invalidated - Once
petitioners
are
not
disputing
the
legislative
competence
of
the
State
Legislature to enact the Act, 1980 and the
field of legislation to regulate method of
appointment of teacher in private aided
institution, the question of breach of any
fundamental right of the petitioner's
institution including Article 19 (1) (g) of
the Constitution of India, do not arise at
all - T.M.A. Pai Foundation's case relied
upon. (Para 17 and 19)
Writ petition dismissed. (E-1)
List of Cases cited :-

## Text

3 All. Pandit Prithi Nath Memorial Society, Kanpur Nagar Vs. State of U.P. & Ors.
595
the school but they both remain in school
throughout the school timings. It is
therefore urged on behalf of petitioners that
distinction between full time and part time
teacher needs to be properly defined and all
part time teachers attending the KGBV
throughout the day cannot be denied salary
at par with full time teachers since both
remain in school throughout the school
hours.
According
to
petitioners
discrimination is being practiced in the
garb of classification.

66. On behalf of the respondents it is
sought to be urged that part time teachers
work only for a few hours, but no specific
provision in any applicable circular or
policy is placed before the Court, which
may demonstrate that lesser working hours
are prescribed for part time teachers
engaged in KGBV. This aspect therefore
does require necessary classification by the
respondents
or
else
the
purpose
of
undertaking the impugned exercise would
be futile.

67. The impugned circular has not
taken note of the NCTE regulations which
prescribe the qualifications for appointment
of teachers for upper primary classes and
has also not examined the issue of
engagement of teachers with reference to
curriculum
formulated
by
the
Basic
Shiksha
Parishad.
Respondents
have
proceeded on an erroneous assumption that
subjects specified in Schedule appended to
Sections 19 and 25 of the RTE Act, 2009
are exhaustive and therefore do not
additional subjects cannot being taught, is
wholly fallacious. The distinction drawn
between Sangat (consistent) and Asangat
(inconsistent) teachers coupled with the
direction for renewal of contract to be made
as per aforesaid classification clearly
unsustainable. Resultantly the impugned
circular dated 14.7.2020, issued by the
State Project Director, cannot be sustained
and stands quashed. Respondents are
directed to re-visit the issue, in the light of
qualifications
prescribed
vide
NCTE
regulations
as
also
the
curriculum
prescribed by the Basic Shiksha Parishad
for Classes VI to VIII and to proceed for
the
reasons
mentioned
herein
above
thereafter. It goes without saying that
petitioners shall be paid their honorarium
regularly and continuously. This bunch of
writ petitions, accordingly, stands allowed.
Cost made easy.
----------
(2022)03ILR A595
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 14563 of 2021

Pandit
Prithi
Nath
Memorial
Society,Kanpur Nagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dhiraj Srivastava, Sri T.P. Singh (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Gagan Mehta, Sri Gaurva
Mahajan

A. Service Law - UP Higher Education
Services Commission Act, 1980 -Selection
and appointment of Teachers in private
aided
institution
-
Power
of
State
Government to regulate it - Legislative
competence - Held, the State Legislature
has ample power to legislate on the
subject, dealt with by the Act, 1980. Thus,
596 INDIAN LAW REPORTS ALLAHABAD SERIES
there is no lack of legislative competence
to enact Act, 1980 - Further held, the
State Government, in case of such an
aided institution, has ample power to
regulate
method
of
selection
and
appointment of the teachers. (Para 11 and
12)
B. Constitution of India - Article 19(1)(g)
- Breach of Fundamental Rights - Field of
legislation, when interference called for -
Held, the constitutional validity of an Act
can be challenged only on two grounds,
viz. (i) lack of legislative competence; and
(ii) violation of any of the Fundamental
Rights guaranteed in Part III of the
Constitution or of any other constitutional
provision. Except the above two grounds,
there is no third ground on the basis of
which the law made by a competent
legislature can be invalidated - Once
petitioners
are
not
disputing
the
legislative
competence
of
the
State
Legislature to enact the Act, 1980 and the
field of legislation to regulate method of
appointment of teacher in private aided
institution, the question of breach of any
fundamental right of the petitioner's
institution including Article 19 (1) (g) of
the Constitution of India, do not arise at
all - T.M.A. Pai Foundation's case relied
upon. (Para 17 and 19)
Writ petition dismissed. (E-1)
List of Cases cited :-
1. T.M.A. Pai Foundation Vs St.of Karn. ; (2002)
8 SCC 481
2. Committee of Management, D.N. (P.G.)
College, Meerut Vs St. of U.P. & ors.; 2007 (5)
ADJ 398
3. Anant Mills Vs St.of Guj.; AIR 1975 SC 1234
4. Charanjit Lal Choudhary Vs U.O.I. & ors.; AIR
1951 SC 41
5. U.O.I. Vs Elphinstone Spinning and weaving
Co. Ltd.& ors.; AIR 2001 SC 724
6. St. of Bihar & ors. Vs Smt. Charusila Dasi;
AIR 1959 SC 1002
7. Kedar Nath Singh Vs St. of Bihar; AIR 1962
SC 955
8. Corporation of Calcutta Vs Libery Cinema;
AIR 1965 SC 1107
9. Anandji Haridas & Co. (P) Ltd. Vs S.P. Kasture
& ors.; AIR 1968 SC 565
10. Sunil Batra Vs Delhi Administration & ors.;
AIR 1978 SC 1675
11. St. of Bihar Vs Bihar Distilleries; AIR 1997
SC 1511
12. Zameer Ahmad Latifur Rehman Sheikh Vs
St. of Mah. & ors.; J.T. 2010 (4) SC 256
13. Greater Bombay Co-operative Bank Ltd Vs
United Yarn Tex (P) Ltd. & ors.; (2007) 6 SCC
236
14. Promoters & Builders Assoc. Vs Pune
Municipal Corporation; (2007) 6 SCC 143
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Vikas Budhwar, J.)

1. Supplementary affidavit filed
today, is taken on record.

2. Heard Sri T.P. Singh, learned
Senior Advocate, assisted by Sri Dhiraj
Srivastava,
learned
counsel
for
the
petitioners, Sri Gagan Mehta, learned
counsel for the respondent no.3 and Ms.
Subhas Rathi, learned Chief Standing
counsel for the State-respondents.

3. This writ petition has been filed
praying for the following relief:-

(I) Issue a writ, order or direction
in the nature of mandamus, declaring that the
U.P. Higher Education Services Commission
Act, 1980 and rules framed thereunder are
unconstitutional,
being
violative
of
fundamental rights of the petitioners' as
guaranteed under the Constitution of India.
3 All. Pandit Prithi Nath Memorial Society, Kanpur Nagar Vs. State of U.P. & Ors.
597

(ii) Issue writ, order or direction
in the nature of mandamus, commanding
and directing the respondents to permit the
petitioners' to manage, run, and control the
P.P.N. P.G. College, particularly in the
matters of selection, appointment and
disciplinary
action
of
teachers
and
principal in accordance with the U.P. State
University Act, 1973 and statues framed
thereunder by the Chhatrapati Sahu Ji
Maharaj University, Kanpur as earlier.

Submissions

4. Learned counsel for the petitioners
submits as under:-

(I) The U.P. Higher Education
Services Commission Act, 1980 takes away
the
autonomy
of
the
Committee
of
Management of the aided non-minority
institutions like the petitioners, and thus, it is
violative of Articles 14, 19 and 19 (1) (G) of
the Constitution of India.

(II) In the case of T.M.A. Pai
Foundation Versus State of Karnataka
(2002) 8 SCC 481, it is clearly held that the
autonomy of the aided private institutions
shall not be interfered with in the matter of
administering
the
institution
by
the
Committee of Management which include
the regulation for appointment of teachers in
such government aided private institution like
the petitioners.

5. Sri T.P. Singh, learned Senior
Advocate, learned counsel for the petitioners
states that no other submission is being
made
except
the
aforequoted
two
submissions.

6. Learned Standing Counsel and
learned Chief Standing Counsel for the Staterespondents support the impugned Act, 1980.

Facts of the case

7. Briefly stated facts of the present
case are that the petitioner's institution is
presently affiliated to Kanpur University
(now known as Chhatrapati Sahu Ji Maharaj
University, Kanpur). It is an aided institution.
The salaries and other benefits to entire
teachers and staff/employee of the petitioner's
institution are paid from the State Exchequer.
The validity of the U.P. Higher Education
Services Commission Act, 1980 (hereinafter
referred to as the "Act,1980") has been
upheld by the Division Bench of this Court in
the case of Committee of Management, D.N.
(P.G.) College, Meerut Versus State of U.P.
and others) 2007(5) ADJ 398 (DB). Now,
despite the validity of the Act, 1980 has been
upheld, the petitioners have filed the present
writ petition challenging the constitutional
validity of the Act, 1980.

Discussions and Findings

8. The Act, 1980 has been enacted by
the State Legislature to establish the
Service Commission in the selection and
appointment of the teacher to the colleges
affiliated or recognised by the University
and for matters connected therewith or
incidental
thereto.
Section-4
provides
composition of the Commission. Section11 provides powers and duties/function of
the Commission, which may include the
power to make recommendation to the
Management relating the appointment of
selected candidates. Section-12 provides
procedure for appointment of teacher
including responsibility of Management to
intimate the existing vacancy and the
vacancy likely to be caused during the
course of ensuing academic year to the
Director at such time and in such manner as
may be prescribed. The Director requiring
to notify the vacancy to the Commission.
598 INDIAN LAW REPORTS ALLAHABAD SERIES
The detail procedure has been prescribed
under Section 13 of the Act, 1980 for
recommendation
by
the
Commission.
Section-24 exempts minority institution in
the matter of appointment. Section-25
provides punishment in contravention of
the provision of the Act. Section-32
empowers the State Government to make
rules by notification, for carrying out the
purposes of the Act.

9. In the case of T.M.A. Pai
Foundation (supra), a Constitution Bench
(11 Judges) of Hon'ble Supreme Court
clearly held that the autonomy of a private
aided institutions would be less than that an
un-aided
institution
and
the
State
Government, in case of such an aided
institution, has ample power to regulate the
method of selection and appointment of
teachers
after
prescribing
requisite
qualifications for the same. Relevant para
nos. 71,72 and 73 are reproduced below:-

"71.
While
giving
aid
to
professional institutions, it would be
permissible for the authority giving aid to
prescribe by rules or regulations, the
conditions on the basis of which admission
will be granted to different aided colleges
by virtue of merit, coupled with the
reservation policy of the state. The merit
may be determined either through a
common entrance test conducted by the
University or the Government followed by
counseling, or on the basis of an entrance
test conducted by individual institutions -
the method to be followed is for the
university or the government to decide. The
authority may also device other means to
ensure that admission is granted to an
aided professional institution on the basis
of merit. In the case of such institutions, it
will be permissible for the government or
the university to provide that consideration
should be shown to the weaker sections of
the society.

72. Once aid is granted to a
private professional educational institution,
the government or the state agency, as a
condition of the grant of aid, can put fetters
on
the
freedom
in
the
matter
of
administration and management of the
institution. The state, which gives aid to an
educational institution, can impose such
conditions as are necessary for the proper
maintenance of the high standards of
education as the financial burden is shared
by the state. The state would also be under
an obligation to protect the interest of the
teaching and non-teaching staff. In many
states,
there
are
various
statutory
provisions to regulate the functioning of
such educational institutions where the
States give, as a grant or aid, a substantial
proportion of the revenue expenditure
including salary, pay and allowances of
teaching and non-teaching staff. It would
be its responsibility to ensure that the
teachers working in those institutions are
governed by proper service conditions. The
state, in the case of such aided institutions,
has ample power to regulate the method of
selection and appointment of teachers after
prescribing requisite qualifications for the
same. Ever since In Re The Kerala
Education Bill, 1957 [(1959) SCR 995],
this Court has upheld, in the case of aided
institutions, those regulations that served
the interests of students and teachers.
Checks on the administration may be
necessary in order to ensure that the
administration is efficient and sound and
will serve the academic needs of the
institutions. In other words, rules and
regulations
that
promote
good
administration
and
prevent
maladministration can be formulated so as to
promote
the
efficiency
of
teachers,
3 All. Pandit Prithi Nath Memorial Society, Kanpur Nagar Vs. State of U.P. & Ors.
599
discipline and fairness in administration
and to preserve harmony among affiliated
institutions. At the same time it has to be
ensured that even an aided institution does
not become a government-owned and
controlled institution. Normally, the aid
that is granted is relatable to the pay and
allowances of the teaching staff. In
addition, the Management of the private
aided institutions has to incur revenue and
capital expenses. Such aided institutions
cannot obtain that extent of autonomy in
relation to management and administration
as would be available to a private unaided
institution, but at the same time, it cannot
also
be
treated
as
an
educational
institution
departmentally
run
by
government or as a wholly owned and
controlled
government
institution
and
interfere with Constitution of the governing
bodies or thrusting the staff without
reference to Management.

Other Aided Institutions

73. There are a large number of
educational institutions, like schools and
non-professional colleges, which cannot
operate without the support of aid from the
state. Although these institutions may have
been established by philanthropists or
other public-spirited persons, it becomes
necessary, in order to provide inexpensive
education to the students, to seek aid from
the state. In such cases, as those of the
professional aided institutions referred to
hereinabove, the Government would be
entitled to make regulations relating to the
terms and conditions of employment of the
teaching and non-teaching staff whenever
the aid for the posts is given by the State as
well as admission procedures. Such rules
and regulations can also provide for the
reasons and the manner in which a teacher
or any other member of the staff can be
removed. in other words, the autonomy of a
private aided institution would be less than
that of an unaided institution.

10. In the case of Committee of
Management, D.N. (P.G.) College, Meerut
Versus State of U.P. and others) (supra),
Division Bench of this Court considered
the challenge to the validity of the Act,
1980 and held as under:-

8. The West Bengal Higher
Education
Commission
Act
(the
WB
Commission
Act)
is
similar
to
the
Commission Act and the appointments
there
are
also
made
on
the
recommendations of the West Bengal
Higher Education Commission. Brahmo
Samaj Educational Society was claiming
itself to be a minority in West Bengal and
challenged the vires of the WB Commission
Act. This matter was dealt in Brahmo
Samaj Educational Society and others
versus State of West Bengal and others:
(2004) 6 SCC 224 ( the Brahmo Samaj
case). In this case, the Supreme Court
neither
decided
the
issue
of
minority/denominational status of Brahmo
Samaj, nor declared the WB Commission
Act as ultravires. The court disposed it off
with the direction to the State to reconsider
the matter in the light of paragraphs no. 71
to 73 of the TMA Pai case. The counsel for
the petitioners, relying upon the Brahmo
Samaj case and paragraph 71 to 73 of the
TMA Pai case submit that the Commission
Act is ultravires the Constitution. Does the
Commission Act as it stands today imposes
unreasonable restrictions?.

9. The objects and reasons of the
Commission Act (Appendix-1) show that
this
Act
was
enacted
on
the
recommendation of the Vice Chancellors
and was to apply to the affiliated and
600 INDIAN LAW REPORTS ALLAHABAD SERIES
associated colleges only. This has been
done on the ground that

- The selection committees of the
individual colleges were expensive;

- Often selection meetings were
postponed because a common date did not
normally suit the members of the selection
committee.

- There were complaints of
favourtism.

10. The Commission Act as
originally enacted was very comprehensive.
The word appointment is defined under
section 2(a) of the Commission Act. (see
Appendix-2). It provided an inclusive
definition and included all appointments
except the appointment under section 31(3)
of the State Universities Act. Section 2(c) of
the Commission Act (see Appendix-2)
defines the word college and it included all
colleges to whom affiliation or recognition
has been granted by the University. Section
24 of the Act provided some exemption to
the minority institution but even here the
minority institution was required to take
approval before making appointments.
Thus, the Commission Act as originally
enacted had very wide application but now
it has been curtailed.

11. The Commission Act has been
amended by the UP Act No. 30 of 2004. It
has amended the definition of word
appointment and college as well as section
24 of the Commission Act (see Appendix-2).
The appointment is no longer as wide as it
used to be. The appointment is now
confined only to the posts described under
section 60-E of the State Universities Act.
Section 60-E of the State Universities Act
(Appendix-3) is titled as Liability in respect
of salary. Under this section, the State
Government is liable for payment of salary
against certain posts mentioned therein.
Amended section 2(a) read alongwith
section 60-E of the State Universities Act
clarify that now the Commission can only
make appointments in respect of the posts
for which the State Government has
undertaken liability to pay the salary.
12. Section 2(c) which defines the word
college has also been amended. Section 24
has also been suitably amended. The net
result of the amendment of these two in the
definition is that the Commission neither
makes any appointment in any minority
institution, nor any approval of the
commission is required by the minority
institution before making any appointment.

13. The Commission Act as it
stands has been altered. Earlier the
Commission
was
not
making
any
appointment in the minority institution but
its approval was required. Now the
approval of the Commission is no longer
required in the minority institutions.
Earlier the word appointment provided
inclusive definition. Now it has been
confined to the word appointment for which
the State Government is liable to pay the
salary. The Commission Act was enacted in
order to reduce expenses, wastage of time
and eradicate complaints of favouritism in
the selection of the candidate and now the
Commission is only required to make
appointment in respect to those posts for
which it is liable to pay salary. These
appointments can only be made by the
Commission if the candidate fulfils the
minimum qualification prescribed by the
statutes of the different universities. It
would have been better if the State had left
the appointments to the Committee of
management but in case it does not do so
then it can not be said that the State has
3 All. Pandit Prithi Nath Memorial Society, Kanpur Nagar Vs. State of U.P. & Ors.
601
imposed
unreasonable
restriction
by
entrusting right to make the appointment to
the Commission. In our opinion it is
reasonable restriction within the meaning
of Article 19(6) as well as article 26(a) of
the Constitution.

CONCLUSION

14. Our conclusion is that the UP
Higher Education Commission Act, 1980
as it stands today is intra-vires the
constitution. The writ petitions have no
merit and are dismissed.

11. From the facts and legal position
as well as looking into the provision of the
Act, 1980, we are of the considered view
that the Act, 1980 regulates the method of
selection and appointment of teachers in
private aided institution covered by it,
including the petitioner's institution. It has
neither been argued nor disputed before us
that the State Legislature has ample power
to legislate on the subject, dealt with by the
Act, 1980. Thus, there is no lack of
legislative competence to enact Act, 1980.

12. Once it has been settled by a
Constitutional Bench (11 Judges) in the
case of T.M.A. Pai Foundation (supra)
that the autonomy for a private aided
institutions would be less than that an unaided institution and the State Government,
in case of such an aided institution, has
ample power to regulate method of
selection and appointment of the teachers.
There is no question of infringing any
fundamental
right
of
the
petitioner's
institution by the impugned Act, 1980,
particularly when the learned counsel for
the petitioners has neither disputed nor
argued before us that the impugned Act,
1980 regulates the method of selection and
appointment of the teacher. The Act, 1980
does not infringe the fundamental right of
the petitioners referable to Article 19 (I)(g)
of the Constitution of India.

13. We requested the learned
counsel for the petitioners to point out
any specific provision of the Act, 1980,
which
according
to
him
is
unconstitutional, but he could not point
out any specific provision of the Act,
1980 which according to him is ultravires to the Constitution of India.

14. In the case of Anant Mills Vs.
State of Gujarat reported in AIR 1975 SC
1234 para 20, the Hon'ble Supreme Court
has held that :

"20. There is a presumption of
the constitutional validity of a statutory
provision. In case any party assails the
validity of any provision on the ground that
it is violative of Article 14 of the
Constitution, it is for that party to make the
necessary averments and adduce material
to show discrimination violative of Article
14. No averments were made in the
petitions before the High Court by the
petitioners that the assessments before the
coming into force of Ordinance 6 of 1969
bad been made by taking into account the
rent restriction provisions of the Bombay
Rent Act. Paragraph 2B and some other
paragraphs of petition No. 233 of 1970
before the High Court, to which our
attention was invited by Mr. Tarkunde, also
do not contain that averment. No material
on
this
factual aspect
was
in
the
circumstances produced either on behalf of
the petitioners or the Corporation. The
High Court, as already observed, decided
the matter merely on the basis of a
presumption.
It
is,
in
our
opinion,
extremely hazardous to decide the question
of the constitutional validity of a provision
602 INDIAN LAW REPORTS ALLAHABAD SERIES
on the basis of the supposed existence of
certain facts by raising a presumption. The
facts about the supposed existence of which
presumption was raised by the High Court
were of such a nature that a definite
averment could have been made in respect
of them and concrete material could have
been produced in support of their existence
or
non-existence.
Presumptions
are
resorted to when the matter does not admit
of direct proof or when there is some
practical difficulty to produce evidence to
prove a particular fact. When, however, the
fact to be established is of such a nature
that direct evidence about its existence or
non- existence would be available, the
proper course is to have the direct evidence
rather than to decide the matter by resort
to presumption. A pronouncement about
the constitutional validity of a statutory
provision affects not only the parties before
the Court, but all other parties who may be
affected by the impugned provision. There
would, therefore, be inherent risk in
striking down an impugned provision
without having the complete factual data
and full material before the court. It was
therefore, in our opinion, essential for the
High Court to ascertain and field out the
correct factual position before recording a
finding that the impugned provision is
violative of article 14. The fact that the
High
Court
acted
on
an
incorrect
assumption is also borne out by the
material which has been adduced before us
in the writ petitions filed under article 32 of
the Constitution."

15 . In the case of Charanjit Lal
Choudhary Vs. Union of India and others
reported in AIR 1951 SC 41 para 10, the
Hon'ble Supreme Court has held that there
is
presumption
that
the
legislature
understands and correctly appreciates the
need of its people. In the case of Union of
India Vs. Elphinstone Spinning and
weaving Co. Ltd. and Ors. reported in AIR
2001 SC 724 para 9, the Hon'ble Supreme
Court has laid down the law that the
legislature does not exceed its jurisdiction.
In the case of State of Bihar and others Vs.
Smt. Charusila Dasi reported in AIR 1959
SC 1002 para 14, the Hon'ble Supreme
Court has laid down the law that there is
presumption that the legislature does not
intend to exceed its jurisdiction. In the case
of Kedar Nath Singh Vs. State of Bihar
reported in AIR 1962 SC 955 para 26 the
Hon'ble Supreme Court held that provision
should be construed in the manner as will
uphold its constitutionality. In the case of
Corporation
of
Calcutta
Vs.
Libery
Cinema reported in AIR 1965 SC 1107 the
Hon'ble Supreme Court has laid down the
law that the provision should be read in the
manner as will make it valid. Similar view
has been expressed by the Constitution
Bench of Supreme Court in the case of
Anandji Haridas and Co. (P) Ltd. Vs. S.P.
Kasture and ors. reported in AIR 1968 SC
565, para 32. In the case of Sunil Batra
Vs. Delhi Administration and ors. reported
in AIR 1978 SC 1675 the Hon'ble Supreme
Court
observed
that
the
legislature
expresses wisdom of community. In the
case of State of Bihar VS. Bihar
Distilleries reported in AIR 1997 SC 1511,
para 18, the Hon'ble Supreme Court
observed that an Act made by legislature
represents the will of people and cannot be
lightly interfered with. In the case of
Zameer Ahmad Latifur Rehman Sheikh
Vs. State of Maharashtra and ors.
Reported in J.T. 2010 (4) SC 256 para 34,
the Hon'ble Supreme Court observed that
every legally possible effort should be
made to uphold the validity. In the case of
Greater Bombay Co-operative Bank Ltd
Vs. United Yarn Tex (P) Ltd. and others
reported in (2007) 6 SCC 236 para 82 to
3 All. Pandit Prithi Nath Memorial Society, Kanpur Nagar Vs. State of U.P. & Ors.
603
85 the Hon'ble Supreme Court observed as
under :

" 82 The constitutional validity
of an Act can be challenged only on two
grounds, viz. (i) lack of legislative
competence; and (ii) violation of any of the
Fundamental Rights guaranteed in Part III
of the Constitution or of any other
constitutional provision. In State of A. P. &
Ors. v. McDowell & Co. & Ors. [(1996) 3
SCC 709], this Court has opined that
except the above two grounds, there is no
third ground on the basis of which the law
made by the competent legislature can be
invalidated and that the ground of
invalidation must necessarily fall within the
four corners of the afore-mentioned two
grounds.

83. Power to enact a law is
derived by the State Assembly from List II
of the Seventh Schedule of the Constitution.
Entry 32 confers upon a State Legislature
the
power
to
constitute
cooperative
societies. The State of Maharashtra and the
State of Andhra Pradesh both had enacted
the MCS Act 1960 and the APCS Act, 1964
in exercise of the power vested in them by
Entry 32 of List II of the Seventh Schedule
of the Constitution. Power to the enact
would include the power to re-enact or
validate any provision of law in the State
Legislature, provided the same falls in an
entry of List II of Seventh Schedule of the
Constitution with the restriction that such
enactment should not nullify a judgment of
a competent court of law. In the appeals /
SLPs/petitions filed against the judgment of
the Andhra Pradesh High Court, the
legislative competence of the State is
involved for consideration. Judicial system
has an important role to play in our body
politic and has a solemn obligation to fulfil.
In such circumstances, it is imperative
upon the courts while examining the scope
of legislative action to be conscious to start
with
the
presumption
regarding
the
constitutional validity of the legislation.
The burden of proof is upon the shoulders
of the the incumbent who challenges it. It is
true that it is the duty of the constitutional
courts under our Constitution to declare a
law enacted by Parliament or the State
Legislature
as
unconstitutional
when
Parliament or the State Legislaturehad
assumed to enact a law which is void,
either for want of constitutional power to
enact it or because the constitutional forms
or conditions have not been observed or
where the law infringes the fundamental
rights enshrined and guaranteed in Part III
of the Constitution.

84. As observed by this Court in
CST v. Radhakrishnan in considering the
validity of a Statute the presumption is
always in favour of constitutionality and
the burden is upon the person who attacks
it to show that there has been transgression
of constitutional principles. For sustaining
the constitutionality of an Act, a Court may
take into consideration matters of common
knowledge, reports, preamble, history of
the times, objection of the legislation and
all other facts which are relevant. It must
always be presumed that the legislature
understands and correctly appreciates the
need
of
its
own
people
and
that
discrimination, if any, is based on adequate
grounds and considerations. It is also well-
settled that the courts will be justified in
giving a liberal interpretation in order to
avoid constitutional invalidity. A provision
conferring very wide and expansive powers
on
authority
can
be
construed
in
conformity
with
legislative
intent
of
exercise of power within constitutional
limitations. Where a Statute is silent or is
inarticulate, the Court would attempt to
604 INDIAN LAW REPORTS ALLAHABAD SERIES
transmutate the inarticulate and adopt a
construction which would lean towards
constitutionality albeit without departing
from the material of which the law is
woven. These principles have given rise to
rule of "reading down" the provisions if it
becomes necessary to uphold the validity of
the law.

85. In State of Bihar & Ors. v.
Bihar Distillery Ltd. & Ors. [(1997) 2 SCC
453], this Court indicated the approach
which the Court should adopt while
examining the validity/constitutionality of a
legislation. It would be useful to remind
ourselves of the principles laid down,
which read: (SCC p.466, para 17):

"The approach of the court, while
examining the challenge to the constitutionality
of an enactment, is to start with the presumption
of constitutionality. The court should try to
sustain its validity to the extent possible. It
should strike down the enactment only when it
is not possible to sustain it. The court should not
approach the enactment with a view to pick
holes or to search for defects of drafting, much
less inexactitude of language employed. Indeed,
any such defects of drafting should be ignored
out as part of the attempt to sustain the
validity/constitutionality of the enactment. After
all, an Act made by the legislature represents
the will of the people and that cannot be lightly
interfered with. The unconstitutionality must be
plainly and clearly established before an
enactment is declared as void. The same
approach holds good while ascertaining the
intent and purpose of an enactment or its scope
and application."

In the same para, this Court
further observed as follows:

"The Court must recognize the
fundamental nature and importance of
legislative process and accord due regard
and deference to it, just as the legislature
and the executive are expected to show due
regard and deference to the judiciary. It
cannot
also
be
forgotten
that
our
Constitution recognizes and gives effect to
the concept of equality between the three
wings of the State and the concept of
"checks and balances" inherent in such
scheme."

16. In the case of Promoters and
Builders Association Vs. Pune Municipal
Corporation (2007) 6 SCC. 143 para 9, the
Hon'ble Supreme Court has laid down the
law
that
while
exercising
legislative
function, unless unreasonableness and
arbitrariness is pointed out it is not open for
the Court to interfere.

17. The constitutional validity of an
Act can be challenged only on two
grounds, viz. (i) lack of legislative
competence; and (ii) violation of any of the
Fundamental Rights guaranteed in Part III
of the Constitution or of any other
constitutional provision. Except the above
two grounds, there is no third ground on the
basis of which the law made by a
competent legislature can be invalidated.
The
ground
of
invalidation
must
necessarily fall within the four corners of
the
aforementioned
two
grounds.
In
considering the validity of a Statute the
presumption is always in favour of
constitutionality and the burden is upon the
person who attacks it to show that there has
been
transgression
of
constitutional
principles.
For
sustaining
the
constitutionality of an Act, a Court may
take into consideration matters of common
knowledge, reports, preamble, history of
the times, object of the legislation and all
the other facts which are relevant. It must
always be presumed that the legislature
3 All. Arvind Kumar & Ors. Vs. State of U.P. & Ors.
605
understands and correctly appreciates the
need
of
its
own
people
and
that
discrimination, if any, is based on adequate
grounds and considerations. The courts will
be justified in giving a liberal interpretation
in order to avoid constitutional invalidity.
Where a Statute is silent or is inarticulate,
the Court would attempt to transmutate the
inarticulate and adopt a construction which
would lean towards constitutionality albeit
without departing from the material of
which the law is woven. These principles
give rise to rule of "reading down" the
provisions if it becomes necessary to
uphold the validity of the law. While
examining
the
challenge
to
the
constitutionality of an enactment, the court
is to start with the presumption of
constitutionality and try to sustain its
validity to the extent possible. The court
cannot approach the enactment with a view
to pick holes or to search for defects of
drafting,
much
less
inexactitude
of
language employed. An act made by the
legislature represents the will of the people
and that cannot be lightly interfered with. It
is presumed that the legislature expresses
wisdom of the community, does not intend
to exceed its jurisdiction and correctly
appreciates the need of its own people.

18. When these settled principles are
applied on the facts of the present case and
the submissions made by the parties, we
find that the petitioners have completely
failed
to
rebut
the
presumption
of
constitutional validity of the impugned Act,
1980.

19. Once petitioners are not disputing
the legislative competence of the State
Legislature to enact the Act, 1980 and the
field of legislation to regulate method of
appointment of teacher in private aided
institution, the question of breach of any
fundamental
right
of
the
petitioner's
institution including Article 19 (1) (g) of
the Constitution of India, do not arise at all,
particularly in view of law laid down by
Hon'ble Suprme Court in the case of
T.M.A. Pai Foundation (supra).

20. For all the reasons aforequoted,
we do not find any unconstitutionality in
the impugned Act, 1980. The writ petition
is wholly devoid of merit and is frivolous,
which
deserves
to
be
dismissed.
Consequently,
the
writ
petition
is
dismissed.
----------
(2022)03ILR A605
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 17530 of 2021

Arvind Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ankur Sharma, Nidhi Agarwal

Counsel for the Respondents:
C.S.C., A.S.G.I., Sri Siddharth Singhal

A. Service Law - UP Industrial Training
Institutes (Instructors) Service Rules,
2014 - Selection - Advertisement issued
and selection process started - In respect
of
two
posts
selection
was
already
concluded and recommendations were
made for appointment - Meantime, UP
Direct Recruitment to Junior Level Posts
(Discontinuation
of
Interview)
Rules,
2017 came to be framed which provide
that interview prescribed in the selection
procedure in the relevant service rules
would
be
discontinued
-
Validity