# Subhash Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2021) 6 ILRA 584
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-14
- **Case number:** Service Single No. 5995 of 2018
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-kumar-ors-v-state-of-u-p-ors-47133
- **Pages:** 18

## Headnote

A. Service Law - Payment of Salary - Uttar
Pradesh
Provincialised
National
Institution (Absorption of Employees in
the Government Service) Rules, 1992 -
Rules 2(Ka), 2(Kha); Government Order
dated 23.12.2016 - Impugned order dated
13.02.2018 has cancelled earlier GO dated
23.12.2016 whereby some educational
institutions were provincialised. As a
result of which, petitioners could not be
paid their regular salary. Hon'ble High
Court dismissed these petitions laying
down following reasons.

In the absence of a sanctioned post, the
High Court u/Art. 226 of the Constitution
would not be justified in issuing a
mandamus for the payment of salary,
6 All. Subhash Kumar & Ors. Vs. State of U.P. & Ors.
585
particularly since a mandamus cannot lie
in the absence of a legal right, based on
the existence of a statutory duty. (Para 25,
28, 48)

The Government Order dated 23.12.2016
was itself conditional. The Government Order
might have not been executed if the conditions
mentioned in this Government Order are not
satisfied in its letter and spirit. The crux of some
conditions of the Government Order for making
it effective within four corners of the law, is that
one condition provides that the financial burden
for making payment of salary etc. to the
teaching and non-teaching staff shall be
assessed.
Further,
before
issuing
the
provincialisation order of the institution, the
necessary exercise regarding creation/sanction
of posts and factum of financial burden on the
State Government would be examined, for
making payment of salary to the teaching and
non-teaching staff, with the consultation of
Finance Department., Further, the teaching staff
working in the provincialised institution before
its provincialisation should be working against
the duly sanctioned post, having proper
qualification. Condition No. 1(4) provides that
after carrying out required exercise in terms of
the Government Order dated 23.12.2016 by the
Director (Secondary), U.P., the approval shall be
sought
from
the
Hon'ble
Chief
Minister;
thereafter the posts shall be created/sanctioned
for making payment of salary by obtaining
specific approval to this effect from the finance
department. Like earlier occasion, it has been
observed in this order that it shall not be treated
as precedent. (Para 22, 23, 24, 32, 33, 45, 46)

Since the GO dated 23.12.2016 was itself a
conditional order, therefore, the execution
thereof was dependent upon fulfillment of
conditions of the GO which have not been
fulfilled by the then authorities. Hence, the GO
dated 23.12.2016 was not worth executable.

B. The principle of governance has to be
tested on the touchstone of justice, equity
and fair play and if the decision is not
based on justice, equity and fair play and
has
taken
into
consideration
other
matters, though on the face of it, the
decision may look legitimate but as a
matter of fact, the reasons are not based
on values but to achieve popular accolade,
that
decision

## Text

_Characters 0–39,652 of 63,750. This is a partial read: ask again with offset=39652 for what follows._

584 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) The appointing authority shall
prepare an eligibility list in accordance
with the Rule 6(4) of the Rules 2016 and
constitute
a
Selection
Committee
in
accordance with the Rule 6(3) for placing
the same before it;

(ii) The eligibility of the candidates
(daily wagers) working in the department
shall be determined in accordance with the
requirement of the Rule 6(1) of the Rules'
2016, considering the long period of their
engagement in the necessity or requirement
of the department.

(iii) The selection Committee shall
consider cases of all eligible candidates
included in the eligibility list placed by the
appointing
authority
before
it,
in
accordance with sub-rule (5) of Rule 6 and
prepare the list of selected candidates as is
required under Rule 6(6).

(iv) The regular appointment on the
available
vacancies,
subject
to
the
provisions of Rule 5 in accordance with the
sub-rule (1) of Rule 6, shall be granted to
all suitable candidates recommended in the
select list prepared by the Selection
Committee, in accordance with the Rules 7
and 8.

(v) The services of only those daily
wagers included in the eligibility list who
are not found suitable by the Selection
Committee on assessment of their service
records, can be terminated by taking
recourse to the Rule 10 of the Rules by
giving them one month's wages.

(vi)
The
entire
exercise
of
regularisation of daily wage employees
working in the Social Forestry Department,
who fulfill the eligibility criteria prescribed
in Rule 6(1) of 2016 Rules, in accordance
with the above directions, has to be
completed by the Department within a
period of six months from the date of the
presentation of the copy of this order. Any
deviation or digression from the procedure
prescribed in the Regularisation Rules'
2016 shall be seen as inaction or infraction
of law and may entail adverse action
against the competent authority.

33. With the aforesaid observations
and directions, both the writ petitions are
allowed.
----------
(2021)06ILR A584
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.06.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 5995 of 2018
along with Service Single nos. 9389 of 2018,
22948 of 2019, 24443 of 2020 & 13641 of 2018

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

Counsel for the Petitioners:
Laltaprasad Misra, Hari Krishna Srivastava,
Prafulla Tiwari, Surendra Kumar Tripathi

Counsel for the Respondents:
C.S.C.

A. Service Law - Payment of Salary - Uttar
Pradesh
Provincialised
National
Institution (Absorption of Employees in
the Government Service) Rules, 1992 -
Rules 2(Ka), 2(Kha); Government Order
dated 23.12.2016 - Impugned order dated
13.02.2018 has cancelled earlier GO dated
23.12.2016 whereby some educational
institutions were provincialised. As a
result of which, petitioners could not be
paid their regular salary. Hon'ble High
Court dismissed these petitions laying
down following reasons.

In the absence of a sanctioned post, the
High Court u/Art. 226 of the Constitution
would not be justified in issuing a
mandamus for the payment of salary,
6 All. Subhash Kumar & Ors. Vs. State of U.P. & Ors.
585
particularly since a mandamus cannot lie
in the absence of a legal right, based on
the existence of a statutory duty. (Para 25,
28, 48)

The Government Order dated 23.12.2016
was itself conditional. The Government Order
might have not been executed if the conditions
mentioned in this Government Order are not
satisfied in its letter and spirit. The crux of some
conditions of the Government Order for making
it effective within four corners of the law, is that
one condition provides that the financial burden
for making payment of salary etc. to the
teaching and non-teaching staff shall be
assessed.
Further,
before
issuing
the
provincialisation order of the institution, the
necessary exercise regarding creation/sanction
of posts and factum of financial burden on the
State Government would be examined, for
making payment of salary to the teaching and
non-teaching staff, with the consultation of
Finance Department., Further, the teaching staff
working in the provincialised institution before
its provincialisation should be working against
the duly sanctioned post, having proper
qualification. Condition No. 1(4) provides that
after carrying out required exercise in terms of
the Government Order dated 23.12.2016 by the
Director (Secondary), U.P., the approval shall be
sought
from
the
Hon'ble
Chief
Minister;
thereafter the posts shall be created/sanctioned
for making payment of salary by obtaining
specific approval to this effect from the finance
department. Like earlier occasion, it has been
observed in this order that it shall not be treated
as precedent. (Para 22, 23, 24, 32, 33, 45, 46)

Since the GO dated 23.12.2016 was itself a
conditional order, therefore, the execution
thereof was dependent upon fulfillment of
conditions of the GO which have not been
fulfilled by the then authorities. Hence, the GO
dated 23.12.2016 was not worth executable.

B. The principle of governance has to be
tested on the touchstone of justice, equity
and fair play and if the decision is not
based on justice, equity and fair play and
has
taken
into
consideration
other
matters, though on the face of it, the
decision may look legitimate but as a
matter of fact, the reasons are not based
on values but to achieve popular accolade,
that
decision
cannot
be
allowed
to
operate. (Para 26, 27, 38, 40, 55)

In the light of what has been said above, the
Government Order dated 23.12.2016 does not
appear to have been issued in a fair manner so
it may not be said to be a justiciable
Government Order. In fact, 'justice' means
nothing more and nothing less than being fair.
Therefore, the said Government Order dated
23.12.2016 has been rightly withdrawn by the
impugned Government Order dated 13.2.2018.
(Para 55)

In the instant case, since apparent haste has
been shown in issuing Government Order dated
23.12.2016 provincialising seven educational
institutions
just
before
few
days
from
enforcement of model code of conduct for
holding Assembly Election, 2017 and without
conducting the required exercise, as discussed
above, such exercise of the authorities may not
be appreciated. Further, the approval of the
aforesaid exercise of provincialisation was given
by the then Chief Minister either on the last date
of election i.e. 8.3.2017 or after counting of
votes on 14.3.2017 (date of counting was
11.3.2017). No exceptional circumstance or
urgency
has
been
shown
by
the
then
Government/authority
in
issuing
such
Government Order on 23.12.2016, therefore,
the purpose of issuing said Government Order
comes under the cloud of suspicion as it
appears, prima facie, to be a lucrative
Government Order extending the benefits to
certain
persons/institutions
for
forthcoming
election. (Para 30, 31, 49 to 52, 56)

C. What cannot be done directly, it is not
permissible to be done obliquely. In other
words, whatever is prohibited by the law to be
done, cannot legally be effected by an indirect
manner. The authority cannot be permitted to
evade a law by 'shift or contrivance'. (Para 57)

Rules of 1992 were promulgated with a view to
absorb the services of teaching staff against
newly
created
post
in
the
provincialised
institutions. In the bunch of the writ petitions,
besides teaching staff so many non-teaching
staff i.e. Class-III and Class-IV employees have
been
impleaded
as
petitioners
and
the
586 INDIAN LAW REPORTS ALLAHABAD SERIES
Absorption Rules, 1992 do not cover the service
conditions of Class-III and Class-IV employees
in any manner whatsoever. Not only the above,
said Rules would be applicable on the teaching
staff working in the provincialised institute
before its provincialisation and also working
against the duly sanctioned post after its
provincialisation. It has nothing to do with the
process of provincialisation of an institute. As a
matter of fact, Absorption Rules, 1992
would be applicable on teaching staff, not
on non-teaching staff and those teaching
staff
should
be
serving
in
the
provincialised
institution
before
its
provincialisation
serving
on
duly
sanctioned post. Therefore, the ground taken
in the impugned order dated 13.2.2018 appears
to be valid one and the impugned order dated
13.2.2018 does not require any interference
from this Court. (Para 34, 35, 37, 53)

In view of the factual and legal matrix of the
issue, there is no specific Act, Rule or
statutory
backing
for
passing
the
provincialisation order as it could have
been
issued
in
an
exceptional
circumstance but following the norms.
Further, the Absorption Rules, 1992 are not
applicable in the case in hand, therefore, the
petitioners do not have any statutory or legal
right in their favour to get their institutions
provincialised and in absence of any legal or
statutory right, petitioners are not entitled to
get any relief u/Art. 226 of the Constitution of
India. (Para 29, 47, 58)

D. Applicability of Article 21-A of the
Constitution - It is very much clear that Article
21-A mandates that the State shall provide free
and compulsory education to all children of the
age of six to fourteen years in such manner as
the State may, by law, determine. This
constitutional provision itself provides that while
following
the
said
provision,
the
legal
requirement would be adhered to by the State
Government concerned. In the case in hand,
there is no such complaint that provision of Art.
21-A is being flouted
vide order dated
13.2.2018. Even no specific prayer in any writ
petition has been made that the GO dated
13.2.2018 be quashed being violative of Art. 21A. As per admitted fact by the petitioners
themselves that they are imparting education in
those institutions even today. (Para 42, 54)

Writ petitions dismissed. (E-2)

Precedent followed:

1. St. of U.P. through Secretary, Secondary
Education
&
ors.
Vs
C/M
Sri
Sukhpal
Intermediate College, Tirhut, Sultanpur & ors.,
Special Appeal Defective No 673 of 2014 (Para
25, 48)

2. Onkar Lal Bajaj & ors. Vs U.O.I. & ors.,
(2003) 2 SCC 673 (Para 40)

Precedent cited:

1. St. of T.N. & ors. Vs. K. Shyam Sunder & ors.,
(2011) 8 SCC 737 (Para 17)

2. St. of M.P. & ors. Vs. Ram Babu Tyagi & ors.,
order dated 25.02.2015, Civil Appeal No. 2329
of 2010 & ors. connected appeals (Para 19)

3. T.M.A. Pai Foundation Vs. St. of Karn., (2002)
8 SCC 481 (Para 21)

Petitions assail order dated 13.02.2018,
passed by State Government.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Prashant Chandra, Sri J.N.
Mathur, learned Senior Advocates assisted by
Sri H.K.Srivastava and Sri Akbar Ahmad
appearing on behalf of the petitioners in Writ
Petition No.9389 (S/S) of 2018, Dr. L.P.
Mishra, Advocate assisted by Sri Mukund
Madhav Asthana in Writ Petition No.5995
(S/S) of 2018, Sri Hari Prasad Gupta, learned
counsel for the petitioners in Writ Petition
No.22948 (S/S) of 2019 and Writ Petition
No.13641 (S/S) of 2018 and Sri Ramesh
Kumar Singh, learned Additional Advocate
General of U.P. assisted by Sri Pratyush
Tripathi, learned Standing Counsel for the
State Respondents.
6 All. Subhash Kumar & Ors. Vs. State of U.P. & Ors.
587

2. Learned Standing Counsel has
submitted that the counter affidavit of the
State filed in Writ Petition No.13641 (S/S)
of 2018 may be read as counter affidavit in
Writ Petition No.22948 (S/S) of 2019.
Likewise, the counter affidavit of the State
filed in Writ Petition No.9389 (S/S) of
2018 may be read as counter affidavit in
Writ Petition No.24443 (S/S) of 2020.

3. Since the rejoinder affidavits have
also been filed in those writ petitions and
parties are agreeable that those affidavits
may be treated sufficient for all the writ
petitions, therefore, those affidavits shall be
treated sufficient for disposal of the bunch
of these writ petitions.

4. This is the bunch of writ petitions
having similar question of fact and law,
therefore, with the consent of learned
counsels for the respective parties of the
writ petitions, these writ petitions are being
decided by a common judgment and order.

5. In all the writ petitions, there are
mainly two prayers; (i) quashing of the
Government Order dated 13.02.2018 issued
by the Secretary, Government of U.P. ,
Department of Education (8) Anubhag,
addressing to the Director of Education
(Secondary), U.P., cancelling the earlier
Government
Order
dated
23.12.2016
whereby some Educational Institutions had
been provincialised; (ii) commanding the
Competent Authority to accord necessary
approval under sub-para (4) of paragraph-4 of
the Government Order dated 23.12.2016 and
pay regular salary to the petitioners along
with arrears with effect from 23.12.2016 with
interest.

6. Notably, none of the writ petition has
been filed by the Educational Institution
which
had
been
provincialised
vide
Government Order dated 23.12.2016, which
has been cancelled by the impugned
Government
Order
dated
13.02.2018.
Actually, these writ petitions have been filed
by the teachers and non-teaching staff, e.g.
Class-II and Class IV employees, who have
allegedly been teaching and serving in those
Institutions taking ground that the impugned
order dated 13.02.2018 is directly affecting
them as despite those teachers having
imparted education to the students and others
have been serving in those Institutions, they
are not being paid salary etc. with effect from
23.12.2016, the date when those Institutions
have been provincialised by the State
Government after taking over the possession
of all the properties of such Institutions
allegedly as per law. Further, as per learned
counsel for the petitioners that since all the
assets and liabilities have been taken over by
the State Government so the Committee of
Management of the Institutions or Institutions
alone
may
not
assail
the
impugned
Government Order dated 13.02.2018.

7. The relevant facts, briefly, are being
considered here-in-below:-

8.

On
23.12.2016,
the
State
Government issued a Government Order
deciding to take over seven Educational
Institutions, out of those seven Institutions,
teachers and non-teaching staff of five
Institutions have filed writ petitions which are
before this Court for adjudication. The
properties including the assets and liabilities
of these Institutions have been acquired by
the State Government for converting those
Institutions from 'Un-aided Management
Institutions' to the Government Institutions.

9. The aforesaid decision has been
taken and approved by the then Chief
Minister of the State of U.P. on 08.03.2017
for taking over Self-Finance Institutions by
588 INDIAN LAW REPORTS ALLAHABAD SERIES
the State Government. This exercise has
been allegedly carried out in terms of Uttar
Pradesh Provincialised National Institution
(Absorption
of
Employees
in
the
Government Service) Rules, 1992 (here-inafter referred to as the 'Absorption of
Employees Rules, 1992').

10. After the aforesaid decision being
taken, required exercise is said to have been
carried out e.g. physical possession of the
properties of the Institutions including the
assets and liabilities as well as administrative
control has been taken over by the legal
authority i.e. the District Inspector of Schools
(here-in-after referred to as the 'D.I.O.S.')
concerned. Thereafter, a certificate to this
effect has been issued by the Manager/
Principal of the Institution and the D.I.O.S.
concerned, vide which the Management of
the Institution has been handed over to the
Administrator
appointed
by
the
State
Government. Whereafter a transfer deed was
also executed.

11. It has been submitted that the
teachers and other non-teaching staff were
appointed in the Institutions in question by
following due procedure of law and were
imparting education to the students and were
serving even after the aforesaid exercise of
transfer of the Institutions to the State
Government is carried out. However, those
teachers and other non-teaching staff are not
being paid salary with effect from 23.12.2016
when the Government Order was issued
taking over the Institutions by the State
Government for the reason that the necessary
approval from the Finance Department was
to be accorded under the Government Order
dated 23.12.2016. However, such approval
was not accorded rather the Government
Order dated 23.12.2016 has been cancelled
by the subsequent Government Order dated
13.2.2018.

12.
 Learned
counsels
for
the
petitioners
have
submitted
that
the
Institutions in question have been acquired
by the State Government strictly in
accordance to law and after completing all
the required exercise the transfer deed was
executed so the impugned order dated
13.02.2018
withdrawing
the
earlier
Government Order dated 23.12.2016 is
absolutely illegal and malafide exercise of
powers and without having any cogent
reasons to that effect.

13.
 Learned
counsels
for
the
petitioners have further submitted that it is
the
government
which
functions
irrespective of the political fitment to
which the ruling party for the time being
might belong. A decision taken by the
Cabinet of a previous government, as
approved by the Chief Minister of the time
governing the affairs of the State, cannot be
overturned by a subsequent government
belonging to another political fitment. The
decision to provincialise the educational
Institutions in which the petitioners have
been working after their appointment duly
made has been cancelled after change of
the government in the year 2018, the few
months after the Government Order dated
23.12.2016 provincialising the petitioners'
Institutions
were
acted
upon
and
implemented by taking over the assets,
properties, both movable and immovable
and the Management at a stage when the
landed properties were duly mutated in the
name
of
State
Government
through
concerned D.I.O.S. The overturning of
conscious decision so taken by the State
Government and having duly been acted
upon ultimately resulting in the final taking
over of the assets and liabilities of
educational Institutions and also after
taking over of the management of these
Institutions, management and control by
6 All. Subhash Kumar & Ors. Vs. State of U.P. & Ors.
589
vesting the same in the State Government
cannot at all be set at naught subsequently.
In this regard, it has been further submitted
that a purposeful and objective imparting of
education is the very edifice and back-bone
of a developing or even a developed society
and a decision taken in public interest for
imparting a quality education in some
Institutions cannot at all be termed as a step
contrary to public interest, rather, such
steps are in furtherance of the public policy
of a welfare State.

14. Further, the recital in the impugned
Government Order dated 13.02.2018 has
been given vide paragraph 2 (1) that there is
no provision under the U.P. Intermediate
Education
Act,
1921
in
regard
to
provincialisation
of
non-governmental
Intermediate Colleges not receiving grant-inaid nor there is any such policy prevalent in
the State of U.P. nor there is any statutory
rules providing for such a contingency of
provinciliasation
suffers
from
extreme
arbitrariness and non-application of mind
inasmuch as there has been a constant policy
prevalent
in
the
State
of
U.P.
for
provincialisation
of
non-aided
nongovernmental educational Institutions as
government colleges and there are statutory
rules framed in that regard in exercise of
power under Article 309 of the Constitution
of
India
known
as
Uttar
Pradesh
Provincialised
National
Institution
(Absorption of Employees in the Government
Service) Rules, 1992. Undisputedly, these
rules having been framed under Article 309
of the Constitution of India were given effect
to with effect from 22.07.1992 when they
were published in the official gazette. This
necessarily infers that there has been a policy
prevalent
in
the
State
of
U.P.
for
provincialisation
of
the
Educational
Institutions as Government Institutions.

15. Further, once rules under Article
309 of the Constitution of India have been
framed laying down the conditions for
exercise of power for an action on the part
of the Executive Authorities of the State, it
cannot at all be said, as stated in the
impugned order vide paragraph-2 (2) that
the proceedings for provincialisation of the
petitioners' colleges was not taken after
prescribing any policy nor was transparent.
In this regard, the attention of this Court is
invited to the rigorous conditions put in the
government order to the effect that the
colleges should not have any debt liability,
that there should be no encumbrance on the
college properties, that there should not be
any dues and that there should be no
dispute in regard to the Management .
Therefore, it cannot at all be said
reasonably that the action of taking over/
provincialisation of the colleges was not
transparent.

16.
 Learned
counsels
for
the
petitioners have vehemently submitted that
despite the impugned exercise having taken
at a stage when the provincialisation was
fully given effect to by taking over the
movable
and
immovable
properties
including cash and fee etc. by the State
Government and at a stage when even the
Management
of
the
colleges
stood
transferred and the transfer of immovable
properties was duly affected in the village
revenue
records,
the
consequential
impugned exercise of non-payment of
salary to the petitioners by the State
Government is violative of the fundamental
right to life guaranteed to them under
Article 21 of the Constitution of India and
all the petitioners have been working in
their respective capacities since after taking
over the colleges and they have been
subjected to a 'Begar' as well which is again
590 INDIAN LAW REPORTS ALLAHABAD SERIES
prohibited under the Constitutional Scheme
of this great Nation.

17.
 Learned
counsels
for
the
petitioners have cited the dictum of Hon'ble
Supreme Court in re: State of Tamil Nadu
and others vs. K. Shyam Sunder and
others reported in (2011) 8 SCC 737 by
submitting that the action taken by a
previous government for betterment of the
education in the Educational Institutions,
where a large number of students have been
taking education, cannot be and should not
be nullified so arbitrary. They have mainly
referred paras-31 to 35 of the aforesaid
judgment, which are being reproduced
here-in-below:-

"31. The Government has to rise
above the nexus of vested interests and
nepotism and eschew window-dressing.

"36.......
the
principles
of
governance have to be tested on the
touchstone of justice, equity, fair play and
if a decision is not based on justice, equity
and
fair
play
and
has
taken
into
consideration other matters, though on the
face of it, the decision may look legitimate
but as a matter of fact, the reasons are not
based on values but to achieve popular
accolade, that decision cannot be allowed
to operate". (Vide: Onkar Lal Bajaj v.
Union of India & Anr., AIR 2003 SC 2562).

32. In State of Karnataka & Anr. v. All
India Manufacturers Organisation & Ors,
this
Court
examined
under
what
circumstances
the
government
should
revoke a decision taken by an earlier
Government. The Court held that an
instrumentality of the State cannot have a
case to plead contrary from that of the
State and the policy in respect of a
particular project adopted by the State
Government should not be changed with
the change of the government. The Court
further held as under:- (SCC p.706, para59)

"59........It is trite law that when
one of the contracting parties is 'State'
within the meaning of Article 12 of the
Constitution, it does not cease to enjoy the
character of 'State' and, therefore, it is
subjected to all the obligations that 'State'
has under the Constitution. When the
State's acts of omission or commission are
tainted with extreme arbitrariness and with
mala fides, it is certainly subject to
interference
by
the
Constitutional
Courts......."

(Emphasis added)

33. While deciding the said case,
reliance had been placed by the Court on
its earlier judgments in State of U.P. &
Anr. v. Johri Mal and State of Haryana v.
State of Punjab & Anr.. In the former, this
Court held that the panel of District
Government
Counsel
should
not
be
changed only on the ground that the panel
had
been
prepared
by
the
earlier
Government. In the latter case, while
dealing with the river water-sharing
dispute between two States, the Court
observed thus: (SCC p.538, para-16)

"16.........in
the
matter
of
governance of a State or in the matter of
execution of a decision taken by a previous
Government, on the basis of a consensus
arrived at, which does not involve any
political
philosophy,
the
succeeding
Government must be held duty-bound to
continue and carry on the unfinished job
rather than putting a stop to the same."

34. In M.I. Builders (P) Ltd. v. V.
Radhey Shyam Sahu & Ors., while dealing
with a similar issue, this Court held that
Mahapalika being a continuing body can
be estopped from changing its stand in a
given case, but where, after holding
enquiry, it came to the conclusion that
action was not in conformity with law,
6 All. Subhash Kumar & Ors. Vs. State of U.P. & Ors.
591
there cannot be estoppel against the
Mahapalika.

35. Thus, it is clear from the above,
that unless it is found that act done by the
authority earlier in existence is either
contrary
to
statutory
provisions,
is
unreasonable, or is against public interest,
the State should not change its stand
merely because the other political party
has come into power. Political agenda of
an individual or a political party should not
be subversive of rule of law."

18. Therefore, on the basis of the
aforesaid judgment, learned counsels for the
petitioners have reiterated that the law of land
is that the decision taken by the previous
government cannot be changed by the
subsequent government which is under legal
obligation to complete decision so taken or
announced by the previous government.

19. Learned counsels for the petitioners
have further submitted that in an identical
case decided by Hon'ble Supreme Court vide
judgment and order dated February 25, 2015
in the case of State of Madhya Pradesh and
others vs. Ram Babu Tyagi and others
rendered in Civil Appeal No.2329 of 2010
and other connected appeals, wherein the
identical controversy was involved and the
direction issued by the Hon'ble Madhya
Pradesh High Court directing the State
Government to absorb the staff members and
the
teachers
of
the
school
after
provincialization of those schools, rejected
the contention of the State Government that
taking over was not in accordance with the
policy and rejecting the contention raised on
behalf of the State, upon the direction issued
by the Hon'ble Madhya Pradesh High Court.

20. Sri Prashant Chandra, learned
Senior
Advocate
has
vehemently
submitted,
during
course
of
final
arguments, that if it is presumed however
not admitted, that there was no specific
legislation or statutory provisions in the
State of U.P. regarding provincialisation of
the
educational
Institutions,
the
Constitutional mandate would be used to
fill the void. Further, it is the duty of the
Constitutional Courts to ensure that the
Constitutional guarantees are upheld and
the
Article
under
Part
III
of
the
Constitution are to be given full effect with
or without any legislation in place.

21. In support of his argument, he has
submitted that the provincialisation of
educational Institution by various State
Governments was an exercise which was
being performed for quite some time. This
was directly attributable to provisions
contained in Article 45 of the Constitution
of India. The said Article had required the
State to impart free education upto the age
of 14 years, but in practice, it was found
that State had failed to fulfill this solemn
obligation. This gave rise to dispute
between private Institutions and the State
Governments and the matter finally reached
the Hon'ble Apex Court. After so many
judgments of Hon'ble Apex Court in
various
matters,
in
T.M.A.
Pai
Foundation. vs. State of Karnataka,
(2002) 8 SCC 481, the necessity to impart
free education the children of tender age
was emphasized and this judgment is being
consistently considered even now. Thus, in
its wisdom, Parliament inserted Article 21A
by
replacing
Article
45
of
the
Constitution and a mandate to impart free
quality education by the State was
incorporated with effect from 2002. As per
Sri
Chandra
for
provincialising
the
Institutions the State appears to have
promulgated the absorption Rules, 1992.
Therefore, Sri Chandra has submitted
vehemently
that
provincialising
the
592 INDIAN LAW REPORTS ALLAHABAD SERIES
Institutions in question vide order dated
23.12.2016
was
perfectly
valid
and
inconformity
with
the
Constitutional
provisions and with the Absorption Rules,
1992.

22. Per contra, Sri Ramesh Kumar
Singh,
learned
Additional
Advocate
General of U.P. assisted by Sri Pratyush
Tripathi, learned Standing Counsel has
submitted with vehemence that the required
exercise,
before
issuing
the
provincialisation order of the Institutions in
question, has not been carried out. Though
there is no Policy, Act or Rules etc.
provincialising the Institutions in question
but in exceptional circumstances some
Institutions were provincialised on earlier
occasion
without
treating
them
as
precedence. At least, before issuing the
provincialisation order of the Institutions in
question the posts were created/ sanctioned
by the State Government with necessary
financial approval after proper assessment/
examination of financial burden and
another necessary aspects of the matter,
whereas in the issue in question, the State
Government did not perform any such
burden and the order of provincialisation
was passed without any assessment of
financial burden and without creation of
any post for the concerned Institutions,
even without getting necessary financial
approval from the Finance Department. He
has drawn attention of this Court towards
the Government Order dated 23.12.2016
wherein all the aforesaid modalities have
been indicated and these modalities /
conditions have not been followed by the
then
authorities,
therefore,
the
said
Government Order cannot be executed. The
undue haste has been shown by the then
authorities
for
provincialising
seven
educational Institutions for no cogent
reasons, even in contravention of the
specific conditions of Government Order
dated 23.12.2016. As a matter of fact, the
Government Order dated 23.12.2016 was
conditional order and execution thereof was
subject to fulfillment of those conditions
which have not been followed in the
present case.

23. Hence, the demand of the present
petitioners for payment of salary from the
State Exchequer is not appropriate, just and
proper in the absence of sanctioned posts of
their respective Institutions. Therefore, as
per Sri Singh, the earlier instances of
provincialisation of the Institutions may not
be cited inasmuch as even in the
exceptional circumstances at that point of
time required exercise was carried out, e.g.
posts were created, sanctioned by the State
Government
with
necessary
financial
approval for those Institutions after proper
assessment/
examination
of
financial
burden and other necessary aspects.

24. Sri Singh has further submitted
that it is clear from perusal of the note of
note-sheet dated 08.03.2017, as annexed by
the petitioners themselves in the writ
petition, as Annexure No.2, that approval
for payment of salary by the then Chief
Minister was given on the basis of list
approved by those concerned Institutions
and without any approval of the same from
the Finance Department and without
sanctioning/ creating any post by adopting
due procedure for the same in the
concerned Institutions, makes it clear that
the entire exercise is nullity in the eyes of
law inasmuch as in the absence of any
sanctioned post with necessary financial
approval, the payment of salary against the
non-existing post is not possible.

25. In support of his submissions, Sri
Singh has cited the judgment of Hon'ble
6 All. Subhash Kumar & Ors. Vs. State of U.P. & Ors.
593
Full Bench of this Court dated 12.05.2015
rendered in Special Appeal Defective
No.673 of 2014; State of U.P. through
Secretary, Secondary Education & Ors.
vs. C/M Sri Sukhpal Intermediate College,
Tirhut, Sultanpur & Ors., whereof the
operative portion is as under:-

"In the absence of a sanctioned post, a
direction cannot be issued to the state in
the exercise of powers under Article 226 of
the Constitution for the payment of salary.
The position in law, with which we
respectfully concur, is as laid down in the
judgment of the Full Bench in Gopal
Dubey's case. The judgment in Om Prakash
Verma is consistent with the law laid down
in Gopal Dubey's case. In the absence of a
sanctioned post, the High Court under
Article 226 of the Constitution would not be
justified in issuing a mandamus for the
payment of salary, particularly since a
mandamus cannot lie in the absence of a
legal right, based on the existence of a
statutory duty."

26. Sri Singh has also submitted that
there is no quarrel on the point that the
subsequent government should not change
the stand of earlier government if the said
stand is reasonable and has been taken in
public interest with bonafide intention and
the same qualifies the tests on touchstone
of justice, equity and fair play. However, in
the present case, when the date of
Assembly Election was to be announced
any day the provincialisation order was
passed
on
23.12.2016,
even
without
determining any policy, as submitted
above. He has apprised that the election
notification for Assembly Election of the
State of U.P. was issued by the Election
Commission of India on 04.01.2017 for
holding election in the State of U.P. besides
other States. Accordingly, Model Code of
Conduct was implemented on 04.01.2017.
The
election
process
initiated
on
17.01.2017. The date of voting started from
11.02.2017 to 08.03.2017 and all the
required exercise regarding election was to
be finalized on 15.03.2017. Notably, all the
required exercise with respect to Assembly
Election was to be carried out from
17.01.2017 to 15.03.2017. If Annexure
No.2 is seen for a moment, as submitted by
Sri Singh, it would reveal to this Court that
the then Chief Minister has given approval
either on 08.03.2017 or 14.03.2017 as the
Principal Secretary of the Department has
noted the date as 08.03.2017 and his last
signatures, after completing the exercise of
getting approval from the then Chief
Minister, were made on 14.03.2017 as may
be seen on running page 65 of Writ Petition
No.5995 (S/S) of 2018. However, no date
has
been
indicated
by
the
then
Departmental Minister and the then Chief
Minister in the said approval. Therefore,
the said approval by the then Chief
Minister would have been given either on
the date of election i.e. 08.03.2017 or after
the counting of votes.

27.

Therefore,
Sri
Singh
has
submitted that in the given circumstances
the date of approval for payment of salary
i.e. 08.03.2017 or 14.03.2017 cannot be
said to be just, appropriate and proper and
even this action does not quantify the
touchstone of justice, equity and fair play.
It, prima-facie, appears that there might
have been some extraneous considerations.
As per Sri Singh, the aforesaid sole reason
makes
the
Government
Order
dated
23.12.2016 nullity in the eyes of law and
the same may be treated as no nest for all
practical purposes. Hence, the impugned
order dated 13.02.2018 cancelling the
Government Order dated 23.12.2016 does
not suffer from voice of illegality and
594 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitrariness and should not be interfered
by this Court and the writ petitions may be
dismissed with costs.

28. Sri Ramesh Kumar Singh, learned
Additional Advocate General has reiterated
that even as per aforesaid note sheets
annexed with the writ petition, it is clear
that no required ground work in respect of
assessment of financial burden and exercise
for creation/sanction of posts was done and
excessive financial burden of the same has
been ignored and in absence of any
sanctioned post with necessary financial
approval, the payment of salary against
non-existing
posts
was
not possible.
Therefore, the matter was again brought
into the notice of State Government after
formation of new Government for the
necessary direction in accordance with law.
Accordingly, on 13.2.2018, the matter was
reconsidered at the level of Cabinet and
after
due
consideration,
the
earlier
Government Order dated 23.12.2016 was
withdrawn with the Cabinet approval,
which has been assailed by the petitioners
in all the writ petitions.

29. Sri Singh has submitted that
mainly on four grounds the Government
Order dated 23.12.2016 was withdrawn
vide impugned Government Order dated
13.2.2018. So far as the first ground of
cancellation is concerned, Sri Singh has
submitted that there is no specific policy
with
the
State
Government
for
provincialisation of the institutions run by
the private management and there is no
Statute for the same under which the
institutions run by the private management
could be taken under the Government
establishment
in
the
name
of
provincialisation. Sri Singh has submitted
that he has already addressed on the point
that earlier instance of provincialisation
may
not
be
cited
here
as
such
provincialisation was done in exceptional
circumstances even following the due
procedure of law which has not been
followed in the present cases.

30. Regarding the second ground of
cancellation, Sri Singh has submitted that
before issuing the order of provincialisation
of the institutions in question, no policy
was determined for conducting the exercise
of provincialisation and the same was not
transparent because those institutions were
provincialised after elections notification of
the Assembly Election and even the
approval was given by the then Chief
Minister either on the last date of voting i.e.
8.3.2017 or after the completion of
counting
as
counting
completed
on
11.3.2017
whereas
another
date
as
indicated in such noting is 14.3.2017.

31. So far as the third ground of
cancellation is concerned, Sri Singh has
submitted that the State Government is not
supposed to discriminate other institutions
and the provincialisation of the institutions
in the aforesaid arbitrary manner will
increase the demand of provincialisation in
a similar manner by the similarly situated
institutions or by the institutions, which
might be on the better footing.

32. Regarding the fourth ground of
cancellation, Sri Singh has submitted that
the process of selection of the Teachers was
not available with the State Government
and it had not been ascertained before
issuing the order of provincialisation of
these institutions. Even the process of
selection
of
teaching
staff
was
not
conducted properly. As a matter of fact, the
approval for payment of salary by the then
Chief Minister was given on the basis of
the list provided by these concerned
6 All. Subhash Kumar & Ors. Vs. State of U.P. & Ors.
595
institutions without any approval of the
same from the Finance Department and
without sanctioning or creating any post in
the concerned institutions.

33.