# THE STATE OF UTTAR PRADESH & ORS v. PRINCIPAL ABHAY NANDAN INTER COLLEGE & ORS

- **Citation:** [2021] 10 S.C.R. 693
- **Court:** Supreme Court of India
- **Decided:** 2021-09-27
- **Case number:** Civil Appeal No. 865 of 2021
- **Bench:** Sanjay Kishan Kaul, M. M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-uttar-pradesh-ors-v-principal-abhay-nandan-inter-college-ors-34707
- **Pages:** 30

## Headnote

The Intermediate Education Act, 1921 - ss.9, 16G -
Regulations framed under Act - Regulation 101 - Amendment -
Permanent posts abolished - Recruitment by way of Outsourcing -
Permissibility of - Government passed Orders, applicable to govt.
departments and aided schools, followed by amended Regulation
101 - Accordingly, posts of Class IV employees were to be filled up
by the institutions through Outsourcing, permanent posts were
abolished - Recruitments made by the institutions de hors the same
- Writ petitions - High Court held Regulation 101 to be
unconstitutional - On appeal, held: By the policy decision made,
the appellants abolished the post though in an indirect way by
providing for outsourcing - A court cannot create or sustain the
said post - Nothing on record to hold that the decision made is
extraneous as it is applicable not only to the aided institutions but
also to all government departments - Entire litigation is triggered
only by the institutions - Idea was to create a new set of employees
introduced through Outsourcing - Impugned Regulation is only
reiteration, as the Government Orders by way of policy take care of
the aforesaid view - Further, an institution receiving aid is bound
by the conditions imposed and therefore expected to comply -
Appellants justified in passing the relevant Government Orders
followed by the impugned Regulation - Impugned Regulation upheld
- Judgment of the Division Bench and the consequential orders
passed are set aside - Service Law - Constitution of India - Articles
14, 30, 226 - Equity - Uttar Pradesh High Schools and Intermediate
Colleges (Payment of Salaries of Teachers and Other Employees)
Act, 1971.
The Intermediate Education Act, 1921 - Object of - Discussed.
Constitution of India - Article 30 - Held: Article 30 is subject
to its own restrictions being reasonable - A protection cannot be
[2021] 10 S.C.R. 693
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[2021] 10 S.C.R.
expanded into a better right than one which a non-minority institution
enjoys.
Educational Institutions - Right of Institutions qua the aid -
Held: Right to get an aid is not a fundamental right, the challenge
to a decision made in implementing it, shall only be on restricted
grounds - Further, when it comes to aided institutions, there cannot
be any difference between a minority and non-minority one.
Administrative Law - Subordinate legislation - Policy decision
- When cannot be challenged - Discussed.
Service Law - Recruitment by way of outsourcing - Held:
Outsourcing per se is not prohibited in law- A recruitment by way
of outsourcing may have its own deficiencies and pit falls, however,
a decision to take "outsourcing" cannot be declared as ultra vires
of the constitution on the basis of mere presumption and assumption.
Constitution of India - Article 14 - Nature of - Discussed.
Interpretation of Statutes - Old enactment - Constructive &
purposive interpretation - Principle of interpretation - "Always
speaking" principle - Discussed - The Intermediate Education Act,
1921.
Allowing the appeals, the Court
HELD: 1. RIGHT TO AID: -
A decision to grant aid is by way of policy. While doing so,
the government is not only concerned with the interest of the
institutions but the ability to undertake such an exercise. Financial
constraints and deficiencies are the factors which are considered
relevant in taking any decision qua aid, including both the decision
to grant aid and the manner of disbursement of an aid. Once it is
held that right to get an aid is not a fundamental right, the
challenge to a decision made in implementing it, shall only be on
restricted grounds. Therefore, even in a case where a policy
decision is made to withdraw the aid, an institution cannot question
it as a matter of right. Maybe, such a challenge would still be
available to an institution, when a grant is given to one institution
as against the other institution which is similarly placed.
Therefore, with the grant of an aid, the condit

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THE STATE OF UTTAR PRADESH & ORS.
v.
PRINCIPAL ABHAY NANDAN INTER COLLEGE & ORS.
(Civil Appeal No. 865 of 2021)
SEPTEMBER 27, 2021
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
The Intermediate Education Act, 1921 - ss.9, 16G -
Regulations framed under Act - Regulation 101 - Amendment -
Permanent posts abolished - Recruitment by way of Outsourcing -
Permissibility of - Government passed Orders, applicable to govt.
departments and aided schools, followed by amended Regulation
101 - Accordingly, posts of Class IV employees were to be filled up
by the institutions through Outsourcing, permanent posts were
abolished - Recruitments made by the institutions de hors the same
- Writ petitions - High Court held Regulation 101 to be
unconstitutional - On appeal, held: By the policy decision made,
the appellants abolished the post though in an indirect way by
providing for outsourcing - A court cannot create or sustain the
said post - Nothing on record to hold that the decision made is
extraneous as it is applicable not only to the aided institutions but
also to all government departments - Entire litigation is triggered
only by the institutions - Idea was to create a new set of employees
introduced through Outsourcing - Impugned Regulation is only
reiteration, as the Government Orders by way of policy take care of
the aforesaid view - Further, an institution receiving aid is bound
by the conditions imposed and therefore expected to comply -
Appellants justified in passing the relevant Government Orders
followed by the impugned Regulation - Impugned Regulation upheld
- Judgment of the Division Bench and the consequential orders
passed are set aside - Service Law - Constitution of India - Articles
14, 30, 226 - Equity - Uttar Pradesh High Schools and Intermediate
Colleges (Payment of Salaries of Teachers and Other Employees)
Act, 1971.
The Intermediate Education Act, 1921 - Object of - Discussed.
Constitution of India - Article 30 - Held: Article 30 is subject
to its own restrictions being reasonable - A protection cannot be
[2021] 10 S.C.R. 693
693
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expanded into a better right than one which a non-minority institution
enjoys.
Educational Institutions - Right of Institutions qua the aid -
Held: Right to get an aid is not a fundamental right, the challenge
to a decision made in implementing it, shall only be on restricted
grounds - Further, when it comes to aided institutions, there cannot
be any difference between a minority and non-minority one.
Administrative Law - Subordinate legislation - Policy decision
- When cannot be challenged - Discussed.
Service Law - Recruitment by way of outsourcing - Held:
Outsourcing per se is not prohibited in law- A recruitment by way
of outsourcing may have its own deficiencies and pit falls, however,
a decision to take "outsourcing" cannot be declared as ultra vires
of the constitution on the basis of mere presumption and assumption.
Constitution of India - Article 14 - Nature of - Discussed.
Interpretation of Statutes - Old enactment - Constructive &
purposive interpretation - Principle of interpretation - "Always
speaking" principle - Discussed - The Intermediate Education Act,
1921.
Allowing the appeals, the Court
HELD: 1. RIGHT TO AID: -
A decision to grant aid is by way of policy. While doing so,
the government is not only concerned with the interest of the
institutions but the ability to undertake such an exercise. Financial
constraints and deficiencies are the factors which are considered
relevant in taking any decision qua aid, including both the decision
to grant aid and the manner of disbursement of an aid. Once it is
held that right to get an aid is not a fundamental right, the
challenge to a decision made in implementing it, shall only be on
restricted grounds. Therefore, even in a case where a policy
decision is made to withdraw the aid, an institution cannot question
it as a matter of right. Maybe, such a challenge would still be
available to an institution, when a grant is given to one institution
as against the other institution which is similarly placed.
Therefore, with the grant of an aid, the conditions come. If an
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institution does not want to accept and comply with the conditions
accompanying such aid, it is well open to it to decline the grant
and move in its own way. On the contrary, an institution can never
be allowed to say that the grant of aid should be on its own terms.
In the present case aid is not denied in toto but sought to be
given in different form. The reason for such a decision is both
efficiency and economy. When such a decision is made as a matter
of policy and is being applied not only to educational institutions
but spanning across the entire State in every department, one
cannot question it and that too when there is no express
arbitrariness seen on the face of it. [Paras 29-31][708-G-H;
709-A-E]
2. MINORITY AND NON-MINORITY: -
When it comes to aided institutions, there cannot be any
difference between a minority and non-minority one. Article 30
of the Constitution of India is subject to its own restrictions being
reasonable. A protection cannot be expanded into a better right
than one which a non-minority institution enjoys. An institution
receiving aid is bound by the conditions imposed and therefore
expected to comply. Once it is held so, the challenge made on
various grounds, falls to the ground. [Paras 32, 33][709-F-G]
SK Md. Rafique vs. Management Committee Contai
Rahamania High Madrasah & Ors. (2020) 6 SCC 689
: [2020] 1 SCR 185 - relied on.
3. POLICY DECISION: -
The challenge is to the amendment to the Regulation 101.
This regulation is in the form of a subordinate legislation. A
subordinate legislation can also be in the form of a policy decision.
A policy decision had come into force in the year 2010 itself. A
policy decision is presumed to be in public interest, and such a
decision once made is not amenable to challenge, until and unless
there is manifest or extreme arbitrariness, a constitutional court
is expected to keep its hands off. A challenge to a regulation
stands on a different footing than the one that can be made to an
enactment. However, when the regulation is nothing but a
reiteration of a policy reinforcing the decision of the Government
made earlier, then the parameters required for testing the validity
THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN
INTER COLLEGE
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of an Act are expected to be followed by the Court. An executive
power is residue of a legislative one, therefore the exercise of
said power i.e., the amendment of the impugned regulation, cannot
be challenged on the basis of mere presumption. Once a rule is
introduced by way of a policy decision, a demonstration on the
existence of manifest, excessive and extreme arbitrariness is
needed. [Paras 36-39][714-G-H; 715-A-C]
4.1 Section 9(4) of the Act is certainly of a wider import.
The power conferred to the State Government to give effect to
the Act is unbridled. It is the very same regulation, based upon
which, recruitments have been made by the management. It is
only by way of abundant caution, that the amendment has come
into force. Section 9(4) of the Act is to be read in conjunction
with Section 16G, as the provisions will have to be read keeping
in view all the objects of the enactment. If the practice of
recruitment, prior to the amendment of the impugned regulation,
was done by tracing the power under it, then it is not open to the
respondents to contend to the contrary. [Paras 40, 41][715-D-E;
717-B-C]
Ramji Dwivedi vs. State of Uttar Pradesh (1983) 3 SCC
52 : [1983] 2 SCR 971 - relied on.
4.2 Regulation 101, prior to the amendment, imposes strict
compliance of getting prior approval. Except in Civil Appeal
No.2753 of 2021, no such approval has been granted. Obviously,
it only indicates the real intention of the respondents/management
which is to have their own recruitment other than anything else.
"Outsourcing" as a matter of policy is being introduced throughout
the State. It is one thing to say that it has to be given effect to
with caution as recommended by the Seventh Central Pay
Commission, and another to strike it down as unconstitutional.
"Outsourcing" per se is not prohibited in law. A recruitment by
way of "Outsourcing" may have its own deficiencies and pit falls,
however, a decision to take "Outsourcing" cannot be declared
as ultra vires of the constitution on the basis of mere presumption
and assumption. Obviously, the nature of the scheme and
safeguards attached to it are not known. [Paras 42, 43][717-C-F]
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Catering Cleaners of Southern Railway vs. Union of
India & Anr. (1987) 1 SCC 700: [1987] 2 SCR 164
- held inapplicable.
Manish Kumar vs. Union of India, (2021) 5 SCC 1 :
[2021] 1 SCALE 646 - relied on.
4.3 Article 14 is positive in nature. Adequate leverage is to
be provided to the law maker in making the classification. Article
14 does not prohibit discrimination, what is required is a valid
discrimination against a hostile one. [Para 46][718-C]
4.4 By the policy decision made, the appellants have
abolished the post though in an indirect way by providing for
"Outsourcing". Now, a court cannot create or sustain the
aforesaid post. There is nothing on record to hold that the decision
made is extraneous as it is obviously made applicable not only to
the aided institutions but also to all government departments as
well. Admittedly, no challenge has been made to the decision
taken in 2010 and 2011 which was to be made applicable to all
the recruitments for Group 'IV' posts in the Government, and
not only for the institutions and the persons recruited by them.
The entire litigation is triggered only by the institutions. The
idea was to create a new set of employees introduced through
"Outsourcing". The impugned Regulation is only reiteration, as
the Government Order dated 08.09.2010 and 06.01.2011 by way
of policy, takes care of the aforesaid view. When a challenge is
made either to a regulation, rule or an Act, it is for the persons
who challenged, to satisfy the Court that they cannot be sustained
in the eyes of law. The appellants are justified in passing the
relevant Government Order followed by the impugned
Regulation. Institutions should be held responsible for the judicial
adventurism undertaken. The judgment of the Division Bench
dated 19.11.2018 and the consequential orders passed are set
aside. The impugned Regulation is upheld. The respondents/writ
petitioners in Civil Appeal No 2753 of 2021 are to be confirmed
by granting adequate approval as Class "IV" employees, having
given prior approval. Further directions issued. [Paras 47, 48,
50, 51, 56 and 58][718-G-H; 719-B, E-F; 721-B-C, D-E]
THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN
INTER COLLEGE
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T.M.A Pai Foundation vs. State of Karnataka (2002) 8
SCC 481: [2002] 3 Suppl. SCR 587 - followed.
Keshav Chandra Joshi vs. Union of India 1992 Supp
(1) SCC 272; Syed Khalid Rizvi vs. Union of India 1993
Supp (3) SCC 575; Kerela Samsthana Chethu Thozhilali
Union vs. State of Kerela (2006) 4 SCC 327; Vasu Dev
Singh vs. Union of India (2006) 12 SCC 753;
Ahmedabad St. Xavier's College Society & Ors. vs. State
of Gujarat & Ors. (1974) 1 SCC 717: [1975] 1 SCR
173; St. Stephens College vs. University of Delhi (1992)
1 SCC 558 : [1991] 3 Suppl. SCR 121; Secy.
Malankara Syrian Catholic College vs. T. Jose & Ors.
(2007) 1 SCC 386: [2006] 9 Suppl. SCR 644; Chadana
Das vs. State of West Bengal (2020) 13 SCC 411: [2019]
12 SCR 631 - held inapplicable.
Dharani Sugars and Chemicals Ltd. vs. Union of India,
(2019) 5 SCC 480 : [2019] 6 SCR 307 - relied on.
Federation of Railway Officers Association & Ors. vs.
Union of India (2003) 4 SCC 289: [2003] 2 SCR 1085;
Directorate of Film Festivals & Ors. vs. Gaurav Ashwin
Jain & Ors. (2007) 4 SCC 737: [2007] 5 SCR 7; State
of Punjab & Ors. vs. Ram Lubhaya Bagga & Ors.
(1998) 4 SCC 737; Vasavi Engineering College Parents
Association vs. State of Telangana & Ors. (2019) 7 SCC
172: [2019] 8 SCR 927; Union of India vs. Pushpa
Rani (2008) 9 SCC 242 : [2008] 11 SCR 440; Tamil
Nadu Education Department Ministerial and General
Subordinate Services Association & Ors. vs. State of
Tamil Nadu & Ors. (1980) 3 SCC 97 : [1980] 1 SCR
1026 - referred to.
Case Law Reference
[2003] 2 SCR 1085
referred to
Para 21
[2007] 5 SCR 7
referred to
Para 21
[2019] 8 SCR 927
referred to
Para 21
[1983] 2 SCR 971
relied on
Para 21
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[2008] 11 SCR 440
referred to
Para 21
[2020] 1 SCR 185
relied on
Para 21
[1980] 1 SCR 1026
referred to
Para 21
(1992) Supp 1 SCC 272
held inapplicable
Para 25
(1993) Supp 3 SCC 575
held inapplicable
Para 25
(2006) 4 SCC 327
held inapplicable
Para 25
(2006) 12 SCC 753
held inapplicable
Para 25
[1975] 1 SCR 173
held inapplicable
Para 26
[1991] 3 Suppl. SCR 121
held inapplicable
Para 26
[2002] 3 Suppl. SCR 587
followed
Para 26
[2006] 9 Suppl. SCR 644
held inapplicable
Para 26
[2019] 12 SCR 631
held inapplicable
Para 26
[1987] 2 SCR 164
held inapplicable
Para 28
[2019] 6 SCR 307
relied on
Para 52
CIVIL APPELLATE JURISDICTION: Civil Appeal No.865 of
2021.
From the Judgment and Order dated 19.11.2018 of the High Court
of Judicature at Allahabad in Writ C No.45060 of 2015.
With
Civil Appeal Nos.2816, 2817, 2753, 866, 2754, 2819, 2820, 2818,
2815 of 2021
Ms. Aishwarya Bhati, ASG, Harish Pandey, Nischal Kumar Niraj,
Ms. Kirti Khangotra, Sanjay Kumar Tyagi, Kameshwar Nath Mishra,
Advs. for the Appellants.
Huzefa A. Ahmadi, V. K. Shukla, Sr. Advs., Rajat Singh, Apoorva
Tewari, Prashast Puri Ms. Rohan Sharma, Samarth Mohanty, Shivpati
B. Pandey, V. N. Raghupathy, Narender Kumar Verma, Praveen
Agrawal, Ms. Parul Shukla, Saket Gogia, Prateek Bhandari, Manish
Kumar Gupta, Tripurari Ray, Balwant Singh Billowria, Nithyananda
Murthy P., Ms. Bhanuprabha, Vivekanand Singh, Anirudh Ray, Ms. Shilpa
Singh, Yatish Mohan, Subash Chandra Sagar, E. C. Vidya Sagar,
THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN
INTER COLLEGE
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Ms. Preetika Dwivedi, Naveen Kumar Tripathi, Udayan Pratap Singh,
Abhishek Kumar Singh, Ms. Saroj Tripathi, Kabir Dixit, Waheb Hussaini,
Anand Varma, Ms. Astha Ahuja, Manoj K. Mishra, R. K. Singh Kaosik,
Umesh Dubey, D. N. Dubey, Alok Pandey, Sudhir S. Rawat, Dr. Bheem
Pratap Singh, V. K. Jain, Shashank Tripathi, Dipesh Dwivedi, Ms. Divya
Roy, Dhananjay Garg, Abhay Kumar, Sidharth Iyer, Rajat Khattry, Vishal
Nautiyal, Kumar Milind, Shagun Ruhil, Abhimanyu Singh, Sunny
Choudhary, Udayaditya Banerjee, Ajay Kumar Pandey, Santosh Kumar
Pandey, Danish Zubair Khan, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
1. Heard learned counsel for the parties.
2. We have also perused the documents filed and carefully
considered the affidavits of the parties along with the written arguments
filed.
3. Appeals have been preferred by the State of Uttar Pradesh
laying a challenge to the judgment of the Division Bench of the Allahabad
High Court dated 19.11.2018 holding that Regulation 101 framed under
The Intermediate Education Act, 1921 (hereinafter referred to as "the
Act") as amended is unconstitutional. Incidentally, few other appeals
were disposed of by taking note of the aforesaid decision. Applications
have also been filed to intervene/implead by such of those persons who
are also appointed by these institutions as Class "IV" employees. Thus,
appositely all these appeals are disposed of by a common order.
THE ACT: -
4. The Intermediate Education Act, 1921 is of vintage origin having
its existence prior to independence and surviving to date. The object of
the enactment is to regulate and supervise high schools and intermediate
education. Sub-Section 4 of Section 9 of the Act speaks of the powers
of the State Government and facilitates the State Government to pass
appropriate orders or to take adequate action consistent with the provisions
of the Act and the State Government may modify or rescind or make
any regulation in respect of any matter:
"Section 9- Power of State Government
... (4) Whenever, in the opinion of the State Government, it is
necessary or expedient to take immediate action, it may,
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without making any reference to the Board under the foregoing
provisions, pass such order or take such other action
consistent with the provisions of this Act as it deems necessary,
and in particular, may by such order modify or rescind or
make any regulation in respect of any matter and shall
forthwith inform the Board accordingly."
5. Section 16G of the Act deals with conditions of service of the
head of institutions, teachers and other employees. Sub-section (2)
facilitates the introduction of regulation which could be extended to various
activities such as probation, scale of pay, transfer of service, grant of
leave etc. Needless to state that this provision speaks of the conditions
of service of the person employed in such institutions:
"Section 16G- Conditions of Service of Head of Institutions,
teachers and other employees
(1) Every person employed in a recognized institution shall
be governed by such conditions of service as may be
prescribed by regulations and any agreement between the
management and such employee insofar as it is inconsistent
with the provisions of this Act or with the regulations shall be
void.
(2) Without prejudice to the generality of the powers conferred
by sub-section (1), regulations may provide for-
(a) the period of probation, the conditions of confirmation
and the procedure and conditions for promotion and
punishment 2[(including suspension pending or in
contemplation of inquiry or during the pendency of
investigation, inquiry or trial in any criminal case for an
offence involving moral turpitude)] and the emoluments
for the period of suspension and termination of service
with notice;
(b) the scales of pay and payment of salaries;
(c) transfer of service from one recognized institution to
another;
(d) grant of leave and Provident Fund and other benefits;
and
(e) maintenance of record of work and service."
THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN
INTER COLLEGE [M. M. SUNDRESH, J.]
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6. Regulations have been framed under the Act dealing with various
subjects, however, for the present case only Chapter III of the said
regulations is relevant, which deals with "conditions of service".
REGULATION 101: -
7. Regulation 101 was inserted vide Parishad 9/592 dated
28.08.1992 and was notified by way of Govt. Notification No. 400/15-72(1)-90 dated 30.07.1992 in the following manner:
"Appointing Authority except with prior approval of Inspector
shall not fill up any vacancy of non-teaching post of any
recognized aided institution."
8. It was substituted through the Notification No. 300/XV-7-2(1)/
90 dated 02.02.1995 as under:
"Appointing Authority except with prior approval of Inspector
shall not fill up any vacancy of non-teaching post of any
recognized aided institution:
Provided that filling of the vacancy on the post of Jamadar
may be granted by the Inspector."
9. On 23.01.2008 with a view to regulate and curtail staff
expenditure a policy decision was taken by the State of Uttar Pradesh
(the 1st Appellant) to not create any new post in Class 'IV' category and
wherever it may be necessary, the work may be carried out through
"Outsourcing". Thereafter, the recommendation was made by the Sixth
Central Pay Commission in the month of March, 2008 to the effect that
it would only be appropriate to have "Outsourcing" of Class 'IV'
employees instead of seeking any new recruitment.
10. Regulation 101 once again went through an amendment by
way of Notification No.9/898 dated 31.12.2009, which reads as under:
"The appointing authority shall not fill any vacancy of the
non-teaching staff of recognised aided institutions, except
with the approval of Inspector, subject to a restriction that
District Inspector of Schools shall make available total number
of vacancies to Director of Education (Secondary Education),
and showing the number of students put forth justification
for the filling of the vacancies. On receipt of order from the
Director of Education (Secondary Education), the District
Inspector of Schools shall, for filling said vacancies, give
permission to the appointing authority; and while giving such
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permission he shall ensure to follow the reservation rules
specified by the government and the prescribed norms in
justification for the posts.
The aforesaid amendment in the Regulation shall come into
force immediate effect."
11. Taking into consideration the recommendations made by the
Sixth Central Pay Commission, Government Orders were passed on
08.09.2010 and 06.01.2011 making it applicable to all Government
departments and aided schools, thus, deciding not to go for fresh
recruitment of Class "IV" employees and further directing that any
arrangement concerning the post to be vacated may be made only
through "Outsourcing". Appropriate communications were sent to all
the stakeholders intimating them of the decision taken.
12. Following the said decision, Regulation 101 was once again
amended by Government Order dated 04.09.2013, which was accordingly
notified on 24.04.2014. The effect of the said amendment is to make the
post of Class "IV" employees which was hitherto supposed to be filled
up by the institutions through "Outsourcing". Therefore, the permanent
posts were accordingly abolished, thereby, replacing the method of
appointment by way of "Outsourcing". An exception has been carved
out only for the dependants of those employees died in harness during
employment.
AMENDED REGULATION:
"101. The appointing authority, except for the prior approval
of the inspector, shall not fill any vacant post of non-teaching
staff (clerical cadre) in any recognised or aided institution;
with the restriction that the District Inspector of Schools shall
make available the total number of vacancies to the Director
of Education (Secondary Education) and also put forth
justification for filling of the posts, showing the strength of
the students in the institution. On receipt of the order from
Director of Education (Secondary Education), the District
Inspector of Schools shall give permission to the appointing
authority for filling the said vacancies (except the vacancies
of Class-IV posts) and while giving the permission, he shall
ensure compliance of the reservation rules specified by the
government as also of the prescribed norms in justification
for the posts.
THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN
INTER COLLEGE [M. M. SUNDRESH, J.]
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With respect to the Class-IV vacancies, arrangements shall
be made by way of outsourcing only; but the relevant rules,
1981, as amended from time to time, for recruitment of
dependants of teaching or non-teaching staff of the
nongovernment aided institutions dying in harness shall be
applicable in relation to the appointments to be made on the
vacant posts of Class-IV category."
SEVENTH CENTRAL PAY COMMISSION: -
13. By the Seventh Central Pay Commission Report, the
recommendations made in the Sixth Central Pay Commission were
reiterated with a word of 'caution' in its implementation. Accordingly,
the need to go for "Outsourcing", keeping in view of the financial
constraints and efficiency, was once again reiterated:
PARAGRAPH 3.72 AND 3.83 OF THE REPORT
"3.72 The General Financial Rules provide for outsourcing
of services in the interest of economy and efficiency. Broad
guidance is provided in the Rules on identification of
contractors and the tendering process.
There are three kinds of contractual appointments:
i. Tasks of a routine nature, typically those relating to
housekeeping, maintenance, related activities, data
entry, driving, and so on, which are normally bundled
and entrusted to agencies. These agencies then depute
the necessary persons to carry out these tasks...
3.83 The Following are the conclusions and
recommendations:
...vii. The Commission is of the view that a clear
guidance from the government on jobs that can and
should be contracted out would be appropriate. While
doing so the concerns of confidentiality and
accountability may be kept in view. Further, to bring
about continuity and to address the concerns regarding
exploitation of contractual manpower, uniform
guidelines/model contract agreements may be devised
by the government..."
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14. From the aforesaid facts it is abundantly clear that a decision
was made way back on 08.09.2010 to do away with the recruitment to
the post of Class "IV" employees, by replacing the process with the
utilization of the service through "Outsourcing". It was accordingly made
by taking note of the recommendations of the Pay Commission, with the
primary concern being financial difficulty, followed by efficiency. The
regulation was brought forthwith as an abundant caution by way of a
subsequent act to complete the formalities. Institutions were being put
on notice about the decision to withhold any fresh recruitment. However,
recruitments have been made de hors the same either with or without
the court orders, by the institutions. It was also done without obtaining
the prior permission as per the mandate of the un-amended Regulation
101 except in one case which is the subject matter of Civil Appeal No.2753
of 2021. In Civil Appeal No.2754 of 2021 a direction to grant prior
permission was obtained from the High Court.
BEFORE THE HIGH COURT: -
15. With the aforesaid backdrop, writ petitions have been filed
before the Allahabad High Court. The Division Bench of the Allahabad
High Court in the lead judgment dated 19.11.2018 was pleased to allow
the writ petitions filed, inter alia holding that there is a violation of Article
14 of the Constitution of India. Incidentally, reliance has also been made
on the provisions of Uttar Pradesh High Schools and Intermediate
Colleges (Payment of Salaries of Teachers and Other Employees) Act,
1971 (hereinafter referred to as 'UP Act, 1971') which speaks about
the payment of salary including the manner of disbursement. The Division
Bench was of the opinion that Regulation 101 is unconstitutional being
repudiate to Section 16G of the Act and the provisions of the UP Act,
1971, and went onto observe that "Outsourcing" as a concept of making
available the staff to perform Class "IV" jobs is unconstitutional, arbitrary
and illegal. Section 9(4) of the Act cannot be interpreted to give sufficient
ammunition to sustain the impugned regulation. Seeking to impugn and
set aside the said judgment which ratio was followed in other cases,
these appeals are before us.
16. Having narrated the background facts, we would place on
record the respective contentions of the counsel.
SUBMISSIONS OF THE APPELLANT: -
17. Ms. Aishwarya Bhati, Ld. Additional Solicitor General
appearing for the appellants raised the primary objection on the right of
THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN
INTER COLLEGE [M. M. SUNDRESH, J.]
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the writ petitioners to challenge the impugned regulation. According to
the Ld. ASG, this being a policy decision carefully introduced after
considering the relevant materials based on the opinion of experts in the
field of finance and administration and widespread consultation with
stakeholders, including the recommendations made by the Sixth Central
Pay Commission and Seventh Central Pay Commission, is not amenable
to challenge by invoking the jurisdiction of the High Court under Article
226 of the Constitution of India. The institutions being the recipients of
aid are bound by the conditions attached, as there exists neither a
fundamental right to receive aid nor a vested one. It is not open to the
respondents to question the policy decision of the appellants, considering
the fact that the said policy is applicable uniformly across all departments
of the State and does not in any manner affect the rights of the existing
employees.
18. The Ld. ASG has further submitted that the other respondents
having been selected contrary to law cannot seek equity. This situation
has been created only by the overzealous management in recruiting them
despite clear directions by the appellants to the contrary. Even otherwise,
any appointment made is subject to the orders of the Court.
19. The Division Bench has taken the role of an expert in going
into the wisdom of the appellants, while dealing with a policy decision
based on various relevant factors. Section 9(4) of the Act gives adequate
power to the State Government to change, modify and rescind the
regulation accordingly without reference to the Board under the Act. It
is submitted that the amendment is only a consequence to the decision
made by the appellants.
20. The Order of the Division Bench would have a far-reaching
financial and economic impact on the entire recruitment process
throughout the State of Uttar Pradesh in view of its interpretation of
"Outsourcing". Article 162 of the Constitution has got no rationale to
impugned amendment. This is a case of the abolishment of the posts and
as such, Section 9(4) of the Act being of wider import, the impugned
regulation is sustainable in the eyes of law.
21. To strengthen the aforesaid submissions, reliance has been
placed on the following decisions:
i.
Federation of Railway Officers Association & Ors. vs.
Union of India (2003) 4 SCC 289;
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ii.
Directorate of Film Festivals & Ors. vs. Gaurav Ashwin
Jain & Ors. (2007) 4 SCC 737;
iii.
State of Punjab & Ors. vs. Ram Lubhaya Bagga & Ors.
(1998) 4 SCC 737;
iv.
Vasavi Engineering College Parents Association vs. State
of Telangana & Ors. (2019) 7 SCC 172.
v.
Ramji Dwivedi vs. State of Uttar Pradesh (1983) 3 SCC
52;
vi.
Union of India vs. Pushpa Rani (2008) 9 SCC 242;
vii.
SK Md. Rafique vs. Management Committee Contai
Rahamania High Madrasah & Ors. (2020) 6 SCC 689;
viii.
Tamil Nadu Education Department Ministerial and General
Subordinate Services Association & Ors. vs. State of Tamil
Nadu & Ors. (1980) 3 SCC 97.
SUBMISSIONS OF BEHALF OF RESPONDENTS:-
22. Submissions on behalf of the respondents would include that
of the management and the candidates selected by them. These
candidates obviously came into picture through the recruitment process
adopted by the management, notwithstanding, the orders dated 08.09.2010
and 06.01.2011 followed by the impugned Regulation 101.
23. Regulation 101 as framed under the Act, as it stands, is a
clear violation of Article 14 of the Constitution of India in filling the
sanctioned post of Class "IV" employees alone by way of "Outsourcing".
Before the Division Bench, the appellants were not able to place the
relevant material to substantiate the rationale behind the implementation
of the policy of "Outsourcing" in filling the post of Class "IV" employees
and the method of implementation.
24. There is no power or authority for the introduction of the
amended Regulation 101 under Section 16G of the Act. The power
available to the State Government under Section 9 of the Act cannot be
extended to make the impugned regulation.
25. Section 16G of the Act is sought to be impliedly overruled by
the impugned regulation. As the term recruitment and conditions of service
are not synonyms, the power given to the State Government cannot be
extended to alter the conditions of recruitment itself. It is further
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contended that the exercise of the power under Section 9(4) of the Act,
especially while amending the regulations has to be consistent with the
other provisions, as such, the impugned subordinate legislation is bound
to be struck down. In support of the aforesaid contention the following
judgments have been relied upon, namely. (i) Keshav Chandra Joshi vs.
Union of India 1992 Supp (1) SCC 272; (ii) Syed Khalid Rizvi vs. Union
of India 1993 Supp (3) SCC 575; (iii) Kerela Samsthana Chethu Thozhilali
Union vs. State of Kerela (2006) 4 SCC 327; and (iv) Vasu Dev Singh
vs. Union of India (2006) 12 SCC 753.
26. A distinction has to be carved out among the institutions viz
minority institutions on one hand, as against non-minority institutions,
otherwise the main regulation violates the fundamental rights granted to
minority institutions under Article 30(1) of the Constitution of India, in
light of the judgments of this Court in the case of, (i) Ahmedabad St.
Xavier's College Society & Ors. vs. State of Gujarat & Ors. (1974) 1
SCC 717; (ii) St. Stephens College vs. University of Delhi (1992) 1 SCC
558; (iii) T.M.A Pai Foundation vs. State of Karnataka (2002) 8 SCC
481; (iv) Secy. Malankara Syrian Catholic College vs. T. Jose & Ors.
(2007) 1 SCC 386; and (v) Chadana Das vs. State of West Bengal
(2020) 13 SCC 411.
27. The respondents who were recruited had the bona fide belief
that they were employed in accordance with law, and they cannot be
made to suffer, especially in light of the fact that some of them have
been recruited in pursuance to prior approval given, thereby found to be
qualified. Principle of undue hardship is to be applied while dealing with
marginalized poor persons. Article 162 would stand infringed if the
impugned amendment is allowed to be sustained.
28. As held by this Court in Catering Cleaners of Southern Railway
vs. Union of India & Anr. (1987) 1 SCC 700, "Outsourcing" as a method
of recruitment itself is illegal and unconstitutional as it attempts to bring
back contract labour.
DISCUSSION AND CONCLUSION:-
RIGHT TO AID: -
29. We will first take up the right of institutions qua the aid. A
decision to grant aid is by way of policy. While doing so, the government
is not only concerned with the interest of the institutions but the ability to
undertake such an exercise. There are factors which the government is
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expected to consider before taking such a decision. Financial constraints
and deficiencies are the factors which are considered relevant in taking
any decision qua aid, including both the decision to grant aid and the
manner of disbursement of an aid.
30. Once we hold that right to get an aid is not a fundamental
right, the challenge to a decision made in implementing it, shall only be
on restricted grounds. Therefore, even in a case where a policy decision
is made to withdraw the aid, an institution cannot question it as a matter
of right. Maybe, such a challenge would still be available to an institution,
when a grant is given to one institution as against the other institution
which is similarly placed. Therefore, with the grant of an aid, the conditions
come. If an institution does not want to accept and comply with the
conditions accompanying such aid, it is well open to it to decline the
grant and move in its own way. On the contrary, an institution can never
be allowed to say that the grant of aid should be on its own terms.
31. We are dealing with a case where aid is not denied in toto but
sought to be given in different form. The reason for such a decision is
both efficiency and economy. When such a decision is made as a matter
of policy and is being applied not only to educational institutions but
spanning across the entire State in every department, one cannot question
it and that too when there is no express arbitrariness seen on the face of
it.
MINORITY AND NON-MINORITY: -
32. When it comes to aided institutions, there cannot be any
difference between a minority and non-minority one. Article 30 of the
Constitution of India is subject to its own restrictions being reasonable.
A protection cannot be expanded into a better right than one which a
non-minority institution enjoys. Law has become quite settled on this
issue and therefore does not require any elaboration.
33. Thus, on the aforesaid issue we have no hesitation in reiterating
the principle that an institution receiving aid is bound by the conditions
imposed and therefore expected to comply. Once we hold so, the
challenge made on various grounds, falls to the ground.
34. The haze between a minority and non-minority institution is no
longer in existence. This Court in SK Md. Rafique(supra) has dealt
with the same through the following paragraphs:
THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN
INTER COLLEGE [M. M. SUNDRESH, J.]
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"41. In the backdrop of the decisions of this Court referred
to hereinabove, we must now consider whether the relevant
provisions of the Commission Act, 2008 transgress upon the
rights of a minority institution or the said provisions can be
termed as "tenable as ensuring the excellence of the institution
without injuring the essence of the right" [ Expression used
by Krishna Iyer J. in Gandhi Faiz-e-am-College v. University
of Agra, (1975) 2 SCC 283 : 1 SCEC 277] of a minority
institution. Right from Kerala Education Bill, 1957, In re case
[Kerala Education Bill, 1957, In re, 1959 SCR 995 : AIR 1958
SC 956] the issue that has engaged the attention of this Court
is about the content of rights of minority educational institution
and the extent and width of applicability of regulations and
what can be said to be permissible regulations. If the cases in
the first segment i.e. up to the decision in T.M.A. Pai
Foundation [T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481 : 2 SCEC 1] are considered...
42. We now turn to T.M.A. Pai Foundation case [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481: 2 SCEC
1] and consider the principles that it laid down and whether
there was reiteration of the principles laid down in the
decisions of this Court in the earlier segment or whether there
was any change or shift in the emphasis:
42.1. In para 50, five incidents were stated to comprise
the "right to establish and administer" and three of them
were stated to be:
(a) right to admit students;
(b) right to appoint staff - teaching and non-teaching;
and
(c) right to take disciplinary action against the staff.
The discussion in the leading judgment was under various
headings and the important one being "5. To what extent
can the rights of aided private minority institutions to
administer be regulated?"
42.2. The earlier decisions of the Court were considered
and while considering the judgment of this Court in
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Sidhrajbhai Sabhai case [Sidhrajbhai Sabhai v. State of
Gujarat, (1963) 3 SCR 837: AIR 1963 SC 540] it was
observed: (T.M.A. Pai Foundation case [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481: 2
SCEC 1] , SCC p. 563, para 107)
"107. ... If this is so, it is difficult to appreciate how the
Government can be prevented from framing regulations
that are in the national interest, as it seems to be
indicated in the passage quoted hereinabove. Any
regulation framed in the national interest must
necessarily apply to all educational institutions, whether
run by the majority or the minority. Such a limitation
must necessarily be read into Article 30. The right under
Article 30(1) cannot be such as to override the national
interest or to prevent the Government from framing
regulations in that behalf. It is, of course, true that
government regulations cannot destroy the minority
character of the institution or make the right to establish
and administer a mere illusion; but the right under
Article 30 is not so absolute as to be above the law."
42.3.Thus, the principle laid down in Sidhrajbhai Sabhai
[Sidhrajbhai Sabhai v.