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 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 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 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] 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] 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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