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TMI Blog2021 (9) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Minority and non-minority - HELD THAT:- 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. Policy decision - HELD THAT:- 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. It is already noted that a policy decision has come into force in the year 2010 itself. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 101 was inserted vide Parishad 9/592 dated 28.08.1992 and was notified by way of Govt. Notification No. 400/15-7-2(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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions, reliance has been placed on the following decisions: i. Federation of Railway Officers Association and Ors. v. Union of India (2003) 4 SCC 289; ii. Directorate of Film Festivals and Ors. v. Gaurav Ashwin Jain and Ors. (2007) 4 SCC 737; iii. State of Punjab and Ors. v. Ram Lubhaya Bagga and Ors. (1998) 4 SCC 737; iv. Vasavi Engineering College Parents Association v. State of Telangana and Ors. (2019) 7 SCC 172. v. Ramji Dwivedi v. State of Uttar Pradesh (1983) 3 SCC 52; vi. Union of India v. Pushpa Rani (2008) 9 SCC 242; vii. S.K. Md. Rafique v. Management Committee Contai Rahamania High Madrasah and Ors. (2020) 6 SCC 689; viii. Tamil Nadu Education Department Ministerial and General Subordinate Services Association and Ors. v. State of Tamil Nadu and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 v. Union of India and 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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4. The leading judgment then observed that the correct approach would be--what was laid down by Khanna, J. in Ahmedabad St. Xavier's College case [Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : 1 SCEC 125]: (T.M.A. Pai Foundation case [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1], SCC p. 570, para 122) 122. ... a balance has to be kept between the two objectives -- that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This, in our view, is the correct approach to the problem. 42.5. The majority judgment then summed up the matter and stated: (T.M.A. Pai Foundation case [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1], SCC p. 578, paras 135 & 137) 135. ... It is difficult to comprehend that the Framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minority institutions. The selection of the teachers and their nomination by the Commission constituted under the provisions of the Commission Act, 2008 would satisfy the national interest as well as the interest of the minority educational institutions and the said provisions are not violative of the rights of the minority educational institutions. 35. We would also like to point out two additional paragraphs of the lead judgment in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 that would put a quietus to the issue before us qua grant of aid and the conditions that may be imposed by the State in light of the protection granted to minority institutions Under Article 30 of the Constitution of India: 143. This means that the right Under Article 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... needed. OTHER CONTENTIONS: 40. 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. One has to understand the impugned Regulation in the context along with the setting. It is only by way of abundant caution, that the amendment has come into force. The existence of the power Under Section 9(4) of the Act has been dealt with by this Court in Ramji Dwivedi's case (supra): 12. Sub-section (4) of Section 9 which has been extracted hereinbefore confers power on the State Government without making any reference to the Board to make an order or take such other action consistent with the provisions of the Act as it deems necessary and in particular, may by such order modify or rescind or make any Regulation in respect of any matter. It would thus unquestionably transpire that while enacting the Regulations prior sanction of the State Government is necessary and Under Sub-section (4) of Section 9 the State Government enjoys the power to make, modify or rescind any Regulation. Armed with this power the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did confer power on the State Government to make, modify or rescind the Regulation or make any other order consistent with the provisions of the Act, the second contention of Mr. Sanghi is equally bound to fail. 41. 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. In this connection, we need to point out that 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. 42. Regulation 101, prior to the amendment, imposes strict compliance of getting prior approval. We find that 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. 43. The Division Bench in considering the view has entered into an arena which was not required to be done. Much labouring was done in interpreting the word "Outsourcing", however, such an exercise ought to have been avoided as it stands outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny is an economic measure. As laid down by this Court, in dealing with the challenge on the anvil of Article 14, the Court will not adopt a doctrinaire approach. Representatives of the people are expected to operate on democratic principles. The presumption is that they are conscious of every fact, which would go to sustain the constitutionality of the law. A law cannot operate in a vacuum. In the concrete world, when the law is put into motion in practical experiences, bottlenecks that would flow from its application, are best envisaged by the law givers. Solutions to vexed problems made manifest through experience, would indeed require a good deal of experimentation, as long as it passes muster in law. It is no part of a court's function to probe into what it considers to be more wise or a better way to deal with a problem. 47. The entire issue has to be looked at from different perspective as well. 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 obvio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken note of by us already. The Regulations have been introduced in tune with the powers conferred under the Act. The concept of "always speaking" as a principle of interpretation is to be applied for a proper understanding of an old enactment. After all, such a statute having its intended object which certainly includes regulating the functions of aided institutions requires to be interpreted to deal with the past, present and future situations. Therefore, an interpretation which is reasonable, constructive and purposive would serve the purpose. We draw reference to the decision of this Court in the case of Dharani Sugars and Chemicals Ltd. v. Union of India, (2019) 5 SCC 480. 53. The counsel appearing for the Respondents did place reliance upon few decisions of this Court. Having gone through the said decisions and in the light of our discussion, we do not find any help flowing from them, strengthening the contentions raised by them. Reliance has been made on the decision rendered by this Court in Matankara Syrian Catholic College v. T. Jose, (2007) 1 SCC 386. Having gone through the said judgment, we do not find that the same has got any application to the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the persons employed by the process of "Outsourcing" are not exploited in any manner. 58. Accordingly, we have no difficulty in setting aside the judgment of the Division Bench dated 19.11.2018 and the consequential orders passed while upholding the impugned Regulation. The appeals are allowed with the following directions: (i) The Respondents/writ Petitioners in Civil Appeal No. 2753 of 2021 are directed to be confirmed by granting adequate approval as Class "IV" employees, having given prior approval. (ii) The Respondents/writ Petitioners and similarly placed persons who are recruited by the institutions including the Respondents shall be continued with the same scale of pay as if they are recruited prior to 08.09.2010 for which the entire disbursement will have to be made by the institutions alone. (iii) The Appellants shall undertake the necessary exercise to see to it that there is a mechanism available for the proper implementation of "Outsourcing" with specific reference to the conditions of service of those who are employed while taking note of the recommendations made in the Seventh Central Pay Commission. 59. The impleadment/in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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