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

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] A B C D E F G H THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN INTER COLLEGE 697 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] A B C D E F G H 698 SUPREME COURT REPORTS [2021] 10 S.C.R. A B C D E F 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 G [2003] 2 SCR 1085 [2007] 5 SCR 7 [2019] 8 SCR 927 [1983] 2 SCR 971 H referred to referred to referred to relied on Para 21 Para 21 Para 21 Para 21 THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN INTER COLLEGE 699 [2008] 11 SCR 440 [2020] 1 SCR 185 [1980] 1 SCR 1026 referred to relied on referred to (1992) Supp 1 SCC 272 held inapplicable (1993) Supp 3 SCC 575 held inapplicable (2006) 4 SCC 327 held inapplicable (2006) 12 SCC 753 held inapplicable [1975] 1 SCR 173 held inapplicable [1991] 3 Suppl. SCR 121 held inapplicable [2002] 3 Suppl. SCR 587 followed [2006] 9 Suppl. SCR 644 held inapplicable [2019] 12 SCR 631 held inapplicable [1987] 2 SCR 164 held inapplicable [2019] 6 SCR 307 relied on Para 21 Para 21 Para 21 Para 25 Para 25 Para 25 Para 25 Para 26 Para 26 Para 26 Para 26 Para 26 Para 28 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, A B C D E F G H 700 SUPREME COURT REPORTS [2021] 10 S.C.R. A B C D E F G H 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, THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN INTER COLLEGE [M. M. SUNDRESH, J.] 701 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. A B C D (2) Without prejudice to the generality of the powers conferred by sub-section (1), regulations may provide for- E (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; (e) maintenance of record of work and service.” F G H 702 SUPREME COURT REPORTS [2021] 10 S.C.R. A B C D E

#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. 400/15-7- 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 any new recruitment. F

#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 G H THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN INTER COLLEGE [M. M. SUNDRESH, J.] 703 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. A B C D E F G H 704 SUPREME COURT REPORTS [2021] 10 S.C.R. 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 recommendations: the conclusions and …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…” A B C D E F G H THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN INTER COLLEGE [M. M. SUNDRESH, J.] 705

#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 A B C D E F G H 706 SUPREME COURT REPORTS [2021] 10 S.C.R. A B C D E F G H 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; THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN INTER COLLEGE [M. M. SUNDRESH, J.] 707 ii. iii. iv. v. vi. vii. Directorate of Film Festivals & Ors. vs. Gaurav Ashwin Jain & Ors. (2007) 4 SCC 737; A 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. B Ramji Dwivedi vs. State of Uttar Pradesh (1983) 3 SCC 52; Union of India vs. Pushpa Rani (2008) 9 SCC 242; 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 C D E F G H 708 SUPREME COURT REPORTS [2021] 10 S.C.R. A B C D E F G H 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 THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN INTER COLLEGE [M. M. SUNDRESH, J.] 709 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: A B C D E F G H 710 SUPREME COURT REPORTS [2021] 10 S.C.R. A B C D E F G H “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; (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 THE STATE OF UTTAR PRADESH v. PRINCIPAL ABHAY NANDAN INTER COLLEGE [M. M. SUNDRESH, J.] 711