High Court

1. Heard Sri G.C. Verma, learned counsel for the petitioner, learned counsel for the respondent and perused the material available on record.

2. The present petition has been filed by the petitioner challenging an order dated 12.01.2024 whereby the application of the petitioner for grant of approval to the Intermediate classes in Science stream was rejected on the ground that a new Government Order dated 26.12.2022 has been framed.

3. The contention of the counsel for the petitioner is that the petitioner had applied for grant of affiliation for running the Intermediate classes in Science and Humanity stream vide application dated 11.07.2019. He argues that on the basis of some inspection carried out, a report was furnished on 28.12.2019 holding that for running the Science classes the petitioner did not have the equipped lab and thus the application of the petitioner cannot be considered. In response to the said, the petitioner moved an application on 15.01.2020 stating that the deficiencies as pointed out in the order dated 28.12.2019 have been rectified and a fresh inspection be carried out. On the said application, an order came to be passed on 21.01.2020, directing the District Inspector of Schools (DIOS) to carry out a fresh inspection and to furnish a report. The counsel for the petitioner further argues that in pursuance to the directions contained in the order dated 21.01.2020 (Annexure No. 9), an application was moved to the DIOS to comply with the said directions and to carry out the inspection vide Annexure No. 10. It is also brought on record that with regard to the classes being run at the High School level, the requisite affiliation has already been granted to the petitioner institution. It is also argued that with regard to the Humanity classes is being run at the Intermediate level, the affiliation has already been granted and thus the only dispute was with regard to grant of affiliation for the Science stream being run at the Intermediate level. He further argues that on 10.11.2022 once again a reminder was given to the DIOS to carry out the inspection, a similar letter was sent on 23.12.2022 and 25.07.2023. It is also brought on record that an inspection was carried out with a delay and a report was submitted on 10.11.2023 by a Committee comprising of four persons, wherein it was found that well equipped lab was existed and thus recommendation for grant of approval was made. The said communication is on record as Annexure No. 16. It is stated that despite there being recommendation, the impugned order came to be passed rejecting the approval solely on the ground that from 26.12.2022 the new Government Order has been floated, as such, the application of the petitioner cannot be considered.

4. The submission of the counsel for the petitioner is that admittedly the petitioner had applied for grant of approval on 11.07.2019 i.e a date prior to coming into force of the Government Order dated 26.12.2022. He further argues that all the delays occurred at the instance of the respondent in carrying out the inspection and thus, the denial of right of approval is wholly unjustified. Reliance is placed upon the judgment of this Court passed in the case of C/M Sri Satya Narain Junior High School and another Versus State of U.P. and 4 others in Writ C No. 24767 of 2018 vide judgment dated 16.11.2021, wherein this issue with regard to consideration of the application was extensively considered and the Court recorded as under: "14. The Apex Court in its latest judgment in the case of Union of India & Others Vs. G.S. Chatha Rice Mills & Another reported in (2021) 2 SCC 209, has opined that a rule framed by the delegate of the legislature does not have retrospective effect unless the statutory provision, under which it is framed, allows it so, either by the use of specific words to that effect or by necessary implication. The Apex Court has further opined that the Central Government or the State Government (for any other authority) cannot make a subordinate legislation having retrospective effect unless the parent statute, expressly or by necessary implications, authorities it do so. For ready reference, paragraph nos. 104 & 106 of the aforesaid judmgent read as follows: "104. A rule framed by the delegate of the legislature does not have retrospective effect unless the statutory provision under which it is framed allows retrospectivity either by the use of specific words to that effect or by necessary implication. In Hukum Chand vs. Union of India32, a three judge Bench of this Court held that: "8...The extent and amplitude of the rule-making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Likewise, if there was nothing in the language of Section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled." (emphasis supplied)

106. In Federation of Indian Minerals Industries vs. Union of India34, a three judge Bench of this Court formulated the principles on the subject. Justice Madan B. Lokur observed that the power to frame subordinate legislation is not retrospective unless it is authorized expressly or by necessary implication by the parent statute. The Court observed: "26...The relevant principles are: (i) The Central Government or the State Government (or any other authority) cannot make a subordinate legislation having retrospective effect unless the parent statute,

1. Heard Sri G.C. Verma, learned counsel for the petitioner, learned counsel for the respondent and perused the material available on record.

2. The present petition has been filed by the petitioner challenging an order dated 12.01.2024 whereby the application of the petitioner for grant of approval to the Intermediate classes in Science stream was rejected on the ground that a new Government Order dated 26.12.2022 has been framed.

3. The contention of the counsel for the petitioner is that the petitioner had applied for grant of affiliation for running the Intermediate classes in Science and Humanity stream vide application dated 11.07.2019. He argues that on the basis of some inspection carried out, a report was furnished on 28.12.2019 holding that for running the Science classes the petitioner did not have the equipped lab and thus the application of the petitioner cannot be considered. In response to the said, the petitioner moved an application on 15.01.2020 stating that the deficiencies as pointed out in the order dated 28.12.2019 have been rectified and a fresh inspection be carried out. On the said application, an order came to be passed on 21.01.2020, directing the District Inspector of Schools (DIOS) to carry out a fresh inspection and to furnish a report. The counsel for the petitioner further argues that in pursuance to the directions contained in the order dated 21.01.2020 (Annexure No. 9), an application was moved to the DIOS to comply with the said directions and to carry out the inspection vide Annexure No. 10. It is also brought on record that with regard to the classes being run at the High School level, the requisite affiliation has already been granted to the petitioner institution. It is also argued that with regard to the Humanity classes is being run at the Intermediate level, the affiliation has already been granted and thus the only dispute was with regard to grant of affiliation for the Science stream being run at the Intermediate level. He further argues that on 10.11.2022 once again a reminder was given to the DIOS to carry out the inspection, a similar letter was sent on 23.12.2022 and 25.07.2023. It is also brought on record that an inspection was carried out with a delay and a report was submitted on 10.11.2023 by a Committee comprising of four persons, wherein it was found that well equipped lab was existed and thus recommendation for grant of approval was made. The said communication is on record as Annexure No. 16. It is stated that despite there being recommendation, the impugned order came to be passed rejecting the approval solely on the ground that from 26.12.2022 the new Government Order has been floated, as such, the application of the petitioner cannot be considered.

4. The submission of the counsel for the petitioner is that admittedly the petitioner had applied for grant of approval on 11.07.2019 i.e a date prior to coming into force of the Government Order dated 26.12.2022. He further argues that all the delays occurred at the instance of the respondent in carrying out the inspection and thus, the denial of right of approval is wholly unjustified. Reliance is placed upon the judgment of this Court passed in the case of C/M Sri Satya Narain Junior High School and another Versus State of U.P. and 4 others in Writ C No. 24767 of 2018 vide judgment dated 16.11.2021, wherein this issue with regard to consideration of the application was extensively considered and the Court recorded as under: "14. The Apex Court in its latest judgment in the case of Union of India & Others Vs. G.S. Chatha Rice Mills & Another reported in (2021) 2 SCC 209, has opined that a rule framed by the delegate of the legislature does not have retrospective effect unless the statutory provision, under which it is framed, allows it so, either by the use of specific words to that effect or by necessary implication. The Apex Court has further opined that the Central Government or the State Government (for any other authority) cannot make a subordinate legislation having retrospective effect unless the parent statute, expressly or by necessary implications, authorities it do so. For ready reference, paragraph nos. 104 & 106 of the aforesaid judmgent read as follows: "104. A rule framed by the delegate of the legislature does not have retrospective effect unless the statutory provision under which it is framed allows retrospectivity either by the use of specific words to that effect or by necessary implication. In Hukum Chand vs. Union of India32, a three judge Bench of this Court held that: "8...The extent and amplitude of the rule-making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Likewise, if there was nothing in the language of Section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled." (emphasis supplied)

106. In Federation of Indian Minerals Industries vs. Union of India34, a three judge Bench of this Court formulated the principles on the subject. Justice Madan B. Lokur observed that the power to frame subordinate legislation is not retrospective unless it is authorized expressly or by necessary implication by the parent statute. The Court observed: "26...The relevant principles are: (i) The Central Government or the State Government (or any other authority) cannot make a subordinate legislation having retrospective effect unless the parent statute,