Rajasthan High Court - Jaipur
Rajendra Prasad Sharma Ors vs State Of Raj & Ors on 2 August, 2013
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1.D.B. CIVIL WRIT PETITION NO.16285/2010 Rajendra Prasad Sharma & Ors. Vs. State & Ors. 2.D.B. CIVIL WRIT PETITION NO.192/1996 Anudaniti V. Sewa Niwrit Shikshakarmi Sam. Vs. State & Anr. 3.D.B. CIVIL WRIT PETITION NO.2727/2011 Sanjay Chauhan Vs. State & Ors. 4.D.B. CIVIL WRIT PETITION NO.2728/2011 Govind Prasad Sharma & Anr. Vs. State & Ors. 5.D.B. CIVIL WRIT PETITION NO.2897/2011 Sharwan Kumar Vs. State & Ors. 6.D.B. CIVIL WRIT PETITION NO.3725/2011 Mahesh Kumar Garg Vs. State & Ors. 7.D.B. CIVIL WRIT PETITION NO.3888/2011 Satya Narain Gupta Vs. State & Ors. 8.D.B. CIVIL WRIT PETITION NO.3889/2011 Smt. Sharda Sharma Vs. State & Ors. 9.D.B. CIVIL WRIT PETITION NO.3890/2011 Satya Narain Pal Vs. State & Ors. 10.D.B. CIVIL WRIT PETITION NO.4252/2011 Smt. Manju Goyal & Ors. Vs. State & Ors. 11.D.B. CIVIL WRIT PETITION NO.4395/2011 Hari Ram Jat Vs. State & Ors. 12.D.B. CIVIL WRIT PETITION NO.4845/2011 Leeladhar Saini Vs. State & Ors. 13.D.B. CIVIL WRIT PETITION NO.5083/2011 Rakesh Babu & Ors. Vs. State & Ors. 14.D.B. CIVIL WRIT PETITION NO.5148/2011 Azad Singh Rathore Vs. State & Ors. 15.D.B. CIVIL WRIT PETITION NO.5181/2011 Laduram Sharma Vs. State & Ors. 16.D.B. CIVIL WRIT PETITION NO.5648/2011 Bhagwan Sahai Gurjar & Ors. Vs. State & Ors. 17.D.B. CIVIL WRIT PETITION NO.5795/2011 Smt. Rama Srivastava Vs. State & Ors. 18.D.B. CIVIL WRIT PETITION NO.5796/2011 Amar Singh Yadav Vs. State & Ors. 19.D.B. CIVIL WRIT PETITION NO.5797/2011 Jagdish Prasad Saini Vs. State & Ors. 20.D.B. CIVIL WRIT PETITION NO.5798/2011 Brij Kishore Sharma Vs. State & Ors. 21.D.B. CIVIL WRIT PETITION NO.5931/2011 Virendra Singh Vs. State & Ors. 22.D.B. CIVIL WRIT PETITION NO.5952/2011 Praveen Singh Shekhawat Vs. State & Ors. 23.D.B. CIVIL WRIT PETITION NO.6309/2011 Pankaj Mathur Vs. State & Ors. 24.D.B. CIVIL WRIT PETITION NO.6310/2011 Smt. Ratna Sharma Vs. State & Ors. 25.D.B. CIVIL WRIT PETITION NO.6685/2011 Mahesh Kumar Sharma Vs. State & Ors. 26.D.B. CIVIL WRIT PETITION NO.6686/2011 Vinod Singh Rao Vs. State & Ors. 27.D.B. CIVIL WRIT PETITION NO.6687/2011 Ramswaroop Saini Vs. State & Ors. 28.D.B. CIVIL WRIT PETITION NO.6688/2011 Akbar Ali Vs. State & Ors. 29.D.B. CIVIL WRIT PETITION NO.7197/2011 Mani Ram & Ors. Vs. State & Ors. 30.D.B. CIVIL WRIT PETITION NO.7958/2011 Smt. Kusum Dixit Vs. State & Ors. 31.D.B. CIVIL WRIT PETITION NO.8008/2011 Smt. Sujata Sharma Vs. State & Ors. 32.D.B. CIVIL WRIT PETITION NO.8935/2011 Vinod Kumar Mishra & Ors. Vs. State & Ors. 33.D.B. CIVIL WRIT PETITION NO.9268/2011 Ashok Kumar Sharma & Ors. Vs. State & Ors. 34.D.B. CIVIL WRIT PETITION NO.9269/2011 Brahma Kumar Chejara Vs. State & Ors. 35.D.B. CIVIL WRIT PETITION NO.9575/2011 Anil Shekhawat Vs. State & Ors. 36.D.B. CIVIL WRIT PETITION NO.9670/2011 Hemraj & Anr. Vs. State & Ors. 37.D.B. CIVIL WRIT PETITION NO.9827/2011 Naresh Kumar Yadav Vs. State & Ors. 38.D.B. CIVIL WRIT PETITION NO.9908/2011 Suraj Bhan Singh & Ors. Vs. State & Ors. 39.D.B. CIVIL WRIT PETITION NO.10442/2011 Dr. Nemchand Jain Vs. State & Ors. 40.D.B. CIVIL WRIT PETITION NO.11059/2011 Sidhraj Singh Ranawat Vs. State & Ors. 41.D.B. CIVIL WRIT PETITION NO.11353/2011 Shri Kayyum Khan Vs. State & Ors. 42.D.B. CIVIL WRIT PETITION NO.11354/2011 Mohammed Tahir Vs. State & Ors. 43.D.B. CIVIL WRIT PETITION NO.11572/2011 Sarwar Singh Vs. State & Ors. 44.D.B. CIVIL WRIT PETITION NO.12000/2011 Shri Giriraj Sharma Vs. State & Ors. 45.D.B. CIVIL WRIT PETITION NO.12001/2011 Shri Ram Prasad Sharma Vs. State & Ors. 46.D.B. CIVIL WRIT PETITION NO.12002/2011 Mrs. Bhartee Sharma Vs. State & Ors. 47.D.B. CIVIL WRIT PETITION NO.12003/2011 Smt. Madhvi Gupta Vs. State & Ors. 48.D.B. CIVIL WRIT PETITION NO.12004/2011 Ajay Guatam Vs. State & Ors. 49.D.B. CIVIL WRIT PETITION NO.12005/2011 Shri Hukam Singh Vs. State & Ors. 50.D.B. CIVIL WRIT PETITION NO.12006/2011 Smt. Santosh Chauhan Vs. State & Ors. 51.D.B. CIVIL WRIT PETITION NO.12007/2011 Shri Dhirendra Kumar Khare Vs. State & Ors. 52.D.B. CIVIL WRIT PETITION NO.12008/2011 Shri Baldev Saini Vs. State & Ors. 53.D.B. CIVIL WRIT PETITION NO.12009/2011 Ajay Singh Vs. State & Ors. 54.D.B. CIVIL WRIT PETITION NO.12296/2011 Santosh Kumar Vs. State & Ors. 55.D.B. CIVIL WRIT PETITION NO.12935/2011 Trapti Pareek & Ors. Vs. State & Ors. 56.D.B. CIVIL WRIT PETITION NO.13001/2011 Mrs. Vandana Mehrotra & Ors. Vs. State & Ors. 57.D.B. CIVIL WRIT PETITION NO.13165/2011 Bhagwan Singh Bundel Vs. State & Ors. 58.D.B. CIVIL WRIT PETITION NO.13379/2011 Rameshwar Dayal Sharma Vs. State & Ors. 59.D.B. CIVIL WRIT PETITION NO.13640/2011 Sanjeev Parashar Vs. State & Ors. 60.D.B. CIVIL WRIT PETITION NO.13891/2011 Smt. Savita Tandon Vs. State & Ors. 61.D.B. CIVIL WRIT PETITION NO.14255/2011 Smt. Sharda Sharma Vs. State & Ors. 62.D.B. CIVIL WRIT PETITION NO.15121/2011 Mrs. Jyotika Mathur Vs. State & Ors. 63.D.B. CIVIL WRIT PETITION NO.15502/2011 Anil Kumar Bikhiwal Vs. State & Ors. 64.D.B. CIVIL WRIT PETITION NO.15504/2011 Bhoj Raj Singh Shekhawat Vs. State & Ors. 65.D.B. CIVIL WRIT PETITION NO.15506/2011 Chitranjan Singh Shekhawat Vs. State & Ors. 66.D.B. CIVIL WRIT PETITION NO.15507/2011 Shankar Lal Vs. State & Ors. 67.D.B. CIVIL WRIT PETITION NO.17792/2011 Mahaveer Singh Vs. State & Ors. 68.D.B. CIVIL WRIT PETITION NO.17972/2011 Dr. Sindhulata Jain & Anr. Vs. State & Ors. 69.D.B. CIVIL WRIT PETITION NO.18009/2011 Raees Mohammed Rathore Vs. State & Ors. 70.D.B. CIVIL WRIT PETITION NO.42/2012 Ram Singh Meena Vs. State & Ors. 71.D.B. CIVIL WRIT PETITION NO.811/2012 Dr. Kaushal Kumar Gautam Vs. State & Ors. 72.D.B. CIVIL WRIT PETITION NO.812/2012 Dr. Vandana Sharma Vs. State & Ors. 73.D.B. CIVIL WRIT PETITION NO.1226/2012 Mayank Sharma & Ors. Vs. State & Ors. 74.D.B. CIVIL WRIT PETITION NO.1997/2012 Nasir Ahmed Khan Vs. State & Ors. 75.D.B. CIVIL WRIT PETITION NO.3055/2012 Piyush Pani Chaturvedi & Anr. Vs. State & Ors. 76.D.B. CIVIL WRIT PETITION NO.3480/2012 Sobhagya Singh Shekhawat & Ors. Vs. State & Ors. 77.D.B. CIVIL WRIT PETITION NO.4376/2012 Dr. Anupam Sharma Vs. State & Ors. 78.D.B. CIVIL WRIT PETITION NO.4382/2012 Dr. Anjubala Seemar Vs. State & Ors. 79.D.B. CIVIL WRIT PETITION NO.5058/2012 Damodar Prasad Sharma & Anr. Vs. State & Ors. 80.D.B. CIVIL WRIT PETITION NO.5641/2012 Ghisa Ram Sharma Vs. State & Ors. 81.D.B. CIVIL WRIT PETITION NO.5932/2012 Smt. Sandhya Trivedi Vs. State & Ors. 82.D.B. CIVIL WRIT PETITION NO.5933/2012 Dr. Shashi Pandey Vs. State & Ors. 83.D.B. CIVIL WRIT PETITION NO.5934/2012 Dr. Rekha Gaur Vs. State & Ors. 84.D.B. CIVIL WRIT PETITION NO.5935/2012 Smt. Lalita S. Dhupia Vs. State & Ors. 85.D.B. CIVIL WRIT PETITION NO.5950/2012 Dr. (Smt.) Gunjan Vs. State & Ors. 86.D.B. CIVIL WRIT PETITION NO.6259/2012 Miss Manu Maheshwari Vs. State & Ors. 87.D.B. CIVIL WRIT PETITION NO.6943/2012 Smt. Nandu Saini & Ors. Vs. State & Ors. 88.D.B. CIVIL WRIT PETITION NO.7251/2012 Janak Kumari Makhija Vs. State & Ors. 89.D.B. CIVIL WRIT PETITION NO.7612/2012 Govind Ram Mishra Vs. State & Ors. 90.D.B. CIVIL WRIT PETITION NO.7815/2012 Smt. Neema Saxena Vs. State & Ors. 91.D.B. CIVIL WRIT PETITION NO.8006/2012 Yashpal Saini & Ors. Vs. State & Ors. 92.D.B. CIVIL WRIT PETITION NO.8373/2012 Rekha Rani Kanodia Vs. State & Ors. 93.D.B. CIVIL WRIT PETITION NO.8591/2012 Smt. Alka Garg & Ors. Vs. State & Ors. 94.D.B. CIVIL WRIT PETITION NO.10038/2012 Udaivir Singh & Ors. Vs. State & Ors. 95.D.B. CIVIL WRIT PETITION NO.10786/2012 Subhash Chandra Vs. State & Anr. 96.D.B. CIVIL WRIT PETITION NO.10811/2012 Jagdish Prasad Saini Vs. State & Anr. 97.D.B. CIVIL WRIT PETITION NO.10812/2012 Dr. Devesh Pratap Singh Vs. State & Anr. 98.D.B. CIVIL WRIT PETITION NO.11449/2012 Hanuman Prasad & Anr. Vs. State & Ors. 99.D.B. CIVIL WRIT PETITION NO.12125/2012 Dinesh Singh Ruhela Vs. State & Anr. 100.D.B. CIVIL WRIT PETITION NO.12126/2012 Sukhveer Singh Katewa Vs. State & Anr. 101.D.B. CIVIL WRIT PETITION NO.12127/2012 Dr. Rishi Pal Singh Vs. State & Anr. 102.D.B. CIVIL WRIT PETITION NO.12155/2012 Mohan Lal Sharma Vs. State & Ors. 103.D.B. CIVIL WRIT PETITION NO.12156/2012 Ravindra Singh Rathore Vs. State & Ors. 104.D.B. CIVIL WRIT PETITION NO.12157/2012 Jagdish Prasad Jangir Vs. State & Ors. 105.D.B. CIVIL WRIT PETITION NO.12158/2012 Mahesh Kumar Khichar Vs. State & Ors. 106.D.B. CIVIL WRIT PETITION NO.12159/2012 Manohar Singh Vs. State & Ors. 107.D.B. CIVIL WRIT PETITION NO.12160/2012 Moti Singh Rathore Vs. State & Ors. 108.D.B. CIVIL WRIT PETITION NO.12161/2012 Mani Ram Saini Vs. State & Ors. 109.D.B. CIVIL WRIT PETITION NO.12162/2012 Chandu Sharma Vs. State & Ors. 110.D.B. CIVIL WRIT PETITION NO.12163/2012 Sheesh Ram Mahla Vs. State & Ors. 111.D.B. CIVIL WRIT PETITION NO.12168/2012 Naresh Kumar Sharma Vs. State & Ors. 112.D.B. CIVIL WRIT PETITION NO.12169/2012 Dr. Mritujaya Kumar Singh Vs. State & Anr. 113.D.B. CIVIL WRIT PETITION NO.12170/2012 Smt. Savita Lawania Vs. State & Ors. 114.D.B. CIVIL WRIT PETITION NO.12727/2012 Ravindra & Anr. Vs. State & Ors. 115.D.B. CIVIL WRIT PETITION NO.13299/2012 Smt. Manju Sharma Vs. State & Ors. 116.D.B. CIVIL WRIT PETITION NO.13431/2012 Syed Anees Ahmed Naqvi Vs. State & Ors. 117.D.B. CIVIL WRIT PETITION NO.14046/2012 Vinod Kumar Agarwal Vs. State & Ors. 118.D.B. CIVIL WRIT PETITION NO.14047/2012 Ram Prakash Vs. State & Ors. 119.D.B. CIVIL WRIT PETITION NO.14694/2012 Kailash Chand Saini Vs. State & Ors. 120.D.B. CIVIL WRIT PETITION NO.14711/2012 Vibha Baluni Vs. State & Ors. 121.D.B. CIVIL WRIT PETITION NO.16399/2012 Varun Chaturvedi Vs. State & Ors. 122.D.B. CIVIL WRIT PETITION NO.17602/2012 Smt. Pratibha Agarwal Vs. State & Ors. 123.D.B. CIVIL WRIT PETITION NO.20452/2012 Rang Lal Meena Vs. State & Ors. 124.D.B. CIVIL WRIT PETITION NO.485/2013 Suresh Chand Goyal & Anr. Vs. State & Ors. 125.D.B. CIVIL WRIT PETITION NO.1691/2013 Brijesh Kumar Sharma Vs. State & Ors. 126.D.B. CIVIL WRIT PETITION NO.3672/2013 Jai Prakash Ola & Ors. Vs. State & Ors. 127.D.B. CIVIL WRIT PETITION NO.8408/2013 Sunil Kumar Rajoriya Vs. State & Ors. Date of Order :: 2nd August, 2013 PRESENT HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Mr. Rajendra Soni, Ms. Naina Saraf, Mr. DP Sharma, Mr. Virendra Dangi, Mr. Saransh Saini, Mr. Rajesh Kapoor, Mr. NC Sharma, Dr. Vikram Singh Nain, Mr. Arun Jain, Mr. M.F.Baig, Mr. SK Singodiya, Mr. Amol Vyas, Mr. Manjoj Pareek, Mr. AK Bajpai, Mr. Akhil Simlote, Mr. Anand Sharma, Mr.SL Sharma, Mr. R.N.Sharma, Mr. Tanveer Ahmed, Mr. Govind Choudhary, Mr. R.P.Saini, Mr. Rakesh Kumar Sharma, Mr. Umesh Kumar Sharma, Mr. Arvind Chawla, Mr. Kuldeep Verma, Mr. Pradeep Ashthana, Mr. NK Garg, for the petitioners. Mr.G.S. Bapna, Sr. Advocate & Advocate General with Mr. Sarvesh Jain and Mr.V.Garg, Mr. Sanjeev Prakash Sharma, Senior Advocate with Mr. Gaurav Sharma, Mr. Virendra Lodha, Senior Advocate with Mr. Nitish Bagri, Mr. Ganesh Meena, Government Counsel, Mr. Mohd. Rahil & Mr. Sahir Hussain on behalf of Mr. N.A.Naqvi, AAG, Mr. Ilesh Jindal, Mr. C.P.Sharma, Mr. Mahesh Chand Gupta, Mr.Anant Bhandari, Deputy Govt. Counsel, Mr. Ankit Jain, Mr. Bharat Vyas, Mr. Sanjay Rahar, Mr. Rupin Kala, Mr. Dinesh Yadav, AAG, Mr. Sarvesh Jain on behalf of Mr. S.N.Kumawat, AAG for the respondents. <><><> BY THE COURT : (Per Hon'ble V.S. Siradhana, J.)
REPORTABLE:
In these writ applications, petitioners have challenged the vires of Rule 2(g) of the Rajasthan Voluntary Rural Education Service Rules, 2010 (hereinafter referred to as 'Rules of 2010'). Since the issue raised is identical in all the writ petitions, therefore, these petitions were heard together for the purpose of common adjudication in order to answer the question raised.
2. The essential facts for adjudication of the controversy as pleaded in D.B. Civil Writ Petition No.16285/2010 (Rajendra Prasad Sharma & Ors. Versus State of Rajasthan & Ors.) are that the petitioners are confirmed employees of Chirawa Senior Secondary School, Chirawa, District Jhunjhunu, selected by the duly constituted Selection Committee, including a nominee of the Government, and are working against sanctioned non-aided posts. It is further stated that the petitioners have unblemished service record and have been drawing salary in accordance with the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules, 1993 (hereinafter referred to as 'the Rules of 1993'), framed under the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter referred to as Act of 1989), which provides for similar service benefits as admissible to the Government employees.
3. The respondent-State issued notification dated 29.11.2010 promulgating the 'Rules of 2010', for the purpose of absorbing the employees of Non-Government Aided Educational Institutions of Government of Rajasthan, who are working on sanctioned aided posts in the Non-Government Educational Institutions on the date of issue of the Notification dated 29.11.2010.
4. The grievance of the petitioners is that the action of the respondent-State in providing an option for absorption in the government service, only to those employees of the Non-Government Aided Educational Institutions working on aided sanctioned posts, ignoring the employees working on non-aided sanctioned posts of the Non-Government Aided Educational Institutions, even though their appointment was made by the very same Selection Committee(s), which included a government nominee; is arbitrary, discriminatory and violative of the mandate of the Article 14 and 16 of the Constitution of India. The challenge has been made specifically to Rule 2(g) of the Rules of 2010, promulgated vide notification dated 29.11.2010, which reads thus:-
2(g). employee means an employee working in a recognized non-government aided educational institution and who is working against aided and sanctioned post.
5. In substance, the petitioners have questioned the legality, validity and correctness of Rule 2(g) of the Rules of 2010, since it results into formation of two different classes out of one homogeneous group of employees, working in the Non-Government Aided Educational Institution(s) and therefore, have prayed for the relief, as under:-
It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to call for the entire record relating to this case and after perusing the same may be pleased to accept and allow this writ petition, and:-
(i) By issuing an appropriate writ, order or direction Rule 2(g) of the Rules of 2010 discriminating between the employees working on aided and non-aided posts for the purpose of absorption in Government service notified vide notification dated 29.11.2010 may kindly be declared illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India and be quashed and set aside and all the confirm employees including the petitioners working on aided and non-aided posts in private recognized aided institutions be ordered to be considered for absorption under the Rules of 2010 with all consequential benefits.
(ii) Any other appropriate writ, order or direction, which this Hon'ble Court may deem think fit and proper may kindly be passed in favour of the petitioners.
(iii) Costs of the writ petition may kindly be awarded in favour of the petitioners.
6. According to the petitioners, it is not in dispute that in the Non-Government Aided Educational Institutions, sanctioned aided posts and sanctioned non-aided posts do exist, and since the petitioners are working against the sanctioned unaided posts, have been discriminated, while considering the employees working against sanctioned aided posts for absorption, therefore, the action of the respondent State is violative of Article 14 and 16 of the Constitution of India.
7. Learned counsel, Mr.D.P. Sharma, for the petitioners submits that the action of the respondent-State is ex-facie illegal, arbitrary and discriminatory for the reason that the petitioners working against the sanctioned unaided posts in the Non-Government Aided Educational Institutions, on the date of commencement of the 'Rules of 2010', was beyond their control though their initial appointment was made against the sanctioned aided post(s). Further, if at all the respondent-State was of the opinion that the Managing Committee of the recognized Non-Government Aided Educational Institution(s) was neglecting to perform any of the duties assigned to it by or under the Act of 1989, it was always open to the respondent-State to appoint an administrator in the Non-Government Aided Educational Institution and therefore, Rule 2(g), Rule 4 as well as Rule 5 of the Rules of 2010 are ultra-vires.
8. Referring to D.B. Civil Writ Petition No.3480/2012, the learned counsel asserted that the petitioners were deprived of consideration of their case for absorption since the Management of the Institute decided not to receive grant-in-aid w.e.f. 01.04.2008. The learned counsel also referred to the decision taken by the Committee headed by the Hon'ble Education Minister providing certain relaxations to one Non-Government Aided Educational Institution, subject to the condition that the institution will not claim grant-in-aid for intervening period and ultimately the grant-in-aid was stopped w.e.f. 01.03.2012, therefore, the natural effect would be that the institution retained the status of Non-Government Aided Educational Institution till 01.03.2012. It was further highlighted that once a Non-Government Aided Educational Institution, was facilitated with the grant-in-aid, therefore, the employees of the aided institution could not be further classified into two different classes i.e., employees working against the sanctioned unaided posts and employees working against sanctioned aided posts in the same institution. In support of the submissions, the learned counsel for the petitioners, placed reliance on various judgments delivered by the Hon'ble Apex Court of the land and by the High Courts i.e., Uma Shankar Sharma Versus Union of India (UOI) and Ors. (AIR 1980 SC 1457); Managing Committee Vaidik Kanya P.G. College & Anr. Versus The Presiding Officer, Rajasthan Non-Government Educational Tribunal & Ors. (RLW 2010 (3) Raj. 2025); Manju Rani Sharma (Smt.) Versus Managing Committee and Others [2009 (2) WLN 381]; Maharashtra University of Health Sciences Versus Satchikitsa Prasarak Mandal [AIR 2010 SC 1325]; Chandigarh Administration & Ors. Versus Mrs. Rajni Vali & Ors. [AIR 2000 SC 634]; Haryana State Adhyapak Sangh Versus State of Haryana [AIR 1990 SC 968]; State of Haryana Versus Ram Chandra [AIR 1997 SC 2468]; State of Maharashtra Versus Jagannath Achyut [AIR 1989 SC 1133]; Ram Murti Versus State of Punjab [1989 (1) SLR 21]; Dr. Bajrang Lal Versus State [RLR 1994 (1) 1].
9. Mr. Rajendra Soni, learned counsel for the petitioners, referring to various provisions of the Act of 1989 and the Rules of 1993, pleaded that the employees, who have been shown to be working on sanctioned non-aided posts, have been appointed, very much following the same set of rules as those working against the sanctioned aided post and further, there is no nexus with the object sought to be achieved, for which the Rules of 2010 have been promulgated. Under the Act of 1989 and the Rules of 1993, it is the institution, which is aided or non-aided and not the posts, as would be evident from the definition of aided institutions under Section 2(b), which provides that a recognized institution, which is receiving aid in the form of maintenance grant from the State Government, and therefore, further classification of one homogeneous class of employees, is discriminatory and contrary to the provisions of the Act of 1989 and the Rules of 1993. The learned counsel in order to support his submission, referred to the definition of employee under Section 2(i), non-Government educational institution as defined under Section 2(p) and recognized institution as defined under Section 2(q) of the Act of 1989. In support of contention that the petitioners being part and parcel of one homogeneous class, learned counsel invited the attention of this Court to the provisions contained under Chapter III wherein Section 7 dealt with grant-in-aid to recognized institution, Section 10 dealing with the powers of the State Government to take over the management, Section 12 contemplating necessity to furnish list of all immovable properties of the institute, Section 14 providing the Closure of Recognized Institution, Section 16 dealing with the power of the State Government to Regulate the Terms and Conditions of the employment, Section 17 dealing with the recruitment of employees, Section 18 providing for Removal, Dismissal, Reduction in Rank of the employees, Section 29 dealing with the pay and allowances.
10. Further, the learned counsel referring to the definition of aided institution and maintenance grant as defined under Rule 2(c) and 2(p) of the Rules of 1993, Rule 26 dealing with 'recruitment', Rule 29 with reference to 'appointment', Rule 34 with reference to 'pay and allowances', Rule 39 deals with 'removal or dismissal from service' and Rule 40 making a provision for 'appeal'; promulgated for the welfare of the employees without any discrimination, were adversely affected in the light of the provisions contained under the impugned Rules of 2010, and the Management of aided institutions resorted to exploitation of the employees and the cumulative effect of the 'Rules of 2010', is discriminatory qua employees working on sanctioned non-aided post as compared to those working against the sanctioned aided post, in the very same recognized private educational institution.
11. The Non-Government Aided Educational Institutions, raised their buildings on the land allotted by the respondent State Government, at throw-away price and the same were at the verge of closure and the management of the institute may either sell the assets of the institute, including the land, and would earn huge profits out of the institute property or the management of the institute, may engage in some other activity other than imparting education. The learned counsel further submitted that after promulgation of the Rules of 2010, the salary of the petitioners has been reduced and some of the institutes are already closed.
12. Learned counsel for the petitioners further contended that the respondent State by promulgation of Rules of 2010 has resorted to class legislation, which is contrary to the mandate of Article 14 of the Constitution of India. Since the petitioners while working on the non-aided sanctioned posts in the institutions along with those who worked against the aided sanctioned posts, discharge the same duties and formed one single homogeneous class and therefore, ought to have been treated alike and hence, are entitled to avail the option for government service as accorded to those working against the aided sanctioned post. In support of the submissions, reliance has been placed on the law declared by the Hon'ble Apex Court of the land in cases of Maharashtriya University of Health Science & Ors. Versus Satchikitsa Prasark Mandal & Ors. (2010 (3) SCC 786); B. Manmad Reddy & Ors. Versus Chandra Prakash Reddy & Ors. (2010 (3) SCC 314); K.L. Goel Versus State of Rajasthan (S.B. Civil Writ Petition No.1455 of 1982 decided on 27.11.1984; National Council for Teacher Education & Ors. Versus Shri Shyam Shiksha Prashikshan Sansthan & Ors. (2011 (3) SCC 238); Andhra Pradesh Dairy Development Corporation Federation Versus B. Narasimha Reddy (2011 (9) SCC 286); Dakshin Harayana Bijli Vitran Nigam Limited Versus Bachan Singh (JT 2009 (10) SCC 352); Deepak Sibal Versus Punjab University & Anr. (AIR 1989 SC 903); Regional Provident Fund Commissioner Versus Sanatan Dharam Girls Secondary School (AIR 2007 SC 276); D.S. Nakara Versus Union of India (AIR 1983 SC 130); State of Rajasthan & Anr. Versus Ram Babu Gupta & Ors. (D.B. Civil Special Appeal (Writ) No.416/1995); J.C. Luthra Versus State of Rajasthan & Ors. (S.B. Civil Writ Petition No.1347/1996); Chandigarh Administration Versus K.K. Jerath (1995 (1) SCC 11) and Regional Provident Fund Commissioner Versus Sanatan Dharam Girls Secondary School & Ors. (AIR 2007 SC 276).
13. In D.B. Civil Writ Petition No.11353/2011 (Shri Kayyum Khan Versus State of Rajasthan & Ors.), learned counsel, Mr. Amol Vyas, assailing the legality and validity of the notification dated 29.11.2010 as well as the provisions of Rule 2(g), 4(1) and 5 of the Rules of 2010, argued that the respondent State has sought to regulate the appointment and other service conditions of the persons appointed under the 'Rules of 2010', wherein the employees working against the aided and sanctioned post, have been given an option for appointment under the 'Rules of 2010' to the exclusion of the persons being employees of the same institution, but working against sanctioned non-aided post(s). Reiterating the arguments to the effect that an employee of an aided institution includes each and every employee working in the recognized institution, as would be evident in the light of definition of employee as defined under Rule 2(j) of the Rules of 1993, and therefore, the definition of term employee as contained under Rule 2(g) of the 'Rules of 2010', is arbitrary and discriminatory to the provisions of the Act of 1989 and hence, ultra-vires.
14. Learned counsel further submitted that a person employed in a recognized aided institute even against the non-aided sanctioned post was performing regular duties and other allied services and Rule 10(xiii) of the Rules of 1993, empowers the Management to appoint teachers and other staff.
15. The institution, under the Rules of 1993, is also enabled to make urgent temporary appointment under Rule 33, and mode of payment of pay and allowances has been provided under Rule 34. Moreover, since the 'Rules of 2010' have been framed exercising the power under Article 309 of the Constitution of India, under the Act of 1989, could not have been framed since Rules of 1993, already hold the field, regulating the service conditions of the persons employed in Non-Government Aided Educational Institutions.
16. Mr. Rakesh Sharma, learned counsel for the petitioner in D.B. Civil Writ Petition No.5641/2012 (Ghisa Ram Sharma Versus State of Rajasthan & Ors.) adopting the submissions made by the counsel preceding him, submitted that the initial appointment of the petitioner, on the post of Lab Assistant was against the sanctioned aided post, but the institute declined to accept grant-in-aid w.e.f. 01.04.2008, though the State Government did not stop the grant-in-aid of the institution and therefore, the petitioner could not be faulted for the action of the institution of the petitioner, declining to avail the facility of grant-in-aid. The learned counsel pointed out the instance of an employee of Bal Bharati Kothari School, Sikar, which received grant-in-aid upto 2010, and made an attempt to equate his case to that of the employee of Bal Bharati Kothari School, Sikar, in support of his claim, but the fact remains that the institution of the petitioner did not avail of the grant-in-aid w.e.f. 01.04.2008.
17. In response to the notice of the writ petitions, the respondent State in their counter-affidavit pleaded that the procedure for appointment in Government Service under the 'Rules of 2010' is contained under Rule 4, which specifically stipulates the condition to the effect that regularly appointed employees in the Non-Government Aided Educational Institutions, working against sanctioned and aided posts on the date of commencement of the Rules of 2010, and who desire to be appointed under the Rules of 2010, were called upon to submit an application in the format provided therein. Rule 5 of the Rules of 2010 provides for terms and conditions for appointment of employees in Government service.
18. Further, seeking option for appointment was absolutely voluntary under the Rules of 2010, on the terms and conditions stipulated therein under the Rules and the services under the Rules of 2010 are in a dying cadre for these categories of employees and the post shall automatically stand abolished, as and when the post falls vacant for any reason whatsoever.
19. The Rules of 2010 further provided for the appointment of such employees only in the colleges/schools in the rural area. Attention of this Court was further invited specifically to the definitions of non-Government aided educational institution and recognized institution as contained under Rule 2(k), 2(l) and 2(m) of the Rules of 2010. The definitions read thus:-
(k) Non-Government Aided Educational Institution means any college, school, training institute or any other institution, by whatever name designated, established and run with the object of imparting education or preparing or training students for obtaining any certificate, degree, diploma or any academic distinction recognized by the State or Central Government of functioning for the education, cultural or physical development of the people in the State and which is neither owned nor managed by the State or Central Government or by any University or Local Authority or Authority owned or controlled by the State or Central Government and which is receiving aid in the form of maintenance grant from the State Government;
(l) recognized institution means a Non-Government Aided Educational Institution affiliated to any University or recognized by the Board, Director of Education or any officer authorized by the State Government or the Director of Education in this behalf;
(m) rural area, means the entire State of Rajasthan except the following areas:
(i) an area for which a municipality has been constituted under the Rajasthan Municipality Act, 2009 (Act No.18 of 2009) or an Urban Improvement Trust has been constituted under Rajasthan Urban Improvement Act, 1959 (Act No.35 of 1959) or an Authority has been constituted under the Jaipur Development Authority Act, 1982 (Act No.25 of 1982) or Jodhpur Development Authority Act, 2009 (Act No.2 of 2009) or any other Development Authority constituted by the State Government under the relevant Act;
(ii) the urbanisable limits as indicated in the master plan or the master development plan of a city or town prepared under any law for the time being in force, and where there is no master plan or master development plan, the municipal limits of the area.
(iii) the peripheral belt as indicated in the master plan or master development plan of a city or a town prepared under any law for the time being in force, and where there is no master plan or master development plan or where peripheral belt is not indicated in such plan, the area as may be notified by the Urban Development Department/ Local Self Government Department of the State Government from time to time.
20. At this juncture, it will also be relevant to refer to the provisions of Rules 4 and 5 of the Rules of 2010, which provides for procedure for appointment in Government service and terms and conditions for appointment of the employees in Government Service; which reads thus:-
4. Procedure of appointment in government service (1) Such regularly appointed employees in the Non-Government Aided Educational Institutions who are working against sanctioned and aided post on the date of commencement of these rules and who desire to be appointed under the Rajasthan Voluntary Rural Education Service Rules, 2010 in accordance with the terms and conditions mentioned in these rules, shall submit within 15 days from the date of publication of these rules in the official gazette an application in Form-I, to the Secretary of the concerned institution mentioning therein his/her service particulars with an advance copy to the concerned appointing authority.
(2) The Secretary of the institution shall, after verifying the service particulars, forward the applications to the concerned appointing authority along with complete service record of the employee within 10 days from the last date of receipt of applications. The Secretary of the institution shall append a certificate to the effect that the service particulars mentioned by the employees are correct.
(3) The suitability of employees of various Non-Government Aided Educational Institutions for appointment on the various posts under these rules shall be adjudged by the screening committee comprising of:-
(a) in the case of post within the purview of the Commission -
(i) Chairman of the Commission or his nominee Chairman
(ii) Principal Secretary, Department of Personnel or his nominee not below the rank of Dy. Secretary Member
(iii) Principal Secretary of the concerned Department or his nominee not below the rank of Dy. Secretary Member
(iv) Director of the concerned Department Member Secretary
(b) in case of post not within the purview of the Commission -
(i) Director of the concerned Department or his nominee Chairman ( Concerned appointing authority Secretary
4) The committee after adjudging the suitability of the candidates shall forward the name(s) of the suitable candidate(s) to the concerned appointing authority for appointment.
5. Terms and conditions for appointment of employees in Government Service The regularly appointed existing employees in the Non-Government Aided Educational Institutions who are working against sanctioned aided post on the date of commencement of these rules shall be appointed under the Rajasthan Voluntary Rural Educational Service on the following terms and conditions, namely :-
(i) The employee should possess the requisite educational and professional qualification for the respective posts as per the relevant service rules applicable to the Government servant similar cadre.
(ii) The posts on which the employees shall be appointed in the Government shall constitute a separate dying cadre for each category of employees.
(iii) The appointed employees shall be posted only in the colleges/schools, as the case may be in the rural areas on the equivalent posts specified in column number 2 of the Scheduled. However, in case there is no such equivalent post in the government, they shall be appointed on other posts carrying the same pay scale of aided posts.
Provided that in case the post of Principal (RVRES), Lecturer (RVRES), PTI (RVRES) or Librarian (RVRES) is not available for appointment in rural area colleges, the Principal (RVRES), Lecturer (RVRES), PTI (RVRES) or Librarian (RVRES) may be posted in municipal area Colleges in the following priority order:-
1. College situated in the area of IVth category municipality;
2. College situated in the area of IIIrd category municipality;
3. College situated in the area of IInd category municipality;
and whenever posts is available in any College of rural area the person so posted in the municipal area shall be transferred in the said Colleges of the rural area. Persons posted in the Colleges situated in municipal areas shall be transferred in rural area in the following order, namely:-
(i) firstly from the Colleges situated in the area of IInd category municipalities;
(ii) secondly from the Colleges situated in the area of IIIrd category municipalities; and
(iii) thirdly from Colleges situated in the area of IVth category municipalities.
Provided further that in the case of non-teaching staff, screened for appointment on non-teaching posts in College Education Section and posts for posting in rural areas are not available, such person shall be appointed on any equivalent post in rural areas in any other department governed by these rules. Such person shall be deemed to be appointed in the new department from the date of joining in the Directorate of College Education.
(iv) The employees appointed under these rules shall not be entitled for any promotion till they attain the age of superannuation. However, they shall be allowed benefit of Assured Career Progression/Career Advancement Scheme as allowed to other employees of the State Government. The period from the date of their appointment on the sanctioned and aided posts would be counted for the purpose of grant of Assured Career Progression/Career Advancement Scheme as allowed to other employees of the State Government. The period from the date of their appointment on the sanctioned and aided posts would be counted for the purpose of grant of Assured Career Progression/ Career Advancement Scheme.
(v) The posts shall be automatically abolished as and when the posts become vacant for any reason whatsoever i.e. on account of superannuation/voluntary retirement/ termination of service/ death while in service/ resignation of the employee etc.
(vi) The salary of all the appointed employees shall be fixed on the basis of salary as drawn at the time of appointment as per Sixth Pay Commission with effect from the date they join in the government under these rules. Those who are drawing salary in Rajasthan Civil Services (Revised Pay Scale) Rules, 1998, Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarian and PTI Rules, 1999 and Rajasthan Civil Services Revised Pay Scales for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules, 2001) shall be allowed benefit of Rajasthan Civil Services (Revised Pay) Rules, 2008, Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarian and PTI Rules, 2009 and Rajasthan Civil Services Revised Pay Scales for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules, 2010) respectively with effect from the date they join in the Government after appointment under these rules.
(viii) No arrears on any account whatsoever, (including arrears of salary, selection scale, Assured Career Progression or Career Advance Scheme) shall be paid by the State Government for the period prior to the date of their joining in the Government after appointment under these rules.
(viii) Carry forward of the balance of Privilege Leave shall not be allowed. Employees shall be free to get payment of enmeshment of balance of P.L. from the respective grant-in-aid educational institutions.
(ix) The persons who are appointed in the government service under these rules shall be governed by the provisions of the Rajasthan Civil Services (Contributory Pension) Rules, 2005 and the Provision of the Rajasthan Civil Service (Pension) Rules, 1996 shall not be applicable to them. Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institutions for the period prior to the date of their joining in the government after appointment under these rules, shall not be paid by the State Government.
(x) The period of service in the aided institutions shall not be counted for payment of gratuity. The employees shall be free to obtain payment of gratuity from the respective grant in aid educational institution.
(xi) Each employee shall be required to execute an undertaking in Form-II, that he/she voluntarily accepts all the terms and conditions of service prescribed under these rules and agrees to serve in the government educational institutions situated in the rural areas till attaining the age of superannuation in the service of Government.
21. The respondent-State in exercise of the power conferred by Section 43 of the Act of 1989, promulgated the Rules of 1993 regulating the recognition, grant-in-aid and service conditions etc. Rule 11 of the Rules of 1993 reads thus:-
11. Procedure for Grant-In-Aid (1) Any non-Government educational institution seeking grant-in-aid from the Government shall submit its application in the form prescribed in Appendix-IV to the concerned Director of Education latest by 30th September of the year immediately preceding the year in which the grant-in-aid has been applied for. By 31st October each year the Director of Education shall order for a panel inspection by a Committee, to be nominated by him and direct such in the proforma as specified in Appendix-V. Committee to submit its report latest by 31st of December. The panel inspection report shall be scrutinized by the Head of Accounts Branch of the Directorate. A list of institutions recommended by the Panel Inspection Committee shall be sent to the State Government by 31st of January, such reports, after due scrutiny shall be put-up before the Grant-in-aid Committee, which shall consists of the following -
(i) Special Secretary to the Government Education Department Chairman
(ii) Director and/or Chief Accounts Officer of Primary & Secondary Education Member
(iii) Director of College Education Member
(iv) Director of Sanskrit Education Member
(v) A representative of the Finance Department Member
(vi) Three eminent non-official Educationists nominated by the Government Member
(vii) Accounts Officer, Education Department Member-
Government Secretariat, Jaipur Secy.
(2) The Director of Education shall intimate the amount that may be available for the above grants in the financial year to the above committee, when it meets to consider the applications for grant-in-aid.
(3) The Government shall convey its approval of the quantum of aid etc. to the concerned Director of Educations for further necessary action.
(4) The quantum of aid shall depend upon the recommendations of the grant-in-aid committee and finally as may be approved by the Government and may range from 50% to 90% of the approved expenditure of the institutions:
Provided that in case of Railway schools situated in Rajasthan, grant-in-aid may be allowed as follows:-
1. Primary & Upper 50% of approved expenditure Primary Schools
2. Secondary or Senior 25% of the approved Secondary Schools expenditure Provided further that the percentage of aid for a new faculty or subject shall not be less than that already being paid for another faculty or subject in an institution.
(5) A declaration shall be furnished by the person authorized by the management of the institution for which grant-in-aid is being sought, to the effect that it has sufficient assets (list to be attached) which are free from all encumbrances and do not include assets created or added out of the grant-in-aid received and that the income of such assets supplemented by grant-in-aid will be adequate to enable for management to carry on the institution efficiently and to pay the salaries of the staff of the institution regularly and in time.
22. The Annual Recurring Grant is assessed in the light of the provisions contained under Rule 13 of the Rules of 1993 and Rule 14 makes the provisions for Approved Expenditure, which includes the actual salary and provident fund contribution not exceeding 8.33% in respect of teaching and non-teaching staff. Further, the institution is categorized under the advise of the Grant-in-aid Committee, and may be allowed grant-in-aid in accordance with the provisions of Rule 13 of the Rules of 1993.
23. The institution is under an obligation to file an application by 31st May of each year to the Director of Education as stipulated under Rule 17 of the Rules of 1993. Rule 26 of the Rules of 1993 provides for procedure of recruitment of an employee in a recognized institution. Clause (d) of Rule 26 details out the constitution of the Selection Committee and clause (f) of Rule 26 provides for reservation policy, which shall be invariably followed by the aided institutions for all categories of services. The appointments made in accordance with the procedure provided under Rule 26 of the Rules of 1993 are subject to approval by the competent authority as per mandate of Rule 28 of the Rules of 1993 and it is only after the approval of the competent authority, the Managing Committee may make necessary appointment. The competent authority is defined under Rule 2(f) of the Rules of 1993. Scruples compliance of the Rules of 1993 may entitle an institution to claim grant-in-aid from the State Government and the posts are sanctioned by the Director of Education in accordance with the provisions of Rule 17 of the Rules of 1993. Therefore, an institution facilitated with grant-in-aid, is obliged to accord appointment on a sanctioned post as per procedure and subject to approval by the competent authority under the Rules of 1993. Hence, the category of employees so appointed constitutes a separate class.
24. The institutions are categorized under the advice of Grant-in-aid Committee and are accorded grant-in-aid even to the extent of 80%. Further, the special category of the institutions engaged in education on experimental and pioneering lines, in accordance with the criteria laid down by the Department of Education, the grant-in-aid may extend upto 90%. Thus, the employees who are working against the aided and sanctioned posts and major part of their remuneration is provided by the State, they have been allowed an option to enter the Government Service under the Rules of 2010 whereas with reference to the employees working on unaided posts, the State has no financial burden.
25. The object underlying the promulgation of the 'Rules of 2010' was/is to stop the grant-in-aid of such aided posts where the employees opted for voluntary service under the Rules of 2010, and the same is a dying cadre so as to relieve the respondent-State of the financial burden.
26. The respondent-State further pleaded that the petitioners working on different posts, such as, Lab Assistant, Senior Teacher, Assistant Teacher and Class-IV, hold such posts, which are different in the nature of appointment and duties attached to the posts and therefore, the petitioners have different and distinct service particulars and hence, are not entitled to prefer a joint writ petition in the face of provisions as contained under Rule 375(4) of the Rajasthan High Court Rules.
27. Learned Advocate General, raising preliminary objection argued that the petitioners who are teachers have no locus standi to invoke writ jurisdiction of this Court.
28. Further, the provisions of the Act of 1989 and the Rules of 1993, provide for grant-in-aid to the educational institutions on submission of application in the prescribed form and subject to fulfillment of certain conditions. Moreover, grant-in-aid is sanctioned on yearly basis. There is no privity of contract for employment between the State and the Teachers since they are employees of the respective educational institutions.
29. The petitioners have no locus standi against the respondent State seeking a direction for continuity of grant-in-aid more particularly when the institution(s) has/have not approached this Court with such a claim, challenging the action of the respondent State in stopping of the grant-in-aid. Reliance has been placed on the law declared by the Honble Apex Court of the land in cases of State of Assam v. Ajit Kumar Sarma (AIR 1965 SC 1196) and Cyril E. Fernandes Versus Sr. Maria Lydia and others (1977 (4) SCC 94).
30. Mr. G.S. Bapna, learned Advocate General, further contended that Section 7 of the Act of 1989, as amended by Amending Act 8 of 2011 with effect from 31.01.2011, is perfectly legal and valid for the reason that there is no right to receive grant-in-aid. The State Government has been allowing grant-in-aid in exercise of its executive policy and it is permissible for the State to take policy decision to stop grant-in-aid. To fortify his submissions, reliance has been placed on the law declared by the Honble Apex Court of the land in cases of Unni Krishnan, J.P. and others Versus State of Andhra Pradesh and others (1993 (1) SCC 645), State of Orissa & Anr. Versus Aswini Kumar Dash & Ors. (1998 (3) SCC 613), Principal, Madhav Institute of Technology & Science Versus Rajendra Singh Yadav & Ors. (2000 (6) SCC 608), State of Bihar & Ors. Versus Dilip Kumar Mishra & Ors. (2005 (12) SCC 133) and in the case of Maria Grace Rural Middle School, Venkataryapuram Versus Government of Tamil Nadu & Ors. (AIR 2007 Mad. 52).
31. The learned Advocate General further contended that Section 7 of the Act of 1989, is an enabling provision. The power to deny or stop grant-in-aid can always be exercised by the State Government even without existence of Section 7 and therefore, the challenge to the validity and correctness of Section 7, being an enabling provision, cannot be sustained in the law.
32. Moreover, sufficient guidelines have been provided for the exercise of power, which is apparent on the face of record in view of the objects and reasons of the Act of 1989. Referring to the law declared by the Honble Apex Court of the land in case of Jagdish Pandey Versus The Chancellor, University of Bihar & Ors. (AIR 1968 SC 353) and The State of Jammu and Kashmir Versus Shri Triloki Nath Khosa & Ors. [(1974) 1 SCC 19], further submitted that the objects and reasons as well as the background of the Legislation can always be seen as the guidelines for the exercise of power. Further, the Courts can take into consideration the matters of common knowledge, common reports, history of time and every state of facts. Reliance was placed on the law declared by the Honble Apex Court of the land in case of Shri Ram Krishna Dalmia Versus Shri Justice S.R. Tendolkar & Ors. (AIR 1958 SC 538); Mohd. Hanif Quareshi & Ors. Versus State of Bihar & Ors. (AIR 1958 SC 731); Bank of Baroda Versus Rednam Nagachaya Devi (1989 (4) SCC 470), to fortify the submissions. It was also added that when the power, if conferred on the higher authority, like the State Government, then the same is sufficient safeguard for the exercise of power and such conferment of power cannot be said to be arbitrary. Reliance has been placed on the law declared by the Honble Apex Court of the land in the case of M/s. Laxmi Khandsari & Ors. Versus State of U.P. & Ors. (1981) (2) SCC 600).
33. The learned Advocate General further submits that the State Government has exercised the power for legal and valid reasons, which are contained in the order of the State Government dated 23.12.2011. The reasons for exercise of the power are valid and germane and are based on objects and reasons of the Act of 1989. Moreover, the existence of the reasons for exercise of the power has not been questioned by the petitioners and therefore, the executive action of the State Government is perfectly legal and valid.
34. According to the learned Advocate General, the State Government is obliged only to safeguard the interest of the teachers who are/were working on aided and sanctioned posts, to the limited extent as provided under the provisions of the Act and Rules.
35. As and when grant-in-aid is stopped, the schools/institutions will be governed by other provisions of law relating to recognized institutions and to that extent the interest of teachers would be safeguarded. The action of granting the grant-in-aid on the pretext of safeguarding the interest of the petitioners, would lead to perpetual grant-in-aid, which has never been the intention of the legislation and of the State, while according the grant-in-aid. The learned Advocate General contended that so far as the State of Rajasthan is concerned, it has made a salutary provision, which existed no where in the country inasmuch as all the teachers who were working on aided and sanctioned posts, have been accorded an opportunity to get an appointment in the service of the State Government as per mandate of Rules of 2010.
36. The apprehension projected by the petitioners of closure of institutions and reduction of their salary in the event of non-availability of grant-in-aid has been emphatically denied since grant-in-aid is available subject to fulfillment of certain conditions as provided under the Act of 1989 and the Rules of 1993. Some of the private schools/institutions were financially in a very sound position and this fact is also evident from the very fact that none of the institution approached this Court against the action of the respondent State in stopping the grant-in-aid.
37. The submissions made no behalf of the petitioners with reference to reduction of salary could also not be legally sustained in the face of mandate of Rule 5(1) of the Rules of 1993, since recognition is accorded to the institution which pays salary as per the Government rules.
38. Moreover, if the petitioner(s) has/have any dispute on the count of salary, same can be raised before the appropriate forum keeping in view the provisions of the Act of 1989.
39. Countering the submissions made on behalf of the petitioners that the action of stopping grant-in-aid was not in the name of Governor and therefore, is bad in the eye of law, the learned Advocate General invited the attention of this Court to the provisions of Article 166(1) of the Constitution of India and submitted that the provisions are directory in nature, and even if, there is any non-compliance, it will not render the order to be invalid. In this reference, reliance was placed on the law declared by the Honble Apex Court of the land in case of Dattatreya Moreshwar Versus State of Bombay (AIR 1952 SC 181); Major E. G. Barsay Versus State of Bomay (AIR 1961 SC 1762); Chitralekha Versus State of Mysore & Ors. (AIR 1964 SC 1823) and in case of Murlidhar Versus State of Rajasthan & Ors. (AIR 2000 Raj. 170).
40. The Honble Chief Minister has taken a decision, which is a policy decision and is within the power of the Honble Chief Minister under the Rules of Business. The learned Advocate General further submitted that the State Government had been bearing 80% of the financial burden with reference to the aided and sanctioned posts and the State Government is fully aware of the extent of its obligation.
41. As a one time measure, provision as stipulated under Rule 2(g) of the Rules of 2010, has been incorporated and the petitioners cannot compare and equate themselves with those who are covered under the definition aforesaid in reference to aided and sanctioned posts, for which the State Government has been providing grant-in-aid. To fortify the submissions, reliance was placed on the law declared by the Honble Apex Court of the land in case of State of Karnataka & Anr. Versus B. Suvarna Malini & Anr. [(2001) 1 SCC 728].
42. It was further submitted that even if, the case of the petitioners was that one of under inclusion, the validity of the same, could not be assailed on the touch-stone of Article 14 of the Constitution of India. Reliance has been placed, in this reference, on the law declared by the Honble Apex Court of the land in cases of Sekhawat Ali Versus State of Orissa (AIR 1955 SC 166); The State of Gujarat & Anr. Versus Shri Ambica Mills Ltd., Ahmedabad & Anr. (1974 (4) SCC 656); The Superintendent and Remembrancer of Legal Affairs, West Bengal Versus Girish Kumar Navalkha & Ors. (1975 (4) SCC 754); State of Karnataka & Anr. Versus B. Suvarna Malini & Anr. (2001 (1) SCC 728); Heena Kausar Versus Competent Authority [(2008) 14 SCC 724]; Nasiruddin & Ors. Versus Sita Ram Agarwal (2003 (2) SCC 577); V.K. Naswa Versus Home Secretary, Union of India & Ors. [(2012) 2 SCC 542], and Samsher Singh Versus State of Punjab & Anr. [(1974) 2 SCC 831].
43. We have heard the learned counsel for the petitioners and the learned Advocate General for the State as well as the counsel for the respondent institutions.
44. It is not in dispute that there exist two set of posts in the Non-Government Aided Educational Institutions, one being aided sanctioned posts and another being non-aided sanctioned posts.
45. The grievance of the petitioners for they having been deprived in view of definition clause 2(g) of the Rules of 2010, for not working against the aided and sanctioned posts on the date of commencement of the Rules of 2010, from exercising option for appointment in the Government service, is primarily based on the challenge to the legality, validity and correctness of definition clause 2(g) read with Rule 4 of the Rules of 2010.
46. From a bare perusal of the Scheme of the Act of 1989 and the Rules of 1993, it is evident that grant-in-aid to a Non-Government Educational Institution can be claimed only subject to fulfillment of certain conditions, and ensuring compliance of the procedure as contained under Rule 11 of the Rules of 1993 and further, the assessment of annual recurring grant is made as per provisions of Section 13 of the Rules of 1993. Rule14 further provides for approved expenditure in detail. There are specific provisions for sanction of a post as well as stoppage, reduction and suspension of grant as stipulated under Rules 17 and 18 of the Rules of 1993.
47. The preliminary objection raised on behalf of the respondent-State, stating that the petitioners, who are teachers the Non-Government Educational Institutes, have no locus standi to file writ applications, appears to be of no substance, keeping in view the nature of controversy raised by the petitioners in the writ applications and the power of the state government which permeates to a considerable extent, in the matter of functioning of the Non-Government Educational Institutions of the petitioners.
48. Keeping in view the Scheme of the Act & Rules, there cannot be any doubt that grant-in-aid is available to educational institutions on submission of application in the prescribed form and fulfillment of conditions as stipulated under the provisions of Act of 1989 and Rules of 1993 and cannot be claimed as a matter of right.
49. The law declared by the honourable Apex Court of the land in case of "State of Assam v. Ajit Kumar Sharma" (AIR 1965 SC 1196), referred to and relied upon on behalf of the respondent-State in this reference, dealt with the controversy on the basis of the facts and circumstances of that case, wherein the State prescribed certain conditions for giving grant-in-aid to educational institutions by mere executive instructions which have not the force of statutory rules, and that is not the case in the writ applications at hand. Be that as it may, even in the case of Ajir Kumar Sharma (supra) the Hon'ble Supreme Court observed that what grant the State should make to Private Educational Institution and upon what terms, are matters for the State to decide. It was observed that having accepted the instructions containing the conditions and terms for the purpose of grant-in-aid, if the College does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid and that is a matter between the Government and the Private College concerned and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced.
50. Similarly, in case of Cyril E. Fernandes Versus Sr. Maria Lydia and others [(1977) 4 SCC 94], the Hon'ble Supreme Court reiterated the view expressed in case of State of Assam Versus Ajit Kumar Sharma (supra) holding thus:-
The main contention of Mr. R. K. Garg for the appellant has been that the Judicial Commissioner was in error in issuing a writ to enforce the provisions of the Grant-in-aid code which have no statutory force. We do not think it is a question which can be raised in this appeal at the instance of the teacher. The writ petition questioned the validity of the direction on the management of the school to reinstate the teacher and the stoppage of the grant-in-aid as a panel measure where the management declined to comply with that direction. The authorities who were responsible for making the impugned orders and against whom the writ has gone, have not appealed. The dispute was between the management of the school and the Government relating to some of the rights and obligations they have against each other under the Grant-in-aid code, the teacher, termination of whose services gave rise to this dispute, was impleaded as a proper party in the writ petition. The scope of the appeal is limited to what the Judgment contains by which the appellant can be said to be aggrieved. A person can claim to be aggrieved if his legal rights are directly affected. In State of Assam and another v. Ajit Kumar Sharma and others(1), this Court observed:
"where such conditions of grant-in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant-in-aid. If however, having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced.
On the authority of State of Assam v. Ajit Kumar Sharma (supra) it is clear that the appellant is not directly concerned with the question whether the rules in the Grant-in-aid code conferred on the management of the school an enforceable right against the Government which is entirely a matter between the management and the Government. The appellant who has no say in the matter cannot challenge the finding on the point. The question as to the enforceability of the Grant-in-aid code does not, thus arise in this appeal and we express no opinion on it.............
51. Thus, the submissions made on behalf of the petitioners assailing the amendment of Section 7 of the Act of 1989 by Amending Act 8 of 2011 with effect from 31.01.2011; as arbitrary since no guidelines have been provided for exercise of the power, cannot be sustained in the face of the stipulation to the effect that no aid shall be claimed by any institution as a matter of right, it is always permissible for the State Government to take a policy decision with regard to claim of grant-in-aid.
52. The Hon'ble Apex Court of the land in case of Unni Krishnan, J.P. and others Versus State of Andhra Pradesh and others [(1993) 1 SCC 645], has held in unequivocal terms to the effect that a citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less a fundamental right, to affiliation or recognition, or to grant-in-aid from the State. So also the State Government may exercise its power to frame a policy for grant-in-aid having regard to its financial resources and the number of educational institution to which it will be required to grant such aid; since no State can be expected to have unlimited financial resources. Therefore, the submissions on behalf of the respondent State that Section 7 vests the State with the power to deny or stop grant-in-aid and can always be exercised by the State Government even without Section 7 available on Statute Book, has some substance. Further, a bare perusal of Section 7 of the Act of 1989 would also reveal that there are sufficient guidelines provided for exercise of the power keeping in view the objects and reasons of the Act.
53. The Hon'ble Supreme Court in case of M/s. Laxmi Khandsari & Ors. Versus State of U.P. & Ors. [(1981) 2 SCC 600] reiterated the view in case of Chinta Lingam Versus Government of India [(1970) 3 SCC 768] and held, that power to issue orders or directions from time to time is conferred on the Central Government which is undoubtedly a very high authority and must be presumed to act in a just and reasonable manner. Their Lordships emphasized that the power is vested in a very high authority, it cannot be assumed that it is likely to be abused and the presumption will be that the power will be exercised in a bona fide manner and according to law.
54. The Rules of 2010 have been brought into force by notification in the official gazette dated 01.12.2010, which operate entirely in a different area with the object to safeguard the interest of the teachers working on aided and sanctioned posts, realizing consequences of stopping the grant-in-aid since State Government had been bearing 80% liability of the teachers working against aided and sanctioned posts in the Non-Government Educational Institutions.
55. It needs no reiteration that concept of equality before the law does not involve the idea of absolute equity amongst human beings. Article 14 guarantees a similarity of treatment contra-distinguished from identical treatment. Further, equality before law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. The equity clause cannot be stretched to the extent where things which are different may be treated as if they were the same.
56. The legislature as well as the executive Government, while dealing with diverse problems arising out of an infinite variety of human relations must of necessity have the power of making special laws, to attain any particular object and to achieve that object, it must have the power of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination. Therefore, if the Rules of 2010 are examined from the aforesaid standpoint, it is apparent on the face of record that the State Government, as a policy decision, accorded opportunity for appointment in Government service as per Rule 4 of the Rules of 2010 restricting the option only to those employees in the Non-Government Aided Educational Institutions, who are/were working against sanctioned and aided posts on the date of commencement of the Rules of 2010. The principle has been propounded by the Hon'ble Apex Court of the land in the case of State of Karnataka & Anr. Versus B. Suvarna Malini & Anr. [(2001) 1 SCC 728]. Thus, the classification, in our opinion is founded on an intelligible differentia and distinguishes those that are grouped together from others and has a rational relation to the object sought to be achieved by the Rules of 2010.
57. The view also finds support from the observations made by the Hon'ble Apex Court of the land in case of State of Orissa & Anr. Versus Aswini Kumar Dash & Ors. [(1998) 3 SCC 613]. The Hon'ble Apex Court of the land in case of Principal, Madhav Institute of Technology & Science Versus Rajendra Singh Yadav & Ors. [(2000) 6 SCC 608] observed that grant-in-aid, either for the institution or for the school or for the individual is a matter of policy. Similarly in case of State of Bihar & Ors. Versus Dilip Kumar Mishra & Ors. [(2005) 12 SCC 133], the Hon'ble Supreme Court reiterated the policy decision of the government depending upon financial resources observing that there is no right to grant-in-aid, which would depend upon economic and other relevant considerations.
58. By now, it is well settled law that while Article 14 of the Constitution of India prohibits class legislation but it does not prohibit a reasonable classification for the purposes of legislation subject to fulfillment of twin conditions i.e. (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the object to be achieved by the Statute in question. This view propounded by the Hon'ble Apex Court of the land by the Constitution Bench of 7 Judges as reported in AIR 1955 SC 191, has been reiterated time and again. Therefore, a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; further, there is always a presumption in favour of the constitutionality of any enactment and the burden is on him who attacks it to show that there has been a clear transgression of the constitutional principles.
59. It is well established principle that the legislature understands and correctly appreciates the needs of its own people, that its law are directed to the problems made manifest by experience and that its discrimination are based on adequate grounds; legislature is free to recognize degree of harm and may confine its restriction to those cases where the need is deemed to be a clearest. In order to sustain the presumption of constitutionality, the Court may take into consideration the matters of knowledge, matters of common report, history of times and may assume every state of facts, which can be conceived existing at the time of legislation; good faith and knowledge of the existing condition on the part of the legislature are to be presumed, if there is nothing on the basis of the law or surrounding circumstances brought to the notice of the Court, general classification may reasonably be regarded as base.
60. The Hon'ble Apex Court of the land in case of Bank of Baroda Versus Rednam Nagachaya Devi [(1989) 4 SCC 470] has held as under:-
13. In our opinion, the submissions of Sri Bobde on the point are not without force. This Court had rejected the attack on Section 4(e) on the grounds of violation of Article 14. That apart, the burden of showing that a classification is arbitrary is basically on the person who impeaches the law. If any state of facts can reasonably be conceived as sustaining the constitutionality, the existence of that state of facts as at the time of the enactment of law, must also be assumed. The allegations on which violation of Article 14 are based must be specific, clear and unambiguous and must contain sufficient particulars. In Harman Singh v. Regional Transport Authority, Calcutta Mahajan, J. observed:
In our judgment, this question can be answered only in the negative. It has been repeatedly pointed out by this Court that in construing Article 14 the courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible. A law applying to a class is constitutional if there is sufficient basis or reason for it. In other words, a statutory discrimination cannot be set aside as the denial or equal protection of the laws if any state of facts may reasonably be conceived to justify it.
61. The argument advanced on behalf of the petitioners to the effect that once a Non-Government Aided Educational Institution, was facilitated with the grant-in-aid, therefore, the employees of the aided institution could not be further classified into two different classes i.e., employees working against the sanctioned unaided posts and employees working against sanctioned aided posts in the same institution; may not detain us for long, for it is not in dispute that there exist two set of posts in the Non-Government Educational Institutions, one being aided sanctioned posts and another being non-aided sanctioned posts. Therefore, the argument that one homogeneous class could not have been further divided into two different classes, holds no substance.
62. The Hon'ble Apex Court of the land has again reiterated the earlier view expressed with regard to upholding the validity of statute, if there exists a legal and reasonable classification. Therefore, being based upon the substantial distinction; in case of Heena Kausar Versus Competent Authority [(2008) 14 SCC 724], the Hon'ble Supreme Court held thus:-
19. It is now well settled that validity of a statute can be upheld if there exists a valid and reasonable classification therefor, being based upon the substantial distinction bearing a reasonable and just relation with the object sought to be attained.
20. In this regard, we may notice some well settled legal principles. A law may be constitutional even though it affects an individual. There exists a presumption in favour of the constitutionality of an enactment. The burden of proof that the legislation is unconstitutional is upon the person who attacks it, save and except the cases where, inter alia, arbitrariness appears on the face of the statute and the burden of proof in regard to constitutionality of the statute is on the State. The principle of equality would not mean that every law must have universal application for all persons who, by nature, attainment or circumstances, are in the same position.
21. A law is amended by Parliament having regard to its experience. It is a matter of legislative policy and for that purpose mere inequality cannot be the sole factor for determining the constitutionality of the impugned provision.
22. Whereas Article 14 forbids classification, it is trite, it does not forbid reasonable classification. {See M.P. Rural Agriculture Extension Officers Assn. v. State of M.P. & Anr. [(2004) 4 SCC 646]; and State of Bihar & Ors. v. Bihar State +2 Lecturers Associations & Ors. [(2007) 7 SCALE 697]}.
23. This court in State of W.B. v. Anwar Ali Sarkar [AIR 1952 SC 75] as also Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors. [1959 SCR 279], categorically laid down the twin test of classification. The classification, however, should be based on reasonable and rational differentia and should not be arbitrary.
24. It is not a case where validity of the statute itself is in question. Ordinarily, a statute providing for under inclusion would not be held to be attracting the wrath of Article 14. A Constitution Bench of this Court held so in State of Gujarat v. Shri Ambika Mills Ltd., in the following words: (SCC pp. 675-76, paras 54-56) "54. A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is: what does the phrase "similarly situated" mean? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good.
55. A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as under-inclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. A classification is over-inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, this type of classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims. Herod ordering the death of all male children born on a particular day because one of them would some day bring about his downfall employed such a classification.
56. The first question, therefore, is, whether the exclusion of establishments carrying on business or trade and employing less than 50 persons makes the classification under-inclusive, when it is seen that all factories employing 10 or 20 persons, as the case may be, have been included and that the purpose of the law is to get in unpaid accumulations for the welfare of the labour. Since the classification does not include all who are similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreasonable. But the Court has recognised the very real difficulties under which legislatures operate-difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to re-shape - and it has refused to strike down indiscriminately all legislation embodying classificatory inequality here under consideration. Mr. Justice Holmes, in urging tolerance of under-inclusive classifications, stated that such legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched. What, then, are the fair reasons for non-extension? What should a court do when it is faced with a law making an under-inclusive classification in areas relating to economic and tax matters? Should it, by its judgment, force the legislature to choose between inaction or perfection?"
The said ratio was followed by this Court in The Superintendent and Remembrancer of Legal Affairs, West Bengal v. Girish Kumar Navalakha and Ors. holding (SCC p. 758, para 8):
"8. Oftentimes the courts hold that under-inclusion does not deny the equal protection of laws under Article 14. In strict theory, this involves an abandonment of the principle that classification must include all who are similarly situated with respect to the purpose. This under-inclusion is often explained by saying that the legislature is free to remedy parts of a mischief or to recognize degrees of evil and strike at the harm where it thinks it most acute."
It was furthermore held: (Navalakha case, SCC pp. 758-59, para 10) "10. There are two main considerations to justify an under-inclusive classification. First, administrative necessity. Second, the legislature might not be fully convinced that the particular policy which it adopts will be fully successful or wise. Thus to demand application of the policy to all whom it might logically encompass would restrict the opportunity of a State to make experiment. These techniques would show that some sacrifice of absolute equality may be required in order that the legal system may preserve the flexibility to evolve new solutions to social and economic problems. The gradual and piecemeal change is often regarded as desirable and legitimate though in principle it is achieved at the cost of some equality. It would seem that in fiscal and regulatory matters the court not only entertains a greater presumption of constitutionality but also places the burden on the party challenging its validity to show that it has no reasonable basis for making the classification."
63. In a recent verdict the Hon'ble Apex Court of the land in case of V.K. Naswa Versus Home Secretary, Union of India & Ors. [(2012) 2 SCC 542] held thus:-
6. It is a settled legal proposition that the court can neither legislate nor issue a direction to the Legislature to enact in a particular manner.
7. In Mullikarjuna Rao & Ors. etc. etc. v. State of Andhra Pradesh & Ors. etc. etc., AIR 1990 SC 1251; and V.K. Sood v. Secretary, Civil Aviation & Ors., AIR 1993 SC 2285, this Court has held that Writ Court, in exercise of its power under Article 226, has no power even indirectly require the Executive to exercise its law-making power. The Court observed that it is neither legal nor proper for the High Court to issue direction or advisory sermons to the Executive in respect of the sphere which is exclusively within the domain of the Executive under the Constitution. The power under Article 309 of the Constitution to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State, as the case may be. The Courts cannot usurp the functions assigned to the Executive under the Constitution and cannot even indirectly require the Executive to exercise its law-making power in any manner. The Courts cannot assume to itself a supervisory role over the rule-making power of the Executive under Article 309 of the Constitution.
18. Thus, it is crystal clear that the Court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the Court can legislate, nor it has any competence to issue directions to the legislature to enact the law in a particular manner.
64. The argument raised on behalf of the petitioners that the Governor ought to have exercised power personally is found to be of no substance in view of law declared by the Hon'ble Apex Court of the land in case of Samsher Singh Versus State of Punjab & Anr. [(1974) 2 SCC 831] wherein the Hon'ble Supreme Court held thus:-
20. Articles where the expression "acts in his discretion" is used in relation to the powers and functions of the Governor are those which speak of Special responsibilities of the Governor. These Articles are 371A(1) (b), 371A(1) (d), 371A (2) (b) and 371A(2) (f). There are two Paragraphs in the Sixth Schedule., namely, 9(2) and 18(3) where the words "in his discretion" are used in relation to certain powers of the Governor. Paragraph 9 (2) is in relation to determination of amount of royalties payable by licensees or lessees prospecting for, or extracting minerals to the District Council. Paragraph 8(3) has been omitted with effect from 21 January, 1972.
30. In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rule for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Article 77(3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of Presidents the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 21-3, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the Personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the, Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77(3) nor Article 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) provide that the President under Article 77(3) and the Governor under Article 166(3) shall make rules for the more convenient transactions of the business of the Government and the allocation of business among the ministers of the said business. The rules of business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the rules of business make under these two Articles viz., Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively.
31. Further the rules of business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor as the case may be, are sources of the rules of business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Ministers Department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister (See Halsubrys laws of England 4th Ed. Vol. I paragraph 748 at p. 170 and Carleton Ltd. v. Works Commissioners).
35. The Scheme was upheld for these reasons. The Governor makes rules under Article 166(3) for the more convenient transaction of business the Government of the State. The Governor can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But that could be done on the advice of the Council of Ministers. The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible for every action taken or omitted to be taken in his Ministry. In every administration, decisions are taken by the civil servants. The Minister lays down the policies. The Council of Ministers settle the major policies. When a Civil Servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Ministrys department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister.
42. This Court in Jayantilal Amritlal Shodhans case (supra) held that Article 258 enables the President to do by notification what the Legislature could do by legislation, namely, to entrust functions relating to matters to which executive power of the Union extends to officers named in the notification. The notification issued by the President was held to have the force of law. This Court held that Article 258 (1) empowers the President to entrust to the State the functions which are vested in the Union, and which are exercisable by the President on behalf of the Union and further went on to say that Article 258 does not authorize the President to entrust such power as are expressly vested in the President by the Constitution and do not fall within the ambit of Article 258(1). This Court illustrated that observation by stating that the power of the President to promulgate Ordinances under Articles 268 to 279 during an emergency, to declare failure of constitutional machinery in States under Article 356, to declare a financial emergency under Article 360; to make rules regulating the recruitment and conditions of service of persons appointed to posts and services in connection with the affairs of the Union under Article 309 are not powers of the Union Government but are vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority under Article 258(1).
47. The decision in Sardari Lals case that the President has to be satisfied personally in exercise of executive power or function and that the functions of the President cannot be delegated is with respect not the correct statement of law and is against the established and uniform view of this Court as embodied in several decisions to which reference has already been made. These decisions are from the year 1955 upto the years 1971. The decisions are Rai Saheb Ram Jawaya Kapur v. State of Punjab [1955] 2 S.C.R. 225, A. Sanjeevi Neidu v. State of Madras [1970] 3 S.C.R. 505 and U. N. R. Rao v. Smt. Indira Gandhi [1971] Suppl. S.C.R. 46. These decisions neither referred to nor considered in Sardari Lals case (supra).
48. The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.
152. Certainly, the key words of wide import in the fasciculus of Articles relating to the President and Governor are functions (Arts. 74 & 163) and business and allocation of portfolios, rules of business and delegation to subordinate officials are but the methodology of working out the Cabinet process. Long arguments on the terminological niceties of the various provisions, divorced from the essentials of parliamentary perspective, will land us in Himalayan constitutional blunders. Similarly, expressions like is satisfied, opinion as he thinks fit, if it appears to have to be interpreted by super-imposing the invisible but very real presence of the Ministry over the Head of State.
153. Before we conclude on this part of the case we remind ourselves that so long as the Constitution shall endure-no one can say how long, each generation being almost a separate nation this Court must exist with it, deciding in the peaceful forms of forensic proceeding, the delicate and dangerous controversies inter alia, between sub-sovereignties and citizens. And the pronouncements of this summit tribunal being law under Art. 141, it binds until reinterpreted differently and competently. But as Judges we have solemnly to remind ourselves of the words of the historian of the U. S. Supreme Court, Mr. Charles Warren:
However the Court interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the Court.
Nor is Sardari Lal (supra) of such antiquity and moment that a reversal would upset the sanctity of stare decision. Some rulings, even of the highest Court, when running against the current of case-and the clear stream of Constitutional thought, may have to fall into the same class as restricted railroad ticket, goods for the day and train only, to adopt the language of Justice Roberts.
65. The State as a policy decision has decided, in the backdrop of the fact that the employees, who are working on aided sanctioned post, a major part of their remuneration is provided by the State and therefore, has restricted the entry to the rural service under the Rules of 2010, keeping in view the financial burden; cannot be faulted, for the reason that the State Government will stop the grant-in-aid on such posts whereas on the other hand the employees working on non-aided sanctioned post, the State Government has no financial burden to pay their salary and remuneration etc. Further, Section 7 of the Act of 1989 is an enabling provision and sufficient guidelines have been provided for the exercise of the power. The reasons for exercise of the power are valid and germane. As a one time measure, only those employees of the Non-Government Aided Educational Institutions working against aided and sanctioned posts, have been accorded option to enter into the Government Service under the Rules of 2010 as per the mandate of Rule 2(g).
66. Article 14 guarantees similarity of treatment contra-distinguished from identical treatment. Mere differentiation or inequality of treatment does not per se amount to discrimination. There is no right to grant-in-aid since it depends upon the financial resources and other relevant considerations. The classification under the Rules of 2010 is founded on an intelligible differentia with a rational relation to the object sought to be achieved. The learned counsel for the petitioners could not persuade us for any tenable reason, pointing out any clear transgress of the constitutional principle(s).
67. Thus, for the reasons and discussions detailed out hereinabove, we have no hesitation in holding that Rule 2(g) of the Rules of 2010 issued vide notification dated 29.11.2010 is perfectly legal and valid.
68. In the result, the writ petitions are devoid of any merit and are, accordingly, dismissed. No order as to costs. The stay applications also stand dismissed.
(VEERENDR SINGH SIRADHANA), J. (AMITAVA ROY), CJ. Sunil/P.A.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A.