Minority institutes receiving govt aid have to comply with terms, says SC
The Supreme Court on Monday held that minority institutions receiving aid from the government have to comply with conditions imposed on it under the law. The remark was made in a judgment where the top court upheld a 2010 policy decision of the Uttar Pradesh government to outsource appointment of Class IV employees in all state-run and aided institutions and schools.
Stating that the institutions receiving aid from the government cannot be distinguished based on their minority character, a bench of justices Sanjay Kishan Kaul and MM Sundresh said, “When it comes to aided institutions, there cannot be any difference between a minority and non-minority one. Article 30 of the Constitution of India (dealing with rights of minorities to establish and administer educational institutions) is subject to its own restrictions being reasonable. A protection cannot be expanded into a better right than one which a non-minority institution enjoys. Law has become quite settled on this issue and therefore does not require any elaboration.”
The apex court further stated that there cannot be a fundamental right to get an aid from the government and no institution can seek aid on its own terms. “With the grant of an aid, the conditions come. If an institution does not want to accept and comply with the conditions accompanying such aid, it is well open to it to decline the grant and move in its own way. On the contrary, an institution can never be allowed to say that the grant of aid should be on its own terms.”
The top court was deciding on a petition by the UP government that challenged a November 19, 2018 Allahabad high court order, which scrapped the state’s policy of outsourcing class 4 employees due to huge financial burden. The high court order came on petitions filed by colleges and individuals, who challenged a government order of September 8, 2010 that abolished recruitment of all permanent posts of Class IV staff.
The appeals by the state filed through advocate Harish Pandey and argued by additional solicitor general (ASG) Aishwarya Bhati questioned the order of the HC in examining the policy decision of the state which applied equally to all aided and state institutions. The state argued that by way of a law notified in 1992, the state’s approval was mandatory for filling up vacancy of any non-teaching posts in recognised aided institutions. In 2013, this regulation was amended by which Class “IV” employees were to be filled up by the institutions through “outsourcing”.
The minority institutions argued before the top court that a distinction has to be carved out for minority institutions, otherwise the regulation would violate the fundamental rights granted to minority institutions under Article 30(1) of the Constitution of India.
Referring to a 2020 decision of the Supreme Court in SK Mohammad Rafique case, the bench held, “The haze between a minority and non-minority institution is no longer in existence….On the aforesaid issue we have no hesitation in reiterating the principle that an institution receiving aid is bound by the conditions imposed and therefore expected to comply. Once we hold so, the challenge made on various grounds, falls to the ground.”
The court further stated that the decision to grant aid is by way of policy where the government is not only concerned with the interest of the institutions but the ability to undertake such an exercise. “Financial constraints and deficiencies are the factors which are considered relevant in taking any decision qua aid, including both the decision to grant aid and the manner of disbursement of an aid,” the bench added.
The decision came as a succor to the state reeling under the impact of the HC order. The burden to pay the salaries of the contractual Class IV employees was transferred to the institutions. Justice Sundresh, writing the judgment for the bench, said, “The respondents/writ petitioners and similarly placed persons who are recruited by the institutions including the respondents shall be continued with the same scale of pay as if they are recruited prior to 08.09.2010 for which the entire disbursement will have to be made by the institutions alone.”