'Issued To Achieve Popular Accolade': Allahabad HC Upholds UP Govt's Order Cancelling Takeover Of 7 Educational Institutions By SP Govt

The Court observed that when the provincialization order of 2016 was passed, posts were not sanctioned or created nor approval from the Finance Department was obtained nor proper assessment/ examination of financial burden and other relevant aspects were seen.

In further noted that the order was passed by the then SP Government at the fag end of December 2016 when election notification for Assembly Election could have been issued on any date, certainly to gain "popular accolade".

"The said Government Order dated 23.12.2016 appears to be lucrative offer to the persons at large, who are beneficiary of that Government Order, for getting benefit in the forthcoming 26 election. Therefore, the aforesaid reasons are sufficient to dismiss the writ petitions," the Court observed.

It observed that governance in a civilized society must be based on rule of law, transparency and must create an impression that the decision-making was motivated on the consideration of probity.

"The principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, the said decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate," it held.

Apart from political motives, the Bench noted that the provincialization order was passed with "undue haste" and necessary exercise regarding creation/sanction of posts and consultation of Finance Department with respect to financial burden on the State Government for making payment of salary to the teaching and non-teaching staff, was not undertaken.

In the given circumstances, the Court asked, would heavens have fallen if the provincialization order dated 23.12.2016 was not issued and executed?

Furthermore, the Bench noted that there is no specific Act, Rule or statutory backing for passing the provincialization order.

The Petitioners, teachers and non-teaching staff of the provincialized institutions, had relied upon Uttar Pradesh Provincialized National Institution (Absorption of Employees in the Government Service) Rules, 1992 to argue that the said order is legally sustainable.

However, the High Court observed,

"Rules of 1992 were promulgated with the view to absorb the services of those teachers only, who were working in the provincialized institute before its provincialization and also working against the duly sanctioned posts after its provincialization. Further, it has nothing to do with the process of provincialization of an institute."

The Court thus observed that the petitioners are not entitled to get any relief under Article 226 of the Constitution and it upheld the 2018 order, cancelling the provincialization order.

Case Title: Subhash Kumar & Ors. v. State of UP & Ors.

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