JUDGMENT :

M.M. SUNDRESH, J.

1. Heard learned counsel for the parties.

2. We have also perused the documents filed and carefully considered the affidavits of the parties along with the written arguments filed.

3. Appeals have been preferred by the State of Uttar Pradesh laying a challenge to the judgment of the Division Bench of the Allahabad High Court dated 19.11.2018 holding that Regulation 101 framed under The Intermediate Education Act, 1921 (hereinafter referred to as “the Act”) as amended is unconstitutional. Incidentally, few other appeals were disposed of by taking note of the aforesaid decision. Applications have also been filed to intervene/implead by such of those persons who are also appointed by these institutions as Class “IV” employees. Thus, appositely all these appeals are disposed of by a common order.

THE ACT:-

4. The Intermediate Education Act, 1921 is of vintage origin having its existence prior to independence and surviving to date. The object of the enactment is to regulate and supervise high schools and intermediate education. Sub-Section 4 of Section 9 of the Act speaks of the powers of the State Government and facilitates the State Government to pass appropriate orders or to take adequate action consistent with the provisions of the Act and the State Government may modify or rescind or make any regulation in respect of any matter:

“Section 9- Power of State Government

… (4) Whenever, in the opinion of the State Government, it is necessary or expedient to take immediate action, it may, without making any reference to the Board under the foregoing provisions, pass such order or take such other action consistent with the provisions of this Act as it deems necessary, and in particular, may by such order modify or rescind or make any regulation in respect of any matter and shall forthwith inform the Board accordingly.”

5. Section 16G of the Act deals with conditions of service of the head of institutions, teachers and other employees. Sub-section (2) facilitates the introduction of regulation which could be extended to various activities such as probation, scale of pay, transfer of service, grant of leave etc. Needless to state that this provision speaks of the conditions of service of the person employed in such institutions:

“Section 16G-Conditions of Service of Head of Institutions, teachers and other employees

(1) Every person employed in a recognized institution shall be governed by such conditions of service as may be prescribed by regulations and any agreement between the management and such employee insofar as it is inconsistent with the provisions of this Act or with the regulations shall be void.

(2) Without prejudice to the generality of the powers conferred by sub-section (1), regulations may provide for-

(a) the period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment 2[(including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry or trial in any criminal case for an offence involving moral turpitude)] and the emoluments for the period of suspension and termination of service with notice;

(b) the scales of pay and payment of salaries;

(c) transfer of service from one recognized institution to another;

(d) grant of leave and Provident Fund and other benefits; and

(e) maintenance of record of work and service.”

6. Regulations have been framed under the Act dealing with various subjects, however, for the present case only Chapter III of the said regulations is relevant, which deals with “conditions of service”.

REGULATION 101:-

7. Regulation 101 was inserted vide Parishad 9/592 dated 28.08.1992 and was notified by way of Govt. Notification No. 400/15-7-2(1)-90 dated 30.07.1992 in the following manner:

“Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognized aided institution.”

8. It was substituted through the Notification No. 300/XV-7-2(1)/