The right to receive aid for minority institutions is not fundamental and can be restricted based on financial considerations and policy decisions regarding staff positions.

ORDER :

The petitioner is the Correspondent of an aided minority institution. The petitioner has filed this petition challenging GO.Ms.No238 School Education department dated 13.11.2018. Wherein the 1^st respondent has reduced the total number of non teaching posts in each cadre in view of the computerization in the schools. The 3^rd respondent CEO by referring to GO.Ms.No.238 has rendered a post of junior assistant as surplus. Therefore the petitioner has filed this writ petition challenging the said government order and the consequential order passed by the Chief Educational Officer dated 20.01.2020.

2. When this writ petition is taken up for hearing, it is reported that GO.Ms.No.238 School Education Department dated 13.11.2018 has been upheld by this Court in WP(MD) No.13428 of 2020. As against this order passed in WP(MD)No.13428 of 2020 dated 07.02.2023, an interim order of stay has been granted in the writ appeal filed by the writ petitioner therein.

3. This Court considered the rival submissions made and also perused the materials placed on record.

4. The government vide GO.Ms.No.238 School Education Department dated 13.11.2018 restricted the appointments of non teaching staff in the aided institutions considering the computerization in the schools. Therefore, one of the junior assistants post in the petitioner school was rendered as surplus. The vires of GO.Ms.No.238 School Education Department dated 13.11.2018 was challenged in WP(MD)No. 13428 of 2020 and this Court has upheld the government order as under :

“8. The issue that arises for consideration is whether private aided minority institutions can demand that the State having once sanctioned a given number of non-teaching posts should continue to extend aid so long as there is requisite students strength. This issue is no longer res integra. The Hon'ble Supreme Court in the decision reported in 2021 SCC OnLine SC 807 (The State of Uttar Pradesh and others v. Principal Abhay Nandan Inter College and ors) had laid down the following propositions :

a) Financial constraints and deficiencies are relevant factors while taking any decision qua aid.

b) Right to get aid is not a fundamental right.

c) Where a policy decision is made to withdraw aid, an institution cannot question it as a matter of right.

d) Challenge can be maintained only on the ground of discrimination.

e) When it comes to aided institutions, there cannot be any difference between minority and non~minority institutions. Article 30 of the Constitution of India 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.

f) A policy decision can also be set out through subordinate legislation.

g) A policy decision is presumed to be in public interest, and such a decision once made is not amenable to challenge, until and unless there is manifest or extreme arbitrariness, a constitutional court is expected to keep its hands off.

h) Executive power shall extend to all matters with respect to which there is legislative power. They are coextensive. By a policy decision, posts can be abolished. This can be done in an indirect way by providing for outsourcing also. Courts cannot create or sustain a post. It is true that Deva Asir decision squarely supports every contention advanced by the writ petitioners. Law cannot remain static. What has been laid down by the Hon'ble Supreme Court is the law of the land under Article 141 of the Constitution of India. The subsequent decision of the Hon'ble Supreme Court referred to above totally undermines Deva Asir. For instance, in Deva Asir, the learned Judge observes that when the petitioner schools