JUDGMENT Hon'ble Lok Pal Singh, J. Petitioners have filed instant writ petition seeking following reliefs: i) Issue a writ, order or direction in the nature of certiorari for quashing the orders dated 25.05.2017 and 27.09.2018 so far it provides that the posts of Class IV employees will be filled up through outsourcing. ii) Issue a writ, order or direction in the nature of certiorari for quashing para 1(III) of the Government Order dated 24.03.2011. iii) Issue a writ, order or direction in the nature of mandamus directing the respondent to absorb / regularize the petitioners on the post of peon (class IV) in the Mahayogi Guru Gorakhnath Mahavidhyalaya, Bithyani, Yamkeshwar, Pauri Garhwal from the date of provincialization of the institution along with all consequential benefits, including salary, seniority etc. 2. Brief facts, leading to filing of present writ petition, are that initially Mahayogi Guru Gorakhnath Mahavidhyalaya Bithyani, Yamkeshwar, District Pauri Garhwal (hereinafter referred to as ‘the Institution') was being run through its management. The Institution is imparting education upto graduation level. The Committee of Management of the Institution after adopting due selection process granted appointment to petitioner no. 1 on July 1999 and petitioner no. 2 was appointed in the month of December 2011, since then the petitioners are continuously working on class IV posts. The Institution was affiliated to the Hemvati Nandan Bahuguna Garhwal Central University, Srinagar Garhwal, and the Institution constituted a committee for regularization of its non-teaching employees and as per the decision of the committee so constituted on 16.03.2015, the management committee of the Institution passed an order whereby services of the petitioners were regularized. 3. Both the petitioners are High School pass and as such are fully qualified to be appointed on the class IV posts. It is stated that on 25.05.2017, the State of Uttarakhand issued a Government Order whereby the Institution was taken into government grant-in-aid and by the said Government Order several posts relating to teaching and non-teaching were created. By way of aforesaid Government Order the Institution was kept under the category of Government aided college and for the said degree college several post including Principal, teaching staff and non-teaching staff were created but except the post of Class IV employee all the posts were created as regular posts but arbitrarily the post of Class IV were created on outsource basis. As per the aforesaid Government Order dated 25.05.2017, the Institution came under government aided college, as such, the salary of all the employees is being paid by the State Government. On 11.08.2017, the Director of Higher Education Uttarakhand, Haldwani (respondent no. 2 herein) passed an order whereby all the employees, who were appointed prior to issuance of the G.O. dated 25.05.2017, i.e., the date on which the Institution came under the category of government aided institution, and includes teaching and non-teaching employees were absorbed against the posts which were created by virtue of G.O. dated 25.05.2017. It is stated that all the employees who were working along with the petitioners in the Institution prior to its coming under grant-in-aid were absorbed / regularized on their respective posts but the petitioners who were working on the Class IV posts had been discriminated. Thereafter, again on 27.09.2018, the State Government issued another Government Order, whereby the Institution was provincialized/taken over by the Government and the same was declared as Government Degree College and was named as “Mahayogi Guru Gorakhnath Government Degree College, Bithyani, Yamkeshwar, Pauri Garhwal." Pursuant to the aforesaid G.O. dated 27.09.2018, the respondent no. 2 passed an order on 15.05.2019, whereby all the employees, including teaching and non-teaching Class III employees were absorbed as regular employees, but instead of absorbing the petitioners and other Class IV employees as regular employees, they were declared contractual employees through outsourcing. 4. It is alleged that though petitioners as well as the teaching staff and non-teaching clerical staff were also appointed by the Committee of Management of the Institution and some of them were appointed even after the appointment of the petitioners, but their services have been absorbed / regularized by the respondents, but the petitioners have been discriminated. It is also alleged that the non-teaching staff, Clerk, Accountant, Laboratory Assistant, Library Clerk, who were working in the Institution prior to its privincialization, like petitioners have been regularized as per the G.O. dated 27.09.2018, but till today the respondents have not regularized the services of the petitioners on regular basis. Contrary to it, the petitioners have been arbitrarily absorbed on contact basis through outsourcing ignoring the fact that their services were regularized before taking the Institution under grant-in-aid. Contrary to it, the petitioners have been arbitrarily absorbed on contact basis through outsourcing ignoring the fact that their services were regularized before taking the Institution under grant-in-aid. It is further alleged that one Institution named Rath Degree College, Paithani, District Pauri Garhwal, which was also a private Degree College running through its Committee of Management alike the Institution, was taken in grant-in-aid by the Government vide Government Order dated 26.03.2015. By virtue of aforesaid G.O. dated 26.03.2015, the respondents created several posts of teaching and non-teaching staff on regular basis, but the posts of Class IV were created through outsourcing in the same manner as done by the order dated 25.05.2017, issued in 5 respect of the Institution. Subsequently, the respondents passed another order dated 23.12.2016, whereby amendments were made in the order dated 26.03.2015 and it was provided that the posts of Class IV employees which were created through outsourcing vide G.O. dated 26.03.2015 shall be absorbed / regularized on regular basis. It is contended that the salary of the employees, including Class IV employees, of the Rath Degree College, Paithani, District Pauri Garhwal after its coming under grant-in-aid is being paid by the State Government, but in regard to the Class IV employees of the Institution the same policy is not being adopted and the petitioners are being granted appointment through outsourcing, thus the action of the respondents is arbitrary and discriminatory in nature and is in violation of Articles 14 and 16 of the Constitution of India. 5. It is further stated that petitioner no. 1 is working continuously since 1999 and petitioner no. 2 is continuously working since 2011 in the Institution prior to its provincialization and both of them fulfills all the eligibility for being absorbed / regularized on the Class IV posts in government service, but till date the respondents have not regularized the petitioners on Class IV posts, whereas the services of similarly situated Class IV employees working in Rath Degree College, Paithani, were regularized. It is contended that the teachers who were appointed as lecturers in the Institution after the appointment of the petitioners were absorbed in the Government Degree College, Bithyani, Yamkeshwar and were granted salary 6 w.e.f. 25.05.2017, but the petitioners were neither absorbed in government service nor salary has been granted to them despite the fact that they are fully entitled and qualified to be regularized on the Class IV posts. In Rath Degree College, Paithani, which is also a grant-in-aid Institution, salary is being paid to all the employees, including the Class IV employees, by the State Government, which fact is evident from the letter dated 10.07.2017, supplied by authority of said College under Right to Information Act (copy annexed as Annexure 9 to the writ petition). Lastly, it is stated that being aggrieved by the discriminatory action of the respondents, petitioners submitted their representation on 21.12.2019 before respondent no. 2 for ventilation of their grievances, but to no avail. Hence, present writ petition. 6. Though separate counter affidavits have been filed by respondent nos. 1 and 2, but the averments made therein are almost identical. It has been stated that as per recommendation of VI Pay Commission, Group ‘D' posts (Class IV) were declared as dying cadre. It is averred that in the report of VI Pay Commission, it is specifically mentioned that in so far as future recruitment is concerned, no direct recruitment in the 1-S scale will take place. Similarly it has also been stated that ‘Group D' pay scales in the Government will stand upgraded to Group C with no further recruitment taking place in any of the existing Group D posts. It is further averred that as per the policy of the Government in view of recommendations of VI Pay Commission by which Class IV posts were declared as dying cadre, no post has been created for Class IV on regular basis for the Institution and the Class IV posts created for the Institution are on outsource basis, as such, the petitioners cannot be absorbed / regularized against these posts. In paragraph no. 22 of both the Counter affidavits it has been stated that regarding creation of class IV post at Rath Degree College, Paithani, if mistake has been made, it will be rectified as per Government Policy, mistake cannot be repeated and taken as precedence. In paragraph no. 22 of both the Counter affidavits it has been stated that regarding creation of class IV post at Rath Degree College, Paithani, if mistake has been made, it will be rectified as per Government Policy, mistake cannot be repeated and taken as precedence. Since as per Government Policy, Group D posts of Mahayogi Guru Gorakhnath Government Degree College, Bithyani, Yamkeshwar, Pauri Garhwal are on outsource basis, thus petitioners cannot be absorbed / regularized against these posts. 7. In the rejoined affidavit, the contents of paragraph no. 9 of the counter affidavits were denied. It is stated that the contents of said paragraph are not applicable in the instant case as in the present case there is no question of fresh recruitment. It is a case of absorption of the employees, who were regularly appointed in the Institution after its provincialization, as such, the recommendation of the VI Pay Commission has no role in this matter. 8. Heard learned counsel for the parties and perused the counter affidavits, rejoinder affidavit & other documents brought on record. 9. Learned counsel for the petitioners vehemently argued that on the one hand the services of teachers and non-teaching staff, who were appointed by the Committee of Management, before provincialization of the Institution were regularized, but the petitioners who are Class IV employees and are getting meager salary, have been deprived from regularization, whereas in Rath Degree College, Paithani, which was also taken over by the State Government under grant-in-aid, all the employees, i.e., teaching and non-teaching staff as well as Class IV employees, appointed by the Committee of Management of that Institution before coming of said Institution under grant-in-aid were absorbed / regularized by the State Government, therefore, the petitioners should also be absorbed / regularized on regular basis instead of recruiting them through outsourcing. It is argued that the Government is not absorbing the petitioners on regular Class IV posts as the G.O. dated 24.03.2011 provides that the Class IV post has been declared dying cadre. It is urged that while passing the G.O. dated 24.03.2011, the respondent no. 1 did not consider the fact that it is not a case of direct recruitment and, in fact, it is a case of absorption of regular employees of the Management College after provincialization of the Institution and said Government Order does not apply in the present matter. It is urged that while passing the G.O. dated 24.03.2011, the respondent no. 1 did not consider the fact that it is not a case of direct recruitment and, in fact, it is a case of absorption of regular employees of the Management College after provincialization of the Institution and said Government Order does not apply in the present matter. It is further argued that the case of the petitioners is not for fresh appointment, rather, they were appointed on regular basis in the Institution prior to the issuance of G.O. dated 24.03.2011 and the respondents have absorbed all the employees working in the Institution in question along with the petitioners on account of provincialization of the Institution, therefore, the petitioners are also entitled to be absorbed on the post on which they were appointed on regular basis prior to the provincialization of the Institution. 10. Learned counsel for the petitioners would submit that the G.O. dated 24.03.2011 is not applicable in the matter of the petitioners as the Institution is provincialized by the Government, as such, all the employees who were working there on regular basis prior to provincialization are deemed to be absorbed in the same capacity and position after its provincialization. It is contended that the petitioners are fully eligible to be absorbed / regularized on the post of Class IV, as such, it is unreasonable and arbitrary to appoint them through outsourcing while other ministerial staff and teaching staff, who were appointed either along with the petitioner or junior to the petitioners, were already regularized / absorbed against their respective posts after provincialization of the institution. Thus, the action of the respondents is violative of Articles 14 and 16 of the Constitution of India. Lastly, it is argued that while the services of similarly situated Class IV employees working in Rath Degree College, Paithani, also a government grant-in-aid institution, were regularized and they are being paid salary by the State Government, the petitioners were discriminated and their services were not regularized in the Institution. 11. Learned counsel for the petitioners placed reliance on following judgments in support of his contention: (i) Air India Vs Nergesh Meerza, (1981) 4 SCC 335 (ii) Western U.P. Electric Power and Supply Co. Ltd. Vs State of U.P., (1969) 1 SCC 817 12. 11. Learned counsel for the petitioners placed reliance on following judgments in support of his contention: (i) Air India Vs Nergesh Meerza, (1981) 4 SCC 335 (ii) Western U.P. Electric Power and Supply Co. Ltd. Vs State of U.P., (1969) 1 SCC 817 12. The decision rendered in Air India Vs Nergesh Meerza (1981) 4 SCC 335 , propounds the right of equality under Article 14 of the Constitution of India. Paragraph no. 39 of the judgment is excerpted hereunder: “39. Thus, from a detailed analysis and close examination of the cases of this Court starting from 1952 till today, the following propositions emerge: (1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc. are introduced in different of dissimilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Article 14 cannot be attracted. (2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belongs to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Article 14 will be completely out of the way. (3) Article 14 certainly applies where equals are treated differently without any reasonable basis. (4) Where equals and unequals are treated differently, Article 14 would have no application. (5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. (5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. (6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined: (a) the nature, the mode and the manner of recruitment of a particular category from the very start, (b) the classifications of the particular category, (c) the terms and conditions of service of the members of the category, (d) the nature and character of the posts and promotional avenues, (e) the special attributes that the particular category possesses which are not to be found in other classes, and the like." 13. In Western U.P. Electric Power and Supply Co. Ltd. Vs State of U.P. (1969) 1 SCC 817 , Hon'ble Supreme Court has held as under: “7. Article 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by law." 14. The moot question which arises for consideration of this Court is – whether a new employer, more particularly, the State Government, can change the service condition of the petitioners, whose services were regularized prior to the provincialization of the Institution, and reduce their position worse than they were holding prior to taking over of the Institution under government grant-in-aid? 15. Admittedly, the case of the petitioners is not for fresh appointment, in fact, the case of petitioners is that they were appointed on regular basis in the Institution prior to its coming under grant-in-aid and, as such, they are entitled to be absorbed / regularized on Class IV posts on the same analogy as the services of similarly situated persons of teaching and non-teaching staff working in the Institution were regularized after provincialization. 16. 16. It is quite astonishing that in Rath Degree College, Paithani, District Pauri Garhwal which is also a grant-in-aid Institution like the Institution where the petitioners are working, the respondent State has already absorbed all the employees, including the Class IV employees, working there and their services were regularized and salaries are being paid to them by the State Government. The Class IV employees working in the Rath College, Paithani were put in the Pay Band of Rs.5200 – 20200 with Grade Pay of Rs. 1800. Indisputably, the Institution has been provincialized by the State Government. All the employees working in said Institution on regular basis prior to provincialization should be deemed to be absorbed in the same capacity and position after provincialization which they were earlier holding. The petitioners, being fully eligible to be absorbed / regularized on class IV posts, cannot be discriminated with the similarly situated persons working in Rath Degree College, Paithani, whose services were already regularized by the State Government. 17. A Constitution Bench of the Hon'ble Apex Court in State of Kerala & another Vs N.M. Thomas & others (1976) 2 SCC 310 , has held as under: “21. Articles 14, 15 and 16 form part of a string of constitutional guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to the objects to be achieved. Under Article 16 there can be a reasonable classification of the employees in matters relating to employment or appointment. 18. Justice Fazal Ali concurring with the view taken by Hon'ble A.N. Ray, C.J. in the judgment (supra) stated thus: “204. Article 14 of the Constitution enshrines the principle of equality before the law. Article 15 prohibits discrimination against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16 represents one facet of the guarantee of equality. According to this Article, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 15 prohibits discrimination against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16 represents one facet of the guarantee of equality. According to this Article, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen, it is further provided, shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Articles 14, 15 and 16 underline the importance which the framers of our Constitution attached to ensuring equality of treatment. Such equality has a special significance in the matter of public employment. It was with a view to prevent any discrimination in that field that an express provision was made to guarantee equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." 19. Another intriguing question which arises for consideration of this Court is – whether, recommendation of VI Pay Commission would be applicable to similarly circumstanced one set of persons and not to the other set of persons? In the counter affidavits filed on behalf of the respondents it has been admitted that class IV posts were created in respect of Rath Degree College, which is also a government grant-in-aid College, after its provincialization. It has been specifically stated in the counter affidavits that regarding creation of class IV post at Rath Degree College, Paithani, if mistake has been made, it will be rectified as per Government Policy and mistake cannot be repeated and taken as precedence. It is settled proposition of law that a person cannot blow hot and cold in a single breath. Certainly question of unequal treatment does not arise if there are different sets of circumstances. Here, the nature of the duties which are required to be performed by the petitioners vis-à-vis similarly situated Class IV employees of Rath Degree College, Paithani are identical, so if such practice should be allowed to continue it will amount to aggravation of inequality among the members of particular category. Thus, this Court has no hesitation in holding that recommendation of VI Pay Commission would certainly not be applicable to similarly circumstanced particular set of persons discriminating the other set of persons. 20. Thus, this Court has no hesitation in holding that recommendation of VI Pay Commission would certainly not be applicable to similarly circumstanced particular set of persons discriminating the other set of persons. 20. Hon'ble Apex Court in R.N. Gosain vs Yashpal Dhir (1992) 4 SCC 683 , has held as under: “Law does not permit a person to both approbate and reprobate. This liberty is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that “a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn around and say it is void for the purpose of securing some other advantage. According to Halsbury's Laws of England, 4th Edn., Vol. 16, “after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside." 21. Admittedly, the petitioners are working as Class IV employees on regular basis prior to provincialization of the Institution. Respondents have no authority to reduce their position after the provincialization of the Institution. Furthermore, the State Government being a welfare State, cannot discriminate the petitioners with other similarly situated persons and has no right to reduce their service conditions in the guise of the fact that the Class IV cadre has been declared as a dying cadre. It is a flimsy ground taken by the respondents to reject the claim of the petitioners. Thus, both the questions are answered in affirmative, i.e., in favour of the petitioners holding that they are entitled to continue as regular Class IV employees of the Institution. 22. Having considered the pleadings of the parties as well as the documents brought on record, this Court is convinced that the respondents, more particularly, State Government, cannot be permitted to treat the equals differently without any reasonable basis. In other words, the State Government, which is a welfare State, cannot change the service conditions of the petitioners without any reasonable basis and reduce them to the position worse than they were holding prior to taking over of the Institution under government grant-in-aid. Similarly, the State cannot be permitted to approbate and reprobate on the same facts and take inconsistent stand. Similarly, the State cannot be permitted to approbate and reprobate on the same facts and take inconsistent stand. Thus, the stand taken by the State Government vide order dated 24.03.2011 in non-absorbing the petitioners on Class IV post is unsustainable in the eyes of law as the case of the petitioners is not of direct recruitment, but it is a case of continuation of services of the regular employees in the same establishment after its provincialization. 23. In this view of the matter, the denial of the benefits to the petitioners at par with the employees of another Government aided Institution is violative of Article 14 and 16 of the Constitution of India. The writ petition is, accordingly, allowed. Clause 1(iii) contained in Government Order dated 24.03.2011 is quashed, qua petitioners, only to the extent it says that no recruitment / appointment shall be done on any of the posts of Class IV in future and the work relating to Class IV shall be taken through outsourcing as per requirement. The Government Order dated 25.05.2017 is also quashed to the extent it provides that services of Class IV employees in the Institution shown at sl. No. 20 to 24 of said Government Order should be taken through outsourcing. A writ of mandamus is issued directing the respondent nos. 1 and 2 to regularize the services of the petitioners on their respective Class IV posts in the Institution as they are continuously working as regular employees since prior to provincialization of the Institution. The petitioners shall continue as Class IV regular employees on the post they are holding prior to the provincialization of the Institution along with all consequential benefits and they shall be paid the regular salary as is being paid to the regular Class IV employees. 24. No order as to costs.