Heard Sri Sudhanshu Srivastava learned counsel for the petitioner and Shri Siddharath Khare learned counsel for the respondent no.4. Both the counsel have argued this matter with ability and their assistance deserves to be acknowledged. Learned standing counsel has also argued for respondent nos.1, 2 and 3.
The petitioner no.1, i.e Committee of Management of Har Govind Kanya Junior High School, Khair, Aligarh along with petitioner no.2 have assailed the order dated 21.9.2006 and some other consequential orders in this writ petition. At the out set it may be observed that the petitioners strictly speaking are not an aggrieved party but they are certainly an interested party in relation to the impugned orders, therefore, the preliminary objection raised by the learned standing counsel that the petitioners not being aggrieved, do not have locus to maintain this writ petition, the objection is liable to be rejected.
Proceeding to hear the matter on merit, the first and fore most ground projected by the petitioner is to the effect that passing of the impugned order dated 21.9.2005 by respondent No.2 amounts to an exercise of power of review, inasmuch as, the impugned action nullifies the previous order passed by the same authority on 19.4.2005 whereby the appointment of respondent no.4 was held to be in contravention of the rule of reservation envisaged in U. P. Act No.4 of 1994.
From a comparative analysis of the two orders dated 21.9.2006 and 19.4.2005, it is clear that the two orders arrive at a decision which are at clear variance. If an action of an authority varies the previous decision altogether, the subsequent order, in my view, can not be treated to be a rectification of mistake or correction of a mistake. Therefore, I am of the considered view that the impugned order is clearly a review of the earlier order passed by the same authority.
The question that immediately crops up is as to whether the authority passing the impugned order dated 21.9.2005 has a jurisdiction to review the previous order or not. The order dated 19.4.2005 came to be passed on the strength of an order passed by this Court in Writ Petition No.29544 of 2003. The respondent no.2 after giving opportunity to the respective parties had passed the said order. There is no provision under the U.P.Basic Education Act, 1972 or the rules framed thereunder which may empower the Director of Basic Education to review the orders which are passed in exercise of his jurisdiction and which are final in their nature.
Learned counsel for the respondents have also failed to establish as to how the exercise of power can be justified particularly when it amounts to a review of the decision taken by the same authority at an earlier point of time. To this extent the ground taken in the writ petition by the petitioner deserves to be accepted.
The controversy does not conclude simply by holding that the power of review does not lie, inasmuch as, the revival of the order dated 19.4.2005 has far reaching consequences. The consequences of revival of order dated 19.4.2005 raise two important questions of law on which learned counsel for the petitioners argued at length and assisted the Court effectively. The two questions are formulated as under:
(i) Whether rule of reservation of posts is applicable to the basic educational institutions not being under grants-in-aid as is the stand taken by the learned counsel for the petitioners who has argued to justify the revival of previous order dated 19.4.2005.
(ii) If rule of reservation of posts for reserve categories is inapplicable to the basic educational institutions which are not under grants-in-aid, whether the revival of earlier order dated 19.4.2005 would be permissible within the ambit of jurisdiction exercised by this court under Article 226 of the Constitution of India while hearing the matter at hand when such an illegal order comes to the notice of this Court.
The above two questions call upon this Court to take suo-moto notice of the validity of order dated 19.4.2005 which raises the aforementioned two important issues of law incidentally.
The facts, which are necessary for adjudication of the controversy, may be summerised below:
Har Govind Kanya Junior High School Khair, Aligarh is a junior high school which received its permanent recognition from the competent authority in the year 1988 as per the provisions of U.P.Basic Education Act, 1972 and the government orders / circulars applicable in this behalf. The said institution applied for being brought under grants-in-aid in the year 1997-98. At the time of making application by the institution for being brought under grants-in-aid, it is necessary for the committee of management to forward the Manager's Return along with the relevant papers which would mention the strength of staff working in the institution etc. From the order dated 19.4.2005, it is seen that at the time of making the said application, four teachers including Smt. Sudha Devi who was working as Head Master, the assistant teachers are named as Smt. Asha Gupta,Smt. Rama Devi and Sri Prem Shanker Gaur meaning thereby that a strength of three Assistant Teachers and one Head Master were in place . It appears that Smt. Asha Gupta passed away before the institution could be brought under grant-in-aid, therefore, necessary steps were taken for filling up certain posts of teachers and other staff.
The process of selection was undertaken with the due permission of the District Basic Education Officer and in this process respondent no.4 came to be selected on the post of Assistant Teacher apart from one more candidate namely Smt. Vedwati Devi. The appointment of Smt. Vedwati Devi was illegal for she being related to the Manager of the college, whereas, the appointment of respondent no.4 though being made in conformity with the statutory rules came to be held illegal by means of the order dated 19.4.2005 only on the ground of being in contravention of the rule of reservation of posts envisaged under the Act of 1994. It is on this sole ground that the appointment of respondent no.4(Smt. Mithlesh Kumari) has been held to be illegal by the order of the Director of Basic Education dated 19.4.2005.
The respondent no.4 instead of assailing the said order appears to have pursued her remedy before the Director on the strength of representation made by her. The representation made by respondent no.4 on being placed before respondent no.2 was ultimately decided by means of the impugned order dated 21.9.2006, whereby, the Director of Education in his wisdom has subsequently held the previous order dated 19.4.2005 to be wrong in law. The subsequent order passed by the Director proceeds on the strength of observation that rule of reservation of posts was not applicable to such a basic educational institution before coming under grants-in-aid. It was held in the order dated 21.9.2006 that since the institution was not under grants-in-aid at the relevant point of time when the appointment was made, therefore, rule of reservation would not apply, hence appointment of respondent no.4 on the post of Assistant Teacher was sustained.
Learned counsel for the petitioner while assailing the order dated 21.9.2006 has demonstrated that any violation of rules of reservation would unduly damage the interest of the institution, inasmuch as, the State authorities on account of this violation may proceed to take away recognition etc., therefore, it became necessary for the management to assail the impugned order for which there is a genuine cause to the petitioners. It is true that no management can ever be permitted to violate the rules of law. But in the case at hand where the application of rules of reservation of posts is decided otherwise by the State authorities themselves, whether any penal action on that account would at all be permissible against the institution solely on that account, this cannot be accepted just and proper by this Court. To this extent, the grievance of the committee of management would also be liable to be protected.
Learned counsel for the petitioners while justifying the order dated 19.4.2005 referred to the provisions of U.P. Basic Education Act,1972 and according to him all the basic educational institutions i.e. from Class I to VIII are governed under the Basic Education Act, 1972. In the spirit of 1972 Act, learned counsel for the petitioners submits that an order dated 31.10.1974 was issued by the educational authorities according to which reservation policy in respect of scheduled caste and scheduled tribes was made applicable to the basic educational institutions which are controlled by the Basic Education Board. It is, however, not disputed that the source of this so called Government Order which is in the nature of a circular can only be traced to the provisions of Section 14 of the Basic Education Act, 1972.
The second submission of the learned counsel for the petitioner is to the effect that such a policy of the State Govt is further evident from the provisions of U.P.Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of of Ministerial Staff And Group 'D' Employees) Rules, 1984. According to the learned counsel, as per 1984 Rules with respect to Group 'D' employees, there is a provision of reservation of posts under Rule 8 of the aforesaid rules. Therefore, the so called Government Order dated 31.10.1974, would hold the field so far as appointment of teachers in the un-aided recognised basic educational institutions are concerned and it would be in the same spirit in which State Govt. has framed 1984 Rules for Group -D employees appointed in such institutions.
The third submission of the learned counsel for the petitioner is to the effect that implementation of rules of reservation of posts is a condition precedent for a recognised basic educational institution to be brought under grants-in-aid and the educational institution must stand fulfilling all the requirements of reservation as per law at the time of applying for grant-in-aid.
The aforesaid submissions have been made in the light of Section-12 read with Sections 13,14 and 19 of the U.P. Basic Education Act, 1972 and by making a reference to the government order/circular dated 31.10.1974 followed by 1984 Rules and further taking aid of U.P. Public Services (Reservation For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Section 2(c) of 1994 Act has particularly been referred to. The relevant circular dated 31.10.1974 as well as the government order dated 2.7.1990 were referred to by the learned counsel for the petitioner so as to substantiate his stand regarding the application of rule of reservation of posts. The circular issued vide letter No. i=akd f'k0eq0 vkbZ ¼1½@13201&[email protected]&41 ¼1½ [email protected] dated 31.10.1974 is reproduced below:
fo"k;& csfld f'k{kk ifj"kn ds fu;U=.kk/khu f'k{kd ,oa f'k{k.ksRrj deZpkfj;ksa esa lh/kh HkrhZ inksa ij vkj{k.k ds lEcU/k esaA 1- vuqlwfpr tkfr;ksa ,oa vuqlwfpr tutkfr;ksa ds fy;s dkQh yEcs le; ls dez'k% 18 izfr'kr rFkk 20 izfr'kr dk vkj{k.k gksrsa gq, Hkh csfld f'k{kk ifj"kn ds fu;U=.kk/khu lsokvksa ¼f'k{kd ,oa f'k{k.ksRrj deZpkfj;ksa½ esa bu oxksZa dh la[;k fu/kkZfjr ek=k esa de gSA blds vfrfjDr LorU=rk laxzke ds lsukfu;ksa] lsuk ds fodykax ,oa lsuk ls fo;ksftr rFkk v{ke O;fDr;ksa ¼fQftdyh gSUMhdSIM½ ds fy, csfld f'k{kk ifj"kn dh lsokvksa ds inksa esa vkj{k.k ds izdj.k izkIr gksrs jgrs gS D;ksafd bu oxksZa dh viuh dfBukb;ksa ds dkj.k lekU; ojh;rk dze esa pqus tkus ds fy;s de lEHkkouk jgrh gSA 2- ifj"kn dh lsok esa jktdh; deZpkfj;ksa ds le{k izFke o f}rh; oxZ dh lsok ds dksbZ in ugha gSA dsoy r`rh; o prqFkZ oxZ ds in ifj"kn dh lsokvksa esa jgrs gSA 3- mi;qZDr fo"k; ij orZeku ifjfLFkfr;ksa ds ifjizs[; esa fofHkUu oxksZa ds fy;s vkj{k.k dslEcU/k esa fuEufyf[kr funsZ'k fn;s tkrs gS& ¼d½- fdlh Hkh lsok esa HkrhZ ds vxzsuhr ¼dSjhM QkjoMZ½ vkjf{kr fjfDr;ksa dks ¼;fn dksbZ gks½ lfEefyr djrs gq;s dqy 50 izfr'kr ls vf/kd vkj{k.k u jgsxkA ¼[k½- leLr lsokvksa esa vuqlwfpr tkfr;ksa rFkk vuqlwfpr tutkfr;ksa ds fy;s de ls 18 izfr'kr rFkk 20 izfr'kr dk vkj{k.k fu/kkZfjr gS] fdUrq ;fn ftys esa bl fu/kkZfjr vkj{k.k dk dksVk iwjk ugha gqvk gS rks vxzsuhr ¼dSjhM QkjoMZ½ fjfDr;ksa dks lfEefyr djds vuqlwfpr tkfr;ksa ds r`rh; oxZ dh lsokvksa ds fy, 25 izfr'kr rFkk prqFkZ oxZ ds inksa ds fy, 36 izfr'kr vkj{k.k rc rd j[kk tk;] rc rd fd budk dksVk 18 izfr'kr dk iwjk u gks tk;A ¼x½- r`rh; oxZ dh leLr lsokvksa esa ¼d½ lsuk ds fodykax ,oa lsuk ls fo;ksftr deZpkfj;ksa rFkk ¼[k½ LorU=rk laxzke ds lsukfu;ksa ds vkfJrksa] izR;sd ds fy, 10 izfr'kr rFkk prqFkZ oxZ dh lsokvksa esa izR;sd ds fy, 50 izfr'kr dk vkj{k.k jgsxkA ¼?k½- v{ke O;fDr;ksa ¼fQthdyh gSUMhdSIM½ ds fy, 20 izfr'kr dk vkj{k.k gksxkA 4- LorU=rk laxzke ds lsukuh dk rkRi;Z mRrj izns'k ds ,sls vkfnoklh O;fDr;ksa ls gS& ¼1½- ftlus Hkkjrh; LorU=rk laxzke esa Hkkx fy;k gks vkSj ftuds }kjk bu dk;Zdykiksa esa Hkkx ysus ds QyLo:i% ¼d½ de ls de nks ekl dh vof/k ds fy, dkjkokl dk nUM Hkksxk x;k gks] ;k ¼[k½ utjcUnh ;k v.Mj Vªk;ydSnh ds :i esa tsy esa de ls de rhu ekl dh vof/k ds fy, j[kk x;k gks ¼x½ de ls de 10 csrksa dh ltk ikbZ gks];k ¼?k½- Qjkj ?kksf"kr fd;k x;k gks] ;k ¼M-½- xksyh ls ?kk;y gqvk gks] ;k p ohjxfr izkIr dh gksA fVIi.kh& ,sls O;fDr] ftUgksus ekQh ekaxh gks] mDr ifjHkk"kk esa lfEefyr ugha ekus tk;sxsA ¼2½- ,sls O;fDr Hkh tks ^^is'kkoj^^ dkaM ds jgs gks ;g HkwriwoZ vktkn fgUn QkSt ds izekf.kr lSfud gksa ;k HkwriwoZ bfUM;k bUMsisUMsUl yhx ds izekf.kr lnL; gks] LorU=rk laxzke lsukuh dh ifjHkk"kk esa lfEefyr ekus tk;sxsA ¼3½- mi;qZDr ifjHkk"kk ds vUrxZr vkus okys LorU=rk laxzke ds lsukfu;ksa ds fuEufyf[kr fudV lEcfU/k;ksa dks mudk vkfJr ekuk tk;sxkA ¼1½ iq= ¼2½ ikS= ¼3½ ikS=h ¼4½ iq=h ¼5½ HkkbZ ¼6½ cgu ¼7½ Hkrhtk ¼8½ Hkrhth ¼4½- LorU=rk laxzke ds lsukfup;ksa ds vkfJrksa dks bu lqfo/kkvksa dh izkfIr ds fy, lEcfU/kr ftyk eftLVªsVksa ls laYxu izk:i esa izek.k i= izkIr djds vius vkosnu i= ds lkFk izLrqr djuk iM+sxkA ¼5½- vkidks Kkr gh gS fd 1974&75 esa ctV dh dVkSrh ds dkj.k i=kad vkbZ ¼1½ f'[email protected]@4&475]fnukad 31 vxLr] 1974 esa funsZ'k fn;s x;s gSa fd lh/kh HkrhZ ds vk;kstusrj en dh lsokvksa ij dksbZ p;u ugh fd;k tkuk gSA dsoy ikapoh ;kstuk dh ;kstukvksa esa l`ftr inksa ds le{k bl o"kZ vuqPNsn ¼2½ esa ohjxfr oxksZa ds vH;fFkZ;ksa dks vkj{k.k fn;k tk;sxkA vkjf{k.k LFkku dks vf/kd O;fDr;ksa ds chp p;u dk vk/kkj ;ksX;rk dze gksxk tks lkekU; vH;fFkZ;ksa ds fy;s fu/kkZfjr gSA ¼6½- csfld f'k{kk ifj"kn ds fu;U=.kk/khu leLr f'k{kdksa rFkk f'k{k.ksRrj deZpkfj;ksa dh lsokvksa esa vkj{k.k lEcU/kh mi;qDr funsZ'kksa dk ikyu dM+kbZ ds lkFk fd;k tk;sxkA The above circular being issued within the purview of Section 14 of Basic Education Act,1972, therefore, Section 14 of the Act is also reproduced below:
On the other hand Sri Siddharath Khare learned counsel for the respondent no.4 has disputed the applicability of rule of reservation of posts by referring to the provisions of Basic Education Act, 1972. It is also submitted that the circular dated 31.10.1974 is not a Government Order within the meaning of Article 162 of the Constitution of India. The rules i.e. U.P. Recognised Basic Schools(Junior High Schools)(Recruitment and Conditions of Service of Teachers ) Rules,1978 as well as the U.P. Basic Education (Teachers) Service Rules, 1981 and the provisions of The U.P. Public Services(Reservation For Scheduled Castes, Scheduled Tribes And Other Backward Classes) Act,1994 were referred to by him. Although U.P. Recognised Basic Schools (Recruitment and Conditions of Service Of Teacher And other Conditions) Rules,1975 were referred to by the learned counsel but the same were said to be not applicable in view of the subsequent rules being framed in the year 1978 and 1981.
Learned counsel for the respondent no.4 has also drawn attention of the Court to the order dated 1.1.2001, whereby, the institution was brought under grant-in-aid. It is submitted by the learned counsel for respondent no.4 that the appointment of respondent no.4 was made on 5.3.2000 and the same was approved by the Basic Shiksha Adhikari on 7.4.2000. According to the learned counsel, the appointment and approval dates of respondent no.4 precede the date when the institution in question was brought under grant-in-aid on 1.1.2001 and having regard to the number of posts of Assistant Teachers i.e. 3, the rule of reservation of posts even otherwise would not be applicable . On these aspects he referred to the well settled law by the Hon'ble Supreme Court in the following decisions:
1. Indra Sawhney Vs.Union of India ,1992(supp.)(3) SCC 217
2. R.K.Sabarwal Vs. State of Punjab (1995)2 SCC 745
3. Prabhash Chandra Jain Vs.State of Harayana (1996)8 SCC 105
4. R.S.Garg Vs.State of U.P.(2006)6 SCC 430 The source of law securing reservation of appointments or posts in public services can be traced to Article 15(4), Article 16(4) read with Article 335 of the Constitution of India. Article 162 of the Constitution of India also confers a power on the State Govt. to issue government orders in absence of statutory law.
In the background of above, it is admitted between the parties that ' The U.P. Public Services (Reservation For Scheduled Castes, Scheduled Tribes And Other Backwards Classes ) Act, 1994 (here-in-after referred to as 1994 Act) came to be enforced w.e.f. 11.12.1993 which supersedes the earlier laws on the subject as would be evident from Section 16 of 1994 Act. The process of recruitment as well as appointment of respondent no.4 was made at a point of time when the institution had not come under grants-in-aid but the Act of 1994 had already come into force.
Learned counsel for the petitioners while making reference to Section 2(c) of 1994 Act has argued that the institution in question would be governed under Section 2-(c) (v) of The Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes And Other Backwards Classes) Act,1994 . This submission proceeds in contradiction to the submission of the learned counsel for respondent no.4 according to whom the basic educational institutions not receiving grant-in-aid would be governed by clause (iv) of Section 2 of 1994 Act.
Section 2(c)(iv) and (v) of The Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes And Other Backwards Classes) Act,1994 being of vital importance, hence Section 2(c) is reproduced below:-
"2. Definitions- In this Act,..
(a).......
(b).....
(c) "public services and posts" means the services and posts in connection with the affairs of the State and includes services and posts in- (i) a local authority; (ii)a co-operative society as defined in clause (f) of Section 2 of the Uttar Pradesh Co-operative Societies Act,1965 in which not less than fifty one percent of the share capital of the society is held by the State Government; (III) a Board or a Corporation or a statutory body established by or under a Central or a Uttar Pradesh Act which is owned and controlled by the State Government, or a Government company as defined in Section 617 of the Companies Act,1956 in which not less than fifty-one per cent of the paid-up share capital is held by the State Government; (iv) an educational institution owned and controlled by the State Government or which receives grants-in-aid from the State Government, including a university established by or under a Uttar Pradesh Act, except an institution established and administered by minorities referred to in clause(1) of Article 30 of the Constitution." (v)respect of which reservation was applicable by Government Orders on the date of the commencement of this Act and which are not covered under sub- clauses (i) to(iv); (d) "year of recruitment" in relation to a vacancy means a period of twelve months commencing on the first of July of a year within which the process of direct recruitment against such vacancy is initiated."
Learned counsel for the petitioners has laid emphasis on clause (v) of Section 2(c) of 1994 Act and has argued that in terms of Section 2 (c) (v) it is clear that the basic educational institutions not governed under sub-clauses (i) to (iv) shall be governed by this clause, therefore, the so called Government Order dated 31.10.74 on the commencement of 1994 Act, would be applicable with respect to the basic educational institutions not covered under clause (iv) of Section 2(c) . It is on the strength of clause (v) of Section 2(c) that the so called Government Order dated 31.10.1974 is argued to be applicable by the learned counsel for the petitioners. The interpretation of Section 2(c)(iv) and 2(c)(v) for this reason becomes important. If the submission of learned counsel for the petitioners is accepted, then the Basic Educational Institutions on the strength of alleged Government Order dated 31.10.1974 would fall within the clutches of rule of reservation of posts as envisaged under 1994 Act, hence the impugned order dated 21.9.2005 would loose its legal sanctity and the stand taken by the learned counsel for the petitioners against the impugned order dated 21.9.2005 would be maintainable in the eyes of law.
On the contrary, if it is held that clause (v) of Section 2(c) does not include unaided Basic Educational Institutions within its scope then in that case, any government order applicable prior to the commencement of 1994 Act, would become irrelevant.
From the very language of legislation used in Section 2(c)(iv), it is clear that all the educational institutions owned and controlled by the State Government or the educational institutions receiving grants-in-aid from the State Govt. including a university established under the U.P.Basic Education Act, 1972, are amenable to the rule of reservation of posts under 1994 Act. This provision excludes the applicability of 1994 Act to the educational institutions established and administered by the minorities referred to in clause (i) of Article 30 of the Constitution of India. There is an implied exclusion of the educational institutions not receiving grants-in-aid which are privately managed. The only question is whether this class of institutions i.e. unaided basic educational institutions not owned and controlled or not receiving grants-in-aid from the Government, can be said to be governed under clause (iv) of Section 2(c) of 1994 Act or they are to be treated as governed within the scope of Section 2(c)(v) of 1994 Act.
It is well settled that the rule of reservation of pots or appointments under the Constitution of India have a reach to the extent of Public services which are related to the affairs of the State and to the extent of appointments or posts concerning the instrumentalities of the State which are a "State" within the meaning of Article 12 of the Constitution of India. The acceptance of the argument advanced by the learned counsel for the petitioner would in a way impinge upon the very character of private educational institutions which so long as they do not receive grants-in-aid from the State Govt are private bodies and do not enjoy a legal status of a "State" within the meaning of Article 12 of the Constitution of India for the purposes of implementation of the rule of reservation of posts under the Act of 1994. Therefore, the case law cited by the learned counsel for the petitioners that even against such institutions writ of mandamus is held to be maintainable, in my considered opinion, the same view can not be taken where there is a dispute with regard to the applicability of law.
In this view of the matter, the interpretation of Section 2(c)(v) of 1994 Act can not be interpreted in a way so that the exception carved out under Section 2(c)(iv) of 1994 Act stands invaded upon and there is a conflict between the two provisions and the emerging consequence goes to the extent of changing the very character of autonomy of the private educational institutions which stands protected by virtue Article 19 of the Constitution of India.
I am of the view that the basic educational institutions not receiving grants-in-aid from the State Govt are not the class of institutions owned and controlled by the State Govt and until such institutions receive grants-in-aid from the State Govt., they can neither be governed under the rule of reservation of posts as per provision of the Act of 1994 nor they can be termed to be a 'state' within the meaning of Article 12 of the Constitution of India for this purpose. This class of educational institution is well protected within the scope of Section 2(c)(iv) of 1994 Act and this interpretation secures the autonomy of this class of said basic educational institutions in the spirit of Article 19(1)(c) &(g) of the Constitution of India. Therefore, the argument advanced by the learned counsel for the petitioners is unacceptable in contrast to the stand adopted by the learned counsel for respondent no.4 . Accordingly the first two arguments of the learned counsel for the petitioner recorded above stand rejected.
Having interpreted the aforesaid provisions in a manner recorded above, it would be pointless to embark on the interpretation of the so called Government Order/circular dated 31.10.1974, yet it may be observed that the alleged order can not be construed to be a Government Order within the scope of Article 162 of the Constitution of India, inasmuch as, it is merely a circular issued by the authorities of Education Department. The author of the said Government Order/circular is not the State Govt. and the Government Order/circular has not been issued in exercise of power conferred under Article 162 of the Constitution of India rather it is issued by invoking the power conferred under Section 14 of the Basic Education Act, 1972. Strictly speaking, as per the terms of clause 2 and 3 of the said circular /order, it applies to the services of the Board which largely are said to be comprising of class-III and class-IV services. The services of teachers of private basic educational institutions not receiving grants-in-aid are not a subject matter of the said order.
It is also noteworthy that Basic Education Act,1972 does not envisage any provision for reservation of appointments or posts for reserved categories, therefore, any order issued within the parameters of Basic Education Act, 1972 can not reach beyond the scope of the parent Act which would clearly amount to overreaching the extent of application of parent Act. Once a rule of reservation of posts is not prescribed under the Basic Education Act, 1972, a circular issued under any provision of the Act cannot overreach the scope of the parent Act.
So far as U.P.Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D" Employees) Rules, 1984 are concerned, it may suffice to say that Rule 8 of the said rules specifically says that the rule of reservation of posts would be implemented in accordance with the orders of State Govt in force at the time of recruitment, therefore, the intention of the said rule is very clear and does not lend any help to the submission advanced by the learned counsel for the petitioners.
The third submission advanced by the learned counsel for the petitioners to the effect that the basic educational institutions which are not under grants-in-aid would be amenable to implement the rule of reservation of posts as soon as the said institutions apply for grants-in-aid from the State Govt., inasmuch as, the formalities for bringing an educational institution under grants-in-aid would necessarily include the implementation of reservation policy as per law applicable at the relevant point of time.
In the case at hand, recruitment of respondent no.4 was undisputedly made after the institution had applied for being brought under grants-in-aid. The submission made by the learned counsel for the petitioners is attractive but it can not be tested in the facts and circumstances of the present case,where the number of posts of Assistant Teachers at the time of taking the institution under grants-in-aid are less than five, rather three . One assistant teacher died during the process when the institution was brought under grants-in-aid and the respondent no.4 was appointed against the resultant vacancy by following due procedure prescribed under the rules i.e. The U.P. Recognised Basic Schools(Junior High Schools) (Recruitment And Conditions of Service of Teachers) Rules,1978. Therefore, the third submission made by the learned counsel for the petitioners is incapable of being accepted keeping in view the law laid down by the Apex Court referred to above as well as a Full Bench decision of this Court in the case of Heera Lal Vs. State of U.P. and others reported in 2010(3) ESC 209 (All.). Para 29 of the said decision is reproduced below:
"It is to be remembered that Article 16(4) is an enabling provision and in view of the said interpretation the same can not be construed to confer an absolute right of reservation even beyond the limits prescribed under the law framed by the legislature, namely U.P. Act No.4 of 1994. We may clarify that the roster loses its capability of application where the rule of reservation itself cannot be pressed into service keeping in view the numerical strength of the cadre in such matters as in the present case which is less than five. To do so would be a miscalculation in raw mathematics and the fine tenets of law. The argument of the State if accepted would result in unconstitutionality and an illogical acceptance of the rule of reservation. This would also satisfy the test of reasonableness as arithmetical calculations are also one of the logical foundations for reason. The calculation can not be violated explained above and if that is done then it would be unreasonable as well as unconstitutional."
From the position of facts and law discussed above,I am of the considered opinion that allowing the writ petition by holding that the impugned order dated 21.9.2006 was passed without authority of law,it would to revive an illegal order dated 19.4.2005 while exercise of jurisdiction under Article 226 of Constitution of India, therefore, keeping in view the position of law discussed above, the order dated 19.4.2005 also deserves to be set aside to the extent it relates to the appointment of respondent no.4 on the post of Assistant Teacher. For taking such a view, I derive support from a sentence occurring in para 14 of the judgment reported in (1992) 2 UPLBEC 960 which is reproduced below:
"...To put in differently, powers in writ jurisdiction should not be exercised to set aside one illegal order to restore another illegal order."
In the result, the order dated 21.9.2006 as well as order dated 19.4.2005 are hereby set aside so far as they relate to the appointment of respondent no.4. The appointment of respondent no.4 on the post of Assistant Teacher is upheld, the management and educational authorities shall proceed accordingly. Respondent Nos.1 to 3 are restrained from taking any penal action against the petitioners for having appointed respondent no.4 in the institution on the post of Assistant Teacher and to this extent, the institution shall not be subjected to any damage solely on the ground of making such an appointment.
In terms of above, the writ petition is allowed. There shall be no order as to cost.
Order Date:- 15.5.2014 mna (Attau Rahman Masoodi,J.)