1. Heard Sri S.C. Dwivedi, Advocate, for petitioner and learned Standing Counsel for respondents.
2. By means of this writ petition, petitioner has sought a writ of certiorari quashing the order dated 29.08.2005 (Annexure-12 to writ petition) wherein selection and appointment of petitioner on a Class-IV post has not been recognized and his representation for payment of salary has been rejected on the ground that selection was not made in accordance with the procedure prescribed in Group ''D' Employees Service (U.P.) Rules, 1985 (hereinafter referred to as "Rules, 1985").
3. The record shows that there were 23 sanctioned Class-IV posts in Mangla Prasad Inter College, Bampur, Allahabad (hereinafter referred to as "College') wherein 4 posts were vacant for which District Inspector of Schools (hereinafter referred to as "DIOS") vide order dated 23.11.2002 granted permission to fill in the same. The selection and appointment made by Principal, appointing authority, was initially rejected by order dated 24.06.2002 on the ground that advertisement was not made in daily newspaper having wide circulation and therefore fresh advertisement be made. Principal again made selection and forwarded documents but DIOS did not take any action and, therefore, Writ Petition No. 35854 of 2004 was filed by petitioner and another Gulab Chandra which was disposed of vide order dated 03.09.2004 directing DIOS to pass appropriate order expeditiously and preferably within the period of two months. The judgment reads as under:
"The contention of the petitioner is that in response to an advertisement issued by Principal, Mangla Prasad Inter College, Bampur, Allahabad petitioners had applied for appointment as Peon and Safai Karmchari respectively. It has been contended that after following the procedure prescribed and after having faced the interview before selection committee the petitioners had been selected and they also joined on their respective posts on 21.12.2002 and 24.12.2002. The papers regarding grant of financial approval to the appointments of the petitioners had been forwarded by the Respondent no. 6 on 16.12.2002 and a reminder had also been sent on 9.6.2003 but despite all efforts the respondent-authorities have not passed any other with regard to the grant of financial approval to the appointments of the petitioners.
Having heard learned counsel for the parties and considering the facts and circumstances, this writ petition is disposed of with a direction that in case if, with regard to their grievances made in this writ petition, the petitioners file a comprehensive representation before District Inspector of Schools, Allahabad, Respondent No. 3 along with a certified copy of this order, the same shall be considered and decided by the said respondent along with the papers sent by the Principal of the college for grant of financial approval to the appointments of the petitioner in accordance with law expeditiously preferably within a period of two months from the date of filing of the same.
With the aforesaid observation/direction this writ petition is disposed of. No order as to cost."
4. Pursuant thereto, impugned order has been passed by DIOS declining to uphold the aforesaid appointment of petitioner made by order dated 16.12.2002 on the ground that recruitment and selection has not been made in accordance with the procedure prescribed in Rules, 1985.
5. It is contended that Rules, 1985 are not applicable to Institution in question inasmuch the aforesaid Rules were sought to be followed through letter dated 11.05.2001 which was admittedly referable to Section 9(4) of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921") but this has been negated by a Division Bench of this Court in Rajiv Kumar and others Vs. State of U.P. and others 2011 (1) ADJ 615 wherein Court held as under:
"42. From the original records as also from a perusal of the Regulations, particularly Regulations 100 to 107 under Chapter-III of the 1921 Act, it is evident that these Regulations were enforced vide Notifications dated 30.7.1992, 26.8.1992 and 2.2.1995 and were incorporated in the Regulations in exercise of the specific powers conferred under sub-section (4) of Section 9 of the Act read with Section 16-G. Thus, the very status conferring the power on the Head of the Institution under the said Regulations has its foundation by invoking the power under Section 16-G read with Section 9 (4) of the 1921 Act. Such regulations, in our opinion, could have been amended only by exercise of powers in a similar fashion, and not by a mere communication by the Secretary, as assumed and interpreted in the judgments that have been cited before us or are hereunder in appeal. The communication dated 11.5.2001, therefore, on facts as admitted by the State Government and in view of the law as explained above was not a Government Order at all much less an order issued under sub-section (4) of Section 9 of the Act.
43. In view of the conclusions drawn herein above that the communication dated 11.5.2001 is not a Government Order under Section 9 (4) of the 1921 Act, the premise on which the two Division Bench judgments namely Principal, Adarsh Inter College, Umari, Bijnore (supra) and the Division Bench pronouncement in the reference answered on 17.9.2010 in Writ Petition No. 1199 of 2003, Jawahar Lal and another (supra) falls through. The said judgments, therefore, have proceeded on a wrong assumption about the status of the communication dated 11.5.2001 mistaking it to be a Government Order which was only a letter and had never been issued in exercise of the powers under Section 9 (4) of the 1921 Act. In fact, the delegator i.e. the State never exercised its powers as admitted before this Court. It was a simple inter-departmental communication and not even an executive instruction so as to have any binding force of law. The said decisions, therefore, have laid down a proposition which has no binding effect in law.
44. We are constrained to say that this was on account of the incorrect position of the status of the communication dated 11.5.2001 projected before this Court in the said two cases, and also before the learned single Judges in all other such cases that have been referred to herein above and were approved by the Division Benches. On the contrary the learned single Judge in the case of Smt. Shikha (supra) had rightly appreciated the controversy in correct perspective which was sought to be distinguished later on the strength of the aforesaid communication dated 11.5.2001 in the case of Principal, Adarsh Inter College, Umari, Bijnor, 2010 (1) ADJ 403. Needless to say that the aforesaid bureaucratic sloppiness was sought to be covered up by an intelligible draft before this Court in the decisions referred to herein above that led to the passing of the judgments on an absolutely wrong premise. A committed paper work of the Secretariat without the law having been amended was kept a complete secret from this Court and a simple matter was got complicated at the hands of the bureaucracy. In other words since the communications sent to this Court were official, they were treated to be uncontestable and an illusion was created either based on misunderstanding or an attempt to some how the other cover up the entire issue. The communications were written carefully without giving the correct information to the reader and at the same time protecting its author.
45. We, therefore, deprecate the manner in which the communication dated 11.5.2001 came to be projected by the State to be a Government Order as is evident from the original file that has been produced before us.
46. The proposal made by the Director of Education, therefore, remained a dead letter and was never translated in the shape of a regulation through any Government Order or any lawful amendment worth the name. In our opinion, therefore, the Rules framed for government servants under the proviso to Article 309 namely the Group-D Employees Service Rules 1986 would not apply for the procedure to be adopted for selecting and appointing class-IV employees in privately managed and recognized educational institutions. The State Government could have exercised its power by issuing a proper Notification under Section 16-G read with Section 9 (4) of the 1921 Act as was done when the earlier Notifications were issued bringing about a change in the Regulations as contained under Chapter-III of the 1921 Act. This, having not been done, the conclusion that the communication dated 11.5.2001 amounts to legislation by reference would bean incorrect presumption in law. We, therefore, hold that no such Rules or Procedure apply so long as the Regulations are not amended in accordance with law.
47. Apart from this the competence of such legislation flows from Entry 25 List III of the Concurrent list which in turn is referable to the powers prescribed under the Constitution in Article 246 (2) thereof. The field is, therefore, occupied. The 1921 Act, even though a pre-Constitution Act, stands saved and, therefore, the regulations framed thereunder can be amended only in exercise of such powers.
48. In our opinion, a Rule framed under the proviso to Article 309 would, therefore, not apply where a competent and valid law exists. The proviso to Article 309 is a transitory provision in relation to service matters exclusively of the State and it does not cover the field of services, like the one presently involved, relating to class-IV employees of privately managed institutions. The status of service with which we are concerned falls totally outside the scope of the proviso to Article 309. The conclusion, therefore, of the learned single Judge in the case of Smt. Shikha (supra) explains the law correctly.
49. The impugned judgments in the present appeals to the aforesaid extent are set aside and the matter would stand remitted back to the learned single Judge for decision afresh on the merits of each case keeping in view the law as explained herein above.
50. Accordingly, all the judgments of the learned single Judges, which are contrary to the opinion expressed herein, stand overruled. The judgments of the two Division Benches in the case of Principal, Adarsh Inter College (supra) and Jawahar Lal and others (supra) stand accordingly explained. The Appeals are allowed."
6. In view thereof, it is apparent that Rules, 1985 could not have been relied. When basic foundation on which DIOS has passed impugned order does not exist, the impugned order cannot be sustained.
7. In the result, the writ petition is allowed. Impugned order dated 29.08.2005 is set aside. Consequentially the advertisement to fill up the posts/vacancies on which petitioners are working cannot continue and, therefore, advertisement dated 12.11.2005 (Annexure-14 to writ petition) to the extent it includes the posts on which petitioners are working, is hereby set aside. DIOS is now directed to pass fresh order in accordance with law in the light of observations made above expeditiously, and, in any case, within one month.
Order Date :- 17.12.2019 PS