Court No. - 58
Case :- WRIT - A No. - 22164 of 2018 Petitioner :- Rajesh Kumar Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sunil Kumar Singh Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
This writ petition is directed against an order dated 01.08.2018 passed by the Joint Director of Education, Azamgarh Region, Azamgarh, whereby appointment of petitioner on the post of Clerk in the institution has been disapproved on the ground that petitioner's age is more than the maximum age specified under the Government Order dated 06.06.2012. The Government Order dated 06.06.2012 is alleged to be not applicable in the present case, inasmuch as the appointment to a Class-III post is regulated by the provisions of the U.P. Intermediate Education Act, 1921 and Regulations framed thereunder, while the aforesaid Government Order relates to employment in State office, as it has been issued by exercising powers under the proviso to Article 309 of the Constitution of India.
While entertaining the writ petition, following order was passed on 30th October, 2018:-
"While entertaining the writ petition following orders were passed on 24.10.2018:-
"1. Submissions advanced by learned counsel for the petitioner is that the institution being privately managed aided institution and the post being non-teaching, there would be no upper age limit for the purpose of recruitment of such class-III post.
2. Reliance has been placed on a Division Bench decision of this Court in the case of Rajiv Kumar and Others Vs. State of U.P. and Others reported in 2011 (2) ESC 820 (46-48).
3. Learned Addl. Chief Standing Counsel may obtain instructions.
4. Put up as fresh on 30.10.2018."
Learned Standing Counsel has obtained instructions from the Joint Director of Education, as per which the maximum age of recruitment notified under the U.P. Recruitment to Services (Age Limit) (Tenth Amendment) Rules, 2012 on 6.6.2012 would be applicable in the instant case as per which 40 years is the maximum age of entry into service.
Learned counsel for the petitioner submits that Rules of 2012, referred to above, have been issued by the Governor exercising powers under proviso to Article 309 of the Constitution and that the same will have no applicability in view of the fact that appointment on a class III post is regulated by the statutory regulations framed under Chapter III of the U.P. Intermediate Education Act. Submission is that once such a provision does not exist in the regulations, the authorities cannot apply the general rules regulating the field inasmuch as such rules would not apply to the employment offered in a privately manged institution even if it is receiving aid. No other govt. order or decision in that regard has been brought on record.
Before this Court proceeds further in the matter, it would be appropriate to direct the Secretary of the department concerned to examine this issue and file an affidavit, by the next date fixed, clarifying the stand of State in the matter.
Put up in the additional cause list on 14.11.2018."
A short counter affidavit has been filed by the secretary of the department, in which it is admitted that no maximum age limit is prescribed in the statutory regulation framed under Chapter- III of the U.P. Intermediate Education Act, 1921.
So far as the applicability of The Uttar Pradesh Recruitment to Services (Age Limit) (Tenth Amendment) Rules, 2012 is concerned, the same has no applicability, inasmuch as the same has been issued under the proviso to Article 309. The ground taken by the Joint Director of Education to deny approval to the petitioner's appointment, therefore, cannot be sustained and the order dated 01.08.2018 stands quashed. The concerned authority is directed to take a fresh decision in accordance with the provisions of Act of 1921, as also Regulations framed thereunder, within a period of two months from the date of presentation of certified copy of this order.
It would also be appropriate to notice the stand taken by the learned Addl. Chief Standing Counsel before this Court that the State is examining the issue of putting a cap on maximum age of recruitment in the institution governed by the Act of 1921. It would always be open for the State to examine the issue and take appropriate decision in that regard, by amending the Regulation or by taking recourse to Section 9(4) of the U.P. Intermediate Education Act, 1921.
Writ petition, accordingly, is disposed off.
Copy of this order shall be sent by the learned Standing Counsel to the Secretary concerned for needful action in accordance with law.
Order Date :- 27.11.2018 Pkb/