Heard learned counsel for the parties.
2. The appellant is in appeal against the judgement and order dated 07.09.2010, whereby the approval granted by order dated 23.9.2006 insofar as the appointment of the appellant herein is concerned has been quashed. The learned Single Judge has further directed the Management to recommend the name of the candidate selected by the Selection Committee in the interview held, as reflected in the proceedings, which have been produced before the Court.
3. The grievance of the appellant was that his name was duly recommended by the Committee of Management and as such he was appointed. As the controversy was raised and considering the finding of the learned Single Judge, we had called upon the respondents to produce the records and accordingly, the records were produced before us and we find that the application of the appellant was very much on record and, in fact, his name has been recommended by the duly Selection Committee. The other aspect of the matter is that apart from the appellant, no other candidate has been recommended. To that extent, fairly speaking, the consequential direction issued by the learned Single Judge cannot really be supported.
4. At the hearing of this appeal, on behalf of the appellant, learned counsel submits that the writ petitioner (respondent no.4 herein), who opposed the appointment of the appellant, herself was not qualified as she was the daughter of the Manager of the Institution and was disqualified under rules for being considered. Once that be the case, the writ petition filed on behalf of the writ petitioner (respondent no.4 herein) itself was not maintainable. Therefore, there was no question to interfere with the appointment of the appellant whose name has been duly recommended by a Selection Committee in accordance with rules.
5. Ultimately, it is submitted that the Rules, known as 'The Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984' (hereinafter referred to as 'Rules, 1984'), have been framed by the Governor in exercise of his powers under sub-section (1) of Section 19 of the Uttar Pradesh Basic Education Act, 1972. In terms of these Rules, 'age limit' is provided for by Rule 6. The upper age limit prescribed is not more than 30 years of age on the first day of July following the year in which the vacancy is notified, but the same stands enhanced to 35 years. For this argument, our attention is next invited to the Rules made by the Governor in exercise of the power under the proviso to Article 309 of the Constitution of India, known as 'The Uttar Pradesh Recruitment to Services (Age Limit) Rules, 1972 (hereinafter referred to as 'the Rules 1972') and most specifically Rule 2 thereof. It is contended that considering the overriding effect of the same, it is deemed that rule 6 of the Rules, 1984 stood amended and on the date of interview, the appellant was duly qualified. In these circumstances, it is submitted that the learned Single Judge ought not to have interfered with the appointment of the appellant herein.
6. An affidavit has been filed on behalf of the Basic Education Officer by Sri Brij Kishore Awasthi, annexing a communication/letter dated 24.6.2010 of the State Government. By this communication/letter, referring to Rules 1984, it is set out that the upper age limit for the employees of the recognised Basic Schools (Junior High School) will also be 35 years. It is submitted on behalf of the respondents that it would be prospective and not retrospective.
7. We will first consider the submission as to whether the appellant is entitled to the benefit of the Rules 1972 made by the Governor in exercise of power under the proviso to Article 309 of the Constitution of India. Rule 2 of the Rules 1972 reads as under:-
"2. Maximum age limit.-- The upper age limit for recruitment to all such services and posts under the rule making power of the Governor, for which the upper age limit is less than thirty two years, shall be thirty two years."
8. A perusal of the said Rules would indicate that it only applies to the services and posts under the rule making power of the Governor in exercise of power under Article 309 of the Constitution of India. That being the position, the rules must be read in the context of services and posts which fall under the rule making power of the Governor under Article 309 of the Constitution of India. Proviso to Article 309 of the Constitution of India provides that in the absence of any legislation, it is open to the Governor of the State in the case of services and posts in connection with the affairs of the State, to make conditions of service for persons appointed to such services and posts, until provisions in that behalf are made by or under an Act of the appropriate Legislature under this Article.
9. It would, therefore, be clear that if we consider the proviso to Article 309, it applies to the services and posts under the State. Admittedly, the appellant is not a holder of post and member of any service under the State. That being the position, Rule 2 of the Rules, 1972 cannot be read in respect of the posts and services, which do not fall within Article 309 of the Constitution of India. The submission, therefore, made on behalf of the appellant that the rules made in exercise of power conferred under Article 309 can be read with Section 19 of the U.P. Basic Education Act so as to automatically amend the Rules 1984, has to be rejected.
10. The next question is as to whether the learned Single Judge could have suo motu, while hearing the writ petition filed by the writ petitioner (respondent no.4 herein) who was not qualified for being considered for appointment, interfered with the appointment of the appellant herein. The matter was before the learned Single Judge under Articles 226/227 of the Constitution of India. The issue pertains to the selection of a Clerk in respect of which money is paid by the State. In other words, this is not a post under the service of the State, nonetheless it is funded by the State and to that extent, any appointment in respect of which money is paid by the State, must meet the test of Article 14 of the Constitution of India.
11. In the instant case, the name of the appellant was recommended for selection on the footing that he was eligible. The fact remains that on the date of interview, the appellant was aged over 30 years. The Selection Committee had to consider Rule 6 of the Rules, 1984, which alone makes a person eligible for consideration. Failure to consider, would itself result in the entire selection process to be a nullity in law. In that context, the learned Single Judge, while considering the challenge to the selection of the appellant herein made by the writ petitioner (respondent no.4 herein), who was not qualified, could in the exercise of his extraordinary jurisdiction under Articles 226/227 of the Constitution of India, interfere with such selection. Purity of administration has to be maintained. The Court cannot close its eyes for examining facts with regard to an irregular appointment before it. In the facts of this case, we cannot interfere with the order passed by the learned Single Judge holding that the appellant was not eligible for appointment.
12. Considering the above, though the appeal of the appellant to that extent has to be rejected, nonetheless so far as the direction issued by the learned Single Judge that the name of the other candidate interviewed by the Committee be recommended is concerned, admittedly there was no other candidate who was selected in the interview, and in that context the exercise may be done de novo for the purpose of making recruitment to the post in question.
13. The appeal is accordingly, disposed of.
Dt/-10.11.2010 RKK/-
(F.I. Rebello, CJ) (A.P. Sahi, J) Hon'ble Ferdino I. Rebello, CJ.
Hon'ble A.P. Sahi, J.
Disposed of.
For orders, see order of date passed on separate sheets.
Dt/-10.11.2010 RKK/-(Spl.A.1633/10) (F.I. Rebello, CJ) (A.P. Sahi, J)