Heard learned counsel for the petitioner and learned Standing Counsel for the State respondents.
This writ petition has been filed for mandamus commanding the respondent no.1 to release the salary of the petitioner w.e.f 6.8.2001 till date and also continue to release the monthly salary of the petitioner as and when the same falls due for payment.
Since, the pleadings between the parties have already been exchanged and therefore, this writ petition being disposed of finally with the consent of the parties.
The facts as reflected from the record are that:
Guru Nanak Kanya Rikhi Singh Inter College, Bareilly (hereinafter referred to as the Institution) is a minority institution within the meaning of Article 30 of the Constitution of India, which is recognized and aided intermediate college. The provisions of U.P. Intermediate Education Act, 1921 as well as U.P. High School and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act, 1971 are applicable to the said institution.
On account of retirement of a permanent employee namely, Smt. Sumitra Devi, a substantive vacancy on a Class-IV post arose on 30.10.2000. Subsequently, the respondent institution carried out the requisite formalities, accordingly, the District Inspector of School, Bareilly vide letter dated 14.6.2001 intimated the Principal of the institution that she is permitted to fill up the post by way of advertisement for a candidate belong to SC (Female). Accordingly, the institution advertised the aforesaid vacancy, which was published in local Hindi Daily 'Aaj' dated 17.6.2001. The petitioner being qualified in pursuance of the said advertisement, applied for the post vide application dated 25.6.2001 before the Principal of the institution. Subsequently, appeared for the interview on the scheduled date and time before the respondent institution on 27.6.2003.
The institution vide letter dated 6.8.2001 intimated the petitioner that she having been successful and has been appointed on the post of Sevika (Female) w.e.f 6.8.2001 on the pay scale of 2550-3150 and other allowances on a probation of one year. Pursuant to the said appointment letter, the petitioner joined the institution as Sevika on the same day i.e. 6.8.2001 and started discharging duties.
The relevant papers of selection etc. were forwarded to the District Inspector of School, Bareilly, by the Principal of the institution, thereafter, for the first time on 17.8.2001, the District Inspector of School, Bareilly intimated the Principal of the institution by mentioning that three deficiencies have been found in the appointment of petitioner to the effect that no detail has been disclosed in which newspaper, the said vacancies were advertised, no particulars of selection committee has been disclosed as to ascertain the basis of selection and further the record reveals that the date of birth of the petitioner is 15.5.1961 and therefore, the petitioner appears to be aged about 40 years and is not eligible for the appointment. The said letter was duly replied by the Principal of the institution on 28.8.2001, wherein the objection raised by letter dated 17.8.2001 were duly met and in support thereto the documents were also furnished before the District Inspector of School, Bareilly.
The post was advertised in daily newspaper 'Aaj' dated 17.6.2008 and further the detail of selection procedure has been annexed along with writ petition. The Principal of the institution also submitted to the D.I.O.S that the restriction of upper age would not apply in relation to a SC candidate in a minority institution even otherwise the institution has already sent the letter dated 30.11.2001, in its reply to the letter of D.I.O.S. dated 10.9.2001 that in the Class-IV post, one Ms. Manjeet Class-IV was appointed, whose appointment was approved at the age of 48 years, where the age of the petitioner is just 40 years. Thereafter no further action has been taken by the respondent no.1 and only withheld the salary of the petitioner and in this background, present petition has been filed.
This Court initially granted interim relief to the petitioner vide order dated 1.2.2002 to the effect that if the petitioner is working on the post of in question, she shall continue to work but the payment of her salary shall be considered after the exchange of affidavits.
This Court after the exchange of affidavits passed the interim order to the effect that the petitioner shall be paid regular salaries by the respondent w.e.f 1.4.2004 and the payment of arrears shall be considered at the time of final hearing and her appointment shall also be subject to the result of the writ petitioner. Interim order passed on 12.3.2004 is quoted as under:
"By the order dated 1.2.2002, the petitioner was allowed to work but the payment of her salary was required to be considered after exchange of affidavits.
In the counter affidavit, it is alleged that the petitioner at the time of her appointment was more than 40 years of age and that the procedure for appointment was not followed.
It appears from the record that prior approval was obtained and the vacancy was advertised in Dainik Newspaper 'Aaj'. The petitioner was selected by a duly constituted selection committee. Counsel for petitioner contends that U.P. Recruitment to Government Servants (Age Limit) Rules as amended by the 9th Amendment in the year 2000, providing maximum age to 35 years with relaxation of 5 years to Scheduled Caste candidates is not applicable. The petitioner is not a Government Servant. He submits that Regulation 2, only makes the educational qualifications as prescribed in Government Educational Institution applicable to Class IV employee. So far as the age limit is concerned, the Age Limit Rules have not been made applicable by the Regulations to Class IV employees. It is contended that the petitioner was employed in the year 1995 and is being paid from Parents Teacher's Fund. She has not been paid regular salary even after her appointment after due procedure on 25.6.2001. The matter requires consideration.
As an interim measure, it is provided that the petitioner shall be paid regular salary by the respondents w.e.f. 1.4.2004. The payment of arrears shall be considered at the time of final hearing and her appointment shall also be subject to the result of the writ petition.
List for admission hearing in third week of May, 2004."
In the counter affidavit, it is stated that the petitioner at the time of her appointment was more than 40 years of age and the procedure for appointment has not been followed and therefore, the petitioner is not entitled for any relief from this Court. It is further stated in the counter that maximum age limit is 35 years with the relaxation of 5 years to SC candidates as provided in U.P. Recruitment to Government Servants (Age Limit) Rules as amended by the 9th Amendment in the year 2000. The petitioner is an over-aged and accordingly, has crossed the age of 40 years from the date of initial appointment.
Rejoinder affidavit has been filed by the petitioner reiterating the facts as stated in the writ petition by stating that the permission was granted by District Inspector of School, Bareilly vide letter dated 14.6.2001 to proceed with the selection process, hence, there is no necessity to obtain any further approval prior to issuance of appointment letter. Moreover, the U.P. Recruitment to Government Servant (Age Limit) Rules as amended by 9th Amendment in the year 2000 providing the maximum age to 35 years with relaxation of 5 years to SC candidate is not applicable and is only applicable to the Government servants.
Learned counsel for the petitioner submits that appointment of Class-IV Employees was initiated after due permission from the concerned District Inspector of School and subsequently, the post was advertised and thereafter after due procedure, the petitioner was appointed. Learned counsel for the petitioner further contends that recruitment of Class-IV Employees in the Government aided institution is governed by Regulation 100-107 of Chapter III of the Regulations issued in terms of Section 16 G of U.P. Intermediate Education Act, 1921 and there is no upper limit in such regulation and further the U.P. Recruitment to Government Servants (Age Limit) Rules as amended by 9th Amendment in 2000 framed under Article 309 of the Constitution is only applicable to the Government servants.
Learned Standing Counsel supported the stand taken in the counter affidavit.
I have considered the rival submission and perused the record.
It is admitted that District Inspector of School vide letter dated 14.6.2001 intimated the Principal of the institution that she is permitted to fill up by way of advertisement for a candidate belonging to the SC (Female) and thereafter the advertisement was issued in daily newspaper 'Aaj' dated 17.6.2001 and in pursuance of said advertisement, the petitioner applied and appeared in the interview and after the petitioner having been successful, has been appointed on the post of Sevika (Female) w.e.f 6.8.2001. The final approval has not been granted by the District Inspector of School simply on the ground that the petitioner was more than 40 years of age on the date of appointment.
The learned Standing Counsel appearing for the State respondent has fairly conceded that the post was advertised after due permission for the concerned District Inspector of School.
Now, the sole question for consideration is whether the U.P. Recruitment to Government Servant (Age Limit) Rules as amended in the 9th Amendment in 2000 are applicable or not.
The said rules provides the maximum age to 35 years with relaxation of 5 years to SC candidate. There rules were issued in exercise of power under Section 309 of the Constitution of India.
For appropriate appreciation of the controversy, the provision of Article 309 of the Constitution of India is quoted as under:
"309. Recruitment and conditions of service of persons serving the Union or a State,-- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provisions in the behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
From the plain reading of the said provision, it is clear that subject to provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of Union or of any State provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State are competent to make rules regulating the recruitment, and conditions of service of persons appointed, to such services and posts until provisions in that behalf is made by or under an Act of appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act. It implies that an Act of appropriate Legislature may govern the recruitment and service conditions of persons appointed to public services and posts in connection with the affairs of the Union or of any State.
The provisions of Art. 309 of the Constitution of India is transitory in nature and is framed exclusively for the employees working in the State Department. It does not cover the appointment in respect of Class-IV Employees working in privately management aided Institution which are governed by the provisions of U.P. Intermediate Education Act, 1921 as well as the Regulations framed thereunder.
The U.P. Intermediate Education Act provides for regulating all matters pertaining to recognized institutions which are privately managed under the provisions of the Act. The provision which regulates the appointment of Class-IV employees commences with the power conferred on the Head of the institution as the appointing authority against such posts. To being with, the conditions of service of such employees are prescribed by Regulations framed under Section 16-G of the 1921 Act. The aforesaid Section is the charging Section and the regulations framed are contained in Chapter-I where regulation 10(1) empowers the head of the institution to appoint class-IV employees. This is followed by the Regulations framed under Chapter-III which further elaborates the exercise of such powers and the manner in which the Head of the institution is to proceed in such manners, particularly Regulation 100 of the said Chapter. The same also provides that before proceeding to initiate the process of appointment against class -IV posts, the appointing authority shall seek permission from the District Inspector of Schools and thereafter shall send the proceedings of selection to the District Inspector of Schools for granting approval.
The Rules made under the proviso of Art. 309 of the Constitution of India would only apply in relation to Government service in the interregnum period till such engagement is brought forth by the competent legislature and further they have no application to the service condition of the employees of higher secondary schools and intermediate colleges recognized under the Intermediate Education Act, 1921.
The aforesaid Regulations under the Intermediate Education Act, for the appointment of Class-IV Employees prescribes minimum age and the retirement age of 60 years and no upper age limit is provided.
Under these circumstances, the District Inspector of School has committed illegality while refusing the final approval to the petitioner simply on the ground that petitioner was more than 40 years of age on the date of appointment.
Moreover, it is also on the record that one Ms. Manjeet, a Class-IV employee was appointed in the Institution and whose appointment was approved at the age of 48 years by the District Inspector of School. A copy of her approval letter dated 30.10.2001 is appended as annexure-10 to the writ petition. It clearly emerges from the aforesaid order that the approval has been granted to the person, who had cross the alleged upper age limit of 35 years and in case, the respondents have shown their reluctance for grant of approval on the ground that she is over-aged. The said act of the respondents is not only discriminatory but also arbitrary as there is no upper age limit provided under the Regulation and as such there is no legal bar of upper age limit as prescribed under the Regulations for seeking appointment as a Class-IV employees. Once the respondents granted benefit to some other persons, it cannot be denied to the petitioner.
Learned Standing Counsel further contends that any appointment, which is made, has to be approved by the District Inspector of School but in my view, once the approval has been granted for advertisement of the post, there is no requirement under the Regulation 101-107 of the U.P. Intermediate Education Act for seeking fresh approval for making appointments.
In the result, writ petition succeeds and is, accordingly, allowed. The respondents are directed to release the salary to the petitioner along with the arrears within three months from the date of production of certified copy of this order.
Order Date :- 26.2.2018 Noman