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Allahabad High Court · body

1980 DIGILAW 393 (ALL)

Krishna Pal Singh v. Government of U. P

1980-03-31

K.N.SINGH, S.J.HYDER

body1980
JUDGMENT K.N. Singh, J. - This petition under Art. 226 of the Constitution is directed against the Government order dated 12-7-1978 prescribing reservation in favour of the members of scheduled castes, scheduled tribes and backward classes in the service of the private educational institutions recognised by the Board of High School and Intermediate Education and receiving grants-in-aid from the State Government. 2. The petitioner is a permanent Assistant Teacher in C.T. Grade in the R.R.K.K. Inter College, Kuchesar, Belandshahr an aided and recognised institution. In September 1975 he was promoted to officiate in L. T. Grade, he continued to officiate on that post till May 20, 1977 and thereafter he was reverted to G.T. Grade. In 1979 a vacancy arose in the L.T. Grade which was to be filled by promotion in accordance with Regulation 6 of Chapter II of the Regulations framed under the U. P. Intermediate Education Act 1921, hereinafter referred to as the Act. On 6-9-79 the Committee of Management of the college promoted Jagat Singh respondent no. 4 an Assistant Teacher in C T. Grade to the L.T. Jrade, Even though the petitioner was senior to the respondent no. 4, the management did not consider him for promotion in view of the directions issued by the State Government in its order dated July 12, 1978 providing reservation of posts in favour of the members belonging to scheduled castes, scheduled tribes and backward classes. Aggrieved, the petitioner has challenged validity of the Government order. 3. Appointment of teachers in the non Government educational institutions is regulated by the provisions of the Act and the Regulations framed thereunder. Chapter H of the Regulations provide for appointment of Heads of institution and teachers. Regulation 6 of Chapter IT provides that where any vacancy in the L. T. Grade is to be filled by -promotion, all teachers Working in the C. T. Grade having a minimum of five years continuous substantive service to their credit on the date of the occurrence of the vacancy shall be considered for promotion by the Committee of Management provided they possess the prescribed minimum qualification for teaching the subject in which the teacher in the L. T. Grade is required. The Regulation further lays down that selection for promotion shall be made on the basis of service, standing, achievements in service, academic qualification and integrity. The Regulation further lays down that selection for promotion shall be made on the basis of service, standing, achievements in service, academic qualification and integrity. The criterion for promotion is seniority with due regard to merit. Seniority therefore occupied major role in making the selection. The petitioner had been appointed as Assistant Teacher in C. T. Grade in 1 66, while Jagat Singh respondent no. 4, was appointed in 1972. Both the petitioner and respondent no. 4 were working in C. T. Grade, the petitioner was senior to respondent. He was entitled to promotion on the criterion laid down by Regulation 6. The Committee of Management, however, did not consider the petitioner's case for promotion instead it preferred to promote respondent no. 4 who belongs to backward class in pursuance of the Government order dated July 12, 1978. 4. Learned counsel for the petitioner urged that the Government order dated 12-7-78 which prescribes reservation to the members belonging to scheduled castes, scheduled sub and backward classes could not alter the statutory rules as contained in Regulation 6. Reliance was placed on a decision of this court in Mohan Lal Mehrotra v. Commissioner & Auditor General of India, 1979 AWC 602 , wherein a Division Bench of this court held that administrative instructions issued by the Government making reservation for scheduled castes and scheduled tribes could not amend the statutory rules prescribing procedure and criteria for promotion to a higher post. We do not dispute the correctness of the submission made on behalf of the petitioner that a Government order containing administrative instructions cannot override or amend statutory rules prescribing procedure and criteria for promotion. In the absence of amendment of statutory rules,Instructions contained in the Government order if contrary to statutory rules, have no binding effect and preference must be given to the statutory. 5. The question then arises whether the Government order dated July 12, 1978 contains administrative instructions or it has statutory character of regulation. The Government order states that it is necessary to provide reservation to the members belonging to scheduled castes, scheduled tribes and backward classes in appointment to the various posts in the non-governmental aided and recognised educational institutions of the State and for the purpose the Government has decided that all the institutions which are on the grants-in-aid list shall comply with the rules relating to reservation as contained in the order. The Government orders contains rules providing reservations of post in all non Government aided and recogoized educational institutions. It lays down that reservation shall be made in favour of scheduled castes to the extent of eighteen per cent, scheduled tribes two per cent and backward classes fifteen per cent. The reservation shall be made to the posts which may be filled either by direct recruitment or by promotion. The rules further provide that the reservation so made in favour of scheduled castes, scheduled tribes and backward classes should be filled by the members belonging to that class if they fulfil the minimum qualification. The Government order does not disclose source of power under which the rules have been framed but absence of source of power in the Government order does not affect its character. If the Rules are refer able to a provision of law conferring power on the State Government to frame such rules the same would have statutory force. 6. Section 16-G (1) lays down that every person employed in an educational institution shall be governed by such conditions of service as may be prescribed by Regulations. Section 15 confers power on the Board of High School and Intermediate Education to make regulations for the purpose of carrying into effect the provisions of the Act. Sub-section (2) expressly confers power on the Board to frame regulations, prescribing conditions under which grants-in-aid shall be given to institution recognised by the Board and also the admission of institution to the privileges of recognition. Regulation contained in Chapter VII regulate recognition of the institution by the Board. Chapter X of the Regulation prescribed conditions under which grafts-in-aid is to be given to the recognised institutions. These regulations provide that recognition or grants-in-aid shall be given to an institution if it complies with the conditions framed under the Act. Chapter II contains Regulations relating to appointment of the herd of the institution and teachers in the aided and recognised institution. The Board frames regulations under S'c. 15 of the Act, with the previous sanction of the State Government and one of the necessary condition is that the same be published in the Gazette. Chapter II contains Regulations relating to appointment of the herd of the institution and teachers in the aided and recognised institution. The Board frames regulations under S'c. 15 of the Act, with the previous sanction of the State Government and one of the necessary condition is that the same be published in the Gazette. Normally amendment to the regulations framed by the Board as referred earlier is made by the Board but Section 9 (4) confers wide power on State Government to make any regulation, modify or rescind it in respect of any matter under the provisions of the Act. Section 9. (4) is in the following term - "Whenever, in the opinion of the State Government, it is necessary or expedient to take immediate action, it may without making any reference to the Board under the foregoing provisions, pass such order or take such action consistent with the provisions of this Act as it deems necessary, and in particular, may by such order modify or rescind or make any regulation in respect of any matter and shall forthwith in from the Board accordingly." 7. The aforesaid provision confers power on the State Government to take immediate action, to modify, rescind or make any regulation in respect of any matter or to pass any order provided such action is consistent with the provisions of the Act. The State Government has, therefore, ample powers to issue orders, making any regulation in respect of any matter provided under the Act and also to modify or rescind any regulation which may have been framed by the Board. Any order issued by the State Government under the aforesaid provision would acquire statutory character and the same would be effective notwithstanding any regulation framed by the Board. 8. The directions contained in the Government order dated July 12, 1978 prescribe of service of teachers in the aided and recognised institutions and for reservation of posts to scheduled castes, scheduled tribes and backward classes. They further seeks to regulate the conditions of grant-in aid to recognised institution. The Government order is, therefore, referable to Section 9 (4) of the Act and as such the rules contained therein have statutory character. No doubt the Government order speaks of rules and not regulations in prescribing reservation but that does not affect the statutory character of the rules. The Government order is, therefore, referable to Section 9 (4) of the Act and as such the rules contained therein have statutory character. No doubt the Government order speaks of rules and not regulations in prescribing reservation but that does not affect the statutory character of the rules. Sometimes the expression "Rules" and "Regulations" are used loosely in an any n term and the courts have also treated them to be so. In AIR 1964 S. C. 364 the Supreme Court treated a regulation as a rule. Since Section 9 (4) confers power on the State Government to frame regulations, the Rules contained in the Government order dated 1 -7-78 must be treated as Regulations although the Government order refers them as Rules. 9. Now if Regulation 6 is read along with the regulation as contained in the impugned Government order, it would be clear that if vacancy occurs in the L. T. Grade, that should be filled in by promoting a member of scheduled caste. scheduled tribe be backward class if he possesses the minimum requisite qualifications. The reservation is limited to 15% for members belonging to backward classes. So long the quota of 15% of vacancy in the L.T. Grade is not completed the Committee of Management is under a legal obligation to fill the post in the L. T. Grade by promoting teachers of C. T. Grade belonging to backward class not with standing the fact that such teachers may not be senior. Since the quota of 15% was not complete, the Committee of Management acted rightly in promoting the respondent no. 4. The petitioner was not entitled to be considered as the vacancy was reserved. 10. For the reasons stated above, we do not find any legal infirmity in the impugned Government order. The petition fails and is accordingly dismissed but in the circumstances of the case there will be no order as to costs.