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2008 DIGILAW 634 (ALL)

SHIKHA v. STATE OF UTTAR PRADESH

2008-03-19

SABHAJEET YADAV

body2008
JUDGMENT Hon’ble Sabhajeet Yadav, J.—A short question arises for consideration before this Court is that as to whether U.P. Direct Recruitment to Group "D” Posts (inclusion of a Member Nominated by District Magistrate in Selection Committee) Rules, 2006 promulgated by Governor of State of U.P. under the proviso to Article 309 of the Constitution of India shall apply in selection of Group ‘D’ posts of Higher Secondary Schools and Intermediate Colleges recognized under U.P. Intermediate Education Act, 1921 run and managed by the private managements? 2. The brief facts leading to the case are that two posts of Class-IV employees were fell vacant in the institution, one post on account of retirement of Smt. Chando Devi on 30.6.2005 and another on account of retirement of Smt. Raj Kumari on 31.3.2006. On 29.3.2006 the Principal of the institution sought permission from the District Inspector of Schools, Allahabad for filling the aforesaid vacancies. In pursuance thereof, the District Inspector of Schools-II, Allahabad granted permission to the Principal of the institution to fill up the aforesaid two vacant posts of class IV employees in the institution vide order dated 4.5.2006, contained in Annexure-2 of the writ petition. On receipt of the permission for filling the aforesaid vacant posts advertisement was made in Dainik Jagaran on 29.5.2006. In pursuance of aforesaid advertisement as many as 75 persons have applied for the selection and appointment against the aforesaid two vacancies. The Selection Committee constituted for the purpose held the selection on the basis of interview held on 16.6.2006 and letters of appointment were issued to the petitioners, who have been found selected in the aforesaid process of selection and they have also joined their respective post on 19.6.2006 in the institution in question. Thereafter the Principal of institution has sent a letter alongwith papers for approval to the District Inspector of Schools on 20.6.2006 but instead of granting approval to the aforesaid appointment of the petitioners for payment of salary to them from the State exchequer as the institution is Government aided privately managed Intermediate College, the District Inspector of Schools vide impugned order dated 5.7.2006 has recalled his earlier order dated 4.5.2006 whereby the permission was granted for holding selection and appointment on the aforesaid class IV posts in the institution. The ground taken in the impugned order dated 5.7.2006, contained in Annexure-9 to the writ petition, by the D.I.O.S. is that the composition of selection committee for holding selection has already been changed vide notification dated 3.3.2006. The aforesaid notification has been filed by the petitioners as Annexure-10 to the writ petition. By the said notification the Uttar Pradesh Direct Recruitment to Group ‘D’ Posts (inclusion of a member nominated by the District Magistrate in the Selection Committee) Rules, 2006, hereinafter referred to as Rules-2006, promulgated by the Governor of Uttar Pradesh has been notified. 3. Learned Counsel for the petitioners has submitted that the aforesaid Rules-2006 framed under the proviso to Article 309 of the Constitution has no application in respect of selection in question instead thereof the selection in question is governed by the Regulations 100 to 107 of Chapter III framed under U.P. Intermediate Education Act, 1921. While elaborating his submission learned Counsel for the petitioners has submitted that the provisions of rule framed under the proviso to Article 309 of the Constitution applies only in respect of public services and posts in connection with the affairs of Union of India or of any State. The said rule has no application with regard to the services of employees of Higher Secondary Schools and Intermediate Colleges managed by private committee of management recognized under U.P. Intermediate Education Act. The services of non-teaching staff of the such educational institution recognized under said Act are governed by the provisions of aforesaid Act and Regulations framed thereunder, therefore, the recruitment and conditions of services of Group ‘D’ employees of such educational institutions is not covered by the rules framed under the proviso to Article 309 of the Constitution of India as services of such employees cannot be said to be public services in connection with the affairs of Union of India or of any State. Accordingly the impugned order passed by D.I.O.S. while placing reliance upon Rules-2006 referred above cannot be sustained. The submission of learned Counsel for the petitioners appears to be correct and deserves to be accepted. 4. I have heard learned Counsel for the petitioners and learned Standing Counsel for the respondents and have also gone through the record. 5. For better appreciation of the controversy the provision of Article 309 of the Constitution of India is extracted as under : “309. 4. I have heard learned Counsel for the petitioners and learned Standing Counsel for the respondents and have also gone through the record. 5. For better appreciation of the controversy the provision of Article 309 of the Constitution of India is extracted 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 provision in that 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.” 6. From a plain reading of provision of Article 309 of the Constitution of India, it is clear that subject to provisions of this Constitution, the Acts of appropriate Legislature may regulate the recruitment, and conditions of services of persons appointed, to public services and posts in connection with the affairs of Union or of any State; provided that President or such person as he may direct in cases of services and posts in connection with the affairs of Union and Governor of State or such person as he may direct in case of services and posts in connection with the affairs of State are competent to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts until the 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 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 and the rules framed under the proviso to Article 309 are transitory in nature and they shall apply only in the period interregnum, but in any case neither the enactment of competent Legislature under Article 309 of the Constitution of India nor the rules framed by the President or Governor of the State under the proviso to Article 309 of the Constitution have any application with regard to the services of employees of Higher Secondary Schools and Intermediate Colleges recognized under U.P. Intermediate Education Act, who are governed by provisions of aforesaid Act and Regulations framed thereunder, for simple reason that the services and posts of such educational institution are not public services and posts either in connection with the affairs of Union of India or of any State as contemplated by the said Article, therefore, the provisions of Rules-2006 have no application with regard to the appointment of employees of such educational institutions. 7. For ready reference and better appreciation of controversy the provisions of Rules-2006 referred above are extracted as under : “In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules : The Uttar Pradesh Direct Recruitment to Group ‘D” Posts (inclusion of a Member Nominated by the District Magistrate in the Selection Committee) Rules, 2006: 1. Short title, commencement and application.—(1) These rules may be called the Uttar Pradesh Direct Recruitment to Group "D” Posts (inclusion of a Member nominated by the District Magistrate in the Selection Committee) Rules, 2006. (2) They shall come into force at once. (3) They shall apply to direct recruitment to Group ‘D’ Posts under the rule making power of the Governor under the proviso to Article 309 of the Constitution except the posts which are within the purview of the Uttar Pradesh Public Service Commission. 2. Overriding effect.—These rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders. 4. 2. Overriding effect.—These rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders. 4. Inclusion of a Member nominated by the District Magistrate in the Selection Committee.—The Selection Committees prescribed for direct recruitment to Group ‘D’ Posts under the provisions of the relevant Service Rules shall, henceforth, invariably include an officer nominated by the District Magistrate as one of the Members of the Selection Committee.” 8. From a plain reading of Rule-1 (3) of the said Rules, it is clear that these Rules shall apply to direct recruitment to Group ‘D’ Posts under the rule making power of the Governor made under the proviso to Article 309 of the Constitution except the posts which are within the purview of the Uttar Pradesh Public Service Commission. It is no doubt true that Rule-2 of the said rules have overriding effect upon other service Rules and by virtue of Rule-4 of the said rule it is provided that Selection Committee prescribed for direct recruitment to Group ‘D’ Posts under the provisions of the relevant Service Rules shall, henceforth, invariably include an officer nominated by the District Magistrate as one of the Members of Selection Committee. At this juncture it is necessary to point out that there can be no doubt that the services and posts of non-teaching staff of secondary schools and intermediate colleges recognized under U.P. Intermediate Education Act, 1921, run and managed by the private committee of Management are not services and posts in connection with the affairs of Union of India or of any States as contemplated under the provisions of Article 309 of the Constitution, therefore, the provisions of Article 309 of the Constitution of India has no application with the recruitment of employees of such institution. Thus the appointment on class IV post of the institution cannot be governed and regulated by the rules framed by the Governor of Uttar Pradesh under the proviso to Article 309 of the Constitution, instead thereof the appointment/recruitment of class IV employees in educational institution recognized under U.P. Intermediate Education Act are governed by the Regulations 100 to 107 of Chapter III framed under the said Act. Therefore despite Rule-2 of said Rules have overriding effect upon other service rules even then such overriding effect of the said Rules in my considered opinion, is confined to only those Rules which have been framed by the Governor of the State under proviso to Article 309 of the Constitution of India, they cannot travel beyond the aforesaid rule making power of the Governor. Accordingly I am of the view that Rules-2006 has no application in case of recruitment of the petitioners on Class IV posts or Group D posts of the institution in question. The view taken by D.I.O.S. contrary to it is misplaced and cannot be countenanced. 9. In view of these facts and circumstances of the case, impugned order passed by District Inspector of Schools recalling earlier permission granted by D.I.O.S. dated 4.5.2006, in my considered opinion, is wholly erroneous, misconceived and cannot be sustained, therefore, the same is hereby quashed. 10. Since there is nothing from the impugned order that the selection made by the institution has been found faulty otherwise by D.I.O.S. except the ground stated herein before, therefore, the District Inspector of Schools, Allahabad is directed to accord approval to the appointment of petitioners and make payment of salary to them within a period of two months from the date of production of certified copy of the order passed by this Court before him, if they are found working in pursuance of their appointments. However the payment shall be made from the date of approval of their appointments and not earlier to it. 11. With the aforesaid observation and direction, writ petition succeeds and allowed. 12. There shall be no order as to costs. ———