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2016 DIGILAW 2894 (ALL)

Kuldip Singh v. State of U. P.

2016-08-22

A.P.SAHI, VIJAY LAXMI

body2016
JUDGMENT This appeal questions the correctness of the judgments of learned Single Judge in a writ petition that prays for quashing of the Government Order dated 16.6.2016 issued by the State Government and the consequential Circular dated 25.6.2016 issued by the Secretary, Basic Education Board as well as the consequential advertisements issued by the respective District Basic Education Officers on the ground that the cut off date for possession of the academic qualification namely 16.6.2016 is irrational, discriminatory and is even otherwise an incompetent government order. Elaborating his submissions Dr. L.P. Misra learned counsel for the petitioner submitted that unless a government order is expressed in the name of the Governor and is authenticated in the manner prescribed by the rules made by the Governor the same cannot be treated as a Government Order on behalf of the State Government. For this he relies on the following decisions of the Apex Court : (i) (2014)10 SCC 673 -Para 19 to 22, Gulf Goans Hotels Co. Ltd. Vs. Union of India. (ii) (2011) 12 SCC 94 -Para 49 to 53, Jaipur Development Authority vs. Vijay Kumar Data (iii) (2009) 15 SCC 705 - Para 41 and 42, Shanti Sorts Club and another Vs. Union of India and another (iv) (2006) 1 SCC 667 -Para 40 to 42, 43 to 45 State of U.P. vs. Neeraj Awasthi. 2. He next contends that if the State legislature has conferred the power on the appointing authority for fixing the eligibility date, namely in the present case on the District Basic Education Officer who is the appointing authority, then through an executive instruction the Governor is not empowered to exercise any such power through the officers subordinate to him. For this reliance has been placed by Sri Misra on the following judgment: (2011) 5 SCC 214 -Para 46 to 49 P.H. Paul Manoj Pandian Vs. P. Veldurai. 3. As a natural corollary to the said arguments Sri Misra submitted that the Authority vested with such a power can under the statute alone exercises this discretion following the procedure prescribed therein and any interference on the part of any authority upon whom the statute does not confer any jurisdiction would be an unwarranted exercise of power. For this he relies on the following judgments : (i) (2011) 5 SCC 435 - Para 26 and 27, Joint Action Committee of Air Line Pilot's Assn. For this he relies on the following judgments : (i) (2011) 5 SCC 435 - Para 26 and 27, Joint Action Committee of Air Line Pilot's Assn. of India vs. D.G. of Civil Aviation. (ii) (2010) 11 SCC 557 -Para 19 to 23, Manohar Lal vs. Ugrasen. (iii) (2008) 7 SCC 117 -Para 18,19 and 22, Pancham Chand Vs. State of H.P. (iv) (2004) 2 SCC 65 -Para 26, Bahadursinh Lakhubhai Gohil vs. Jagdishbhai M. Kamalia. 4. The next contention is that the classification between the candidates belonging to the earlier B.T.C. batch and those belonging to the batch of 2013 by fixing the cut off date as 16.6.2016 is not based on any objective criteria and has no rational nexus with the object intended to be achieved. The only object is to select best candidates to be appointed as 'Assistant Teachers' in the Junior Basic Schools under the control of U.P. Basic Education Board. In furtherance of his argument he relies on the following five judgments: (i) (2013) 2 SCC 772 -Para 33, Kallakkurichi Taluk Retired Officials Assn. vs. State of T.N. (ii) (2010) 13 SCC 137 -Para 25, 26 and 35(i), Soham Mayankkumar Vyas and others vs. Union of India and others. (iii) (2008) 9 SCC 125 -Para 28 and 30, Union of India and another vs. SPS Vains (Retd.) and others. (iv) (2003) 10 SCC 499 -Para 6, State Bank of India vs. L. Kannaiah (v) (1971) 1 SCC 38 -Para 12, A. Peeriakaruppan (Minor) vs. State of T.N. Sri Misra in addition to his arguments also urges that in view of an existing statutory rule the exercise of executive powers under Article 162 of the Constitution of India, which otherwise has not been done in the present case, cannot be exercised contrary to the rule or the Act. For this he relies on following judgments: (2007) 7 SCC 140 -Para 10, State of Kerla Vs. K. Prasad AIR 1966 SC 1942 -Para 5, B.N. Nagrajan vs. State of Mysore 6. Sri Misra has then contended that the cut off date of 16.6.2016 is unjust and prejudicial being without any basis having been picked up whimsically, for this he relies on the following judgments : (i) AIR 1967 SC 1301 -Para 6, D.R. Nim vs. Union of India (ii) (2008) 13 SCC 463 -Para 8, Union of India and another vs. S. Thakur. 7. 7. Sri Misra has then urged that the reference by the learned Single Judge while dismissing the writ petition to the judgment dated 25.7.2016 in Writ-A No. 30156 of 2015 and Special Appeal No. 477 of 2016 dated 4.8.2016 is incorrect as the aforesaid judgments are per incuriam as the constitutional provisions in relation to the authentication and expression of a Government Order and other aspects relating there to have not been noticed. For this he relies on the following seven judgments: (i) (2014) 8 SCC 872 - Para 2, Rohtas Bhankhar and others vs. Union of India (ii) (2012) 3 SCC 295-Para 28 to 34, Madhya Pradesh Rural Road Development Authority and another vs. L.G. Chaudhary Engineer and Contractor. (iii) (2011) 7 SCC 639 -Para 67, State of M.P. vs. Narmada Bachao Andolan and another. (iv) (2004) 7 SCC 558 -Para 20 and 23, Nirmal Jeet Kaur vs. State of M.P. and another. (v) (2001) 6 SCC 356 -Para 19 and 23, Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd. (vi) (1989) 1 SCC 101 -Para 11, Municipal Corporation of Delhi vs. Gurnam Kaur (vii) (1988) 2 SCC 602 -Para 42 and 47, A.R. Auntlay vs. R.S. Nayak and another. 8. We have gone through the entire records placed before us as well as the judgments and the submissions as urged on behalf of the appellants and we find that the Government Order dated 16.6.2016 recites in para no. 2 as follows: ---Hindi--- 9. Occurrence of the phrase "????? ??????????? ???? ?? ???? ?? ??????? ??? ?? ??" in the Government Order dated 16.6.2016 satisfies the requirement of Article 166 of the Constitution. A Government Order to be valid has to satisfy two conditions; (i) that its existence is traceable to the executive powers of the State as defined in Article 162 and (ii) that it satisfies the requirement of Article 166. Article 166 is in two parts. Clause 1 of Article 166 requires the Government Order to be expressed in the name of Governor and Clause 2 requires the Government Order to be authenticated in such manner as may be specified in the rules to be made by the Governor. Clause 1 of Article 166 has been held to be directory and not mandatory by Hon. Supreme Court in various judgments. Clause 1 of Article 166 has been held to be directory and not mandatory by Hon. Supreme Court in various judgments. Hon. Supreme Court has also held that if the order is signed by the officer authorised to authenticate the same and even if it is not expressed to have been made in the name of Governor, and is expressed to have been passed on behalf of the Governor, such expression occurring in Government Order satisfies the requirement of Article 166 (reference can be made to Hon. Supreme Court judgment in the case of John P. Joseph vs. State of T.C.;AIR 1955 Supreme Court 160). 10. Further, we also notice that the appellant has failed to establish that the Government Order dated 16.6.2016 was not authenticated by the officer competent to do so or the said order has not been authenticated in a manner prescribed by the Rules made by the Governor in that regard. Thus, in the aforesaid view, the submissions made by the learned counsel for the appellant are not tenable. 11. In this regard it is necessary to point out that the source of the said order is three fold. The first is the direction of a learned Single Judge in W.P. No. 326(S/S) of 2016 ( Mahendra Pratap Singh & 7 others vs. State of U.P. ) decided on 18.4.2016 a copy of the said judgment is on record as Annexure no. 12. The relevant extract of the judgment is quoted herein under: "Having said so, in the end, it is necessary to provide that the Principal Secretary, Education shall ensure that in future the selection process is initiated after a proper study of the relevant rules and law on the subject and situation such as the one which has arisen in this case shall not be allowed to occur and if it does, then, personal liability of the concerned officials shall be fixed in the matter so as to preserve the sanctity and certainty attached to such recruitment process. After the present selection process is over and appointments have been made he shall look into the entire exercise and ascertain the faults on the part of the authorities so as to issue relevant guidelines and if necessary to make necessary amendments in the relevant rules to incorporate a fair and reasonable procedure therein to ensure a proper and fair selection. It shall be ensured that in future selections the date on which the eligibility is to be determined is specifically fixed and not left to unforeseen circumstances such as have arisen in this case." 12. Thus, the challenge raised to the source of the authority of the issuance of the Government Order omits to raise any plausible ground questioning the said authority which also flows from a direction given by this Court in exercise of powers under Article 226 of the Constitution of India which remains unchallenged. Thus, the executive power so exercised was clearly backed by a judicial direction. 13. The second factor to support the exercise of such power is also traceable to section 13 of the U.P. Basic Education Act, 1972 and also to the rule making power of the State Government under Section 19 thereof. Section 13 and section 19 of the 1972 Act are extracted herein under : "13. Control by the State Government.-(1) The Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act. (2) If in, or in connection with, the exercise of any of its powers and discharge of any of the functions by the Board under this Act, any dispute arises between the Board and the State Government, or between the Board and any local body, the decision of the State Government on such dispute shall be final and binding on the Board or the local body, as the case may be. (3) The Board or any local body shall furnish to the State Government such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act. 19. Power to make Rules. - [(1) The State Government may, by notification, make rules for carrying our the purposes of this Act. (3) The Board or any local body shall furnish to the State Government such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act. 19. Power to make Rules. - [(1) The State Government may, by notification, make rules for carrying our the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely- (a) the recruitment, and the conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6; (b) the tenure of service, remuneration and other terms and conditions of service of officers, teachers and other employees transferred to the Board under Section 9; (c) the recruitment, and the conditions of service of the persons appointed, to the posts of teachers and other employees of basic schools recognised by the Board; (d) any other matter for which insufficient provision exists in the Act and provision in the rules is considered by the State Government to be necessary; (e) any other matter which is to be or may be prescribed.] 14. The challenge raised by the appellants, therefore, also cannot be accepted as the Government Order is not in excess of any such authority and rather it supplements the exercise of power by the appointing authority and is protected under the aforesaid provisions. This issue was also categorically raised and answered by the learned Single Judge while rendering the decision in the case of Manish Kumar Singh and 19 others in Writ-A No. 30156 of 2016 decided on 26.7.2016 that has been referred to by the learned Single Judge in the impugned judgment. To point out specifically para 12 of the judgment of Manish Kumar Singh (supra) noticed section 13 and 19 where after the answer to the said issue has been elaborately given while answering issue no. 1. 15. Dr. Misra has invited the attention of the Court to the Division Bench judgment in the case of Laxmikant Shukla vs. State of U.P. : W.P. No. 5 (S/B) of 2010) and has urged that the rules of business and the purpose of authentication and the signatures has been discussed in para no. 1. 15. Dr. Misra has invited the attention of the Court to the Division Bench judgment in the case of Laxmikant Shukla vs. State of U.P. : W.P. No. 5 (S/B) of 2010) and has urged that the rules of business and the purpose of authentication and the signatures has been discussed in para no. 42 to 90 to hold that if the Chief Minister is allowed to take decisions orally then this will negate the Rule of Law. As noticed above recitals made in the Government Order dated 16.6.2016 clearly establishes that requirement of Article 164 stands fulfilled as to its validity. The aforesaid decision of the Division Bench, therefore, also does not improve the situation as in our opinion the Government Order satisfies the test that it is in accordance with law and is not contrary to the provisions of 1972 Act or the rules framed there under nor is there any deficiency of proper authentication. The view of the learned Single Judge in the case of Manish Kumar Singh (supra) was, therefore, rightly upheld by the Division Bench in the case of Ram Ashish Yadav vs. State of U.P. : Special Appeal No. 477 of 2016 decided on 4.8.2016. A presumption has to be raised with regard to the validity of the issuance of the Government Order on the strength of the recitals contained therein and also for the reasons indicated herein above that could not be successfully rebutted. 16. Then comes the argument raised with the decisions in the case of Manish Kumar Singh and Ram Ashish Yadav (supra) being per incuriam. Suffice it to mention that the findings that have been recorded in the case of Manish Kumar Singh (supra) as noted above while answering issue no. 1 take care of all the relevant constitutional provisions. Thus, the argument that it is per incuriam also deserves to be rejected. 17. The next argument of Dr. Misra is about the validity of the cut off date of 16.6.2016. We have gone through the judgments that have been cited at the Bar and we find that this issue as well was elaborately dealt with in the case of Manish Kumar Singh (supra) as affirmed by the Division Bench in the case of Ram Ashish Yadav (supra) while answering issue no. 2. We have gone through the judgments that have been cited at the Bar and we find that this issue as well was elaborately dealt with in the case of Manish Kumar Singh (supra) as affirmed by the Division Bench in the case of Ram Ashish Yadav (supra) while answering issue no. 2. All possible arguments were dealt with including the arguments advanced before us and we have been unable to find any reason to disagree with the view expressed in the case of Manish Kumar Singh (supra). The cut off date 16.6.2016, therefore, does not appear to be invalid and its rationality is supported in view of what has been stated herein above while approving the ratio in the case of Manish Kumar Singh (supra). 18. The argument of Dr. L.P. Misra that the introduction of a condition through an executive instruction where the rules are already in place, is an argument which also cannot be accepted for the reason that the State Government possesses this power to issue directions and the direction of fixing the cut off date does not run counter to any rule already framed. As a matter of fact this had become necessary in the light of what has been already held by the learned Single Judge in the decision of Mahendra Pratap Singh (supra) decided on 18.4.2016. The exercise of such powers by the State is neither in excess of authority nor does it violate any rule. It is neither unjust, capricious or so arbitrary so as to invoke the ingredients of Article 14 and 16 of the Constitution of India. 19. Another Division Bench judgment upholding the judgment of the learned Single Judge in Special Appeal No. - 485 of 2016 : Surya Pratap Singh And 9 Others Vs. State Of U.P. And 2 Others decided on 11.8.2016 has also been brought to our notice by the learned counsel for Basic Education Board which also holds the cut off date of 16.6.2016 as valid. We find ourselves in full agreement for the reasons given there as well. 20. For all the aforesaid reasons and for an additional reason that the selections have been withheld for long and further that we do not find any argument to differ from the view already taken as referred to in the impugned judgment, the appeal lacks merit and is hereby dismissed.