Devendra Yadav vs Joint Director of Education and Others Awadhesh Ram Vs D.I.O.S. and Others

Satyendra Singh Chauhan, J.—Heard learned Counsel for the Petitioner and learned Counsel for the Respondent as well as learned Standing Counsel.

Writ Petition 47332 of 2004 has been filed challenging the order dated 02-092004 by means of the Joint Director of Education, Azamgarh Region, Azamgarh refused to accord approval to the appointment of the Petitioner on the ground that the post is a promotion quota post and therefore, the direct appointment could not have been made by the management.

The other Writ Petition i.e. 8101 of 2003 has been filed by Awadhesh Ram challenging the permission sought by the Principal to fill up the post by direct recruitment.

In both the writ petitions the issue involved is as to whether the post of Daftari is a promotion quota or it can been filled up by direct recruitment.

Learned Counsel appearing for Devendra Yadav submits that issue in question has been decided by a Division Bench of this Court and it has been held that the Rules framed under proviso to Article 309 in respect to Class-IV Employees of the U.P. Act are not applicable and the alleged Government Order dated 03-06-1999 was not applicable. The Division Bench of this Court in the Case of Rajiv Kumar and Ors. v. State of U.P. and Ors. held that the Government is at liberty to carry out amendment in the Regulations under the Act but adoption of said Rules by the government by means of Communication dated 11-05-2001 is not valid.

Learned Counsel appearing for Awadhesh Ram, on the other hand, has submitted that the permission could not have been granted as it is a promotional post and the said post has to be filled up by promotion from amongst Class-IV employees. The post in question which has been allegedly filled up by the Principal by direct recruitment is not valid and is liable to be quashed.

Having heard learned Counsel for the parties, I find that the Division Bench of this Court while considering the earlier two Division Bench decisions came to the conclusion that Group-D Employees Service Rules 1986 are not applicable in respect of similarly situated person and under the Act a notification can be issued by the State Government exercising power u/s 16-G read with Section 9(4) of the 1921 Act as was done when the earlier notifications were issued bringing notice the change in the Regulations as contained under Chapter III of the Act of 1921. This, having not been done, the conclusion that the communication dated 11-05-2001 amounts to legislation by reference would be an incorrect presumption in law and the Division Bench, thereafter, held that unless Rules or Procedure following the Regulations are not amended in accordance with law. Para-46 of the Division Bench decision reads as under :

The proposal made by the Director of Education, therefore, remained a dead letter and was never translated in the shape of a regulation through any Government Order or any lawful amendment worth the name. In our opinion, therefore, the Rules framed for government servants under the proviso to Article 309, namely, the Group-D Employees Service Rules 1986 would not apply for the procedure to be adopted for selecting and appointing Class-IV employees in privately managed and recognized educational institutions. The State Government could have exercised its power by issuing a proper Notification u/s 16-G read with Section 9(4) of the 1921 Act as was done when the earlier Notifications were issued bringing about a change in the Regulations as contained under Chapter-III of the 1921 Act. This, having not been done, the conclusion that the communication dated 11-05-2001 amounts to legislation by reference would be an incorrect presumption in law. We, therefore, hold that no such Rules or Procedure apply so long as the Regulations are nor amended in accordance with law.

The aforesaid finding of the Division Bench indicates that the Joint Director of Education has wrongly relied upon the aforesaid amendment and thereby rejected the claim of the Petitioner on the ground which was not otherwise available to him under law in absence of any amendment in the Regulations.

The argument of the counsel for the Petitioner requires to be accepted in the light of the pronouncement made by the Division Bench wherein the said proposition has been laid down and the order passed by the Joint Director of Education appears to be wholly in contradiction to the judgment of the Division Bench. Hence, the writ petitions deserve to be allowed.

Accordingly, both the writ petitions are allowed. The order dated 02-09-2004 is hereby set aside and the D.I.O.S. is directed to re-examine the issue in the light of the observation made in the Division Bench judgment and also determine the validity of the appointment of the Petitioners otherwise on merit.