Smt. Manorama vs State of U.P. and Other

Amreshwar Pratap Sahi, J.—Heard Sri. Arun Kumar, learned counsel for the petitioner and Sri. R.B. Yadav for the respondent Nos. 2, 3 and 5. The learned standing counsel for the respondent No. 1. Issue notice to the respondent No. 4, returnable at an early date.

The petitioner was appointed as a Class 4 (Group-D Employee) in a Junior High School under the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group D Employees) Rules, 1984. The proposal for appointment was forwarded to the competent authority, namely the District Basic Education Officer who approved the same on 16.3.2011.

The Finance and Accounts Officer raised an objection that in view of the Government Order dated 6th of January, 2011, this appointment could not have been made except by way of outsourcing and accordingly sought directions from the District Basic Education Officer. The District Basic Education Officer vide his letter dated 29.11.2012 Annexure 9 to the writ petition has informed the Finance and Accounts Officer to consider the claim of the petitioner in view of the fact that the Government Order dated 6th of January, 2011 has already been set aside by this Court in so far it relates to the appointment of employees in Secondary Schools governed by the U.P. Intermediate Education Act, 1921. The reference is to the judgment in the case of Committee of Management, Lala Babu Baijal Memorial Inter College, Lodipur, Ghaziabad and Another Vs. State of U.P. and Others, .

The salary of the petitioner has not been released hence the petitioner has come up praying for quashing of the Government Order in relation to employees of Junior High Schools governed by the 1984 Rules hereinabove on a similar footing.

The aforesaid facts are undisputed. The only question that remains to be now decided is as to whether the petitioner gets the help of the judgment relied on by her in the case of Committee of Management, Lala Babu Baijal (supra).

Learned counsel for the petitioner contends that the rules that have been framed, namely the 1984 Rules referred to hereinabove, in exercise of the powers conferred u/s 19 of the U.P. Basic Education Act, 1972 on the State Government.

It is urged that the management has been recognized as the authority to fill up a Class IV vacancy as per Rule 3 thereof. The entire procedure for appointment including qualifications etc. has been provided for under the said rules. Rule 16 gives the authority to make the appointment after prior approval of the District Basic Education Officer. On the strength of these provisions, learned counsel submits that on the analogy of the judgment referred to hereinabove the same relief should be extended to the petitioner.

Having perused the said rules, it is obvious that the rules have been framed in exercise of the statutory powers contained in Section 19 of the 1972 Act. The, rules therefore are a subordinate legislation and keeping in view the provisions of Section 23A of the General Clauses Act have also the protection of the legislature. In the circumstances, the manner of framing of the rules is clearly governed by statutory provisions and cannot be altered otherwise except by the same procedure of amending the rules.

In the instant case, the Government Order dated 6th of January, 2011 has been issued in the exercise of executive powers under Article 162 of the Constitution of India. In the opinion of the court and in view of the law laid down by the Apex Court as well as by this Court executive instructions cannot override the statutory rules which are subordinate legislation. This issue being clear the application of the Government Order on Junior High Schools governed by the 1984 Rules would be clearly unlawful. Without there being any amendment in the rules, the executive instructions cannot override the provisions of the statutory rules framed u/s 19 of the Act.

In the. aforesaid circumstances, the Government Order dated 6.1.2011 cannot apply in respect of engagement of Class III and Class IV employees governed by the 1984 Rules aforesaid. The Government Order dated 6.1.2011 nowhere takes away or abridges the power of the management nor can it in law abridge the said powers for the reasons aforesaid.

The issues which have been raised stand squarely covered by the decision relied upon by the learned counsel which has not been reversed so far. I find no reason to disagree with the same.

In the aforesaid circumstances the writ petition is allowed. The respondent District Basic Education Officer and the Finance and Accounts Officer are directed to forthwith implement the order of approval and ensure payment of salary to the petitioner in accordance with law within a period of eight weeks from the of production of a certified copy of this order before them. The writ petition is disposed of with the aforesaid directions.