Allahabad High Court
State Of U.P. And 2 Others vs Asha Ram Sharma And 2 Others on 23 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1770, 2020 (138) ALR SOC 5 (ALL) (2020) 1 ADJ 362 (ALL), (2020) 1 ADJ 362 (ALL)
Author: Biswanath Somadder
Bench: Biswanath Somadder, Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 7 Case :- SPECIAL APPEAL DEFECTIVE No. - 931 of 2019 Appellant :- State Of U.P. And 2 Others Respondent :- Asha Ram Sharma And 2 Others Counsel for Appellant :- Rajiv Singh Counsel for Respondent :- S B Singh,Kripa Shankar Singh Hon'ble Biswanath Somadder,J.
Hon'ble Ajay Bhanot,J.
The instant Special Appeal arises in respect of a judgment and order dated 2nd November, 2018 passed by a learned Single Judge in Writ A No. 44278 of 2004, (Asha Ram Sharma v. State of U.P. & Ors.). By the impugned judgment and order the learned Single Judge was pleased to allow the writ petition primarily on the basis of the Division Bench judgment of this Court rendered in the case of Rajiv Kumar & Ors. v. State of U.P. & Ors. Reported at 2011 (2) ESC 820 (All) (DB). According to the learned Single Judge, the issue sought to be raised in the writ petition was squarely covered by the aforesaid judgment of the Division Bench. The appellants before us are the State of U.P., its Joint Director of Education, Region-Varanasi and the District Inspector of Schools, Varanasi. For convenience, the impugned judgment and order is set out hereinbelow in its entirety:
"1. Heard Sri S.B. Singh, Advocate, for petitioner and learned Standing Counsel for respondents.
2. The approval granted earlier to petitioner's appointment as a Class-IV employee has been cancelled by impugned order dated 22.04.2004 by District Inspector of Schools, Varanasi (hereinafter referred to as "DIOS") on the ground that petitioner was overage on the date of advertisement.
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3. In the counter affidavit, the stand taken by respondents is that as per Group ''D' Employees Service (U.P.) Rules, 1985 (hereinafter referred to as "Rules, 1985"), petitioner was overage. It is contended that Rules, 1985 framed under Proviso to Article 309 are applicable to the holders of Civil Post and not applicable for appointment of Class-IV employee in recognized educational institution governed by provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921") and Rules and Regulations framed thereunder.
4. It is pointed out that this issue is squarely covered by Division Bench Judgment of this Court in Rajiv Kumar and others Vs. State of U.P. and others 2011 (2) ESC 820 (All) (DB) and two Single Judge Judgments of this Court in Writ Petition No. 22342 of 2012 (Narendra Kumar Vs. State of U.P. and others) decided on 08.05.2012 by Hon'ble V.K. Shukla, J. and Writ Petition (Writ-A) No. 4476 of 2002 (Smt. Kuleep Kaur Vs. District Inspector of Schools, Bareily and others) decided on 26.02.2018 by Hon'ble Rajiv Joshi, J.
5. In view thereof, the writ petition is allowed. Impugned order dated 22.04.2004 is hereby set aside."
A plain reading of the impugned judgement and order reveals that while deciding the issue sought to be raised by the writ petitioner, the learned Single Judge considered the Division Bench judgment of this Court (supra) as well as two Single Bench judgments which have also been referred in the impugned judgment and order. Since the brief facts of the case of the writ petitioner have been set out succinctly in the impugned judgment and order, in order to avoid prolixity, we refrain from reproducing the same. However, what we shall now consider is whether the issue before the learned Single Judge has been squarely covered by the Division Bench judgment of this Court in Rajiv Kumar's case (supra). Before we do so, we need to take notice of a Full Bench decision of this Court rendered in the case of Harpal Singh v. State of U.P. & Ors. reported at 2015 (3) ADJ 236. The reason why we are taking notice of this Full Bench judgment is that the Division Bench judgment -3- of this Court rendered in Rajiv Kumar's case (supra) proceeded on an assumption that the communication dated 11th May, 2001, was actually a Government Order though in fact, it was only a letter and had never been issued in exercise of powers conferred under Section 9 (4) of the U.P. Intermediate Education Act, 1921, provision of which is also applicable in the facts of the instant case. The Full Bench in Harpal Singh's case (supra), while dealing with the issue extensively, opined as follows:
"21. The administrative instruction of 11 May 2001 did not bring out any amendment to the regulations. The regulations were silent. The administrative instruction filled up the vacuum by making a provision until suitable amendments are made in the regulations by incorporating specific provisions. With respect, while we agree with the general principle of law which has been laid down by the Division Bench in Rajiv Kumar (supra) to the effect that an amendment to the regulations can be only in a manner contemplated by the statute, what the decision in Rajiv Kumar (supra) misses is the position that there was no amendment brought about in the existing regulations. The executive instruction was an administrative action which was intended to ensure that the conditions of service are not left uncertain and that a void which would otherwise cause is filled up until suitable regulations are framed. The administrative instruction, in fact, does contemplate that regulations would be framed in due course and we must impress upon the State Government the necessity of framing appropriate regulations so as to avoid needless litigation and conflict in the service. As the history of the present reference would indicate, there have been conflicting decisions of the learned Single Judges of this Court as well as of Division Benches. It would be proper for the State Government to put the matter at rest by framing appropriate regulations. Until regulations are framed and having regard to the well settled principle of law, there can be no fault in the action of the administrative authority in issuing the administrative instruction which would hold the field.
22. For these reasons, we answer the questions of law as framed in the following terms:
(i)The communication dated 11 May 2001 issued by the Secretary (Secondary Education) was not an order of the State Government referable to the provisions of Section 9 (4) of the Act of 1921. The communication constituted an administrative instruction. As an administrative instruction, the communication did not purport to amend the regulations framed in Chapter III of the Regulations, but constituted an executive instruction for filling up a vacuum about the procedure to be adopted in making appointments on Class-IV posts in recognised and aided non-governmental Intermediate Colleges. As an administrative instruction, the communication -4- will hold the field until the Government notifies regulations in that regard under the Act of 1921.
(ii)In view of the answer as aforesaid to question no.(i), question no.(ii) which has been referred will not survive.
(iii)Where a person has been promoted as Daftari in a higher pay scale as a Class-IV employee in an Intermediate College governed by the provisions of the Act of 1921 and the regulations framed thereunder, he would be senior to other Class-IV employees in the same cadre drawing a lower scale of pay.
(iv)The conflict between the decisions of the learned Single Judges in Suryanath Ram v. District Inspector of Schools (supra) and in Hari Krishna Yadav v. Deputy Director of Education, Meerut (supra) shall stand resolved in terms of the aforesaid declaration of law."
In view of the clear and unequivocal pronouncement of the Full Bench in Harpal Singh's case (supra), we have no manner of doubt whatsoever that the judgement of the Division Bench rendered in Rajiv Kumar's case (supra) could not have been applied in the facts of the instant case. As such, the impugned judgment and order dated 2nd November, 2018 cannot be sustained in law and is required to be set aside and is accordingly set aside. Consequently, the writ petition stands dismissed and the Special Appeal stands allowed accordingly. Order Date :- 23.10.2019 Deepak/ (Biswanath Somadder, J.) (Ajay Bhanot, J.) Court No. - 7 Case :- SPECIAL APPEAL DEFECTIVE No. - 931 of 2019 Appellant :- State Of U.P. And 2 Others Respondent :- Asha Ram Sharma And 2 Others Counsel for Appellant :- Rajiv Singh Counsel for Respondent :- S B Singh,Kripa Shankar Singh Hon'ble Biswanath Somadder,J.
Hon'ble Ajay Bhanot,J.
C.M. Delay condonation Application No. 1 of 2019. After considering the submissions made by the learned advocates for the parties and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown to explain the delay in filing of the appeal and as such, the delay is condoned.
The application for condonation of delay is accordingly allowed. Order Date :- 23.10.2019 Deepak/ (Biswanath Somadder, J.) (Ajay Bhanot, J.)