Allahabad High Court
Harpal Singh vs State Of U.P. And Others on 30 January, 2015
Bench: Dilip Gupta, Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court AFR Case :- WRIT - A No. - 55874 of 2009 Petitioner :- Harpal Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- Suneet Kumar,Rahul Srivastava Counsel for Respondent :- C.S.C.,M. Dharia,S.P. Singh With: Case :- WRIT - A No. - 49945 of 2004 Petitioner :- Ram Nagina Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- R.C.Dwivedi Counsel for Respondent :- C.S.C.,Mahendra.Singh. With: Case :- WRIT - A No. - 66063 of 2005 Petitioner :- Shiv Ram Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yatindra Counsel for Respondent :- C.S.C.,J.P.Singh,Jitendra Singh With: Case :- WRIT - A No. - 56624 of 2012 Petitioner :- Smt. Charu Tyagi Respondent :- State Of U.P.And Others Counsel for Petitioner :- Avnish Kumar Srivastava Counsel for Respondent :- C.S.C.,Siddharth,V.K. Singh *** Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Dilip Gupta,J.
Hon'ble Pradeep Kumar Singh Baghel,J.
Oral Judgment.
(Per Dr Justice D Y Chandrachud, Chief Justice) This reference before the Full Bench has been occasioned by a referring order of a Division Bench of this Court dated 11 February 2011.
The issue which falls for consideration arises out of the provisions of the U.P. Intermediate Education Act, 19211 and the regulations framed in Chapter III governing conditions of service. Since pure questions of law have been framed for the decision of the Full Bench, it would not be necessary for the Court to dwell on the facts of the individual cases. However, to indicate the broad contours of the controversy, a brief reference to the issues as raised in one of the petitions would be in order.
In Writ Petition No.49945 of 2004, the petitioner was appointed as a Daftari on 6 October 1990 in a recognized and aided Intermediate College. On 31 August 2004, a post of Assistant Clerk fell vacant. The Authorized Controller, who was then in the management of the College, promoted the petitioner treating him to be senior in service to the fifth respondent. The petitioner was treated as senior to the fifth respondent on the basis that he had been appointed as a Daftari in a higher grade and pay scale though it is not in dispute that the fifth respondent had been appointed as a Class IV employee earlier in 1982. On 20 October 2004, the District Inspector of Schools granted financial approval to the appointment of the petitioner in pursuance of which, the petitioner joined as Assistant Clerk on 25 October 2004, a post in which he is continuing. On 12 November 2004, the District Inspector of Schools recalled his earlier order which formed the subject matter of a challenge under Article 226 of the Constitution.
Section 16-G of the Act of 1921 provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee insofar as it is inconsistent with the provisions of the Act or with the Regulations shall be void. Among other things, in sub-clause (a) of sub-section (2) of Section 16-G of the Act of 1921, the Regulations may provide for the conditions for promotion and, in sub-clause (b), the scales of pay and payment of salaries. The conditions of service have been prescribed in Chapter III of the Regulations in pursuance of the provisions of Section 16-G of the Act of 1921. Regulation 2 of Chapter III is as follows:
"2. (1) For the purpose of appointments of clerks and Fourth Class employees the minimum educational qualification would be the same as has been fixed from time to time for the equivalent employees of Government Higher Secondary Schools.
(2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employee possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to rejection of the unfit.
If any employee is aggrieved by any decision or order of the management committee in this respect then he can make representation against it to the Inspector within two weeks from the date of such decision or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management."
The post of Daftari in non-governmental aided secondary institutions was created initially by a Government Order dated 20 November 1977. The post was categorised as a Group-D post by a Government Order dated 10 August 1978. The pay scale admissible to the post was fixed with effect from 1 May 1978 at Rs.170-225. The pay scale applicable to other Class IV posts continued to be Rs.165-215. In the year 1975, the Chaturth Varg Karmachari Sewa Niyamawali, 1975 came to be issued. Under rule 6 of this Niyamawali, it was contemplated that the post of Daftari would be filled up by way of promotion from amongst educated Chaprasis, Messengers and Farrases. On 11 May 2001, an administrative instruction was issued by the Secretary (Secondary Education) in the State Government to all the Directors of Education, stating that in regulation 2 (1) of Chapter III of the Regulations of 1921, it had been prescribed that the minimum educational qualifications for Class-IV employees in non-governmental recognised higher secondary institutions would be the same as those which have been prescribed for corresponding employees in government higher secondary educational institutions as applicable from time to time. However, it was stated that no procedure has been prescribed specifically for appointment and selection of Class-IV employees. In this background, the administrative instruction stated that the procedure which was prescribed by the Class-IV (Group-D) Employees Service Rules, 1985 would govern and that all appointments, which were made in breach of those provisions, would have to be dealt with. Finally, it was stated in the administrative instruction that appropriate proposals may be forwarded for amending the regulations. For convenience of reference, we are reproducing the communication of the Secretary (Secondary Education) dated 11 May 2001:
"izs"kd] ih0ds0 >k] lfpo ¼ek0½ f'k{kk] m0iz0 'kklu lsok esa] f'k{kk funs'kd ¼ek0½ mRrj izns'k] y[kuऊ f'k{kk vuqHkkx&12 fo"k;% v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh fu;qfDr dh izfdz;k ds lEcU/k esaA egksn;] ek/;fed f'k{kk la'kksf/kr vf/kfu;e&1921 ds v/;k; rhu& fofu;e&2¼1½ esa ;g O;oLFkk nh x;h gS fd v'kkldh; ekU;rk izkIr lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh tks jktdh; mPprj ek/;fed fo|ky;ksa ds led{kh; deZpkfj;ksa ds fy, le;≤ ij fu/kkZfjr dh x;h gS] fdUrq vf/kfu;e esa prqFkZ Js.kh deZpkfj;ksa ds fjDr inksa ds Hkjus dh izfdz;k Li"V:i ls of.kZr ugha dh x;h gSA 2- ;g Li"V gS fd v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa 'kklu dh mDr vf/klwpuk la[;k&dkfeZd&2&2017&1986&dkfeZd&2 ¼1½ y[kuऊ] 8 flrEcj] 1986 }kjk izLrkfor lewg ?k ¼deZpkjh lsok izFke&la'kks/ku½ fu;ekoyh 1986 ds izkfo/kku izHkkoh gSA 3- bl lEcU/k esa ;g Hkh dgus dk funsZ'k gqvk gS fd iz'uxr fu;ekoyh esa fn;s x;s izkfo/kkuksa ds foijhr dh x;h fu;qfDr;ksa dks fdlh Hkh n'kk esa ekU; u fd;k tk;s rFkk fu;ekoyh ds mYya?ku djds fu;qDr djus okys izca/kd iz/kkukpk;Z ds fo:} dk;Zokgh lqfuf'pr dh tkosA d`i;k bl lEcU/k esa vius Lrj ls lHkh foHkkxh; vf/kdkfj;ksa dks fn'kk funsZ'k nsus dk d"V djsaA 4- lkFk dh mDr izkfo/kku laxr fofu;e esa fufgr djus gsrq ;Fkksfpr izLrko Hkstsa rkfd bl dk;Zokgh dks fof/kd :i fn;k tk;sA bls loksZPp izkFkfedrk nsrs gq;s ;Fkk okafNr izLrko 20&5&2001 rd izkIr djk;saA Hkonh;
¼ih0 ds0 >k½ lfpo] ¼ek0½ f'k{kk""
On the basis of the aforesaid administrative instruction, the Director of Education, in turn, issued a communication dated 1 June 2001 to all the Joint Directors of Education in the following terms:
prqFkZ Js.kh deZpkjh dh fu;qfDr izfdz;k "izs"kd] lsok esa] f'k{kk funs'kd mRrj izns'k] e.Myh; la;qDr f'k{kk funs'kd f'k{kk lkekU; ¼1½ r`rh; vuqHkkx mRrj izns'kA bykgkcknA i=kad% lkekU; ¼1½ r`rh;@1044@1109@2001&02 fo"k;% v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh fu;qfDr dh izfdz;k ds lEcU/k esaA egksn;] mi;qZDr fo"k; dh vksj vkidk /;ku vkdf"kZr djrs gq, fuosnu gS fd 'kklu usa vius i= la[;k&693@15&12&2001&1601@¼793½@2000 fnukad 11&5&2001 }kjk ;g funsZ'k fn;k gS fd ek/;fed f'k{kk la'kksf/kr vf/kfu;e 1921 ds v/;k; rhu&fofu;e&2 ¼1½ esa ;g O;oLFkk nh xbZ gS fd v'kkldh; lgk;rk izkIr@lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh] tks jktdh; mPprj ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh] tks jktdh; mPprj ek/;fed fo|ky;ksa ds led{kh; deZpkfj;ksa ds fy, le; le; ij fu/kkZfjr dh x;h gS fdUrq vf/kfu;e esa prqFkZ Js.kh deZpkfj;ksa ds fjDr inksa ds Hkjus dh izfdz;k Li"V :i ls of.kZr ugha dh x;h gSA ;g Li"V gS fd v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa 'kklu dh mDr vf/klwpuk la[;k&dkfeZd&2&2017&1986&dkfeZd&2 ¼1½ y[kuऊ 8 flrEcj] 1986 }kjk iz[;kfir lewg '?k'' deZpkjh lsok izFke&la'kks/ku fu;ekoyh] 1986 ls izkfo/kku izHkkoh gSA vr% 'kklu us i= la[;k%693@15&12&2001&1601@¼793½@2000 fnukad 11&5&2001 esa fn;s x;s mDr funsZ'kkuqlkj dk;Zokgh vafdr djk;sa rFkk iz'uxr fu;ekoyh esa fn;s x;s izkfo/kkuksa ds foijhr dh xbZ fu;qfDr;ksa dks fdlh Hkh n'kk esa ekU; u fd;k tk;s rFk fu;ekoyh dk mYya?ku djds fu;qfDr djus okys izcU/kd@ iz/kkukpk;Z ds fo:} dk;Zokgh lqfuf'pr dh tk;sA Hkonh;
fe= yky] vij f'k{kk funs'kd ¼ek0½A"
The effect of the administrative instruction dated 11 May 2001 fell for consideration before the learned Single Judges of this Court in Suryanath Ram v. District Inspector of Schools2 and in Hari Krishna Yadav v. Deputy Director of Education, Meerut3. In Suryanath Ram, the learned Single Judge had taken the view that the grade of Daftari was higher to other Class-IV employees and hence, would be a class apart from other Class-IV employees. On the other hand, in Hari Krishna Yadav (supra), it had been held that the payment of salary in a higher scale of pay was wholly irrelevant to the question relating to the inter se seniority of employees falling in the same Class-IV cadre. There being conflict on decisions between the learned Single Judges, the following issue was referred to a Division Bench of this Court:
"As to whether a person appointed on the post of Daftari in a recognised Intermediate College is to be treated as senior to all other Class-IV employees working in the institution irrespective of their length of service or not in the matter of promotion to the post of Clerk (Class-III) ?"
This issue was resolved in Jawahar Lal v. Deputy Director of Education (Madhyamik)4. The Division Bench observed, following the decision of the Supreme Court in the State of Rajasthan v. Fateh Chand Soni5 that the expression 'promotion' covers not only advancement to a higher position or rank, but also implies advancement to a higher grade and relied on the following observations:
"22....
"8. The High Court, in our opinion, was not right in holding that promotion can only be to a higher post in the Service and appointment to a higher scale of an officer holding the same post does not constitute promotion. In the literal sense the word 'promotion' means "to advance to a higher position, grade, or honour". So also 'promotion' means "advancement or preferment in honour, dignity, rank, or grade". (See: Webster's Comprehensive Dictionary, International Edn., p.1009.) 'Promotion' thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression 'promotion can be either to a higher pay scale or to a higher post". (See: Union of India v. S.S. Ranade, SCC at p.468.)"
Having so held, the view of the Division Bench was that from the Government Order dated 20 November 1977 creating the post of Daftari, the Rules of 1985 and the administrative instruction dated 11 May 2001, it was clear that the post of Daftari is required to be filled by way of promotion from other Class-IV employees working in the institution, namely, Chaprasis, Messengers and Farrasas. The Division Bench also noted that for the post of Daftari, there is an additional qualification prescribed under the 1986 Rules, namely, knowledge of book binding and the pay scale admissible to the post of Daftari is also higher to that admissible to other Class-IV employees. In that view of the matter, the conclusion of the Division Bench was that appointment on the post of Daftari is to a higher grade and has to be made by way of promotion in the first instance from employees in the Class-IV cadre working in a lower pay scale in the same institution. The question, which was framed, was consequently answered in the following terms:
"32. In these set of circumstances, we find that appointee on the post of Daftari, which a post in a higher grade and which at the first instance is to be filled by promotion from Class-IV employees working in the same institution in lower pay scale, has to be treated senior to any other Class-IV employee. Therefore, he is entitled to be considered for promotion as Clerk under Rule 2 (2) of Chapter-III of the Regulations framed under the Intermediate Education Act in preference to any other Class-IV employee of the institution irrespective of length of service rendered in the Class-IV cadre.
Our answer to the question referred is:
that a Daftari is to be treated to be senior to any other Class-IV employee working in the recognized Intermediate Colleges and would be entitled to be considered for promotion on the post of Clerk as such in preference to any other Class-IV employee working in the same institution irrespective of the length of service."
At this stage, it may be necessary to note that in the judgment of the Division Bench in Jawahar Lal (supra), there were observations to suggest that the communication dated 11 May 2001 of the Secretary (Secondary Education) constituted a Government Order. The foundation that the communication constituted a Government Order was doubted by another Division Bench in Rajiv Kumar v. State of U.P. & Ors.6 The Division Bench in Rajiv Kumar (supra) took on the record a specific statement, which was made before the Court in the form of a communication of the Secretary to the State Government to the learned Chief Standing Counsel dated 11 November 2010, that the communication dated 11 May 2001 was not referable to the exercise of power under Section 9 (4) of the Act of 1921 and that hence, the approval of the Governor had not been obtained. The Division Bench observed that the regulations, which have been framed under Chapter III, could be modified or rescinded by the State Government only in exercise of power conferred by sub-section (4) of Section 9 of the parent Act and not by a mere communication issued by the Secretary, as was done on 11 May 2001. The view of the Division Bench was that the foundation of the decision in Jawahar Lal (supra) and in another decision in Principal, Adarsh Inter College, Umari v. State of U.P. & Ors.7 was fallacious since both the judgments have proceeded on a wrong assumption about the status of the communication dated 11 May 2001, mistaking it to be a Government Order though it was only a letter and had never been issued in exercise of the powers under Section 9 (4) of the Act of 1921. The conclusion of the Division Bench is as follows:
"46. 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 under Section 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 May 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 not amended in accordance with law."
The conflicting views of the two Division Benches in Jawahar Lal (supra) and in Rajiv Kumar (supra) have been noticed by the Division Bench, which was hearing the batch of matters in which the reference to the Full Bench has been made. In view of the conflict, the present reference has arisen. The questions, which have been framed by the Division Bench for consideration are as follows:
(i) Even if the circular issued by the Secretary, Madhyamik Shiksha dated 11.05.2001 is found not to be an order of the State Government under Section 9 (4), can the said letter be referred to as an executive instruction issued for filling in the vacuum qua procedure to be adopted in the matter of appointment on Class-IV posts in recognized Intermediate Colleges till amendments are made in Regulations framed under the Intermediate Education Act or not;
(ii) If the answer to the question no. 1 is in negative, whether the judgment of the Division Bench in the case of Jawahar Lal would still hold good;
(iii) Whether a Daftari appointed in higher scale of pay as class IV employee in Intermediate College governed by the provisions of U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder, has a right to claim himself to be senior by virtue of drawing a higher pay scale as compared to another Class IV employee in the same cadre drawing lesser pay scale than Daftari;
(iv)Whether view taken in Surya Nath Ram Vs. District Inspector of Schools, Ballia (Writ Petition No. 41618 of 2001 decided on 7.2.2002) lays down correct law or whether view taken in Hari Krishna Yadav Vs. Deputy Director of Education, Meerut and others (Writ Petition No. 28699 of 1995 decided on 8.12.1997) lays down correct law.
At the outset, we may take note of the fact that the first question which has been referred for resolution by the Full Bench poses the issue as to whether, even if the circular/communication which was issued by the Secretary (Secondary Education) on 11 May 2001 is found not to be an order of the State Government under Section 9 (4) of the Act of 1921, could that be regarded as an executive instruction to fill up the vacuum in regard to the procedure to be adopted for appointment on Group-D posts in recognised and aided Intermediate Colleges until amendments are made in the regulations.
Now, at the outset, it would be necessary for the Court to have due regard to the ambit of Section 9 (4) of the Act of 1921, which provides as follows:
"9. (4) Whenever, in the opinion of the State Government, it is necessary or expedient to take immediate action, it may, without making any reference to the Board under the foregoing provisions, pass such order or take such other action consistent with the provisions of this Act as it deems necessary, and in particular, may by such order modify or rescind or make any regulation in respect of any matter and shall forthwith inform the Board accordingly."
Under Section 9 of the Act of 1921, the State Government has been vested with extensive powers in relation to the Board of High School and Intermediate Education. Sub-section (4) of Section 9 of the Act of 1921 empowers the State Government, where it is in the opinion of the State Government that it is necessary to take immediate action: (i) to pass such order; or (ii) take such other action consistent with the provisions of the Act as the Government deems necessary. In particular, the State Government has been empowered to modify, rescind or make any regulation in respect of any matter and to inform the Board forthwith. It is a well settled principle of law that where a specific power is conferred upon a statutory authority to frame subordinate legislation, including rules or regulations, the manner in which the subordinate legislation has to be framed must accord with statute. Similarly, where power is conferred to amend the regulations, as in the present case, any amendment has to abide by provisions of the statute. There can be no doubt about this basic position in law. The issue, however in the present case, is whether the instruction which was issued on 11 May 2001 constituted any amendment of the existing regulations at all, as assumed in the judgment of the Division Bench in Rajiv Kumar (supra). If indeed, it was an amendment, the procedure for amending the regulations would have to be followed. On the other hand, if the administrative instruction was effected to enunciate a procedure for making appointments to Class-IV posts in an area in which the regulations were not framed, the issue before the Court would be whether such an administrative instruction could hold the field until the regulations came to be formally amended in accordance with law.
The law on the subject is abundantly clear. It is well settled that in the exercise of its executive powers, the State Government is empowered to issue administrative instructions from time to time in regard to matters for which no provision has been made by the statute or by regulations. Such administrative instructions are intended to operate in order to fill up a vacuum which may otherwise exist until appropriate rules or regulations are framed under the statute. An administrative instruction cannot supplant a statute or subordinate legislation. But where there is a legislative silence, it is open, in the exercise of its executive power, for the State to issue administrative instructions. In the area of service jurisprudence, these administrative instructions are intended to ensure that there should be no void or vacuum in regard to the conditions of service until it is duly taken care of by framing appropriate rules or regulations.
The decision of the Division Bench in Jawahar Lal (supra), undoubtedly, did proceed on the basis that the communication dated 11 May 2001 was a Government Order. There can be no manner of doubt on two aspects of the matter. First and foremost, the communication of 11 May 2001 of the Secretary (Secondary Education) was a pure administrative instruction and was not a Government Order. Second the communication was not referable to the provisions of Section 9 (4) of the Act of 1921. The fact that the communication was in the form of an administrative instruction and not a Government Order has been elaborately considered in the judgment of the Division Bench in Rajiv Kumar (supra) as also the position that the administrative instruction was not issued in exercise of the power under Section 9 (4) of the Act of 1921. As a matter of fact, the State Government had clarified the position before the Division Bench in Rajiv Kumar (supra) in the form of a communication of the Secretary to the State Government which has been extracted in the judgment of the Court. We must, therefore, proceed with the analysis of the present case on the basis that the power which the Secretary exercised, when he issued the communication dated 11 May 2001, was not by way of a Government Order or an exercise of the power conferred by Section 9 (4) of the Act of 1921 to amend the regulations. Regulation 2 of Chapter III stipulates that the minimum educational qualification for making appointments of clerks and Class-IV employees would be the same as those which have been fixed from time to time for equivalent employees of Government Higher Secondary Schools. Fifty per cent of the total number of sanctioned posts of Head Clerk and Clerk have to be filled up from amongst serving Clerks and Class-IV employees through promotion. The criterion for promotion is seniority subject to rejection of unfit, provided an employee possesses the prescribed eligibility and had served continuously for five years in the substantive post.
The post of Daftari was created initially by a Government Order dated 20 November 1977. By a Government Order dated 10 August 1978, the pay scale of the post of Daftari was fixed at Rs.170-225 with effect from 1 May 1978, while the pay scale applicable to other Class-IV posts continued to be Rs.165-215. This factual position was taken note of by the Division Bench in Jawahar Lal (supra) on the basis of a counter affidavit which was filed by the Director, Secondary Education in those proceedings. When the Rules of 1975 were framed, rule 6 contemplated that promotion to the post of Daftari would be made from persons holding the post of Chaprasi, Messenger and Farras. Rule 2 (1) of Chapter III specifically incorporates the minimum educational qualifications for appointment of clerks and Class-IV employees, as those which have been fixed for equivalent employees of Government Higher Secondary Schools. The Group-D Employees Service Rules, 1985, which apply to employees of Government Intermediate Colleges, provide in rule 6 the source of recruitment to various categories of Group-D posts. Rule 6 (c) provides the source of recruitment for the post of Daftari. The post of Daftari is required to be filled up by way of promotion from amongst qualified Peons, Messengers and Farrasas. Rule 10 (4) also provides that no person shall be eligible for appointment as Daftari unless he is found to possess requisite knowledge of book binding work and good experience of that work. Significantly, the same provision was contained in rule 10 (4) of the U.P. Class-IV Employees Service Rules, 1975. Moreover, rule 6 of the 1975 Rules also contemplated that appointment to the post of Daftari would be made by way of promotion from amongst qualified Peons, Messengers and Farrases.
The legal position, which consequently emerges, is that the post of Daftari is a promotional post, the source of recruitment for the post being from persons appointed as Peons, Messengers and Farras. The post carried a higher scale of pay right from inception in 1977. Consequently and in terms of the judgment of the Supreme Court in State of Rajasthan v. Fateh Chand Soni (supra) in which, it has been laid down that the expression 'promotion' covers not only advancement to a higher position or rank but also advancement to a higher pay scale, it is clear that a person who is appointed to the post of Daftari would rank senior to a person holding the post of Peon, Messenger or Farras. To look at the matter from another perspective, if this position were not to be followed, an unintended and absurd result would follow. A person who has not been found fit for promotion as Daftari would otherwise claim seniority over a person who has been promoted as Daftari purely on the length of service and on the basis that he was appointed in service at earlier date. Where persons work in the same cadre, the criteria for determination of seniority is the length of service. However, where a promotion is involved in the placement of an employee in a higher scale of pay, the person who is placed in a higher scale of pay would be entitled to be treated as senior to a person working in a lower pay scale.
Regulation 2 (1) of Chapter III of the Regulations stipulates that all persons in Class-IV cadre will be eligible for promotion to the post of Clerk. The class-IV cadre is, hence, constituted as a feeder cadre for the purpose of promotion. In the present case, the State Government has not rendered any person holding a Class-IV post to be ineligible for being considered for promotion. The zone of consideration as defined in regulation 2 has not been restricted or curtailed. The issue is that of inter se seniority between all those in Class-IV category. Since the post of Daftari is a promotional post for which the source of promotion is persons holding the post of Peon, Messenger and Farras, a person who is promoted as Daftari on a higher grade and pay scale would rank as senior to other persons in the Class-IV category. We also note that before the Division Bench in Jawahar Lal (supra), the State Government had expressly clarified on affidavit that the post of Daftari is a promotional post in Class-IV cadre.
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.
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 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.
The reference to the Full Bench shall, accordingly, stand disposed of. All the petitions shall now be placed before the appropriate Bench according to the roster of work for disposal in the light of the questions as answered.
Order Date :- 30.1.2015 RKK/-
(Dr. D.Y. Chandrachud, CJ) (Dilip Gupta, J) (P.K.S. Baghel, J)