Allowed

Arun Kumar Singh and 3 Others v. State of U.P. and 4 Others

Allahabad HC21 Aug 2020WRIA/9460/2019

Case brief

AI extract

What is this about?

Petitioner challenged rejection of financial approval for Class IV appointment based on a 2015 GO mandating outsourcing. Court quashed the rejection, holding the 2015 GO lacked retrospective effect for vacancies arising in 2013 and directed authorities to reconsider based on laws applicable at the time of appointment.

What did the court decide?

Quashed the order dated 15.5.2019; directed authorities to consider claim for financial approval within three months based on statutes applicable at the date of advertisement.

Arun Kumar Singh and 3 Others Vs State of U.P… — Education and Admissions | Allahabad HC (2020)

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Court No. - 44

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Case :- WRIT - A No. - 9460 of 2019

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Petitioner :- Arun Kumar Singh And 3 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Niraj Tiwari Counsel for Respondent :- C.S.C.

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Hon'ble Ashwani Kumar Mishra,J.

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This writ petition is directed against an order passed by the Regional Higher Education Officer, Varanasi, dated 15.5.2019, which rejects the claim of the petitioners for grant of financial approval to their appointment on a Class IV post in the educational institution in question. This order has been passed pursuant to a direction issued in petitioners' earlier writ petition nos. 9195 of 2018 and 6767 of 2018. The orders passed by this Court in the above noted petitions have been quoted in the order impugned itself and shall be dealt with a little later.

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Gandhi Shatabdi Smarak Snatkottar Mahavidyalaya Koilsa Azamgarh is a recognized Degree College affiliated to Vir Bahadur Singh Purvanchal University Jaunpur. Certain vacancies of Class IV post came into existence on account of retirement etc. in the institution and the Committee of Management proceeded to fill up those posts. The institution consequently made a request to the Regional Higher Education Officer, Varanasi for grant of prior permission to fill up such posts. The Regional Higher Education Officer granted such permission on 13th May, 2013. It is thereafter that the vacancy was duly advertised on 9.2.2014 in two newspapers namely 'Dewal Dainik' and 'Aaj'. Petitioners claim to have applied and were ultimately selected by the selection committee constituted at the level of the College. Appointment letters were also issued to petitioners on 19.2.2014. However, financial approval was not granted to petitioners' appointment on the ground that the post in question was required to be filled by way of outsourcing, for which a Government Order had already been issued on 6.1.2011. By a specific order, dated 1.3.2014, the Regional

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Higher Education Officer informed the Management that the post in question could be filled only by way of outsourcing and as such the selection already made cannot be approved. It is this order which came to be challenged by the petitioners in Writ Petition No. 9195 of 2018 which was allowed vide following order passed on 9.4.2018:-

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“Petitioners claim to have been appointed as class IV employee in the institution concerned, who are aggrieved by an order dated 1.3.2014 passed by the Regional Higher Education Officer, disapproving their appointment on the ground that a ban was imposed.

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Validity of the Government Order dated 6.1.2011 stopping appointment to class IV post in such institutions came up for consideration in a bunch of writ petitions, including Misc. Single No.6389 of 2011, which was allowed on 6.9.2012. The operative operation of the order reads as under:-

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"Recently, in the case of Ajaya Kumar Das Vs. State of Orissa [(2011) 11 SCC 136] the Hon'ble Apex Court pleased to reiterate that statutory rules can be amended by a rule or notification in the same way, rules have been framed. The relevant para 14 of the judgment reads as under:

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"14. Neither the Circular dated 18.6.1982 nor the subsequent Circular dated 19.3.1983 modifying the earlier Circular dated 18.6.1982 can override the statutory provision contained in Rule 74 (b) of the Code it is results in reduction of pay of the employee on promotion. That the Orissa Service Code has been framed under Article 309 of the Constitution of India, is not in dispute. It is well settled that the statutory rules framed under Article 309 of the Constitution can be amended only by a rule or notification duly made under Article 309 and not otherwise. Whatever be the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The Rules made under Article 309 of the Constitution cannot be tinkered by the administrative instructions or circulars."

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In the instant case, it is admitted case of the opposite parties that the first statute of Chhatrapati Sahuji Maharaj University (Kanpur University) has not been amended till date. It has also come on record vide short counter affidavit dated 14.8.2012 that the State Government while exercising the power under section 50(6) of the Act, 1973, directed the Registrars of the Universities to amend their respective statutes within 15 days, failing which the State Government will take steps for amending the statutes with the prior approval of the Chancellor of the State Universities. The present position is that none of the universities has amended their statutes and apparently State Government has also not amended the concerned statute with respect to make recruitment on class IV post of the affiliated and associated colleges of the Universities and, therefore, the directions contained in Government Order dated 20.7.2011 cannot be acted upon till the first statute of the concerned universities is either amended by the respective universities or by the State Government in accordance with the provisions of the

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Act, 1973.

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As far as the question of implementation of the Government Order dated 06.1.2011 is concerned, it is settled position of law that no Government Order, Notification or Circular can substitute the statutory provisions framed by the Authority in accordance with law as the Universities are the statutory bodies and its affiliated and associated colleges are governed with the provisions of the statutes framed under the provisions of the Act, 1973, therefore, this Court is of the considered view that para 2 of the Government Order dated 6.1.2011cannot substitute the provisions of the first statute of the universities with respect to recruitment of class IV employees.

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In view of the above, all the above writ petitions are allowed. The concerned Educational Authorities/ Director of Higher Education is hereby directed not to obstruct the process of selection and appointment on Class-IV posts in the Institutions affiliated/ associated to any university governed with the provisions of the U.P. State Universities Act 1973 till amendment of concerned first statute of the respective universities.There shall be no order as to costs."

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Pursuant to the aforesaid judgment of this Court, the statutes have been amended sometime in the year 2015 or thereafter. Contention is that the claim of petitioners could not have been rejected as on the relevant date of consideration the statutes had not been amended and the reason assigned to non-suit their case has been repelled under the order of this Court, extracted above.

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While entertaining the writ petition, learned Standing Counsel was allowed time to obtain instructions. Sri Vivek Rai, learned Additional Chief Standing Counsel has obtained instructions from the Regional Higher Education Officer, Varanasi, which are taken on record. As per the instructions, petitioners' claim has been rejected relying upon vide Government Order dated 6.1.2011.

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In view of the order passed by this Court in Writ Petition No.6389 of 2011, the ground taken to disapprove petitioners' appointment in the year 2014 cannot be sustained. Learned counsel for the petitioner submits that the order dated 3.1.2014 was not within their knowledge inasmuch as it was exparte and was brought to their notice only in response to their representation dated 11.12.2017.

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In such circumstances, the order dated 1.3.2014 cannot be sustained is set aside. The writ petition is disposed of with a direction upon the authority concerned to take a fresh decision in the matter keeping in view the observations made by this Court in Writ Petition No.6389 of 2011. It shall also be open for the respondents to take into consideration any subsequent development which may have intervened, and take a fresh decision in accordance with law.”

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The Regional Higher Education Officer thereafter has considered the claim of petitioners and rejected their representation vide the order impugned, dated 15.5.2019. This order records that the State Government has issued a Government Order, dated 24.2.2015, which contains a direction to the Universities to amend

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its statute and proceed to fill up posts by outsourcing. The Regional Higher Education Officer, therefore, has observed that in view of the said government order the claim of petitioners for appointment cannot be processed.

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The writ petition was entertained and this Court granted time to learned State Counsel on 16.7.2019 and 7.1.2020 to file counter affidavit. When the matter was taken up yesterday, this Court proceeded to pass following orders:-

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“Despite grant of opportunity no counter affidavit has been filed in the matter. Sri Neeraj Tripathi, learned Additional Advocate General, who is present in the Court, has been requested to examine the issue and to assist the Court tomorrow.

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Put up tomorrow i.e. 21.8.2020.”

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Sri Neeraj Tripathi, learned Additional Advocate General assisted by Sri J.S. Baghel, learned counsel for the State respondents accordingly assisted the Court and has placed the stand of the State in defence of the order impugned. The writ petition, accordingly, is taken up for hearing. Sri Rohit Tiwari, learned counsel has been heard for the respondent nos. 4 & 5.

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It would be worth noticing that the policy decision of the State to fill up all such vacancies by way of outsourcing came to be made vide Government Order dated 6.1.2011. This government order was challenged in a bunch of writ petitions with leading Writ Petition being Misc. Single No. 6389 of 2011 (Mahila Mahavidyalaya, Kanpur through its Principal Vs. Principal Secretary, Finance Lucknow and others). Bunch of writ petitions came to be allowed on 6.9.2012 wherein following observations have been made:-

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“In the instant case, it is admitted case of the opposite parties that the first statute of Chhatrapati Sahuji Maharaj University (Kanpur University) has not been amended till date. It has also come on record vide short counter affidavit dated 14.8.2012 that the State Government while exercising the power under section 50(6) of the Act, 1973, directed the Registrars of the Universities to amend their respective statutes within 15 days, failing which the State Government will take steps for amending the statutes with the prior approval of the Chancellor of the State Universities. The present position is that none of the universities has amended their

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statutes and apparently State Government has also not amended the concerned statute with respect to make recruitment on class IV post of the affiliated and associated colleges of the Universities and, therefore, the directions contained in Government Order dated 20.7.2011 cannot be acted upon till the first statute of the concerned universities is either amended by the respective universities or by the State Government in accordance with the provisions of the Act, 1973.

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There shall be no order as to costs.”

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Aforesaid judgment of this Court, dated 6.9.2012, has attained finality. It is also admitted on record that none of the universities have actually amended its statute so as to implement the direction contained in the Government Order, dated 6.1.2011. This factual position is clearly recorded in the subsequent government order of the State, dated 24.2.2015. The Government Order, dated 24.2.2015, which has been relied upon by the Regional Higher Education Officer to deny consideration to petitioners claim has been issued under Section 50(6) of the State Universities Act, 1973. Section 50(6) of the State Universities Act, 1973, reads as under:-

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“[50(6) Notwithstanding anything contained in the foregoing subsection the State Government may in order to implement any decision taken by it in the interest of learning, teaching or research or for the benefit of teachers students or other staff or on the basis of any suggestion or recommendation of the University Grants Commission or the State or National Education Policy with regard to the qualifications of the teachers, require the Executive Council to make new or additional Statutes or amend or repeal the Statutes referred to in sub-section (1) or sub-section (1-A) within a specified time and if the Executive Council fails to comply with such requirement the State Government may, with the assent of the Chancellor, make new or additional Statutes or amend or repeal

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the Statutes referred to in sub-section (1) or sub-section (1-A).]”

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The above noted provision makes it explicit that the State Government is within its power to take any decision in the interest of learning, teaching or research or for the benefit of teachers, students or other staff or on the basis of any suggestion or recommendation of the University Grants Commission or the State or National Education Policy with regard to the qualifications of teachers and require the Executive Council to make new or additional statutes or amend or repeal the statutes referred to in sub-section (1) or sub-section (1-A) within a specified time. The provision further contemplates that in the event of any failure on part of the University to do so, it would be open for the State Government to make new statutes or amend the additional statutes with the assent of the Chancellor. The subsequent Government Order, dated 24.2.2015 has the effect of amending the statutes of the University so as to make provision for such post to be filled by outsourcing after obtaining assent of Chancellor. The Government Order, dated 24.2.2015 is not under challenge. Although a Division Bench of this Court in Writ Petition No. 12992 of 2016 (Anil Kumar Mishra and 4 others Vs. State of U.P. and others) has been pleased to quash the said government order, but the Court is informed by Sri Neeraj Tripathi, learned Additional Advocate General appearing for the State of U.P. that the said judgment is subjudice before the Apex Court in S.L.P. (Civil) Diary No. 18529 of 2019, wherein an interim protection has already been granted by the Apex Court.

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Sri Neeraj Tripathi, learned Additional Advocate General, therefore, contends that as the issue is engaging the attention of the Apex Court, this Court may defer the hearing in the present writ petition so as to await the outcome of the matter pending before the Apex Court.

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This Court is, however, not inclined to accept the submission advanced on behalf of the State by its Additional Advocate General

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as in the opinion of the Court the pendency of matter before the Supreme Court would not come in the way of the present adjudication. This is so, as the present lis can be adjudicated upon on the premise that the government order, dated 24.2.2015, continues to subsist. For the purposes of adjudicating the petitioners right, therefore, this Court would accept the contention of learned Additional Advocate General that the Government Order, dated 24.2.2015, cannot be ignored and has to be taken note of.

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The Government Order, dated 24.2.2015, contains direction to the effect that the statutes of the University in so far as it relates to making of appointment of a Class IV post would stand substituted by a provision incorporated for such post to be filled only by way of outsourcing. The direction in that regard would come into play from and after 24.2.2015, once the assent of the Governor is obtained. There is nothing in the Government Order, dated 24.2.2015, which may even remotely suggest that this amendment of statutes would be from a retrospective date. Law is otherwise settled that the such amendment of statutes which is in the nature on delegated legislation would be prospective in nature unless there exists any statutory law which provides for such amendment to be given effect to from a retrospective date. Law is otherwise settled that the legality of appointment would have to be tested by the competent authority with reference to the rules of recruitment applicable on the date of issuance of advertisement. [See: A.A. Calton Vs. Director of Education and another; (1983) 3 SCC 33].

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In the present case the vacancy on the Class IV post had come into existence in the year 2013. The Regional Higher Education Officer also granted permission to fill the post on 13^th May, 2013. The appointments were thereafter made after the vacancy was duly published in two newspapers, one of which is a State level newspaper. On the relevant date, there existed no provision in the statutes of the University, which provided for the appointments to be

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made by way of outsourcing. The Government Order of 6.1.2011 had neither been given effect to by amending the statutes of the University by then. Even otherwise the said government order came to be quashed by this Court on 6.9.2012, which has attained finality. The subsequent government order of 24.2.2015, therefore, would not be relevant for the purposes of consideration of petitioners claim, inasmuch as, the said government order cannot be given a retrospective effect. The validity of petitioners appointment would have to be examined by the competent authority with reference to the rules governing the recruitment on the date of issuance of advertisement or on the date of making of appointment. The impugned order of the Regional Higher Education Officer, dated 15.5.2019, therefore, cannot be sustained, inasmuch as, the Government Order, dated 24.2.2015 cannot be relied upon to reject petitioners claim, particularly in view of the fact that said government order was not in existence on the date of issuance of advertisement/appointment, nor is shown to have retrospective effect. The order passed by the Regional Higher Education Officer, dated 15.5.2019, accordingly, cannot be sustained and stands quashed. The previous order dated 1.3.2014 has already been set aside by this Court.

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The writ petition, accordingly, succeeds and is allowed. A direction is issued to the authorities to consider petitioners claim for grant of financial approval in accordance with the statutes as were applicable on the date of advertisement/appointment, within a period of three months, from the date of presentation of a certified copy of this order.

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Order Date :- 21.8.2020 Ranjeet Sahu

Arun Kumar Singh and 3 Others v. State of U.P. and 4 Others

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Arun Kumar Singh and 3 Others v. State of U.P. and 4 Others

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