Anil Bajpai @ Anil Kumar Bajpai and Another Vs… — Writ and Judicial Review | Allahabad HC (2024)

Anil Bajpai @ Anil Kumar Bajpai and Another Vs… — Writ and Judicial Review | Allahabad HC (2024)

What the court decided

AI extract

Outcome

Impugned order dated 16.05.2024 quashed by certiorari; Government Order dated 10.04.2003 also quashed by certiorari under Article 226 despite not being under challenge; Director, Basic Education, U.P. Lucknow (opposite party no. 3) directed to reconsider petitioners' case for appointment/promotion as Block Education Officer in terms of Rule 5(1) of the Rules of 1992 within eight weeks of service of certified copy; parties to bear their own costs.

Issue for consideration

Whether the order dated 16.05.2024 rejecting petitioners' claim for appointment on the post of Block Education Officer with effect from the date of entitlement under the Regulations of 1992 is sustainable, its sole ground being that Rule 5(1) stood rescinded by Government Order dated 10.04.2003. +1 more

Court's answer

The provisions of Rule 5(1) of the Rules of 1992 (indicated as Rule 50 in the Government Order dated 10.04.2003) have been rescinded by means of that Government Order dated 10.04.2003.

Ratio / Principle

Rules framed under Article 309 of the Constitution of India have statutory force (as enunciated by the Hon'ble Supreme Court in Raj Kumar v. Union of India and MD/Chairman, BSNL v. Mishri Lal); therefore any change or rescission of such statutory provisions can take place only by means of amendment of the rules in accordance with the provisions of the Constitution of India.

Key takeaways

Government Orders, being merely executive instructions issued under Article 166 of the Constitution of India, cannot have any primacy over statutory provisions even if framed under Article 309 of the Constitution of India.ratio¶¶13
The reasoning indicated in the impugned order dated 16.05.2024 being patently illegal and against the dictum of the Hon'ble Supreme Court, it is quashed by issuance of a writ in the nature of certiorari.ratio¶¶14

Detailed headnote1 paragraphs

Writ petition under Article 226 allowed. Impugned order dated 16.05.2024 rejected petitioners' claim for appointment on the post of Block Education Officer with effect from the date of entitlement under Rule 5(1) of the U.P. Adhinasth Shiksha (Pranti Upvidyalaya Nirikshak) Seva Niyamavali, 1992, solely on the ground that Rule 5(1) (shown as Rule 50 in the Government Order) stood rescinded by Government Order dated 10.04.2003. Held: the Rules of 1992, dated 18.07.1992, were framed under Article 309 of the Constitution and therefore have statutory force (Raj Kumar v. Union of India, 1975 (14) SCC 13; MD/Chairman, Bharat Sanchar Nigam Ltd. v. Mishri Lal and others, 2011 (14) SCC 739); changes or rescission of such statutory provisions can occur only by amendment of the rules in accordance with the Constitution; Government Orders being merely executive instructions under Article 166 cannot have primacy over statutory provisions even if framed under Article 309. Consequently, the impugned order dated 16.05.2024 was quashed by a writ of certiorari, and the Government Order dated 10.04.2003 was also quashed by certiorari under Article 226 although not under challenge. Director, Basic Education, U.P. Lucknow directed to reconsider petitioners' case for appointment/promotion as Block Education Officer in terms of Rule 5(1) within eight weeks of service of certified copy. Parties to bear their own costs. (Manish Mathur, J.; order dated 25.09.2024)

Neutral Citation No. - 2024:AHC-LKO:66691

Court No. - 18

Case :- WRIT - A No. - 5943 of 2024

Petitioner :- Anil Bajpai @ Anil Kumar Bajpai And Another Respondent :- State Of U.P. Thru. Addl. Chief Secy. Basic Edu. Deptt. Civil Sectt. Lko. And 2 Others Counsel for Petitioner :- Avinash Tiwari Counsel for Respondent :- C.S.C.

Hon'ble Manish Mathur,J.

Heard learned counsel for petitioners and learned State Counsel for opposite parties.

Petition has been filed challenging order dated 16.05.2024 whereby petitioners' claim for being appointed on the post of Block Education Officer with effect from the date of entitlement as per provisions of U.P. Adhinasth Shiksha (Pranti Upvidyalaya Nirikshak) Seva Niyamavali, 1992 has been rejected.

It has been submitted that the aforesaid claim of petitioners has been rejected by means of impugned order solely on the ground that the aforesaid provisions of the Regulations of 1992, particularly Rules 5 (1) has been rescinded by means of Government Order dated 10.04.2003.

In pursuance of directions issued earlier, learned State Counsel has produced the Government Order dated 10.04.2003, a copy of which is taken on record.

Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, particularly the impugned order dated 16.05.2024 and the Government Order dated 10.04.2003, it is evident that the provisions of Rule 5 (1) (Rule 50 as indicated in the Government Order dated 10.04.2003) has been rescinded by means of the aforesaid Government Order dated 10.04.2003.

It is evident that the aforesaid Rules of 1992 have been framed under Article 309 of the Constitution of India and are dated 18.07.1992. Hon'ble Supreme Court in the cases of Raj Kumar versus Union of India , 1975 (14) SCC 13 and MD/Chairman, Bharat Sanchar Nigam Ltd. versus Mishri Lal and others , 2011 (14) SCC 739 has clearly enunciated that Rules framed under Article 309 of the Constitution of India

would have statutory force. In such circumstances, in the considered opinion of this Court, any changes or recession of statutory provisions can take place only by means of amendment in the aforesaid rules in accordance with provisions of the Constitution of India.

Government Orders being merely executive instructions issued under Article 166 of the Constitution of India cannot have any primacy over statutory provisions even if framed under Article 309 of the Constitution of India.

In view of aforesaid, the reasoning indicated in the impugned order dated 16.05.2024 being patently illegal and against dictum of Hon'ble Supreme Court, is hereby quashed by issuance of a writ in the nature of certiorari.

Although the Government Order dated 10.04.2003 is not under challenge but exercising extra-ordinary powers under Article 226 of the Constitution of India, the Government Order dated 10.04.2003 is also hereby quashed by issuance of a writ in the nature of certiorari.

Accordingly, the opposite party no. 3 i.e. Director, Basic Education, U.P. Lucknow is directed to take to reconsider petitioners' case for appointment/promotion on the post of Block Education Officer in terms of Rule 5 (1) of the Rules of 1992. Such a decision shall be taken by the authorities within a period of eight weeks from the date a certified copy of this is served upon the concerned authority.

Resultantly, the petition succeeds and is allowed . Parties to bear their own cost.

Order Date :- 25.9.2024 Satish

Digitally signed by :- SATISH KUMAR BHARATI High Court of Judicature at Allahabad, Lucknow Bench