By the Court.—These 5 Special Appeals arise out of a common question with regard to the procedure to be applied for Selection and appointment on the post of class-IV employees against sanctioned posts in Higher Secondary Institutions governed by the provisions of the U.P. Intermediate Education Act 1921 and the Regulations framed thereunder.

2. The issue has arisen on account of there being a vacuum under the relevant Regulations with regard to the procedure to be followed by the appointing authority, which was sought to be introduced and filled up through the orders issued by the State Government and by the Director of Secondary Education, particularly the communication of the Secretary of the concerned department dated 11.5.2001 to the Director of the Education and the consequential Circular issued by the Director of Education dated 1.6.2001.

3. We had adjourned the matter on several occasions calling upon the State Government to clarify the status of the communication dated 11.5.2001 which has been interpreted in a number of decisions of this Court to be discussed hereinafter, to be a Government Order, and the source of power to issue such a Government Order traceable to sub-section (4) of Section 9 of the U.P. Intermediate Education Act, 1921.

4. This exercise has revealed that the communication dated 11.5.2001, according to the State Government itself, was not issued in exercise of the powers under Section 9 (4) of the 1921 Act. The communication of the State Government in writing issued by the Secretary and addressed to the learned Chief Standing Counsel as communicated to this Court, has been taken on record and shall be reproduced at the appropriate place in the judgment.

5. Even though the controversy raised stands answered by the State Government itself, yet we are obliged to delve into this matter in depth in order to clarify the legal position as it exists and to avoid any further complication or confusion either in the mind of the litigant or as a matter of law to be followed by this Court.

6. The U.P. Intermediate Education Act provides for regulating all matters pertaining to recognized institutions which are privately managed under the provisions of the Act. The provision which regulates the appointment of class-IV employees commences with the power conferred on the Head of the institution as the appointing authority against such posts. To begin with, the conditions of service of such employees are prescribed by Regulations framed under Section 16-G of the 1921 Act. The aforesaid Section is the charging Section and the regulations framed are contained in Chapter-I where regulation 10 (1) empowers the head of the institution to appoint class-IV employees. This is followed by the Regulations framed under Chapter-III which further elaborates the exercise of such powers and the manner in which the Head of the institution is to proceed in such manners, particularly Regulation 100 of the said Chapter. The same also provides that before proceeding to initiate the process of appointment against class-IV posts, the appointing authority shall seek permission from the District Inspector of Schools and thereafter shall send the proceedings of selection to the District Inspector of Schools for granting approval. There is an exception with regard to the said procedure in relation to the post of a Sweeper which is not very much relevant for the purpose of the present litigation.

7. The Regulations, however, do not prescribe the procedure as to how the selection is to be conducted. Ordinarily the Heads of the Institutions were proceeding to make appointments after inviting applications and disputes arose as to whether such applications had been invited after proper advertisement or not. Realising this gap existing in the Regulations in a matter relating to one institution namely Yashoda Rastogi Girls Inter College, Lucknow, the Secretary of the Secondary Education Department issued the communication dated 11.5.2001 which is