Back
2023 Supreme(All) 319
IN THE HIGH COURT OF ALLAHABAD
VIVEK CHAUDHARY, J.
Shailja Tripathi – Appellant
Versus
State Of U.P. And 3 Others – Respondent
Writ A No. 31507 of 2014
Decided on : 16-03-2023
Advocate Appeared:
For the Appellant : Siddharth Khare, Ashok Khare (Senior Adv.)
For the Respondent: Mrigraj Singh, Santosh Kumar Yadav
Point of Law: It is well settled that norms regarding recruitment and promotion of officer belong to Civil Service can be laid down either by a law made by the appropriate Legislature or by rules made under proviso to Article 309 of Constitution of India or by means of executive instructions issued in Article 73 of Constitution of India.
Headnote:
Constitution of India, 1950 – Article 309, 73, 162 - Dying in Harness Rules, 1974 - Selection Committee - Appointment - Assistant Teacher of institution had expired while in service - On approval of Basic Shiksha Adhikari, an advertisement was issued inviting applications from eligible persons - Once State has exercised its legislative power with regard to any subject by framing statutory rules, it cannot exercise its executive power. (Para 8).
Finding of the Court: It goes without saying that right of petitioner on the basis of her initial appointment when earlier B.S.A. granted approval to the petitioner and in furtherance of which petitioner joined. Her rights cannot be disturbed by any appointment or order passed with regard to any other person - Appointment under Dying in Harness Rules, 1974 can also be accommodated on a supernumerary post - The same cannot impact rights of petitioner - The last ground is that the publication was made only in one newspaper. Along with the record only one newspaper was submitted - The matter is decided by B.S.A. after a gap of around 10 years. Such a dispute was required to be settled when earlier approval was granted. Such an irregularity cannot cost an appointment which is approved around 10 years back.
Result: Writ petition stands allowed
JUDGMENT :
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare, learned counsel for the petitioner, Sri Mrigraj Singh, learned counsel for respondent no.2 and the learned Standing Counsel for the State.
2. The petitioner has approached this Court challenging the order dated 12.03.2014 passed by Basic Shiksha Adhikari, Jaunpur whereby the B.S.A., Jaunpur has refused to provide approval to the appointment of the petitioner.
3. The facts of the case are that on 03.12.2003 an Assistant Teacher of the institution had expired while in service. On the approval of Basic Shiksha Adhikari, an advertisement was issued on 29.01.2004 inviting applications from eligible persons. The Basic Shiksha Adhikari has passed an order on 15.02.2004 authorizing the Assistant Basic Shiksha Adhikari, Maharajganj/Badlapur to participate as a member of Selection Committee in the selection process held on 18.02.2004. After selection of the petitioner, all papers were submitted to the B.S.A. for approval, who accorded approval on 20/21.02.2004, making it effective from date of joining. On 22.02.2004 appointment letter was issued to petitioner who joined on 25.02.2004. However, salary bills submitted by the management with regard to petitioner remained pending.
4. On 11.06.2004, Basic Shiksha Adhikari, referring to Government Order dated 20.01.2003, sent letter to all the Managemnt/Head of all recognized and aided Junior High Schools, whereby he placed all the appointments/approval in abeyance. It also refers to circular letter dated 21.05.2004 of Regional Assistant Director of Education prohibiting payment of salary to appointments made without sanctioned post and further required every institution to submit all papers pertaining to selection/appointment made subsequent to Government Order dated 20.01.2003 for inquiry. The Government Order dated 20.01.2003 required prior permission of the State Government for making appointment for vacancies caused by the retirement. After giving an opportunity of hearing an order was ultimately passed by the B.S.A. on 12.03.2014 revoking the approval of B.S.A. dated 20/21.01.2004. It further held that petitioner was not entitled to receive any salary from the government grants. The said order, though, was passed on 12.03.2014 but was dispensed by registered post on 18.08.2014 and is now under challenge in the present writ petition.
5. Learned counsel for the petitioner challenges the order on facts as well as on short legal submission. The legal submission of learned Senior Advocate is that since the procedure for selection is provided under the statutory rules of U.P. Recognized Basic Schools (Junior High School Recruitment and Conditions of Service of Teachers) Rules, 1978. Therefore, once the power is exercised by the State for framing statutory rules, it cannot exercise any executive power with regard to the same subject by issuing executive order. Therefore, the Government Order dated 20.01.2003 as non-est being contrary to the statutory rules.
6. On merits, learned Senior Advocate for the petitioner submits that once an approval is duly granted by B.S.A. by his communication dated 20/21.02.2004, no power to review the said order on merits is vested in later B.S.A. The executive authorities do not have any power to review an order passed by an earlier authority, except for on limited ground of fraud etc. Next submission of learned Senior Advocate is that the impugned order even on merits is illegal as the defects pointed out in the same are presumptive.
7. On the other hand, learned counsels for the respondents support the impugned order and state that the impugned order rightly refuses to grant approval to the appointment of the petitioner.
8. So far as the Government Order dated 20.01.2003 is concerned, the law is well settled that once the State has exercised its legislative power with regard to any subject by framing statutory rules, it cannot exercise its executive power. Suffice is to refer
