# Arun Kumar v. D.I.O.S. And Others

- **Citation:** (2013) 1 ILRA 243
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-05
- **Case number:** Civil Misc. Writ Petition No. 22263 of 2007
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-v-d-i-o-s-and-others-42456
- **Pages:** 5

## Headnote

U.P. Intermediate Education Act 1921Regulation
101,
Chapter
IIIappointment of peon in recognized-aided
intermediate college-approval refused in
garb of G.O. Dated 09.02.2007-which
requires approval from Chief Ministerheld-G.O. Illegal, contrary to statutory
provisions-quashed-consequential
directions given.

Held: Para-6
Thus where a particular authority has
been mentioned in the Regulations and
conferred with the power of granting
approval for recruitment of class III and
class IV, that authority can not be
divested of that power, nor can that
power
be
usurped
by
any
other
authority, be it the Chief Minister, except
by way of amendment of the existing
statutory rules. In the present case the
alleged G.O. dated 9.2.2007 is only an
Executive Order and as held by the
Supreme Court in the case of Naseem
Bano (supra), Executive Orders will not
supersede the statutory rules.
Case Law discussed:
1993 Supp (4) Supreme Court Cases 46; 2004
(2) CRC 664; 1995 Supp (3) Supreme Court
Cases 332; (1997) 4 SCC 301
244 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

## Text

1 All] Arun Kumar Vs. D.I.O.S. And Others
243
resolutions, as well as the attendance and
payment register to prove the fact that the
petitioner
had
worked
continuously
without break in service for the period
1999, 2000 and 2001. Inspite of a
direction being given by the Labour
Court, no record was produced.

11. In the light of the aforesaid, the
Court finds, that the initial burden to
prove a fact, was upon the petitioner,
which had been done substantially and
thereafter the onus shifted upon the
employer, which, in the instance case, an
opportunity was given and which the
employers
failed
to
discharge.
Consequently, the finding of the Labour
Court, that the burden to prove the fact
was not discharged by the petitioner was
patently erroneous. The best evidence,
namely, the resolutions of the Nagar
Panchayat
and
the
Payment
and
Attendance
Register
was
with
the
employers. The petitioner had no access
to it. If the employer failed to produce the
documents, which are in their custody,
adverse inference had to be drawn against
the employers.

12. In the light of the aforesaid, the
Court is of the opinion that the impugned
award cannot be sustained and is quashed.
The writ petition is allowed and the
matter is remitted to the Labour Court
again to re-decide the matter from the
stage where it had left within four months
from the date of the production of a
certified copy of this order. Even though
the employers were debarred from crossexamining the petitioner, it would be open
to the parties to file fresh evidence in
support of their case
---------

 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2013

BEFORE
THE HON'BLE B. AMIT STHALEKAR,J.

Civil Misc. Writ Petition No. 22263 of 2007

Arun Kumar

...Petitioner
Versus
D.I.O.S And Others
 ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh

Counsel for the Respondents:
C.S.C.
Sri Alok Dwivedi
Sri P.C. Shukla

U.P. Intermediate Education Act 1921Regulation
101,
Chapter
IIIappointment of peon in recognized-aided
intermediate college-approval refused in
garb of G.O. Dated 09.02.2007-which
requires approval from Chief Ministerheld-G.O. Illegal, contrary to statutory
provisions-quashed-consequential
directions given.

Held: Para-6
Thus where a particular authority has
been mentioned in the Regulations and
conferred with the power of granting
approval for recruitment of class III and
class IV, that authority can not be
divested of that power, nor can that
power
be
usurped
by
any
other
authority, be it the Chief Minister, except
by way of amendment of the existing
statutory rules. In the present case the
alleged G.O. dated 9.2.2007 is only an
Executive Order and as held by the
Supreme Court in the case of Naseem
Bano (supra), Executive Orders will not
supersede the statutory rules.
Case Law discussed:
1993 Supp (4) Supreme Court Cases 46; 2004
(2) CRC 664; 1995 Supp (3) Supreme Court
Cases 332; (1997) 4 SCC 301
244 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
(Delivered by Hon'ble B. Amit Sthalekar,J.)

1. By this writ petition the petitioner
is seeking quashing of the G.O. dated
9.2.2007 filed as Annexure-3 to the writ
petition and the order dated 21.2.2007 by
which the approval of the appointment of
the petitioner as class IV against the
general category vacancy in the Dayanand
Intermediate College, Said Nagli, Jyotiba
Phule Nagar, has not been granted.

2. The facts of the case, in brief, are
that there is an intermediate educational
institution
known
as
Dayanand
Intermediate College, Said Nagli, Jyotiba
Phule Nagar (hereinafter referred to as the
Institution). The institution was governed
by the provisions of the U.P. Intermediate
Education Act, 1921 as well as the Uttar
Pradesh High Schools and Intermediate
Colleges (Payment of Salaries of the
Teachers and Other Employees ) Act,
1971. According to the petitioner, a post
of Daftari fell vacant on 15.1.2007 on
account of promotion of Sri Subhash
Chandra Verma on the post of clerk.
Against the said vacancy one Sri Dev,
peon of the institution was promoted as
Daftari
on
16.1.2007,
which
was
approved by the District Inspector of
Schools, Jyotiba Phule Nagar vide order
dated 14.2.2007. The existing vacancy in
class IV on account of promotion of Sri
Dev was intimated by the Principal of the
Dayanand Intermediate College to the
District
Inspector
of
Schools
and
permission was sought to fill up the said
post. The District Inspector of Schools,
however,
relying
upon
G.O.
dated
9.2.2007 filed as Annexure-3 to the writ
petition declined to grant approval and on
21.2.2007 a notice was issued to the
Principal,
Dayanand
Intermediate
College, Said Nagli, Jyotiba Phule Nagar,
respondent no.4 to show cause as to why
the post in general category of class-IV
was advertised in contravention of G.O.
dated 9.2.2007. For reference it may be
mentioned the vacancy of class-IV was
advertised
in
two
newspapers
on
20.2.2007 namely 'Amar Ujala' and 'Yug
Bandhu' and applications were invited
from eligible candidates upto 28.2.2007.
A
Selection
Committee
was
also
constituted on 5.3.2007 and the petitioner
was found to be the most suitable
candidate
for
appointment
and
the
Selection
Committee
thereupon
recommended the name of the petitioner
for appointment on the class-IV post in
the institution. Letter of appointment was
also issued to him on 6.3.2007. The
petitioner joined the class IV post on
9.3.2007 and he is stated to be working
since then.

3. I have heard Sri Indra Raj Singh,
learned counsel for the petitioner and the
learned standing counsel appearing for the
respondent nos.1 and 2. On behalf of
respondent nos.3 and 4 counter affidavit
has been filed by Sri Alok Dwivedi,
whose name has also been shown. List
has been revised. None appears for
respondent nos.3 and 4.

4. From a perusal of the impugned
G.O. dated 9.2.2007 it will be seen that a
complete ban was imposed on recruitment
in class III and IV posts but clause ?3 of
the G.O. mentions that this ban would not
be a hindrance in the direct recruitment of
S.C.& S.T. and O.B.C. candidates.
Clause-4 of the G.O. also mentions that in
class-IV category, appointments may be
made only with the approval of the Chief
Minister. This condition in the matter of
direct recruitment of Class III and Class
IV that permission of the Chief Minister
1 All] Arun Kumar Vs. D.I.O.S. And Others
245
has to be taken borders on the bizzare.
Under Regulation 101 of Chapter III of
the U.P. Intermediate Education Act,
1921, appointment in class-IV is to be
made by the Principal of the Institution
with the prior approval of the District
Inspector of Schools and there is no role
to be played in such appointments by the
Chief Minister. Regulations to the U.P.
Intermediate Education Act, 1921 have
been framed by the Board of High School
and Intermediate Education in exercise of
power under Section 15 of the U.P.
Intermediate Education Act, 1921 and are
statutory in nature.

5. In 1993 Supp (4) Supreme Court
Cases 46, Naseem Bano (Smt.) vs. State
of U.P. and others the Supreme Court has
held the regulations framed under the U.P.
Intermediate Education Act, 1921 to be
statutory in nature and has also held that
any G.O. or Executive Order contrary to
the same cannot override the Regulations.
Para 6 of the judgement reads as follows:-

"6. The High Court has found that
the appellant was not eligible for
promotion to L.T. grade on August
29,1977 when the post of L.T. grade
teacher in Home Science was created for
the reason that the appellant was not a
trained graduate on the relevant date as
required under notification dated October
3, 1974. In the view of the High Court, by
holding the qualifications mentioned in
Appendix 'A' of the Regulations, a person
could claim appointment only in the C.T.
Grade. We find it difficult to subscribe to
this view. Promotion from C.T. Grade to
L.T. grade is governed by clause (1) of
Regulation 6 which postulates: (I) having
a
minimum
five
years'
continuous
substantive service on the date of
occurrence of the vacancy; and (ii)
possessing
the
prescribed
minimum
qualifications for teaching the subject in
which the teacher in the lecturer grade or
in the L.T. grade is required. The
prescribed
minimum
qualifications
referred to in clause (1) of Regulation 6
are the minimum qualification which are
prescribed
in
the
Regulations
for
appointment as teacher to teach the
concerned subject which would mean the
minimum qualification as laid down in the
appendix to the Regulations. Clause (1)of
Regulation 6 cannot be construed as
referring to the notification dated October
3, 1974 because the notification, is only
an executive order and the qualifications
prescribed therein cannot override the
qualifications
prescribed
in
the
Regulations
which
are
statutory
in
character. The notification can, therefore,
have no application to promotion to L.T.
grade dealt with in Regulation 6 (1) and
must be confined in its application to
appointment by direct recruitment only."

6. Thus where a particular authority
has been mentioned in the Regulations
and conferred with the power of granting
approval for recruitment of class III and
class IV, that authority can not be
divested of that power, nor can that power
be usurped by any other authority, be it
the Chief Minister, except by way of
amendment of the existing statutory rules.
In the present case the alleged G.O. dated
9.2.2007 is only an Executive Order and
as held by the Supreme Court in the case
of Naseem Bano (supra), Executive
Orders will not supersede the statutory
rules.

7. In this regard Sri Indra Raj Singh
has relied upon a Full Bench decision of
this Court reported in 2004 (2) CRC 664,
R. B. Dixit vs. Union of India and others
246 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
wherein the Full Bench has held as
follows:-

"6. We have held in Smart Chip v.
State of U.P., 2002 (49) ALR 419, that in
every legal system there is a hierarchy of
norms as noted by the eminent jurist
Kelsen in his Pure Theory of Law. In the
Indian legal system this hierarchy is as
follows:

1.The Constitution.

2.Statutory law, which may either be
made by the Parliament or by the State
legislature.

3.Delegated legislation, which may
be either in the form of rules, regulations
or statutes made under the Act.

4.Executive
instructions
or
Government orders.

7.In the above hierarchy if there is
conflict between a higher law and a lower
law then the higher law will prevail. The
executive instructions as part of the fourth
layer in the hierarchy, which is at the
lowest level, whereas an Act is part of the
second layer and the Statutes made under
the Act are delegated legislation and
hence part of the third layer. The letters
dated 31.8.1999 and 30.3.1999 are only
executive instructions and hence they
belong to the fourth layer. Hence they are
neither Act nor Statutes. Hence in our
opinion the age of retirement of an
employee of the Indian Institute of
Technology is 60 years and not 62 years
vide
Section
3
(2).
We
therefore
respectfully disagree with the decision in
Raja Ram Verma's case."

8. The Supreme Court in the case
reported in 1995 Supp (3) Supreme Court
Cases 332, Subhash s/o Shriram Dhonde
vs. State of Maharashtra and another
has held as follows:-

"2. The Tribunal has dismissed the
appellant's application only on the ground
that the appellant had acquired the
working experience of one year prior to
acquisition of the basic qualifications
which in this case is diploma in
Automobile
Engineering.
For
this
purpose, the Tribunal relied upon the
circular issued by the Government. The
rules,
namely,
the
Motor
Vehicles
Department (Recruitment) Rules, 1991
framed
under
Article
309
of
the
Constitution show that a mere possession
of the working experience of at least one
year in a reputed Automobile Workshop
as mentioned under Rule 3(e) is enough.
The rule does not make any difference
between acquisition of such experience
prior to or after the acquisition of the
basic qualification. What is further, the
record
shows
that
even
after
the
acquisition of the basic qualification as
mentioned in Rule 3(c), the appellant has
acquired the additional experience of one
year in a reputed Automobile Workshop
as required even by the said circular. The
Tribunal has committed an error in
relying upon the circular which cannot
replace the rules framed under Article
309 of the Constitution. We are, therefore,
of the view that the Tribunal's decision is
incorrect. Since the appellant satisfies the
qualifications required by the rules, the
decision of the Tribunal has to be set
aside. We accordingly set aside the
impugned decision of the Tribunal and
direct the respondent to consider the
appellant for appointment, if otherwise he
satisfies
the
requisite
qualifications
1 All] Khusnuma Khatoon And Others Vs. State of U.P. And Another
247
including the marks obtained in the
written test and the interview already
held. The appeal is allowed with no order
as to costs."

9. Again in the case reported in
(1997) 4 SCC 301, P. Sadagopan and
others vs. Food Corporation of India,
Zonal Officer (South Zone) and another
the same principle has been laid down by
the Supreme Court in para-3. Para-3 of
the said judgement reads as follows:-

"The Regulation provides that such
of the candidates who have put in three
years' experience as Assistant, Category I
are
eligible
to
be
considered
for
promotion as Assistant Managers in
Category II post. It is now settled legal
position that executive instructions cannot
be issued in derogation of the statutory
Regulations. In view of the fact that the
statutory
Regulations
require
that
experience of three years is a pre-
condition to consideration for promotion
to Category II post from Category I post,
it would be obvious that any relaxation
was
in
defeasance
of
the
above
Regulations.
The
Division
Bench,
therefore, was not right in upholding the
power of the Board in directing relaxation
of
the
statutory
regulations
and
consideration
of
the
cases
without
considering the claims of all the eligible
persons. Moreover, later the Board itself
cancelled the 1970 panel. The Regulation
issued for promotion of the Scheduled
Castes and Scheduled Tribes should also
be considered. Admittedly,they were not
considered. Since the claims of all the
persons are not before us, we do not
propose to close the matter at this end.
Accordingly, we set aside the order of the
Division Bench and direct the authorities
concerned to determine the promotions of
all the eligible persons in accordance
with the statutory regulations and pass
appropriate orders within a period of six
months from the date of the receipt of the
order."

10. Thus the G.O. dated 9.2.2007 is
absolutely illegal and arbitrary and
contrary to statutory Regulations framed
under the U.P. Intermediate Education
Act, 1921 and has no legs to stand and is
accordingly quashed. The impugned order
dated 21.2.2007 based upon the G.O.
dated 9.2.2007 is also illegal and is
accordingly quashed.

11. The writ petition is allowed.

12. Sri Indra Raj Singh submitted
that the petitioner has not been paid salary
in view of the G.O. dated 9.2.2007 and
impugned order dated 21.2.2007. In this
regard the petitioner may make a
representation to the District Inspector of
Schools within a period of ten days from
today. If such representation is filed,
respondent no.1, the District Inspector of
Schools, Jyotiba Phule Nagar shall decide
the same within a period of one month
thereof regarding financial approval for
payment of salary to the petitioner.
---------
 ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2013

BEFORE
THE HON'BLE RAMESH SINHA,J.

Criminal Misc. Application No. 26656 of
2012

Khusnuma Khatoon And Others...Applicants
Versus
State Of U.P. And Anr. ...Opposite Parties