# Smt. Shikha and another v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 419
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-03-29
- **Case number:** Civil Misc. Writ Petition No. 40611 of 2006
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shikha-and-another-v-state-of-u-p-and-others-41060
- **Pages:** 5

## Headnote

S.C.

U.P. Direct Recruitment to Group D Post
(Inclusion of member nominated by
District
Magistrate
in
Selection
Committee)
Rules
2006
readwith
Constitution
of
India
306-U.P.
Intermediate
Education
Act
1921Chapter
III
Regulation
100-107appointment of Class 4th employee-in
Intermediate
College-run
by
Management-D.I.O.S.
disapproved
on
the ground in selection committee not
properly constituted-as nominee of D.M.
not participated-held-wholly erroneousmisconceived can not sustain.

Held: Para 9

In view of these facts and circumstances
of the case, impugned order passed by
District Inspector of Schools recalling
earlier permission-granted by D.I.O.S.
dated
4.5.2006,
in
my
considered
opinion,
is
wholly
erroneous,
misconceived and cannot be sustained,
therefore, the same is hereby quashed.

## Text

2 All] Smt. Shikha and another V. State of U.P. and others
419
FLR 1175) has held that where the issue
was substantially the same in earlier
proceedings and has been decided by the
competent authority, even though the
entire Civil Procedure Code is not
applicable to industrial adjudication, the
principles of Section 11 C.P.C. including
the principles of constructive res judicata
will apply.

13. Thus, in the opinion of the court,
the
reference
itself
was
beyond
jurisdiction
and
therefore
the
writ
petitions succeed and are allowed and the
award
dated
29.03.2007
is
hereby
quashed. The consequential order in the
connected petition is also quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 40611 of 2006

Smt. Shikha and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri V.B. Khare
Sri A.K. Shukla

Counsel for the Respondents:
S.C.

U.P. Direct Recruitment to Group D Post
(Inclusion of member nominated by
District
Magistrate
in
Selection
Committee)
Rules
2006
readwith
Constitution
of
India
306-U.P.
Intermediate
Education
Act
1921Chapter
III
Regulation
100-107appointment of Class 4th employee-in
Intermediate
College-run
by
Management-D.I.O.S.
disapproved
on
the ground in selection committee not
properly constituted-as nominee of D.M.
not participated-held-wholly erroneousmisconceived can not sustain.

Held: Para 9

In view of these facts and circumstances
of the case, impugned order passed by
District Inspector of Schools recalling
earlier permission-granted by D.I.O.S.
dated
4.5.2006,
in
my
considered
opinion,
is
wholly
erroneous,
misconceived and cannot be sustained,
therefore, the same is hereby quashed.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. A short question arises for
consideration before this court is that as to
whether U.P. Direct Recruitment to
Group 'D" Posts (inclusion of a Member
Nominated by District Magistrate in
Selection
Committee)
Rules
2006
promulgated by Governor of State of U.P.
under the proviso to Article 309 of the
Constitution of India shall apply in
selection of Group 'D' posts of Higher
Secondary Schools and Intermediate
Colleges
recognized
under
U.P.
Intermediate Education Act 1921 run and
managed by the private managements?
.
2. The brief facts leading to the case
are that two posts of Class-IV employees
were fell vacant in the institution, one
post on account of retirement of Smt.
Chando Devi on 30.6.2005 and another on
account of retirement of Smt. Raj Kumari
on 31.3.2006. On 29.3.2006 the Principal
of the institution sought permission from
the
District
Inspector
of
Schools,
Allahabad
for
filling
the
aforesaid
vacancies. In pursuance thereof, the
District
Inspector
of
Schools-II,
Allahabad granted permission to the
Principal of the institution to fill up the
420 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
aforesaid two vacant posts of class IV
employees in the institution vide order
dated 4.5.2006, contained in Annexure-2
of the writ petition. On receipt of the
permission for filling the aforesaid vacant
posts advertisement was made in Dainik
Jagaran on 29.5.2006. In pursuance of
aforesaid advertisement as many as 75
persons have applied for the selection and
appointment against the aforesaid two
vacancies.
The
Selection
Committee
constituted for the purpose held the
selection on the basis of interview held on
16.6.2006 and letters of appointment were
issued to the petitioners, who have been
found selected in the aforesaid process of
selection and they have also joined their
respective post on 19.6.2006 in the
institution in question. Thereafter the
Principal of institution has sent a letter
alongwith papers for approval to the
District Inspector of Schools on 20.6.2006
but instead of granting approval to the
aforesaid appointment of the petitioners
for payment of salary to them from the
State exchequer as the institution is
Government aided privately managed
Intermediate
College,
the
District
Inspector of Schools vide impugned order
dated 5.7.2006 has recalled his earlier
order
dated
4.5.2006
whereby
the
permission was granted for holding
selection
and
appointment
on
the
aforesaid class IV posts in the institution.
The ground taken in the impugned order
dated 5.7.2006, contained in Annexure-9
to the writ petition, by the D.I.O.S. is that
the composition of selection committee
for holding selection has already been
changed vide notification dated 3.3.2006.
The aforesaid notification has been filed
by the petitioners as Annexure-10 to the
writ petition. By the said notification the
Uttar Pradesh Direct Recruitment to
Group 'D' Posts (inclusion of a member
nominated by the District Magistrate in
the Selection Committee) Rules, 2006,
hereinafter referred to as Rules-2006,
promulgated by the Governor of Uttar
Pradesh has been notified.

3.

Learned
counsel
for
the
petitioners
has
submitted
that
the
aforesaid rules-2006 framed under the
proviso to Article 309 of the Constitution
has no application in respect of selection
in question instead thereof the selection in
question is governed by the Regulations
100 to 107 of Chapter III framed under
U.P.
Intermediate
Act-1921.
While
elaborating
his
submission
learned
counsel for the petitioners has submitted
that the provisions of rule framed under
the proviso to Article 309 of the
Constitution applies only in respect of
public services and posts in connection
with the affairs of Union of India or of
any State. The said rule has no application
with regard to the services of employees
of
Higher,
Secondary
Schools
and
Intermediate Colleges managed by private
committee of management recognized
under U.P. Intermediate Education Act.
The services of non-teaching staff of the
such educational institution recognized
under said Act are governed by the
provisions
of
aforesaid
Act
and
Regulations framed thereunder, therefore,
the recruitment and conditions of services
of
Group
'D'
employees
of
such
educational institutions is not covered by
the rules framed under the proviso to
Article of the Constitution of India as
services of such employees cannot be said
to be public services in connection with
the affairs of Union of India or of any
State. Accordingly the impugned order
passed by D.I.O.S. while placing reliance
upon Rules-2006 referred above cannot
be sustained. The submission of learned
2 All] Smt. Shikha and another V. State of U.P. and others
421
counsel for the petitioners appears to be
correct and deserves to be accepted.

4. I have heard learned counsel for
the petitioners and learned Standing
Counsel : for the respondents and have
also gone through the record.

5. For better appreciation of the
controversy the provision of Article 309
of the Constitution of India is extracted as
under:-

"309. Recruitment and conditions
of service of persons serving the Union
or a State.-- Subject to the provisions of
this Constitution, Acts of the appropriate
Legislature may regulate the recruitment,
and conditions of service of persons
appointed, to public services and posts in
connection with the affairs of the Union
or of any State:
Provided that it shall be competent
for the President or such person as he
may direct in the case of services and
posts in connection with the affairs of the
Union, and for the Governor of a State or
such person as he may direct in the case
of services and posts in connection with
the affairs of the State, to make rules
regulating the recruitment, and the
conditions
of
service
of
persons
appointed, to such services and posts until
provision in that behalf is made by or
under
an
Act
of
the
appropriate
Legislature under this article, and any
rules so made shall have effect subject to
the provisions of any such Act."

6. From a plain reading of provision
of Article 309 of the Constitution of India,
it is clear that subject to provisions of this
Constitution, the Acts of appropriate
Legislature may regulate the recruitment,
and conditions of services of persons
appointed, to public services and posts in
connection with the affairs of Union or of
any State; provided that President or such
person as he may direct in cases of
services and posts in connection with the
affairs of Union and Governor of State or
such person as he may direct in case of
services and posts in connection with the
affairs of State are competent to make
rules regulating the recruitment and
conditions of service of persons appointed
to such services and posts until the
provisions in that behalf is made by or
under an Act of appropriate Legislature
under this Article and any rules so made
shall have effect subject to provisions of
any such Act. It implies that an Act of
appropriate Legislature may govern the
recruitment and service conditions of
persons appointed to public services and
posts in connection with the affairs of the
Union or of any State and the rules
framed under the proviso to Article 309
are transitory in nature and they shall
apply only in the period interregnum, but
in any case neither the enactment of
competent Legislature under Article 309
of the Constitution of India nor the rules
framed by the President or Governor of
the State under the proviso to Article 309
of the Constitution have any application
with regard to the services of employees
of
,Higher
Secondary
Schools
and
Intermediate Colleges recognized under
U.P Intermediate Education Act, who are
governed by provisions of aforesaid Act
and Regulations framed thereunder, for
simple reason that the services and posts
of such educational institution are not
public services and posts either in
connection with the affairs of Union of
India or of any, State as contemplated by
the said Article, therefore, the provisions
of Rules-2006 have no application with
422 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
regard to the appointment of employees of
such educational institutions.

7. For ready reference and better
appreciation of controversy the provisions
of
Rules-2006
referred
above
are
extracted as under:-

"In exercise of the powers conferred
by the proviso to Article 309 of the
Constitution, the Governor is pleased to
make the following rules:

The Uttar Pradesh Direct Recruitment to
Group 'D" Posts (inclusion of a Member
Nominated by the District Magistrate in
the Selection Committee) Rules, 2006:
1. Short title, commencement and
application :- (1) These rules may be
called
the
Uttar
Pradesh
Direct
Recruitment
to
Group
'D"
Posts
(inclusion of a Member nominated by the
District Magistrate in the Selection
Committee) Rules, 2006.
(2) They shall come into force at once.
(3) They
shall
apply
to
direct
recruitment to Group 'D' Posts under the
rule making power of the Governor under
the proviso to Article 309 of the
Constitution except the posts which are
within the purview of the Uttar Pradesh
Public Service Commission.

2. Overriding effect.- These rules
shall have effect notwithstanding anything
to the contrary contained in any other
rules or orders.

4. Inclusion
of
a
Member
nominated by the District Magistrate in
the Selection Committee.- The Selection
Committees
prescribed
for
direct
recruitment to Group 'D'" Posts under the
provisions of the relevant Service Rules
shall, henceforth, invariably include an
officer
nominated
by
the
District
Magistrate as one of the Members of the
Selection Committee."

8. From a plain reading of Rule-l (3)
of the said Rule, it is clear that these
Rules shall apply to direct recruitment to
Group 'D' Posts under the rule making
power of the Governor made under the
proviso to Article 309 of the Constitution
except the posts which are within the
purview of the Uttar Pradesh Public
Service Commission. It is no doubt true
that Rule-2 of the said rules have
overriding effect upon other service Rules
and by virtue of Rule-4 of the said rule it
is provided that Selection Committee
prescribed for direct recruitment to Group
"D" Posts under the provisions of the
relevant Service Rules shall, henceforth,
invariably include an officer nominated
by the District Magistrate as one of the
Members of Selection Committee. At this
juncture it is necessary to point out that
there can be no doubt that the services and
posts of non-teaching staff of secondary
schools
and
intermediate
colleges
recognized under U.P. Intermediate Act1921, run and managed by the private
committee
of
Management
are
not
services and posts in connection with the
affairs of Union of India or of any States
as contemplated under the provisions of
Article 309 of the Constitution, therefore,
the provisions of Article 309 of the
Constitution of India has no application
with the recruitment of employees of such
institution. Thus the appointment on class
IV post of the institution can not be
governed and regulated by the rules
framed by the Governor of Uttar Pradesh
under the proviso to Article 309 of the
Constitution,
instead
thereof
the
appointment/recruitment
of
class
IV
employees
in
educational
institution
2 All] Pyare Lal and others V. State of U.P. and others
423
recognized
under
U.P.
Intermediate
Education Act are governed by the
Regulations 100 to 107 of Chapter III
framed under the said Act. Therefore
despite Rule-2 of said Rules have
overriding effect upon other service rules
even then such overriding effect of the
said Rules in my considered opinion, is
confined to only those Rules which have
been framed by the Governor of the State
under proviso to Article 309 of the
Constitution of India, they cannot travel
beyond the aforesaid rule making power
of the Governor. Accordingly I am of the
view that Rules-2006 has no application
in case of recruitment of the petitioners on
Class IV posts or Group D posts of the
institution in question. The view taken by
D.I.O.S. contrary to it is misplaced and
cannot be countenanced.

9. In view of these facts and
circumstances of the case, impugned
order passed by District Inspector of
Schools recalling earlier permissiongranted by D.I.O.S. dated 4.5.2006, in my
considered opinion, is wholly erroneous,
misconceived and cannot be sustained,
therefore, the same is hereby quashed.

10. Since there is nothing from the
impugned order that the selection made
by the institution has been found faulty
otherwise by D.I.O.S. except the ground
stated herein before, therefore, the District
Inspector
of
Schools,
Allahabad
is
directed to accord approval to the
appointment of petitioners and make
payment of salary to them within a period
of two months from the date of
production of certified copy of the order
passed by this court before him, if they
are found working in pursuance of their
appointments. However the payment shall
be made from the date of approval of their
appointments and not earlier to it.

11. With the aforesaid observation
and direction, writ petition succeeds and
allowed.

12. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 9006 of 2003

Pyare Lal and others
...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri W.H. Khan
Sri J.H. Khan

Counsel for the Respondents:
Sri A.K. Mishra
Sri S.K. Garg
S.C.

Land Acquisition Act Section 17-Land
acquisition for developing residential
colony Notification u/s 4 issued on
21.1.90-declaration under Section 6 on
31.12.91-on alleged urgency inquiry u/s
5D
dispense
with-stay
granted
by
District court on 7.4.92-dismissed on
24.7.2000-possession taken on 1.11.02
much
after
2
years-apparently
no
urgency
as
required
u/s
17-entire
acquisition
proceeding
automatically
laps.

Held: Para 6