# Vijay Kumar Upadhayay v. Regional Dy. Director of Education, Agra and others

- **Citation:** (2010) 1 ILRA 292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-31
- **Case number:** Civil Misc. Writ Petition No. 34494 of 1994
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-upadhayay-v-regional-dy-director-of-education-agra-and-others-41604
- **Pages:** 3

## Headnote

C.S.C.

Uttar Pradesh Education Department
Administration (Delegation of Power)
First
Amendment
Rules
1973appointment of Class 4th employee in
government Girls Inter College-Rule 73
authorise the District Inspectoress of
School to appoint class 4th employeeswhere there is no post of District
Inspectress
of
School-said
power
exercisable by the D.I.O.S.-petitioner
was appointed as Class IVth employee
by D.I.O.S.-Regional Deputy Director
refused approval on pretext the Principal
is
the
appointing
authority-except
education
code
No
any
statutory
provision shown by standing counselheld-instructions can not override the
statutory provisions-order impugned not
sustainable quashed.

Held: Para 10

Apart from this, once Rules have been
framed
under
Article
309
of
the
Constitution then in the hierarchy of the
legislation, the said Rule will prevail. The
Education
Code,
which
has
been
compiled as an executive instruction,
does not have statutory force where the
field is already occupied under the Rules.
The Full Bench decision of this Court in
the case of Magan Ram Yadava Vs.
Deputy Director of Education and others,
(1980) UPLBEC 6 (FB) clearly supports
the aforesaid conclusion drawn. Learned
Standing Counsel has been unable to
point out any other Rule which may
substantiate the plea taken in the
counter-affidavit that the Principal was
the appointing authority and not the
District Inspector of Schools. In this
view of the matter on all counts the
order
dated
28.9.1994
cannot
be
sustained.
Case law discussed:
(1980) UPLBEC 6 (FB).

## Text

292 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

been considered, even otherwise it may be
recorded that the judgment of this Court
in the case of Ashika Prasad Shukla Vs.
District
Inspector
of
Schools,
Allahabad
and
another
(1998)
3
U.P.L.B.E.C 1722 deals with adhoc
appointment against short term vacancy
and not against substantive vacancies. It
may be clarified that so far as short term
vacancies are concerned, appointment
was regulated by the Second Removal
Order of 1981 which did not require any
publication of advertisement. Therefore,
the Full Bench in the case of "Radha
Raizada & Ors. Vs. Committee of
Management & Ors" reported in
(1994) 3 UPLBEC 1551 laid down that
even in respect of short term vacancies,
advertisement in two news papers is must.
However, with regards to substantive
vacancies the same were to be filled as
per Ist Removal of Difficulties Order,
1981 and it specifically required that on
ad-hoc can be made only after the
vacancies were advertised in newspaper.

7. Even otherwise, interim orders do
not have any precedential value.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.03.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 34494 of 1994

Vijay Kumar Upadhayay
...Petitioner
Versus
Regional Dy. Director of Education, Agra
and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Bhushan
Ms. Rashmi Tripathi

Counsel for the Respondents:
C.S.C.

Uttar Pradesh Education Department
Administration (Delegation of Power)
First
Amendment
Rules
1973appointment of Class 4th employee in
government Girls Inter College-Rule 73
authorise the District Inspectoress of
School to appoint class 4th employeeswhere there is no post of District
Inspectress
of
School-said
power
exercisable by the D.I.O.S.-petitioner
was appointed as Class IVth employee
by D.I.O.S.-Regional Deputy Director
refused approval on pretext the Principal
is
the
appointing
authority-except
education
code
No
any
statutory
provision shown by standing counselheld-instructions can not override the
statutory provisions-order impugned not
sustainable quashed.

Held: Para 10

Apart from this, once Rules have been
framed
under
Article
309
of
the
Constitution then in the hierarchy of the
legislation, the said Rule will prevail. The
Education
Code,
which
has
been
compiled as an executive instruction,
does not have statutory force where the
field is already occupied under the Rules.
The Full Bench decision of this Court in
the case of Magan Ram Yadava Vs.
Deputy Director of Education and others,
(1980) UPLBEC 6 (FB) clearly supports
the aforesaid conclusion drawn. Learned
Standing Counsel has been unable to
point out any other Rule which may
substantiate the plea taken in the
counter-affidavit that the Principal was
the appointing authority and not the
District Inspector of Schools. In this
view of the matter on all counts the
order
dated
28.9.1994
cannot
be
sustained.
Case law discussed:
(1980) UPLBEC 6 (FB).

(Delivered by Hon'ble A.P. Sahi, J.)
1 All] Ram Singh Katiyar V. Director of Education and others

293
1. Heard Ms. Rashmi Tripathi,
learned counsel for the petitioner and
learned
Standing
Counsel
for
the
respondents.
2. The petitioner has come up for
quashing of the order dated 28.9.1994
passed by Regional Deputy Director of
Education - Respondent No.1, whereby a
direction was issued to the District
Inspector of Schools to cancel the
appointment of the petitioner as a class-IV
employee in Government High Secondary
School, Jasrana, District - Firozabad.

3. The facts shorn of details are that
Principal of the institution, which is a
government institution, intimated the
vacancy to the District Inspector of
Schools. The institution was under the
control of the District Inspector of
Schools and, accordingly, the District
Inspector of Schools vide order dated
26.9.1994 appointed the petitioner in the
institution as class-IV employee. The said
order is Annexure-2 to the writ petition. A
copy of the same was also sent to the
Respondent No.1, who in turn, intimated
the District Inspector of Schools that the
appointing authority is not the District
Inspector of Schools and, therefore, the
order should be cancelled. It was further
narrated in the impugned order that the
appointing authority is the Regional
Deputy Director of Education i.e. the
respondent No.1.

4. The petitioner, therefore, has
challenged the same on the ground that
the Rules which have been framed under
Article 309 of the Constitution namely
The Uttar Pradesh Education Department
Administration (Delegation of Powers)
First Amendment Rules 1973, have been
notified on 23.10.1973 and the said Rules
authorise the District Inspectress of Girls
Schools to make such appointment. It has
further been submitted that since there is
no such Officer posted in the district,
therefore, powers are to be exercised by
the District Inspector of Schools, who is
duly authorized to do so.

5. The respondents have filed a
counter-affidavit and have brought on
record the provisions of the Education
Code. The Education Code is a bunch of
executive instructions which have been
compiled for the purpose of internal
instructions of the education department.

6. Learned Standing Counsel
contends that the said Education Code
authorizes the Regional Deputy Director
of Education and not the District
Inspector of Schools. Learned Standing
Counsel
further
submits
that
the
Education Code which applies in such
matters, the appointing authority is the
Principal of the institution and, therefore,
even otherwise the District Inspector of
Schools could not have made the
appointment.

7. On this, new case is being taken
up in the counter-affidavit, a rejoinderaffidavit was filed clearly stating therein
that the Education Code does not have
statutory force and it does not override the
statutory Rules framed under Article 309
of the Constitution. On a direction of this
Court, a supplementary- counter-affidavit
was
filed
bringing
on
record
the
provisions of the Education Code to
which
a
supplementary-rejoinder-
affidavit has been filed in the same terms
denying the applicability thereof.

8. The question that arises for
consideration in the present writ petition
is as to whether the District Inspector of
294 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Schools was authorized to make the
appointment under the aforesaid Rules
which have been framed under Article
309 of the Constitution or it is the
Principal of the institution, who was
authorized to make the appointment under
the provisions of the Education Code.

9. The respondent - State has been
unable to point out any other Rule apart
from the provisions of the Education
Code which may empower the Regional
Deputy Director of Education to make
appointment on the post of class-IV
employee in the office subordinate to the
same. The impugned order, which recites
that the Regional Deputy Director of
Education is the authority competent,
therefore, has no legs to stand on the own
showing of the respondents, who state
that it is the Principal of the institution,
who
is
the
appointing
authority.
Accordingly, the impugned order dated
28.9.1994 deserves to be set aside on this
ground alone.

10. Apart from this, once Rules have
been framed under Article 309 of the
Constitution then in the hierarchy of the
legislation, the said Rule will prevail. The
Education
Code,
which
has
been
compiled as an executive instruction, does
not have statutory force where the field is
already occupied under the Rules. The
Full Bench decision of this Court in the
case of Magan Ram Yadava Vs. Deputy
Director of Education and others, (1980)
UPLBEC 6 (FB) clearly supports the
aforesaid conclusion drawn. Learned
Standing Counsel has been unable to
point out any other Rule which may
substantiate the plea taken in the counteraffidavit that the Principal was the
appointing authority and not the District
Inspector of Schools. In this view of the
matter on all counts the order dated
28.9.1994 cannot be sustained.

11. Accordingly, the writ petition is
allowed and the order dated 28.9.1994 is
quashed. The petitioner shall be entitled
to all consequential benefits forthwith.
The respondents shall carry out the
direction herein above within four weeks
from today.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 36379 of 2003
With
Civil Misc. Writ Petition No. 13104 of 2003

Phool Chand Tiwari

...Petitioner
Versus
Joint Director of Education and others

 ...Respondents

Counsel for the Petitioner:
Sri R.G. Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri V. Singh
Sri Yashwant Singh 'Subasha'
Sri Kaushal Kumar Singh
Sri Pradeep Verma
C.S.C.

U.P. Intermediate Education Act 1921Chapter III, Regulation-2-promotion on
class III post under 50% promotion
quota-only
3
post
available
under
promotion quota-petitioner being senior
most class 4th employee was proposed to
be promoted under General categoryclaim about promotion under SC/ST
reservation quota-not available if the
vacancy is less than 5 post in view of law