Allahabad High Court
Vijendra Kumar Pandey vs State Of U.P. And 4 Others on 5 April, 2025
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:48376
Court No. - 6
Case :- WRIT - A No. - 3770 of 2025
Petitioner :- Vijendra Kumar Pandey
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Nitinjay Pandey
Counsel for Respondent :- Bhanu Pratap Singh Kachhawah,C.S.C.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Nitinjay Pandey, learned counsel for petitioner, Sri Shashi Prakash Singh, learned Additional Chief Standing Counsel for State-Respondents and Sri B.P.S. Kuchwah, Advocate for Respondents-3 to 5.
2. Petitioner wants to take advantage of an order dated 25.09.2024 passed by a Coordinate Bench of this Court in Writ-A No. 5943 of 2024, 2024:AHC-LKO:6691 which is reproduced hereinafter:
?1. Heard learned counsel for petitioners and learned State Counsel for opposite parties.
2. Petition has been filed challenging order dated 16.05.2024 whereby petitioners' claim for being appointed on the post of Block Education Officer with effect from the date of entitlement as per provisions of U.P. Adhinasth Shiksha (Pranti Upvidyalaya Nirikshak) Seva Niyamavali, 1992 has been rejected.
3. It has been submitted that the aforesaid claim of petitioners has been rejected by means of impugned order solely on the ground that the aforesaid provisions of the Regulations of 1992, particularly Rules 5 (1) has been rescinded by means of Government Order dated 10.04.2003.
4. In pursuance of directions issued earlier, learned State Counsel has produced the Government Order dated 10.04.2003, a copy of which is taken on record.
5. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, particularly the impugned order dated 16.05.2024 and the Government Order dated 10.04.2003, it is evident that the provisions of Rule 5 (1) (Rule 50 as indicated in the Government Order dated 10.04.2003) has been rescinded by means of the aforesaid Government Order dated 10.04.2003.
6. It is evident that the aforesaid Rules of 1992 have been framed under Article 309 of the Constitution of India and are dated 18.07.1992. Hon'ble Supreme Court in the cases of Raj Kumar versus Union of India, 1975 (14) SCC 13 and MD/Chairman, Bharat Sanchar Nigam Ltd. versus Mishri Lal and others, 2011 (14) SCC 739 has clearly enunciated that Rules framed under Article 309 of the Constitution of India would have statutory force. In such circumstances, in the considered opinion of this Court, any changes or recession of statutory provisions can take place only by means of amendment in the aforesaid rules in accordance with provisions of the Constitution of India.
7. Government Orders being merely executive instructions issued under Article 166 of the Constitution of India cannot have any primacy over statutory provisions even if framed under Article 309 of the Constitution of India.
8. In view of aforesaid, the reasoning indicated in the impugned order dated 16.05.2024 being patently illegal and against dictum of Hon'ble Supreme Court, is hereby quashed by issuance of a writ in the nature of certiorari.
9. Although the Government Order dated 10.04.2003 is not under challenge but exercising extra-ordinary powers under Article 226 of the Constitution of India, the Government Order dated 10.04.2003 is also hereby quashed by issuance of a writ in the nature of certiorari.
10. Accordingly, the opposite party no. 3 i.e. Director, Basic Education, U.P. Lucknow is directed to take to reconsider petitioners' case for appointment/promotion on the post of Block Education Officer in terms of Rule 5 (1) of the Rules of 1992. Such a decision shall be taken by the authorities within a period of eight weeks from the date a certified copy of this is served upon the concerned authority.
11. Resultantly, the petition succeeds and is allowed. Parties to bear their own cost.?
3. Learned counsel for petitioner submits that a representation is filed by petitioner that his case may be considered for promotion on the post of Block Education Officer in terms of relevant rules and taking note of above referred judgment. He further submits that since contents of representation are not sufficient, therefore, petitioner will file a detail representation disclosing facts and law applicable on the issue, within a period of three weeks from today and prays that the same may be considered in accordance with law.
4. Learned counsel appearing for respondents submits that if the representation is handed over by Dasti at the office of concerned respondent within three weeks, it will be considered in accordance with law.
5. In aforesaid circumstances, this writ petition is disposed of with liberty to petitioner to file a detail representation on facts and law and if it is filed at the office of concerned respondent within a period of three weeks from today, the same will be considered by concerned respondent within a short period and in case of any legal impediment, the same may also be communicated to petitioner.
Order Date :- 5.4.2025
AK
