ASHWANI KUMAR MISHRA,J. - (1.) This writ petition is directed against an order passed by the Regional Higher Education Officer, Varanasi, dated 15.5.2019, which rejects the claim of the petitioners for grant of financial approval to their appointment on a Class IV post in the educational institution in question. This order has been passed pursuant to a direction issued in petitioners' earlier writ petition nos. 9195 of 2018 and 6767 of 2018. The orders passed by this Court in the above noted petitions have been quoted in the order impugned itself and shall be dealt with a little later.
(2.) Gandhi Shatabdi Smarak Snatkottar Mahavidyalaya Koilsa Azamgarh is a recognized Degree College affiliated to Vir Bahadur Singh Purvanchal University Jaunpur. Certain vacancies of Class IV post came into existence on account of retirement etc. in the institution and the Committee of Management proceeded to fill up those posts. The institution consequently made a request to the Regional Higher Education Officer, Varanasi for grant of prior permission to fill up such posts. The Regional Higher Education Officer granted such permission on 13th May, 2013. It is thereafter that the vacancy was duly advertised on 9.2.2014 in two newspapers namely 'Dewal Dainik' and 'Aaj'. Petitioners claim to have applied and were ultimately selected by the selection committee constituted at the level of the College. Appointment letters were also issued to petitioners on 19.2.2014. However, financial approval was not granted to petitioners' appointment on the ground that the post in question was required to be filled by way of outsourcing, for which a Government Order had already been issued on 6.1.2011. By a specific order, dated 1.3.2014, the Regional Higher Education Officer informed the Management that the post in question could be filled only by way of outsourcing and as such the selection already made cannot be approved. It is this order which came to be challenged by the petitioners in Writ Petition No. 9195 of 2018 which was allowed vide following order passed on 9.4.2018:- "Petitioners claim to have been appointed as class IV employee in the institution concerned, who are aggrieved by an order dated 1.3.2014 passed by the Regional Higher Education Officer, disapproving their appointment on the ground that a ban was imposed. Validity of the Government Order dated 6.1.2011 stopping appointment to class IV post in such institutions came up for consideration in a bunch of writ petitions, including Misc. Single No.6389 of 2011, which was allowed on 6.9.2012. The operative operation of the order reads as under:- "Recently, in the case of Ajaya Kumar Das Vs. State of Orissa [(2011) 11 SCC 136] the Hon'ble Apex Court pleased to reiterate that statutory rules can be amended by a rule or notification in the same way, rules have been framed. The relevant para 14 of the judgment reads as under: "14. Neither the Circular dated 18.6.1982 nor the subsequent Circular dated 19.3.1983 modifying the earlier Circular dated 18.6.1982 can override the statutory provision contained in Rule 74 (b) of the Code it is results in reduction of pay of the employee on promotion. That the Orissa Service Code has been framed under Article 309 of the Constitution of India, is not in dispute. It is well settled that the statutory rules framed under Article 309 of the Constitution can be amended only by a rule or notification duly made under Article 309 and not otherwise. Whatever be the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The Rules made under Article 309 of the Constitution cannot be tinkered by the administrative instructions or circulars." In the instant case, it is admitted case of the opposite parties that the first statute of Chhatrapati Sahuji Maharaj University (Kanpur University) has not been amended till date. It has also come on record vide short counter affidavit dated 14.8.2012 that the State Government while exercising the power under section 50(6) of the Act, 1973, directed the Registrars of the Universities to amend their respective statutes within 15 days, failing which the State Government will take steps for amending the statutes with the prior approval of the Chancellor of the State Universities. The present position is that none of the universities has amended their statutes and apparently State Government has also not amended the concerned statute with respect to make recruitment on class IV post of the affiliated and associated colleges of the Universities and, therefore, the directions contained in Government Order dated 20.7.2011 cannot be acted upon till the first statute of the concerned universities is either amended by the respective universities or by the State Government in accordance with the provisions of the Act, 1973. As far as the question of implementation of the Government Order dated 06.1.2011 is concerned, it is settled position of law that no Government Order, Notification or Circular can substitute the statutory provisions framed by the Authority in accordance with law as the Universities are the statutory bodies and its affiliated and associated colleges are governed with the provisions of the statutes framed under the provisions of the Act, 1973, therefore, this Court is of the considered view that para 2 of the Government Order dated 6.1.2011cannot substitute the provisions of the first statute of the universities with respect to recruitment of class IV employees. In view of the above, all the above writ petitions are allowed. The concerned Educational Authorities/ Director of Higher Education is hereby directed not to obstruct the process of selection and appointment on Class-IV posts in the Institutions affiliated/ associated to any university governed with the provisions of the U.P. State Universities Act 1973 till amendment of concerned first statute of the respective universities.There shall be no order as to costs." Pursuant to the aforesaid judgment of this Court, the statutes have been amended sometime in the year 2015 or thereafter. Contention is that the claim of petitioners could not have been rejected as on the relevant date of consideration the statutes had not been amended and the reason assigned to non-suit their case has been repelled under the order of this Court, extracted above. While entertaining the writ petition, learned Standing Counsel was allowed time to obtain instructions. Sri Vivek Rai, learned Additional Chief Standing Counsel has obtained instructions from the Regional Higher Education Officer, Varanasi, which are taken on record. As per the instructions, petitioners' claim has been rejected relying upon vide Government Order dated 6.1.2011. In view of the order passed by this Court in Writ Petition No.6389 of 2011, the ground taken to disapprove petitioners' appointment in the year 2014 cannot be sustained. Learned counsel for the petitioner submits that the order dated 3.1.2014 was not within their knowledge inasmuch as it was exparte and was brought to their notice only in response to their representation dated 11.12.2017. In such circumstances, the order dated 1.3.2014 cannot be sustained is set aside. The writ petition is disposed of with a direction upon the authority concerned to take a fresh decision in the matter keeping in view the observations made by this Court in Writ Petition No.6389 of 2011. It shall also be open for the respondents to take into consideration any subsequent development which may have intervened, and take a fresh decision in accordance with law."
(3.) The Regional Higher Education Officer thereafter has considered the claim of petitioners and rejected their representation vide the order impugned, dated 15.5.2019. This order records that the State Government has issued a Government Order, dated 24.2.2015, which contains a direction to the Universities to amend its statute and proceed to fill up posts by outsourcing. The Regional Higher Education Officer, therefore, has observed that in view of the said government order the claim of petitioners for appointment cannot be processed.;