- (1.) Heard Sri Ashok Khare, learned Senior Counsel in support of this petition and the learned Standing Counsel for the State respondents.
(2.) The instant petition has been preferred by the petitioners seeking quashing of a Government Order dated 18 November 2011. A further challenge is laid to a communication of the Basic Education Officer of 20 December 2011. That communication principally takes note of the Government Order aforementioned and the considered decision of the State to withdraw the benefit of notional promotion as was accorded to untrained Assistant Teachers in terms of Government Order dated 7 October 2009. At the very outset, it becomes pertinent to note that the validity of the Government Order dated 18 November 2011 has already been upheld by a learned Judge of the Court while rendering judgment in Ravi Prakash Mishra and Others v. The State of U.P. and Others1 . However, in order to deal with the submissions which are addressed it becomes pertinent to note the following skeletal facts.
(3.) All the petitioners were appointed as Assistant Teachers on compassionate basis. Admittedly at the time when they were initially appointed they did not hold a Training Certificate as statutorily prescribed and specified as an essential qualification for appointment as an Assistant Teacher. Pursuant to the Government Order of 4 September 2000, the petitioners are also stated to have been granted the trained payscale. On 7 October 2009, the State Government passed an order providing that notwithstanding an untrained Assistant Teacher having failed to obtain the Training Certificate, he would upon completion of five years of satisfactory service be granted notional promotion. The aforesaid Government Order led to the petitioners being placed in terms thereof in the relevant seniority list notwithstanding the fact that they had not obtained the Training Certificate and had only been granted the trained pay scale. The Government subsequently and in terms of the order of 18 November 2011 proceeded to delete paragraph -2 as contained in the Government Order of 7 October 2009 and which had accorded the facility of notional promotion. While upholding the validity of that Government Order, the learned Judge in Ravi Prakash Mishra has held thus: "Training qualification is essential and relaxation from the qualifications is to be provided in accordance with the general rules or orders of the Government in this behalf in force at the time of recruitment. The Government Order providing for compassionate appointment of untrained dependants provided for such appointees as untrained assistant teachers, with the condition that they will draw fixed salary. Thereafter Government Order has been issued permitting payment of salary in trained grade on completing five years of continuous service as untrained assistant teachers, said Government Order has been issued with the objective of conferring certain monetary benefits only, and not to accord relaxation from training. Sate Government on 07.10.2009 taking note of the fact that vide Government Order dated 04.09.2000, provision had been made, that except for the teachers who had completed five years of service as on 31.12.1999 and the teachers who were to attain their age of superannuation within two years, every teacher mandatorily was required to undergo training of two years but due to unavoidable circumstances training could not be imparted to dependants of deceased appointed under dying in harness category, and accordingly decision has been taken, to accord notional seniority and to be considered for promotion. Said Government Order dated 07.10.2009, paragraph 2 specifically has been rescinded by the State Government on 18.11.2011. The reason for rescinding paragraph 2 of Government Order dated 07.10.2009, by means of subsequent Government Order dated 18.11.2011, can not be faulted for the simple reason, that executive instructions cannot amend or supersede the statutory rules, and paragraph 2 of Government Order dated 07.10.2009 on the face of it was running counter to the provisions of Rules 8,10, and 22 of U.P. Basic Education (Teachers) Service Rules 1981 as there is no authority vested to accord relaxation from training qualification. The entire law on the subject has been summed up, in the case of Satish Kumar Vs. State of U.P. 2006 (4) ESC 2786 by mentioning that subordinate legislation cannot override the statutory rules nor can it curtail the content and scope of substantive provision for or under which it has been made. State Government has consciously withdrawn the same, and there is no infirmity in undertaking of such exercise. ...... ;