HARI LAL Vs. STATE OF U P

JUDGEMENT

(1.) IN this petition under Article 226 of the Constitution, the petitioners have challenged the validity of a communication dated June 24, 1986 sent by the State Government by radiogram. The communication has been sent to all the District Authorities stating that the Rules regarding selection for ministerial posts of the lowest cadre and also group ' D ' posts through District Selection Committees have been abrogated with effect from July 1, 1986 and from July 1, 1986 selection for the said posts shall be made through the Departmental Selection Committees. It was also directed that appointments against such vacancies available upto June 30, 1986 shall be made out of the select list already prepared by the District Selection Committees and thereafter the said list shall not be acted upon. Finally it was stated therein that Rules regarding departmental selection would be framed and detailed instructions would follow.

(2.) IT is now necessary to refer to the Rules to which a reference has been made in the said radiogram. They are the Rules framed by the Governor in exercise of powers conferred under Proviso to Article 309 of the Constitution. They relate to appointment and recruitment of the employees in Class III and IV for subordinate offices of U. P. Government (the ' Rules '). The Rules are called Adhinast Karyalaya Lipik Vargiya Karamchari Varg (Sidhi Bharti) Niyamawali, 1985. They were framed on March 16, 1985. They provide procedure to be followed by District Selection Committees for selection of candidates for class III and IV posts. The selection of typists shall be made by holding test and selection of clerks by interview. Every year such selection shall be made and the select list shall be prepared according to the requirements of the District departments. The select list so prepared would be valid for one year or till the next selection takes place.

(3.) THE main contention urged for the petitioners is that the Government could not have, and indeed has no power to supersede the statutory Rules by an executive instruction. On behalf of the respondents no counter affidavit has been filed. Perhaps, no counter could justify the action taken since the decision taken by the Government is indefensible. THE Rules for recruitment were promulgated by the Governor under Proviso to Article 309 of the Constitution. THE Government in exercise of executive powers could not supersede such statutory rules. It is a well established principle of law which does not require much elucidation. If any authority is needed-see the decision of the Supreme Court in State of Haryana v. Shamsher Jang Bahadur, AIR 1972 SC 1546 wherein it has been observed (at page 1547) :- " THE Government is not competent to alter the rules framed under Article 309 by means of administrative instructions."