NISHAD SADASHIV PAWAR Vs. DNYANASADHANA COLLEGE

JUDGEMENT

(1.) Rule. Heard forthwith. It is not necessary to set out the facts in detail in view of the order to be passed. It appears from the record that the petitioner nos. 1 and 2 were appointed as Assistant teachers. They belong to non B. C. category. Petitioner Nos. 3,4 and 5 have been appointed as Shikshan Sevaks. The Petitioner No. 3 belongs to O. B. C. The Petitioner Nos. 4 and 5 to N. B. C. Their appointments were approved. Subsequently the approval was cancelled. They approached this court and the matter was remanded back for consideration. On remand, the Deputy Director of Education for the reasons set out in his order has rejected the case of the Petitioners for being treated as regularly appointed Assistant Teachers/ shikshan Sevaks.

(2.) The Petitioners in Ground (c) have raised the following contentions :

(3.) It appears that the authority has proceeded on the footing that what has to be applied is Government G. R. in the matter of reservations. The G. R. is nothing but administrative instructions which will be applicable, if there is no primary or secondary legislation in force. In the instant case, under the M. E. P. S. Act, rules have been framed. Rule 9 (7) provides that the Management shall reserve 34% of the total number of posts of the teaching as well as non-teaching staff for the members of S. C. , S. T. and Backward Communities. In other words it is clear that rules in force being subordinate legislation are applicable. The issue is whether the G. R. s will prevail over the rules. G. R. s are issued pursuant to the executive powers of the State as provided by Article 162 of the Constitution of India. The rules are framed pursuant to delegation of powers by the Legislature on the delegate. The rule making power is subject to Legislative control. Rules are subordinate legislation whereas administrative instructions are not. Administrative instructions cannot contravene the rules. See Nanjundappa R. N. Vs. Themmiiah T. , (1972) 1 SCC 409. The rules therefore, will prevail over the G. R.