SUMATHI REDDY N Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) This writ petition is directed assailing the vires of Rule 3 of the Andhra Pradesh Direct Recruitment to Posts of Teachers (Scheme of Selection) Rules, 1994. It is submitted before us that constitution of a separate selection body under the Rules for selection of teachers to posts under the control of Zilla Parishads, Mandal Parishads and Gram Panchayats arc contrary to the provisions of Art. 243-G of the Constitution brought in by the Seventy-third Amendment, read with Schedule Eleven of the Constitution of India as also the provisions of the Andhra Pradesh Panchayat Raj Act, 1994 (Act No. 13 of 1994). The argument proceeds to stress that the scheme of Article 243-G is for entrusting self-government powers to the Panchayat bodies which includes the power to appoint persons to the posts under their control and hence the rule could not have been made to deprive the Panchayat bodies of their power to select their own teachers. Article 243-G (b) calls upon the State to make laws for the implementation of schemes for economic development and social justiceas may be entrusted to the Panchayats including those in relation to the matters listed in the Eleventh Schedule and since items 17 and 18 of the Eleventh Schedule relate to "Education, including primary and secondary schools" and "Technical training and vocational education", the State cannot make a law, that too by a subordinate legislation, which is contrary to the scheme of Article 243-G of the Constitution. The rule is also contrary to the scheme of Art. 40 of the Constitution which expects the State to take steps to organise village panchaya ts and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.

(2.) The impugned rule has been framed under the provisions of the Andhra Pradesh Education Act, 1982 (Act No. 1 of 1982) and A.P. Panchayat Raj Act, 1994 (Act 13 of 1994). It is well settled in law that vires of any legislation can be questioned on only two grounds, the first being legislative incompetence to legislate on the subject-matter, and the second that the impugned law violates either any Fundamental Rights or other Constitutional Rights. The position was made clear even in a recent decision of the Supreme Court in State of A.P. vs. Mc Dowell & Co..

(3.) So far as the present rule is concerned it is a subordinate legislation and hence it can be declared ultra vires if it is found to be not sanctioned under the legislation under which it is framed or that the legislation itself is beyond legislative authority. This ground of disqualification would relate to ground number one as referred to above. There is no argument before us that the rule is not available to be made under either of the Acts and is ultra vires of any of them. It is also not available to be argued that the rule is ultra vires of Article 243-G of the Constitution of India read with the other constitutional provisions referred to above since if the rules are sanctioned under either of the Acts, then unless the Acts themselves arc ultra vires because of their being contrary to any provision of the Constitution or there being no legislative authority for their enactment, the rule framed under them cannot be declared ultra vires. There is no argument before us that either of the Acts are in any way ultra vires. This petition is to fail on the simple ground hence of being perfectly competent to be framed under intra vires Acts.