High Court of Judicature at Allahabad
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C/M Pratap Bahadur P.G. College Thru' Manager And Another v. Director Of Education (Higher) And Another - WRIT - A No. 61205 of 2005  RD-AH 7822 (18 April 2006)
Civil Misc. Writ Petition No.61205 of 2005
Committee of Management, Pratap Bahadur
P.G. College and another.............,..........................................Petitioner.
Director of Education (Higher)
Heard Sri P.S.Baghel, the learned counsel for the petitioner and Sri Pankaj Rai, the learned Standing Counsel for the respondents.
It transpires that the post of a Librarian fell vacant on account of the retirement of Sri Lallu Singh on 3.1.2005. This post was required to be filled up by a procedure as set out in Chapter XVIII of the Ist Statutes of the Avadh University to which this institution is affiliated. The Committee of Management made a request to the Director of Education (Higher) to send a nominee for being present in the Selection Committee. The Director of Education (Higher) by an order dated 12.8.2005 rejected the request of the Committee of Management and submitted that the post in question has now come under the purview of the U.P. Higher Education Service Commission Act, 1980 and that the post was now required to be filled up by the Commission in view of the Government Order dated 29.2.1996. The Committee of Management, being aggrieved by this order, has filed the present writ petition.
Chapter XVIII of the Ist Statutes of the Avadh University provides the procedure for an appointment of a Librarian in an educational institution which is affiliated to the Avadh University. The procedure indicates that the Selection Committee would consist of the Head of the Management or a Member of the Management, the Principal of the College and an officer nominated by the Director of Education (Higher).
The counter affidavit of the respondents reveals that they have taken resort to the Government Order dated 29.2.1996 by which the power to make appointments on the post of Lecturer has been given to the Commission.
The short question which arises for consideration is, whether the power to appoint a Librarian can be shifted to the Commission by a Government Order, i.e., by an executive order, when in fact, the procedure for an appointment of a Librarian has been given under the Ist Statutes of the Avadh University.
Under Section 50 of the U.P. State Universities Act, 1973 the State Government has been given a power to add or amend the statute. In the present case, admittedly the statutes have not been amended and the State Government by an executive order dated 29.2.1996 has directed that the post of the Librarian would now be filled up by the Commission. In my opinion, the State Government has no power to issue such a Government Order. Unless and until the Ist Statutes of the Avadh University is amended under Section 50 of the U.P. State University Act, 1973, the post of a Librarian can only be filled up as per the procedure provided in Chapter XVIII of the Ist Statute of the Avadh University. The State Government cannot shift the power of appointment of a post of Librarian to the Commission by a Government Order. Consequently, in the opinion of the Court, the Government Order dated 29.2.1996 has been issued without jurisdiction and the same is liable to be quashed.
There is another aspect of the matter. The preamble of the U.P. Higher Eduction Service Commission Act, 1980 states as under:-
"An Act to establish Service Commission for the selection of teachers for appointment to the colleges affiliated to or recognized by a University and for mattes connected therewith or incidental thereto."
From the aforesaid, it is clear, that the Act of 1980 has been established for the selection of teachers. The post of Librarian is not a teaching post and consequently the post of Librarian could not be filled up by the Commission unless the said Act is also amended.
In view of the aforesaid, the writ petition is allowed, the impugned order of the Director of Education(Higher) dated 12.8.2005 as well as the Government Order dated 29.2.1996 are quashed. The petitioner is directed to advertise the post of the Librarian and proceed with the selection as per the procedure evolved under Chapter XVIII of the Ist Statutes of the Avadh University. The Director of Education (Higher) is also directed to nominate a person as a Member of the Selection Committee upon a request sent by the Committee of Management.
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