Utt HC | “A decision passes sub-silentio, when a particular point of law involved is not perceived by the court”; Order set aside

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJM and Alok Kumar Verma, J. dismissed a writ petition where the petitioner sought mandamus against the respondent, to direct him to approve appointment of the petitioner as Principal in compliance with the amended second proviso to Rule (2)(1) of the Uttarakhand School Education Council Regulations, 2009.

The said petitioner had earlier filed a writ in the said Court on the same facts and relief to which a Division Bench took note of the contentions and had held that they were not inclined to express any opinion as to whether the petitioner must be deemed to have been appointed as a Principal, merely because the proposal made by the Committee of Management, for his appointment as a Principal, was not rejected within one month of its receipt by the Additional Director, more so as the writ petition was disposed of, with the consent of the parties. The writ petition was disposed of directing the Additional Director, School Education to pass orders on the proposal submitted by the Committee of Management, for the appointment of the petitioner as the Principal.

The counsel for the petitioner, Kartikey Hari Gupta submitted that the petitioner made representation to the Additional Director, who subsequently disposed petitioners to claim and held that promotion of the applicant to the post of downgrade Principal was not possible in the light of the High Court order, and the provisions of the Uttaranchal School Education Act, 2006. Further it was submitted that the Additional Director took note of the order passed by a learned Single Judge, in earlier writ petition of 2016 and observed that the High Court had clarified, in the said judgment, that selection procedure, provided for the post of Principal in the Uttarakhand School Education Act, 2006, and arrangement of downgrade principal provided through amendment in the 2009 Regulations, were contradictory to each other; and the Court gave primacy to the 2006 Act over the amendment to the 2009 Regulations, it had quashed the Regulations, and had suggested to the Government to carry out appropriate amendment in tune with Section 36(2) of the original Act, which was in regard to direct recruitment of Principal.

Kartikey Hari Gupta, counsel for the petitioner, drew attention to the 2018 amendment to the 2009 Regulations, where under, after the proviso to Regulation 2(1) of the Uttarakhand School Education Council Regulations, 2009, it was laid down that, likewise for promotion to the post of Principal at Inter Level, such regular senior-most teachers of the concerned school, who were eligible as per Schedule “A” of Chapter 2 of the Regulations, when they got selected  for grade after 10 years of ordinary grade, and if their work and conduct was satisfactory, they would then be promoted to the post of downgrade Principal, while giving them downgrade pay-scale of Principal; and, after completing 5 years in downgrade, the pay-scale of the Principal would be allowed.

On the contrary, the respondent had submitted that High Court had already quashed the amendment, as the petitioner had applied for the post on the basis of the second amendment, it was noted that the second amendment was allegedly passed without proper procedure and without changing the original Act. Hence the promotion of the applicant was not possible.

The Court observed that the learned Single Judge had already opined that there was a conflict between the Act and Regulations, and in such circumstances, the Act would prevail. It was also held by the Single Judge, “it was always open to the State Government, in its wisdom, to amend Section 36(2) of the Act which talked about direct recruitment; and the State Government had not taken recourse to amend the Act, but had amended the Regulations in contradiction to the Act.”

It was further observed that presumption regarding the constitutionality of subordinate legislation also, in the absence of a specific challenge thereto; it was not to strike down a Regulation on the premise that the Regulations fall foul of the provisions of the Parent Act. In the absence of any challenge to its validity, the Regulations made under the Act must be read harmoniously with the provisions of the Act. Hence, the order by the learned Single Judge was held to be a bad law and was set aside as had not examined the scope and purport of Section 36(2) of the Act, and had proceeded on the premise that Section 36(2) of the Act requires the post of the Head of the Institution to be filled up only by way of direct recruitment.[Somprakash v. State of Uttarakhand, 2019 SCC OnLine Utt 648, decided on 02-07-2019]

Join the discussion

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.