Madhya Pradesh High Court
Smt. Kamla Sharma vs The State Of Madhya Pradesh on 9 October, 2017
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WP No.1939/2017(S)
(Smt. Kamla Sharma v. State of MP & Others)
09.10.2017
Shri D.P.Singh, learned counsel for the petitioner.
Shri Vivek Jain, learned Government Advocate for the
respondent no.1-State.
Shri Yash Sharma, learned counsel for respondent no.2.
Shri Ankur Mody, learned counsel for respondent no.3. Heard.
Petitioner has filed this petition being aggrieved by order dated 18.01.2017, whereby a decision was communicated by respondent no.3 to the petitioner to superannuate her with effect from 28.04.2017 on completion of 60 years of age as she was appointed as Ad hoc Lower Division Clerk.
2. Petitioner's contention is that this order is incorrect inasmuch as vide order dated 23.05.1997, she was appointed on the post of Engine Attendant, which is a non-clerical technical post, for which the age of superannuation is 62 years. Petitioner has drawn attention of this Court to Annexure P/3, vide which the petitioner was granted an increment on completion of one year of service and then Annexure P/4, whereby she was again granted increment in the revised pay scale. Even in Annexure P/5, which is a EPF Trust Slip, the petitioner's designation has been shown as Engine Attendant so also in the documents of pay fixation Annexures P/6, P/7 and P/8 and, therefore, placing reliance on notification dated 23.06.1987, placed by the petitioner as Annexure-A, he submits that for the Polytechnic Colleges, the post of Engine Attendant has been treated as a teaching post and, therefore, she is entitled to continue upto the age of 62 2 WP No.1939/2017(S) (Smt. Kamla Sharma v. State of MP & Others) years. In view of such submissions, he prays for allowing the petition and quashing the impugned order Annexure P/1.
3. Respondents no.1 and 2 submit that they are formal parties and they do not wish to say anything.
4. As far as respondent no.3 is concerned, the learned counsel has drawn attention of this Court to Annexure R-3/1, which is Schedule-III of the Recruitment Rules, 1980 for appointment in Government Engineering Colleges, and submits that for the post of Engine Attendant, the minimum and maximum age limit prescribed was 18 and 30 years respectively, and besides this, the qualification, which was prescribed, was atleast High School/Higher Secondary School Certificate with ITI Certificate of competency in the trade with 03 years' experience of operating and maintenance of IC Engines or 10 years' practical experience in the concerned branch. He submits that the post of Engine Attendant is a post of direct recruitment and it could not have been filled by any person not possessing the qualifications as are provided under Schedule-III of the Recruitment Rules, 1980. He further submits that in fact, the appointment order Annexure P/2 so also a copy of which has been filed by respondent no.3 as Annexure R/3-2 dated 23.05.1997, makes a plain and simple reading when the petitioner was appointed on ad hoc basis against the post of Engine Attendant for clerical work, therefore, by virtue of her appointment against the post of Engine Attendant for performing clerical work, she will not get any lien on the post of Engine Attendant to derive the benefits attached to the post of Engine Attendant.
3WP No.1939/2017(S) (Smt. Kamla Sharma v. State of MP & Others)
5. In view of such submissions and also drawing attention of this Court to the service book of the petitioner, a copy of which has been filed as Annexure R-3/4 to show that in fact for sometime, the petitioner's husband Hari Babu Sharma was Principal of Samrat Ashok Technological Institute Polytechnic College, Vidisha, and he had unduly promoted the petitioner and suppressed the fact of her initial appointment for clerical work against the post of Engine Attendant, the petitioner will not given any benefits attached to the post of Engine Attendant.
6. In rebuttal, the learned counsel for the petitioner submits that Annexures P/3 and P/4 do not make mention of such ad hoc arrangement and directly makes a mention that the petitioner was working on the post of Engine Attendant and, therefore, she is entitled to derive all the benefits attached to the post of Engine Attendant.
7. When it was asked specifically that after issuance of order of appointment Annexure P/2, wherein it is specifically mentioned that the petitioner was appointed for clerical work against the vacant post of Engine Attendant and when she was given independent appointment on the post of Engine Attendant, the learned counsel for the petitioner submits that the orders, which have been issued subsequently granting increment, reveal that the petitioner was in fact working as Engine Attendant. When again asked about fulfillment of the educational qualification attached to the post of Engine Attendant, he submits that right now the issue is not in regard to eligibility of the petitioner to the post of Engine 4 WP No.1939/2017(S) (Smt. Kamla Sharma v. State of MP & Others) Attendant, but only the issue is in regard to petitioner's entitlement to continue upto the age of 62 years in view of Annexure-A and subsequent notifications issued by the State Government amending the age of superannuation for such persons to 62 years. He has drawn attention of this Court to orders Annexures P/11 and P/12 to show that similarly situated persons were allowed to superannuate on completion of age of 62 years.
8. As far as Annexures P/11 and P/12 are concerned, Annexure P/11 is in relation to Workshop Instructor and Annexure P/12 is in relation to Laboratory Technician. Therefore, their case is different from that of the petitioner. It is settled that to derive the benefits of a post, a person should have been appointed on that post and not against any post and secondly the persons so appointed should fulfill the educational qualifications of the post. Admittedly, the petitioner does not fulfill the educational qualifications of the post of Engine Attendant as is provided in the Recruitment Rules Annexure R-3/1. Admittedly, the petitioner had crossed the age of 30 years on the date of her initial appointment on 23.05.1997.
9. In view of these facts and also the fact that there is a proposal filed by the petitioner alongwith her rejoinder as Annexure P/14 moved by the Head Clerk of Samrat Ashok Technological Institute Polytechnic College, Vidisha, it is apparent that the petitioner was appointed against the vacant post of Engine Attendant and not on the post of Engine Attendant. There is difference between appointment 5 WP No.1939/2017(S) (Smt. Kamla Sharma v. State of MP & Others) against vacant post and appointment on a post. A person, who is appointed on a post, is entitled to derive all the benefits of that post, and a person, appointed against a vacant post, is not entitled to draw all the benefits attached to such post. In view of such facts and also the fact that the petitioner does not fulfill the necessary qualifications of Engine Attendant and, therefore, by implication it can be reduced that the petitioner never performed the duties of Engine Attendant, the petitioner is not entitled to keep her age of superannuation as is mandated for Engine Attendant. Thus, the petition fails and is hereby dismissed.
(Vivek Agarwal) Judge Mehfooz/-