Shyam Narayan Sharma vs The State Of Madhya Pradesh on 20 July, 2010

[Cites 15, Cited by 14]

Madhya Pradesh High Court

Shyam Narayan Sharma vs The State Of Madhya Pradesh on 20 July, 2010

In the instant writ appeal and the writ petitions, question involved is about the absorption of District Adult Education Officers (hereinafter referred to as "DAEOs") as Assistant Directors vide Order dated 9.4.1999. Further question involved is whether they are entitled to be promoted to the post of Deputy Director in view of the rules called M.P. Education Service (School Branch) Recruitment and Promotion Rules, 1982 (hereinafter referred to as the "Rules of 1982").

2. Writ petition was filed by the appellant in writ appeal no.353/2007 in which prayer was made to quash decision dated 9.4.99 to absorb DAEOs and to assign them seniority as Assistant Director, Education, final 3 gradation list had also been assailed. Further prayer was made to direct the respondents to convene the DPC for promotion to the post of Assistant Director and Deputy Director and to consider their names and the other eligible candidates ignoring DAEOs absorbed as Assistant Directors. Prayer was also made to treat the DAEOs as a separate cadre.

3. Respondents 5,6 and 7 appeared for the appointment as Project Officers which was part of Adult Education Scheme in the year 1991 pursuant to the advertisement issued by MP Public Service Commission. By the time the examination results were declared the function of literacy project was wound up and they were appointed on two years probation as District Adult Education Officers. The rural function literacy project/ adult education scheme was under the control of school education department except in the State of M.P. Ultimately, the State Govt. took a policy decision on 13.07.94 to entrust the subject of adult education to the 4 school education department. Pursuant thereto another order was issued on 21.7.94.

4. Original applications no.492/97 and 1409/97 were filed before the State Administrative Tribunal, Bench at Indore in which the State Govt. was directed to take a decision with respect to absorption of employees of adult education department. The State Govt. vide Order dated 9.4.99 merged the Directorate of Adult Education with Directorate of Public Instructions. The said order also assigned the seniority to the Assistant Director/DAEOs, pursuant thereto gradation list was issued. Common gradation list was prepared of Assistant Directors and the Principals, hence the representation dated 12.04.2002 was filed. Appellants submitted that post of Assistant Director, Public Instructions,Deputy Divisional Superintendent of Education and Principal, BTI formed one cadre from which the promotions are to be made to the post of Deputy Director.

5. The amendment was incorporated in the year 1990 in the Rules of 1982 providing that if incumbents mentioned at Sr.No.4-A of Schedule are not available, then incumbents having six years experience mentioned at Sr.No.5 A,B and C of the Schedule may be considered to the promotion for the post of Deputy Director, Public Instructions if the persons working on the post at Sr.No.4 of the schedule are not available. Appellants contended that order dated 9.4.99 passed by the State Govt.was contrary to the directions issued by the State Administrative Tribunal vide order dated 24.11.98 passed in OA No.492/97. The DAEOs had never sought such a relief which has been given by the State Govt. by its order. Adult education department should have been declared as a separate cadre in the school education department for the purpose of adult education with adequate provisions for protection of service conditions and chances of promotion in the form of an isolated service. There could not have been any merger and assignment 6 of seniority to DAEOs as Assistant Directors. Under Rules of 1982, qualification, pay scale,etc.is governed by rule 5 and schedule I. Rule 5 prescribes the method of recruitment through direct recruitment, by promotion or by transfer of persons from such cadre/service as specified in column 5 of schedule II. The posts of Assistant Director, Public Instructions are filled 100% by promotion. Absorption was not the permissible mode. Absorption of DAEOs could not have been made for various other reasons. The post of Assistant Director and Principal, Higher Secondary School is inter changeable. The juniors to the principals have been absorbed as Assistant Directors without following any uniform policy. Certain incumbents were not promoted to the higher posts though they were having 5 years' experience as Assistant Director.Certain representations were filed pointing out the grievance, but with no avail. Considering the qualification required for the post of Assistant Director unequals have been treated 7 as equals. Initially the DAEOs were having lesser pay scales as compared to that of Principals. The final gradation list which was published was not in accordance with law, provisional gradation list was not published, without that final gradation list could not have been issued.

6. In the return filed by respondents 1 to 3, State of M.P. and its functionaries, it is contended that pursuant to the decision of the State Govt. dated 21.7.94 the staff working in Adult Education Scheme under Panchayat and Social Welfare Department was transferred to the School Education Department along with their posts. Total number of 868 employees who were serving in the education scheme were declared surplus by an Order dated 20th May,1997.After the decision to absorb these employees in School Education Department, they were absorbed in their equivalent posts maintaining their seniority. Said decision was challenged by some of the DAEOs before the Tribunal on the ground that on transfer to the School 8 Education Department, their service career was likely to be affected adversely, thus, prayer was made to restrain the Govt. from transferring their services to the School Education Department. The Tribunal dismissed the application vide Order dated 24.11.98. The decision of the State Govt. was upheld of revision of pay scale, DAEOs were granted pay scale of Rs.8,000-Rs.13,500 and were classified as Class II, Gazetted Officers. On revision of pay scale, salary of Assistant Director, Principal, High Secondary School was also revised to Rs.8,000-Rs.13,500, pay scales of DAEOs and Assistant Director became the same with effect from 1.1.96. There were total 49 posts of DAEOs and 35 persons were working, thus, only 35 DAEOs were brought to the School Education Department.

7. Respondents 5 to 7 before the writ Court also filed their return taking more or less the similar stand as taken by the State Govt.

8. Writ petitions, WP(S) no. 380/03 (Dhirendra Chaturvedi and another vs. State of M.P.and others),WP(S) No.1138/03 9 (Dr.R.K.Singh vs. State of M.P. and others) and writ petition WP(S) No. 1909/03 were filed by the DAEOs who were absorbed as Assistant Directors apprehending that their cases may not be considered for the promotion to the post of Deputy Director. These writ petitions were also decided along with WP No. 17767/03 preferred by Shyam Narayan Sharma and others by a common order dated 15.01.2007 by a single Bench of this Court.

9. The single Bench has upheld the policy decision taken on 9.4.99 of absorption of DAEOs as Assistant Directors and granting them seniority. It has also been held that claim for formation of different cadre of Adult Education in the School Education Department is not acceptable. Separate gradation list of DAEOs was not necessary to be prepared. Liberty was given to file representation in case there is any grievance with respect to gradation list. The authorities may proceed to fill up the post of Assistant Director as per the amendment made in the rule on 18.5.90.

10. Matter does not rest at the order passed by the single Bench of this Court. Another writ petition was filed by certain Principals at Indore Bench of this Court, i.e. WP No.47/09(s) which was disposed of by single Bench of this Court vide Order dated 9.1.09. Prayer was made to direct the State Government to take a decision on notice of demand of justice dated 31st December, 2008. Single Bench of this Court at Indore Bench directed the final decision to be taken on legal notice within a period of two weeks by the Principal Secretary also taking into consideration the directions issued by the Division Bench in the instant writ appeal no.353/07 vide Order dated July 3rd ,2008. Thereafter decision has been taken by the Principal Secretary on 28th February, 2009 holding that as per Rules of 1982 as amended in 1990 only the DAEOs having experience of one year on the post of Assistant Director and four years experience on the posts of entry 5(A),(B),(C) of Schedule IV were eligible for promotion. In other words the 11 Principal Secretary also came to the conclusion that such officers who were having four years experience as against seven posts mentioned at item no. 5(A),(B),(C) and having one year experience as Assistant Director are entitled for promotion as Deputy Director. In case aforesaid incumbents are not available, then the incumbents having six years experience on the posts mentioned at item 5(A),(B),(C) in Schedule IV are entitled for consideration for promotion as Deputy Director. Thus, the DAEOs absorbed as Assistant Directors become disentitled for promotion as Deputy Director as they do not possess the experience of four years or six years on the posts mentioned at Sr.No.5(A),(B),(C) of Schedule IV. Hence they have preferred three writ petitions no. WP 14599/07, 2579/09 and 2934/09. It is submitted by them that the action of the State Government is contrary to the stand taken in the writ petition filed by the DAEOs and is also contrary to the stand taken in the reply to the interim application filed in 12 the writ appeal in which it was submitted that DAEOs have been absorbed as Assistant Directors and they have been accorded seniority, thus, they are entitled for consideration for promotion to the post of Deputy Director.

11. The State Govt.in its return filed in the aforesaid writ applications has justified order dated 28.2.2009 passed by the Principal Secretary, School Education Department.

12. Shri K.K.Trivedi, learned counsel appearing on behalf of appellants in writ appeal has submitted that vide Order dated 9.4.99 there was no absorption of DAEOs as Assistant Director of Public Instructions. They were simply absorbed as Assistant Directors and that too in a separate wing of Directorate of Public Instructions. Thus, DAEOs could not have been included in the cadre of Assistant Director, Public Instructions. They are not entitled for promotion as Deputy Director. View taken by the Principal Secretary in the decision dated 28.2.09 is in accordance with the prevailing 13 law. State never intended to absorb DAEOs as Assistant Directors ,Public Instructions. Alternatively, he has submitted that the posts of Assistant Director as mentioned in Schedule II of Rules of 1982 is to be filled 100% by promotion. The posts of Principal, Higher Secondary School are to be filled in 25% by direct recruitment and 75% by promotion. The qualification for the post of Principal, Higher Secondary School are mentioned in Schedule II to be degree of post graduation with a minimum of IInd Division with B.Ed. or equivalent, and five years teaching experience in Higher Secondary School. Comparing the qualifications of DAEOs their absorption could not have been ordered on the post of Assistant Director, Public Instructions. The posts of District Education Officer, Assistant Divisional Supdt. of Education and Principal, Higher Secondary School were inter changeable, whereas DAEOs used to be appointed under the rules, known as M.P.Panchayat and Social Welfare Services (Gazette) Recruitment Rules, 1984. The posts 14 of DAEOs was to be filled in by 40% direct recruitment and 60% by way of promotion. For direct recruitment as per Schedule III, the degree of graduation in Arts, Science or Commerce from a recognized University or equivalent thereto was prescribed. The Leprosy Welfare Officers could also have been promoted on completion of three years of service as DAEOs. The substance of the submission of Shri K.K.Trivedi, learned counsel appearing for the appellants is that DAEOs were not comparable with Assistant Director, Public Instructions in the matter of educational qualifications, pay scales and job responsibilities which was higher in the case of Assistant Director of Public Instructions. Though the DAEOs were given pay scale of Rs.8000-Rs.13,500 but in no event they could have been treated as equivalent to Assistant Director, Public Instructions though the said scale was equal to the post of Assistant Directors.

13. Shri Trivedi has further relied upon M.P.Public Service Promotion Rules, 2002 to 15 submit that qualification for promotional post, if not prescribed in the Schedule would be the qualification of the feeder post. DAEOs who were not qualified to be appointed as Principal of Higher Secondary School could not have been absorbed on the post of Assistant Director, Public Instructions. Principals can be promoted as Assistant Director, Public Instructions and they in turn can be promoted as Deputy Directors. Without amending the Rules of 1982 the absorption of DAEOs could not have been made by issuing executive instructions. Executive instructions can supplement the rules not supplant.

14. Shri Sanjay Agarwal, learned counsel appearing for intervenors has supported the arguments of Shri K.K.Trivedi. He has further submitted that Rules of 1982 provides the method of recruitment, thus, method of absorption was not permissible. For making absorption, it was necessary to amend the rules. The amended rules on 18.5.90 could not be said to have contemplated the 16 situation which arose in the year 1999. Action is violative of the rules. Effort has been made by the State Govt. by issuing executive instructions to supplant the rules.

15. Shri Rajendra Tiwari and Shri R.N.Singh learned Senior Counsel, Shri S.Paul, learned counsel appearing for petitioners in writ petitions no.14599/07, 2579/09 and WP 2934/09 and Shri P.K.Kaurav, learned Deputy AG appearing for State submitted that decision was taken of merger of adult education department and school education department on 30th June, 1994. On 10.12.97 certain employees of adult education scheme were absorbed in the school education department and were granted seniority. Later on DAEOs were also absorbed as Assistant Directors, Public Instructions and granted seniority vide order dated 9.4.99. The matter of absorption and merger is not governed by the rules. It was open to the State Govt. to frame the policy in that regard. They have also relied upon Rule 6(iv) of 1982 Rules which provides that considering the exigencies of service, 17 Government may with the approval of the General Administration Department adopt such methods of recruitment to the service other than those specified in said sub-rules. Government has merged the post of DAEOs with the approval of GAD. Gazette notification dated 16.6.94 was issued for the said purpose. DAEOs were in the same pay scales with effect from 1.1.1996. The post of Principal was not only the feeder cadre for the post of Assistant Director. Promotion could have been made from several other posts. Apart from that under the Recruitment Rules of 1984 of Social Welfare Department, eight posts were inter changeable. What is of significance is that post of DAEO was inter changeable with that of Assistant Director in the Rules of 1984. Before merger the DAEOs were already working in the Department of Public Instructions as Assistant Directors. Thus, they were rightly absorbed as Assistant Directors, Public Instructions. The feeder cadre for the post of Assistant Director, Public Instructions did not require the post 18 graduation to be the essential qualification. Several channels for promotion were provided. Even LDCs, Asstt.,etc. could have been promoted to the post of Assistant Director, feeder post carries much lesser educational qualification as compared to that of DAEOs. In the Rules of 1982 for the post of Assistant Director, Public Instructions, no educational qualification has been prescribed. Thus, it was not possible to draw the analogy from the educational qualification possessed by the Principals. Once there is a merger, source of induction looses its importance, and seniority has to be accorded in the merged cadre irrespective of source of induction. It cannot be said that the action of merger is bad in law due to reduction in chances of promotion of the Principals. There is no vested right in chances of promotion, they do not constitute condition of services. There was no question of treating the post of Assistant Director, Adult Education ex cadre. There was no separate wing of adult education department 19 in the school education department. In the Rules of 1982 amendment was made in Schedule 4, from item 4(A) it is apparent that word "shall" has been used for the purpose of one year experience as Assistant Director and "may" has been used for four years experience out of the posts mentioned at Sr.No.5(A),(B) and (C). The amendment is in the nature of addition. It does not delete the previous requirement of Assistant Director possessing five years experience as eligibility for the post of promotion to the post of Deputy Director of Public Instructions. In other words, in case an Assistant Director having five years experience is available, he can be promoted as Deputy Director,Public Instructions. Even if he is not possessing experience of one of the posts mentioned in column 2 at Sr.No.5(A),(B) and (C) of the Schedule 4.

16. Shri P.K.Kaurav, learned Deputy AG appearing for the State, faced with two contradictory returns filed by the State, stands stunned, however, to the best of his 20 ability at command, he has tried to support the stand taken by the State Govt. in WP No.17767/03 which was filed by Shyam Narayan Sharma and others decided by the impugned order passed by a single Bench of this Court. He has further submitted that the stand of the State Govt.beside the return filed in the said case, is best reflected in para 6 and 7 of the reply to the ad-interim application filed in WA No.353/07, decision dated 28.2.2009 rendered by the Principal Secretary was pursuant to the direction issued by the Indore Bench of this Court. When the matter was sub-judice before this Court in the form of writ appeal, it was not appropriate for the Secretary to decide the matter contrary to the decision rendered by a single Bench of this Court in WP No.17767/03. As against decision no appeal has been preferred by the State Govt. In the circumstances, it could not have been said to be a decision rendered by the State Govt. and it could not be said to have been declared in the form of policy decision by the State Govt. It was 21 simpliciter a decision taken on representation by acting as Principal Secretary in his personal capacity, it runs contrary to the rules and the decision taken by the State Govt.for merger and also the decision of single Bench of this Court. He has submitted that the State Govt.has taken a conscious decision to absorb all the employees of adult education scheme in the school education department of the State of M.P. Earlier in the year 1997 when order was passed with respect to large number of other employees as the case was pending before the Tribunal, the orders of absorption were not passed with respect to DAEOs. Thereafter decision has been taken in the year 1999 to absorb them also and to grant them seniority as has been done in the case of other employees. There is no illegality in the order dated 9.4.99, thus, no case for interference is made out in the order passed by the single Bench of this Court.

17. The main question for consideration is whether the merger of DAEOs in the cadre of 22 Assistant Director, Public Instructions and grant of seniority to them can be said to be in accordance with law.

18. It is not in dispute that there used to exist adult education department which was under Panchayat and Social Welfare Department of State of M.P. The incumbents who have been absorbed as DAEOs were appointed in the year 1991 after they were duly selected by the Public Service Commission. In the year 1994 on 16.6.94 while issuing gazette notification, the work of adult education was assigned under business allocation rules to school education department. As a sequel to the aforesaid decision, entire work of adult education was assigned to the school education department vide communication dated 30th June,94, with effect from 1st July,1994 along with budget, assets, staff sanctioned under the project from time to time except the project officers and accountants of the districts, list of which was enclosed along with letter dated 21.7.94. On 28.5.97 an order was passed by the Govt. of M.P., School 23 Education Department as surplus incumbents came from the adult education scheme which used to be run by the Social Welfare Department. Order dated 10th December, 1997 was passed for absorbing the aforesaid surplus staff of the adult education scheme in the school education department. The due seniority was accorded pursuant to the absorption. However, three Assistant Directors out of the adult education scheme preferred not to be absorbed as such they were kept outside the absorption. The cases of DAEOs were not considered at the relevant time for absorption as matter was sub-judice in the Tribunal. The Tribunal has passed an Order in OA No.492/97 on 24.11.98. The Tribunal declined to make interference on the ground that matter was under consideration with the State Govt. as Adult Education Directorate was functioning in the State. The Tribunal suggested the entire staff and officers of the Adult Education Scheme could be declared as separate cadre under the School Education Department for a specific 24 scheme with adequate provisions for protection of service conditions and chances of promotion in the form of an isolated service; the incumbents of the post of DAEOs could be allowed to be borne on the seniority list of Social Welfare Department as usual till the present vacant posts of Dy.Director, Panchayat and Social Welfare are filled. It is pertinent to mention here that no mandatory directions were issued by the Tribunal, only the aforesaid observations were made to be considered by the State Govt. Petition was disallowed with the aforesaid observations. Thereafter State Govt. has passed considered decision dated 9th April,1999. Order dated 9th April,1999 makes a mention to the earlier order of absorption and grant of seniority to other employees which was passed on 10th December, 1997 and the decision rendered by the State Administrative Tribunal in aforesaid OA No.492/97 decided on 24.11.98. As adult education scheme has been handed over to the school education department, other employees 25 had been absorbed and given the seniority and same is now part of the Office of Commissioner, Public Instructions. As Directorate of Adult Education has been merged with Directorate of Public Instructions, decision was taken to treat Adult Education Officers as Assistant Directors and to grant them seniority so that they are able to obtain the chances of promotion also. The substance of the order appears to be of absorption as also apparent from Order dated 9th August,2007, they were treated to have been absorbed along with Assistant Directors of Department of Public Instructions.

19. The salary of DAEOs was somewhat less by at least Rs.50/- for few years as compared to that of Assistant Directors, Public Instructions. However, salary of the Principal, Assistant Director, Public Instructions, and that of DAEOs working under Adult Education Scheme was brought at par under the revision of pay rules with effect from 1.1.96 to the pay scale of Rs.8,000- 26 Rs.13,500. The post of Assistant Director, Public Instructions under the Rules of 1982 could have been filled by way of promotion from the post of Assistant Divisional Supdt.of Education, District Education Officer, Principal Higher Secondary School, Principal Pre-Primary Training Institute, Supdt. Jeewaji Observatory, etc. The Lower Division Teacher is promoted to the post of UDT, further promotion is to the post of Lecturer,and Lecturer is promoted as Principal, Higher Secondary School and Principal, Higher Secondary School is promoted as Assistant Director, Public Instructions. For the post of Lower Division Teacher, the prescribed qualification, at the relevant time was higher secondary. There was yet another channel of promotion to the post of Assistant Director from Supdt.cadre. The basic post in the channel was that of LDC who used to be promoted as UDC, UDC used to be promoted as Asstt.Supdt. Further promotion was to the post of Supdt., Directorate of Public Instructions, and then to Asstt. 27 Director. The post of LDC carries the qualification of typing pass and higher secondary. The recruitment to the post of LDT was governed by MP Education Department Non- Collegiate Class III Non-Ministerial Recruitment Rules, 1973 whereas recruitment to the post of LDC and other ministerial staff was governed by MP Education Department Non Collegiate Class-III Ministerial Rules,1973. There used to be yet another cadre of Assistant Director, Physical Education with which we are not concerned . The promotion channel was Physical Training Instructor, for the said post the qualification of Graduate degree in Physical Education was provided. The first promotion was as Lecturer and then Divisional Games & Sports Inspector. Further promotion was to the post of Principal, College of Physical Education, and then as Assistant Director, Physical Education, and these Asstt. Directors of Physical Education constituted the cadre for promotion to the post of Deputy Director, Public Instructions. No doubt 28 about it that for the post of Principal, post graduation with B.Ed.was necessary whereas for the post of DAEOs, graduation was the requisite qualification. But considering the qualifications prescribed for the other feeder cadre post which formed channel of promotion to the post of Assistant Director.It could not be said that the qualification possessed by DAEOs was less so that they could not have been absorbed as against the post of Assistant Directors, Public Instructions vide Order dated 9.4.1999.

20. In case of such merger of cadre, obviously it has to be the matter of the policy as laid down by the Apex Court in Union of India and others vs. S.L.Dutta and others 1991 (1) SCC 505. The Apex Court has laid down that the executive power of the Union of India when it is not trammeled by any statute or rule is wide, and pursuant to its power it can make executive policy.

Rule 6(iv) of the Rules of 1982 reads thus :-

"6.Method of recruitment :(iv) Notwithstanding anything contained in sub-rule (i) if in the opinion of the Government the exigencies of the service so require, the Government may with the approval of the General Administration Department adopt such methods of recruitment to the Service other than those specified the said sub-rules as it may, by order issued in the behalf prescribe."

Acting under the aforesaid rule, it was open to the State Govt. with the approval of General Administration Department to adopt such method of recruitment to the service other than those specified by the said sub rule (iv) of rule 6. Rule 6 provided the method of; (1) direct recruitment by promotion of members of the M.P.Education Service from a lower post/cadre as specified in column (2) schedule IV to a higher post/cadre (2) by transfer of persons from such cadre/service as may be specified in Column (5) of Schedule II. The approval of GAD was granted for merger of adult education department to the school education department vide notification dated 16th June,1994, pursuant thereto the employees were absorbed and seniority was granted to them on 10th December, 1997, later on on 9th 30 April,1999 the absorption of DAEOs was made as Assistant Director. It was submitted by Shri Trivedi and Shri Agrawal that absorption could not be said to be in terms of Rule 6(iv) of the Rules of 1982. In our opinion, conceptual permission was granted by the GAD for taking over the entire work of adult education by school education and that would include in itself the assets, liabilities and taking over of employees.

21. Even if the aforesaid Rule 6(iv) of Rules of 1982 is ignored, it was open to the State Govt. to take policy decision independently for absorption/merger of such employees of Adult Education Scheme which had been handed over to the School Education Department in the year 1994. Large number of such employees who were surplus in school education department were absorbed and granted seniority in their respective cadre vide order dated 10th December, 1997. Similar treatment was accorded to the DAEOs by adjusting them on the post of Assistant Director, Public Instructions along with other Assistant 31 Directors of the Department of Public Instructions.

22. A Division Bench of this Court in Vijay Kumar Mishra vs. Sanjay Rusia and others 2004 (3) MPLJ 489 has dealt with the concept of merger and has laid down that merger carries a different facet. It could not have been envisaged in the rules. Division Bench has made the following observations :-

"20A :- Mr. Shrivastava has referred us to the rules of 1969 to show that the appointment are to be made to the Public Works Department by many a way namely appointment, promotion, transfer and deputation. The learned senior counsel has submitted that the concept of merger is not in existence. The concept of merger is a different facet. It could not have been envisaged in the rules which had came into existence in 1969. It is not a case where two employees are appointed in the same department, one through the mode provided in the rules, one in a different way. It is a case when a situation of merger has taken place and, therefore, the authority is required to take a policy decision for the purpose of determination of seniority."

23. In S.P.Shivprasad Pipal vs. Union of India and others (1998) 4 SCC 598 the Apex Court has laid down that merger is essentially a policy decision. In P.U.Joshi and others vs. 32 Accountant General and Ors. (2003) 2 SCC 632 it has been laid down that questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State. It is open to the State Govt. by appropriate rules to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service.

The Apex Court in S.I.Rooplal and Anr.vs. Lt. Governor Through Chief Secretary, Delhi and Ors. AIR 2000 SC 594 held that equivalency of two posts are not to be judged by sole fact of equal pay. While determining the equation of two posts many factors other than "Pay" 33 will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. The concept of equivalence of posts was considered by the Apex Court. There are many factors which are required to be considered such as (i) the nature and duties of a post, (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held or responsibilities discharged;(iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post "not equivalent". The Apex Court S.I.Rooplal and Anr.vs. Lt. Governor Through Chief Secretary, Delhi and Ors.(supra) has held thus :-

"17. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than `Pay' will have to be taken into consideration, 34 like the nature of duties, responsibilities,minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India and Anr. v. P.K. Roy and Ors,AIR 1968 SC 850, (1970) I LLJ 633 SC, [1968] 2 SCR 186. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are : (i) the nature and duties of a post, (ii) the responsibilities and powers exercised by the officer holding a post; the extent Of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post `not equivalent'. In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the tribunal in the impugned order that the two posts of Sub-Inspector in the BSF and the Sub-Inspector(Executive) in Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay-scale, is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court in the case of Vice- Chancellor, L.N. Mithila University v. Dayanand Jha.AIR 1986 SC 1200, [1986] 3 35 SCC 7 wherein at para 8 of the judgment, this Court held:

"Learned counsel for the respondent is therefore right in contending that equivalency of the pay scale is not the Only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility. The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts."

24. Considering the exposition of the law made by the Apex Court in the aforesaid decisions and the factual matrix of the case narrated above, it is apparent that the post of DAEO was inter changeable with that of Assistant Director. The post of Assistant Director existed in Adult Education Scheme run by Social Welfare Department. Responsibilities of the post of Assistant Director, Adult Education Department and that of Public Instructions were more or less same. Though there used to be slight difference of the pay scale, pay scale of Principal and DAEOs was less by approximately Rs.50/-, but later on it was brought at par with effect from 1.1.96 and pay scale of the aforesaid posts became same 36 i.e. Rs.8,000-Rs.13,500. When we come to the educational qualification also, promotion to the post of Assistant Director Public Instructions, was from aforesaid different cadres. Even Lower Division Teacher could have been promoted ultimately to the post of Assistant Director, Public Instructions as well as LDC possessing the minimum qualification of higher secondary and typing. The qualification possessed by Principals was no doubt a little higher,but here the question was of absorption to the post of Asstt. Director, Public Instructions. For the post of Assistant Director, Public Instructions no educational qualification as such was provided in the Rules. Only channel of promotion is provided under the rules from different cadres. Thus, the absorption of DAEOs who were holding the qualification of graduation and were sufficiently experienced could not be said to be impermissible considering the fact that for the post of Asstt. Director, Public Instructions no minimum qualification was prescribed. The posts being 37 supervisory post it was considered appropriate to absorb them as Assistant Director, Public Instructions instead of the post of Principal which also carry equal pay. The post of DAEOs and Assistant Director in department of Adult Education were inter changeable Considering the nature of work and duties rendered, absorption of DAEOs as Assistant Director, Public Instructions could not have been faulted or termed as arbitrary or irrational.

25. Coming to the submission raised by Shri K.K.Trivedi that as per Order dated 9.4.99 there was no adjustment/absorption as against the post of Assistant Director, Public Instructions. Reading of the entire order makes it clear that there was adjustment/absorption of these incumbents with the other posts of Assistant Director existing in the school education department which also included the posts of Assistant Director, Public Instructions. It has been mentioned as a fact that Adult Education Scheme is now part of School Education Department and Adult Education Directorate is part of School 38 Education Directorate. It was not intended to create a separate wing of adult education in the School Education Department as apparent from the earlier orders dated 10th December, 1997, 16.6.94, 30.6.94 and 21.7.94. Thus, we have no hesitation to reject the aforesaid submission raised by Shri Trivedi.

26. Shri Trivedi has also submitted that considering the M.P. Public Service Promotion Rules, 2002, if the qualification for the promotional post is not prescribed under the Schedule, it would be the qualification of the feeder post. Thus, he has submitted that qualification for the post of Principal has to be taken as minimum qualification for the post of Asstt. Director, Public Instructions as already discussed by us the post of Principal was not only the feeder post, there were several other feeder posts such as that of Superintendent, Directorate of Public Instructions which was the ultimate promotional post of LDC, Principal, Higher Secondary School itself used to be promoted from the post of Lower Division Teacher and 39 another feeder cadre was Principal, College of Physical Education which was the promotional post of Physical Training Instructor having qualification of graduation. Thus, submission of Shri Trivedi based upon aforesaid rules so as to contend that DAEOs were not duly qualified to be adjusted as Assistant Directors in the School Education Department cannot be accepted.

27. Coming to the question of promotion to the post of Deputy Director. The qualification/experience required for the purpose of promotion to the post of Deputy Director, Public Instructions is provided in Rules of 1982. The Schedule 4 of the said Rules has been framed under rule 6 containing the requisite eligibility for the purpose of promotion to the various posts. Before 18.5.90, Assistant Director having experience of five years could have been promoted as Deputy Director, Public Instructions. It appears that as sufficient numbers of Assistant Directors having five years experience were not available as such by way 40 of amendment certain provision relaxing the aforesaid qualification of five years experience as Assistant Director was added as under :-

Recruitment Rules, 1982 Amended Rules 18.5.1990 SN Name of the Name of Experi Schedule No.4 post from the post ence which on which for promotions is promotions the to be made is to be post made 1 2 3 4 4 A Asstt.Director Dy 5 Under the heading "A-

(1) of Public Director years Administration", in column (4) Instruction/As of Public against serial No.4 the following stt. Director Instructio provision, shall be added, namely of Public n -

Instruction (Physical) "out of which at least one year Education experience shall be on the posts mentioned in column (2) and the remaining four years of experience (2) Dy.Divisional Divisional may be on the post mentioned in Superintendent Superintend column (2) of Serial No.5(A), (B) of Education ent of and (C) viz. Asstt.Divisional Education Superintendent of Education, District Education Officer, (3) Principal Science Principal Higher Secondary School, Basic Training Consultant Principal Preprimary Training Institute in Institute, Superintendent Jiwaji Directorate Observatory, Principal Higher Sanskrit Vidyalaya, Principal College of Physical Education on the 1st day of January of that year in which the promotion is to be made.

After serial No.4 and entries relating thereto, the following serial No. and entries shall be inserted, namely -

                                                    (1)     (2)             (3)      (4)
                                                    4-A     in case the     Dy.D     6
                                                            required        irec     y
                                                            number     of   tor      e
                                                            candidates      of       a
                                                            in the cadre    Publ     r
                                                            of     Asstt.   ic       s
                                                            Director        Inst
                                                            mentioned at    ruct
                                                            A in column     ion
                                                            (2)   against
                                                            Sr.No.4    is
                                                            not
                                                            available,
                                                            candidates
                                                            on the posts
                                                            mentioned in
                                                            column    (2)
                                                            of
                                                            Sr.no.5(A),(
                                                            B) and (C)
                                                            shall      be
                                                            considered
                                                            for
                                                            promotion to
                                                            the post of
                                                            Dy.Director
                                                            of     Public
                                                            Instruction.
                                       41

It is apparent from the amendment which was brought about that it was not a case of substitution of provision but the addition. The basic requirement of five years experience was not substituted, but it was added that out of five years experience, at least one year experience "shall be" on the post mentioned in Column 2 and four year experience "may be" on the post mentioned in Column 2 of Sr.No.5(A),(B),(C) shall be considered for promotion to the post of Deputy Director, Public Instructions. It was also provided by making entry after Sr.No.4 as 4-A that in case the incumbents mentioned in item 4 at A in Column 2 are not available, candidates on the posts mentioned in Column (2) of Sr.No.5(A),(B),(C) having six years experience on the post shall be considered for promotion to the post of Dy.Director of Public Instruction. Thus, it is apparent from Schedule 4 Sr.No.4 that in case Asstt. Director having five years experience is available, he is entitled to be considered for 42 promotion to the post of Deputy Director, Public Instructions. He need not possess the experience of four years on the posts as mentioned in Column 2 of Sr.No.5(A),(B),(C). It was added that incumbents having at least one year experience on the post mentioned in Column (2) and the remaining four year experience may be on the post in Column 2 of Sr.No.5(A),(B),(C)i.e. Asstt. Divisional Supdt. of Education,District Education Officer, Principal Higher Secondary School, Principal Pre-primary Training Institute, Supdt.Jiwaji Observatory, Principal Higher Sanskrit Vidyalaya, Principal College of Physical Education on the 1st January of that year in which the promotion is to be made. The use of word "shall" and "may" is also significant. Shri G.P. Singh in his interpretation of Statutes 12th Edition has mentioned that the use of word "may" at one place and "shall" at another place in the same section may strengthen the inference that these words have been used in their primary sense and that "shall" should be construed as 43 mandatory. When the expressions "shall" and "may" are defined in the Act, the explanations have to be given the meaning as defined. The experience of four years is qualified with word "may be" on the post specified in Column

2. It is not a mandatory requirement. The Principal Secretary while passing order dated 28.2.2009 has failed to consider the aforesaid aspect. The use of word "shall" is prima facie mandatory. Sometimes it would mean as "may" also as laid down by the Apex Court in State of U.P. vs. Babu Ram Upadhyay AIR 1961 SC 751. The effect of the word "may" has also been considered by the Apex Court to same effect in The Chairman,Canara Bank, Bangalore vs. M.S.Jasra and others AIR 1992 SC 1341. In Mahaluxmi Rice Mills and Others vs. State of U.P. and others (1998) 6 SCC 590 the Apex Court has considered thus :-

"9. It is significant to note that the word used for the seller to realize market fee from his purchaser is "may"

while the word used for the seller to pay the market fee to the Committee is "shall". Employment of the said two monosyllables of great jurisprudential import in the same clause dealing with two rights regarding the same burden 44 must have two different imports. The legislative intendment can easily be discerned from the frame of the sub- clause that what is conferred on the seller is only an option to collect market fee from his purchaser, but the seller has no such option and it is imperative for him to remit the fee to the Committee. In other words, the Market Committee is entitled to collect market fee from the seller irrespective of whether the seller has realized it from the purchaser or not."

Considering the concept of contemporanea expositio it is well established that exposition by contemporary authority is of significance in Shiba Shankar Mohapatra and Ors. vs. State of Orissa and Ors.JT 2009 (14) SC 298, the Apex Court has observed thus :-

"8. The question of application of the doctrine of contemporanea expositio has been considered by this Court taking into account the factual matrix of the case. In K.P.Varghese vs. Income Tax Officer,Ernakulam and Anr. AIR 1981 SC 1922, this Court applied the rule of contemporanea expositio as the Court found it a well established rule of interpretation of a statute by reference to the exposition it has received from contemporary authority. However, the Court added the words of caution that such a rule must give way where the language of the statute is plain and unambiguous.

Similarly, in Collector of Central Excise, Bombay-I and Anr. vs. Parle Export (P) Ltd. AIR 1989 SC 644, this Court observed that the words used in 45 the provision should be understood in the same way in which they have been understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. In Indian Metals and Ferro Alloys Ltd.Cuttack vs. The Collector of Central Excise, Bhubaneshwar AIR 1991 SC 1028, the Court has applied the same rule of interpretation by holding that contemporanea exposition by the administrative authority is a very useful and relevant guide to the interpretation of the expression used in a statutory instrument."

28. It is clear that the amendment cannot be interpreted what has been interpreted in the manner made by the Principal Secretary in its order dated 28.2.2009.

29. We are compelled to observe in the last, but not the least that the State Govt. has filed the return in different petitions each time opposing the petitions. Earlier when the petition was filed by the appellants they had filed their return opposing it and supporting the case of respondents DAEOs, and in writ appeal when reply to ad-interim writ was filed they have taken the stand in para 6 and 7 opposing the case set up by the appellants/principals and as usual with them 46 as it has become their normal practice to oppose whatever prayer is made dehors of the actual position of law, they have filed the return opposing it when three aforesaid writ petitions were filed by DAEOs not considering what was their stand in the previous writ petition filed by Principals as well as in the reply to the ad-interim writ filed in course of the writ appeal. No doubt about it that they were to support the order passed by the Principal Secretary on 28.2.09, but that would not mean that whatever stand they want to take, they can take on the same set of rules and on same facts at different points of time. The State ought to have been careful in taking the appropriate consistent stand. However, we leave the matter at that as nothing has turned on the stand taken by the State Govt.in its returns, we have not based our decision on the stand taken by the State Govt.but we have interpreted the rules and orders in accordance with law while rendering the decision.

30. Resultantly, we find the order passed by the Single Bench to be unassailable. Writ 47 appeal is found to be devoid of merits, same is hereby dismissed. As a consequence to the aforesaid discussion, order dated 28.2.09 cannot be allowed to stand,same is hereby quashed. The writ petitions are allowed. However, we leave the parties to bear their own costs as incurred of the appeal/writ petitions.

      (Arun Mishra)                        (S.C.Sinho)
          Judge.                              Judge.




Jk.

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