1
HIGH COURT OF MADAHYA PRADESH : AT JABALPUR
W.A.No. 353/07
Shyam Narayan Sharma & Ors.
Vs.
The State of Madhya Pradesh
_______________________________________________
Shri K.K.Trivedi, Adv.for appellants.
Shri P.K.Kaurav,Deputy AG for respondents 1 to
4.
Shri S.Paul, Advocate for intervenor.
Shri Rajendra Tiwari,Sr.Adv.with Shri Udyan
Tiwari and Shri T.K.Khadka, Counsel for
respondents 5 to 7.
______________________________________________
W.P.No.14599/07
Rajendra Prasad
Vs.
State of Madhya Pradesh
______________________________________________
Shri R.N.Singh, Sr.Adv.with Shri B.Nigam for
petitioner.
Shri P.K.Kaurav, Deputy AG for State.
W.P.No.2579/09
D.S.Kushwaha & Ors.
Vs.
State of Madhya Pradesh
Shri Rajendra Tiwari, Sr.Adv.with Shri Udyan
Tiwari and Shri T.K.Khadka, Advocates for
petitioner.
Shri P.K.Kaurav, Dy.AG for State.
Shri K.K.Trivedi and Shri Sanjay Agarwal,
Advocates for intervenors.
&
W.P.No.2934/09
Santosh Kumar Tripathi
Vs.
State of Madhya Pradesh
Shri Sujoy Paul, Adv.for petitioner.
Shri P.K.Kaurav, Deputy AG for State.
_______________________________________________
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DB: Hon'ble Mr.Justice Arun Mishra&
Hon'ble Mr. Justice S.C.Sinho
Order passed on :19/20-07-2010
Whether approved for reporting :Yes.
O R D E R
As Per:- ARUN MISHRA,J.
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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
:-
29
“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
44must 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
45the 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.