{"id":22338,"date":"2010-07-20T00:00:00","date_gmt":"2010-07-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shyam-narayan-sharma-vs-the-state-of-madhya-pradesh-on-20-july-2010"},"modified":"2017-10-13T18:12:43","modified_gmt":"2017-10-13T12:42:43","slug":"shyam-narayan-sharma-vs-the-state-of-madhya-pradesh-on-20-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shyam-narayan-sharma-vs-the-state-of-madhya-pradesh-on-20-july-2010","title":{"rendered":"Shyam Narayan Sharma vs The State Of Madhya Pradesh on 20 July, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Shyam Narayan Sharma vs The State Of Madhya Pradesh on 20 July, 2010<\/div>\n
                         1\n\n\n\n\n  HIGH COURT OF MADAHYA PRADESH : AT JABALPUR\n                 W.A.No. 353\/07\n         Shyam Narayan Sharma & Ors.\n                       Vs.\n          The State of Madhya Pradesh\n\n_______________________________________________\n    Shri K.K.Trivedi, Adv.for appellants.\n\nShri P.K.Kaurav,Deputy AG for respondents 1 to\n                      4.\n    Shri S.Paul, Advocate for intervenor.\n\n  Shri Rajendra Tiwari,Sr.Adv.with Shri Udyan\n    Tiwari and Shri T.K.Khadka, Counsel for\n              respondents 5 to 7.\n______________________________________________\n                W.P.No.14599\/07\n               Rajendra Prasad\n                      Vs.\n            State of Madhya Pradesh\n______________________________________________\n Shri R.N.Singh, Sr.Adv.with Shri B.Nigam for\n                  petitioner.\n    Shri P.K.Kaurav, Deputy AG for State.\n\n                W.P.No.2579\/09\n             D.S.Kushwaha & Ors.\n                      Vs.\n           State of Madhya Pradesh\n Shri Rajendra Tiwari, Sr.Adv.with Shri Udyan\n  Tiwari and Shri T.K.Khadka, Advocates for\n                  petitioner.\n\n       Shri P.K.Kaurav, Dy.AG for State.\n   Shri K.K.Trivedi and Shri Sanjay Agarwal,\n          Advocates for intervenors.\n\n                        &\n                 W.P.No.2934\/09\n             Santosh Kumar Tripathi\n                       Vs.\n            State of Madhya Pradesh\n      Shri Sujoy Paul, Adv.for petitioner.\n     Shri P.K.Kaurav, Deputy AG for State.\n_______________________________________________\n                                2\n\n\n\n\n     DB:   Hon'ble Mr.Justice Arun          Mishra&\n           Hon'ble Mr. Justice S.C.Sinho\n\n\n           Order passed on :19\/20-07-2010\n\n\n      Whether approved for reporting :Yes.\n                          O R D E R\n<\/pre>\n
     As Per:- ARUN MISHRA,J.\n<\/p>\n
      In the instant writ appeal and the writ<\/p>\n
petitions,     question      involved     is    about    the<\/p>\n
absorption      of     District      Adult      Education<\/p>\n
Officers (hereinafter referred to as “DAEOs”)<\/p>\n
as    Assistant      Directors     vide     Order     dated<\/p>\n
9.4.1999.      Further       question      involved      is<\/p>\n
whether they are entitled to be promoted to<\/p>\n
the post of Deputy Director in view of the<\/p>\n
rules called M.P. Education Service (School<\/p>\n
Branch) Recruitment and Promotion Rules, 1982<\/p>\n
(hereinafter      referred    to   as     the   “Rules    of<\/p>\n
1982”).\n<\/p>\n
2.    Writ petition was filed by the appellant<\/p>\n
in writ appeal no.353\/2007 in which prayer<\/p>\n
was made to quash decision dated 9.4.99 to<\/p>\n
absorb DAEOs and to assign them seniority as<\/p>\n
Assistant       Director,          Education,         final
\n                                   3<\/span><\/p>\n
gradation        list     had    also     been     assailed.<\/p>\n
Further     prayer       was     made     to     direct       the<\/p>\n
respondents to convene the DPC for promotion<\/p>\n
to the post of Assistant Director and Deputy<\/p>\n
Director and to consider their names and the<\/p>\n
other     eligible       candidates       ignoring        DAEOs<\/p>\n
absorbed as Assistant Directors.                  Prayer was<\/p>\n
also made to treat the DAEOs as a separate<\/p>\n
cadre.\n<\/p>\n
3.     Respondents 5,6 and 7 appeared for the<\/p>\n
appointment       as    Project       Officers    which       was<\/p>\n
part of Adult Education Scheme in the year<\/p>\n
1991 pursuant to the advertisement issued by<\/p>\n
MP Public Service Commission. By the time the<\/p>\n
examination        results        were     declared           the<\/p>\n
function of literacy project was wound up and<\/p>\n
they were appointed on two years probation as<\/p>\n
District Adult Education Officers.                 The rural<\/p>\n
function    literacy       project\/       adult    education<\/p>\n
scheme     was     under    the       control     of    school<\/p>\n
education        department except in the State of<\/p>\n
M.P.     Ultimately,       the    State    Govt.       took     a<\/p>\n
policy decision on 13.07.94 to entrust the<\/p>\n
subject    of           adult     education            to     the
\n                                        4<\/span><\/p>\n
school     education             department.                  Pursuant<\/p>\n
thereto another order was issued on 21.7.94.<\/p>\n
4.    Original        applications                no.492\/97          and<\/p>\n
1409\/97      were      filed               before       the      State<\/p>\n
Administrative Tribunal, Bench at Indore in<\/p>\n
which the State Govt. was directed to take a<\/p>\n
decision     with      respect              to    absorption         of<\/p>\n
employees of adult education department.                             The<\/p>\n
State Govt. vide Order dated 9.4.99 merged<\/p>\n
the     Directorate         of     Adult         Education          with<\/p>\n
Directorate of Public Instructions. The said<\/p>\n
order    also    assigned          the       seniority         to    the<\/p>\n
Assistant       Director\/DAEOs,               pursuant         thereto<\/p>\n
gradation list was issued. Common gradation<\/p>\n
list was prepared of Assistant Directors and<\/p>\n
the     Principals,         hence          the        representation<\/p>\n
dated     12.04.2002             was        filed.        Appellants<\/p>\n
submitted    that      post       of       Assistant         Director,<\/p>\n
Public          Instructions,Deputy                       Divisional<\/p>\n
Superintendent        of     Education            and     Principal,<\/p>\n
BTI     formed      one      cadre           from        which       the<\/p>\n
promotions      are    to    be    made          to    the    post   of<\/p>\n
Deputy Director.\n<\/p>\n
                                        5<\/span><\/p>\n
5.      The amendment was incorporated in the<\/p>\n
year 1990 in the Rules of 1982 providing that<\/p>\n
if      incumbents          mentioned         at    Sr.No.4-A        of<\/p>\n
Schedule are not available, then incumbents<\/p>\n
having     six    years          experience         mentioned        at<\/p>\n
Sr.No.5    A,B    and       C    of    the     Schedule        may   be<\/p>\n
considered to the promotion for the post of<\/p>\n
Deputy Director, Public Instructions if the<\/p>\n
persons working on the post at Sr.No.4 of the<\/p>\n
schedule        are     not        available.            Appellants<\/p>\n
contended that order dated 9.4.99 passed by<\/p>\n
the State Govt.was contrary to the directions<\/p>\n
issued by the State Administrative Tribunal<\/p>\n
vide     order     dated         24.11.98          passed      in    OA<\/p>\n
No.492\/97. The DAEOs had never sought such a<\/p>\n
relief    which       has       been       given    by   the    State<\/p>\n
Govt.      by     its           order.        Adult      education<\/p>\n
department       should         have       been    declared     as    a<\/p>\n
separate        cadre       in     the       school      education<\/p>\n
department for the purpose of adult education<\/p>\n
with    adequate      provisions            for    protection        of<\/p>\n
service conditions and chances of promotion<\/p>\n
in the form of              an isolated            service. There<\/p>\n
could not have been any merger and assignment
\n                                    6<\/span><\/p>\n
of seniority to DAEOs as Assistant Directors.<\/p>\n
Under     Rules     of    1982,        qualification,          pay<\/p>\n
scale,etc.is governed by rule 5 and schedule<\/p>\n
I.    Rule    5        prescribes        the      method        of<\/p>\n
recruitment       through       direct    recruitment,          by<\/p>\n
promotion or by transfer of persons from such<\/p>\n
cadre\/service       as    specified       in    column     5    of<\/p>\n
schedule II. The posts of Assistant Director,<\/p>\n
Public     Instructions          are     filled     100%       by<\/p>\n
promotion.              Absorption        was      not         the<\/p>\n
permissible mode. Absorption of DAEOs could<\/p>\n
not have been made for various other reasons.<\/p>\n
The post of Assistant Director and Principal,<\/p>\n
Higher Secondary School is inter changeable.<\/p>\n
The     juniors    to     the    principals       have     been<\/p>\n
absorbed     as        Assistant       Directors       without<\/p>\n
following     any        uniform       policy.         Certain<\/p>\n
incumbents were not promoted to the higher<\/p>\n
posts     though       they     were     having    5     years’<\/p>\n
experience        as     Assistant        Director.Certain<\/p>\n
representations were filed pointing out the<\/p>\n
grievance, but with no avail.                     Considering<\/p>\n
the qualification required for the post of<\/p>\n
Assistant Director unequals have been treated
\n                                   7<\/span><\/p>\n
as equals. Initially the DAEOs were having<\/p>\n
lesser    pay     scales    as    compared       to    that   of<\/p>\n
Principals.       The    final    gradation      list    which<\/p>\n
was published was not in accordance with law,<\/p>\n
provisional gradation list was not published,<\/p>\n
without that final gradation list could not<\/p>\n
have been issued.\n<\/p>\n
6.    In the return filed by respondents 1 to<\/p>\n
3, State of M.P. and its functionaries, it is<\/p>\n
contended that pursuant to the decision of<\/p>\n
the     State    Govt.     dated       21.7.94    the     staff<\/p>\n
working     in     Adult    Education          Scheme    under<\/p>\n
Panchayat and Social Welfare Department was<\/p>\n
transferred         to      the        School         Education<\/p>\n
Department       along     with       their    posts.    Total<\/p>\n
number of 868 employees who were serving in<\/p>\n
the education scheme were declared surplus by<\/p>\n
an    Order      dated     20th       May,1997.After          the<\/p>\n
decision to absorb these employees in School<\/p>\n
Education Department, they were absorbed in<\/p>\n
their     equivalent       posts       maintaining       their<\/p>\n
seniority.        Said decision was challenged by<\/p>\n
some of the DAEOs before the Tribunal on the<\/p>\n
ground     that     on     transfer       to     the    School
\n                                  8<\/span><\/p>\n
Education         Department,    their       service       career<\/p>\n
was likely to be affected adversely, thus,<\/p>\n
prayer was made to restrain the Govt. from<\/p>\n
transferring         their   services        to    the     School<\/p>\n
Education Department.           The Tribunal dismissed<\/p>\n
the   application       vide    Order    dated          24.11.98.<\/p>\n
The decision of the State Govt. was upheld of<\/p>\n
revision of pay scale, DAEOs were granted pay<\/p>\n
scale        of     Rs.8,000-Rs.13,500             and       were<\/p>\n
classified as Class II, Gazetted Officers. On<\/p>\n
revision of pay scale, salary of Assistant<\/p>\n
Director,         Principal,    High    Secondary          School<\/p>\n
was also revised to Rs.8,000-Rs.13,500, pay<\/p>\n
scales of DAEOs and Assistant Director became<\/p>\n
the same with effect from 1.1.96. There were<\/p>\n
total 49 posts of DAEOs and 35 persons were<\/p>\n
working, thus, only 35 DAEOs were brought to<\/p>\n
the School Education Department.<\/p>\n
7.    Respondents 5 to 7 before the writ Court<\/p>\n
also filed their return taking more or less<\/p>\n
the similar stand as taken by the State Govt.<\/p>\n
8.    Writ        petitions,         WP(S)        no.      380\/03<\/p>\n
(Dhirendra Chaturvedi and another vs. State<\/p>\n
of      M.P.and          others),WP(S)              No.1138\/03
\n                                    9<\/span><\/p>\n
(Dr.R.K.Singh vs.           State of M.P. and others)<\/p>\n
and     writ petition           WP(S) No.        1909\/03 were<\/p>\n
filed    by    the    DAEOs      who     were    absorbed      as<\/p>\n
Assistant Directors             apprehending that            their<\/p>\n
cases may not be considered for the promotion<\/p>\n
to the post of Deputy Director.                     These writ<\/p>\n
petitions were also decided along with WP No.<\/p>\n
17767\/03      preferred     by     Shyam       Narayan    Sharma<\/p>\n
and others by a common order dated 15.01.2007<\/p>\n
by a single Bench of this Court.\n<\/p>\n
9.      The single Bench has upheld the policy<\/p>\n
decision      taken   on    9.4.99        of    absorption      of<\/p>\n
DAEOs    as    Assistant        Directors       and     granting<\/p>\n
them seniority.         It has also been held that<\/p>\n
claim    for   formation         of     different      cadre    of<\/p>\n
Adult    Education         in     the     School       Education<\/p>\n
Department       is    not        acceptable.           Separate<\/p>\n
gradation list of DAEOs was not necessary to<\/p>\n
be    prepared.        Liberty         was     given    to   file<\/p>\n
representation in case there is any grievance<\/p>\n
with    respect       to        gradation       list.          The<\/p>\n
authorities may proceed to fill up the post<\/p>\n
of Assistant Director as per the amendment<\/p>\n
made in the rule on 18.5.90.\n<\/p>\n
                                      10<\/span><\/p>\n
10.     Matter does not rest at the order passed<\/p>\n
by the single Bench of this Court.                              Another<\/p>\n
writ petition was filed by certain Principals<\/p>\n
at    Indore     Bench     of        this        Court,     i.e.       WP<\/p>\n
No.47\/09(s) which was disposed of by single<\/p>\n
Bench of this Court vide Order dated 9.1.09.<\/p>\n
Prayer     was      made        to        direct        the       State<\/p>\n
Government to take a decision on notice of<\/p>\n
demand of justice dated 31st December, 2008.<\/p>\n
Single Bench of this Court at Indore Bench<\/p>\n
directed the final decision to be taken on<\/p>\n
legal notice within a period of two weeks by<\/p>\n
the     Principal     Secretary             also     taking          into<\/p>\n
consideration       the    directions             issued        by    the<\/p>\n
Division    Bench     in    the       instant        writ        appeal<\/p>\n
no.353\/07      vide   Order      dated           July     3rd    ,2008.<\/p>\n
Thereafter      decision        has       been     taken        by    the<\/p>\n
Principal      Secretary        on        28th    February,          2009<\/p>\n
holding that as per Rules of 1982 as amended<\/p>\n
in 1990 only the DAEOs having experience of<\/p>\n
one year on the post of Assistant Director<\/p>\n
and four years experience                    on the        posts of<\/p>\n
entry     5(A),(B),(C)          of         Schedule        IV        were<\/p>\n
eligible for promotion. In other words the
\n                                   11<\/span><\/p>\n
Principal      Secretary          also        came        to      the<\/p>\n
conclusion that such officers who were having<\/p>\n
four years experience as against seven posts<\/p>\n
mentioned at item no. 5(A),(B),(C) and having<\/p>\n
one year experience as Assistant Director are<\/p>\n
entitled for promotion as Deputy Director. In<\/p>\n
case aforesaid incumbents are not available,<\/p>\n
then    the        incumbents          having        six        years<\/p>\n
experience     on    the    posts       mentioned          at   item<\/p>\n
5(A),(B),(C) in Schedule IV are entitled for<\/p>\n
consideration         for       promotion            as     Deputy<\/p>\n
Director.      Thus,        the       DAEOs     absorbed          as<\/p>\n
Assistant     Directors         become       disentitled          for<\/p>\n
promotion as Deputy Director as they do not<\/p>\n
possess the experience of four years or six<\/p>\n
years     on         the        posts         mentioned            at<\/p>\n
Sr.No.5(A),(B),(C) of Schedule IV. Hence they<\/p>\n
have preferred three writ petitions no. WP<\/p>\n
14599\/07,      2579\/09          and      2934\/09.          It      is<\/p>\n
submitted     by    them    that       the    action       of    the<\/p>\n
State   Government         is   contrary        to    the       stand<\/p>\n
taken in the writ petition filed by the DAEOs<\/p>\n
and is also contrary to the stand taken in<\/p>\n
the reply to the interim application filed in
\n                                      12<\/span><\/p>\n
the writ appeal in                which it        was submitted<\/p>\n
that DAEOs have been absorbed as Assistant<\/p>\n
Directors       and        they        have      been    accorded<\/p>\n
seniority,      thus,           they       are    entitled     for<\/p>\n
consideration for promotion to the post of<\/p>\n
Deputy Director.\n<\/p>\n
11.     The State Govt.in its return filed in<\/p>\n
the aforesaid writ applications has justified<\/p>\n
order dated 28.2.2009 passed by the Principal<\/p>\n
Secretary, School Education Department.<\/p>\n
12.      Shri       K.K.Trivedi,              learned     counsel<\/p>\n
appearing      on    behalf       of      appellants     in   writ<\/p>\n
appeal has submitted that vide Order dated<\/p>\n
9.4.99 there was no absorption of DAEOs as<\/p>\n
Assistant      Director         of      Public    Instructions.<\/p>\n
They    were        simply        absorbed        as    Assistant<\/p>\n
Directors and that too in a separate wing of<\/p>\n
Directorate         of     Public         Instructions.       Thus,<\/p>\n
DAEOs could         not have         been included        in the<\/p>\n
cadre     of         Assistant             Director,       Public<\/p>\n
Instructions.            They     are      not    entitled     for<\/p>\n
promotion as Deputy Director. View taken by<\/p>\n
the Principal Secretary in the decision dated<\/p>\n
28.2.09 is in accordance with the prevailing
\n                                     13<\/span><\/p>\n
law.    State never intended to absorb DAEOs as<\/p>\n
Assistant       Directors        ,Public        Instructions.<\/p>\n
Alternatively,          he    has        submitted    that    the<\/p>\n
posts of Assistant Director as mentioned in<\/p>\n
Schedule II of Rules of 1982 is to be filled<\/p>\n
100% by promotion. The posts of Principal,<\/p>\n
Higher Secondary School are to be filled in<\/p>\n
25%    by    direct          recruitment        and     75%     by<\/p>\n
promotion.       The qualification for the post of<\/p>\n
Principal,         Higher       Secondary          School      are<\/p>\n
mentioned in Schedule II to be degree of post<\/p>\n
graduation with a minimum of IInd Division<\/p>\n
with    B.Ed.      or      equivalent,       and     five    years<\/p>\n
teaching      experience            in     Higher     Secondary<\/p>\n
School. Comparing the qualifications of DAEOs<\/p>\n
their absorption could not have been ordered<\/p>\n
on    the   post      of    Assistant       Director,       Public<\/p>\n
Instructions. The posts of District Education<\/p>\n
Officer,      Assistant          Divisional          Supdt.     of<\/p>\n
Education       and        Principal,       Higher    Secondary<\/p>\n
School were inter changeable, whereas DAEOs<\/p>\n
used to be appointed under the rules, known<\/p>\n
as M.P.Panchayat and Social Welfare Services<\/p>\n
(Gazette) Recruitment Rules, 1984. The posts
\n                                        14<\/span><\/p>\n
of DAEOs was to be filled in by 40% direct<\/p>\n
recruitment and 60% by way of promotion. For<\/p>\n
direct recruitment as per Schedule III, the<\/p>\n
degree    of       graduation          in    Arts,        Science      or<\/p>\n
Commerce        from      a     recognized          University        or<\/p>\n
equivalent          thereto           was        prescribed.          The<\/p>\n
Leprosy Welfare Officers could also have been<\/p>\n
promoted      on     completion             of    three     years      of<\/p>\n
service       as    DAEOs.           The     substance          of    the<\/p>\n
submission         of         Shri     K.K.Trivedi,             learned<\/p>\n
counsel appearing for the appellants is that<\/p>\n
DAEOs     were      not        comparable          with    Assistant<\/p>\n
Director, Public Instructions in the matter<\/p>\n
of educational qualifications, pay scales and<\/p>\n
job responsibilities which was higher in the<\/p>\n
case     of        Assistant           Director           of     Public<\/p>\n
Instructions.             Though the DAEOs were given<\/p>\n
pay    scale       of    Rs.8000-Rs.13,500                but    in    no<\/p>\n
event     they          could        have    been     treated          as<\/p>\n
equivalent         to     Assistant              Director,       Public<\/p>\n
Instructions though the said scale was equal<\/p>\n
to the post of Assistant Directors.<\/p>\n
13.      Shri      Trivedi       has       further    relied         upon<\/p>\n
M.P.Public Service Promotion Rules, 2002 to
\n                                        15<\/span><\/p>\n
submit      that       qualification         for        promotional<\/p>\n
post, if not prescribed in the Schedule would<\/p>\n
be    the    qualification             of   the    feeder          post.<\/p>\n
DAEOs who were not qualified to be appointed<\/p>\n
as Principal of Higher Secondary School could<\/p>\n
not    have      been       absorbed        on     the     post      of<\/p>\n
Assistant        Director,             Public      Instructions.<\/p>\n
Principals         can      be     promoted        as     Assistant<\/p>\n
Director,       Public          Instructions        and    they       in<\/p>\n
turn   can      be     promoted        as   Deputy       Directors.<\/p>\n
Without       amending           the    Rules      of     1982       the<\/p>\n
absorption of DAEOs could not have been made<\/p>\n
by issuing executive instructions. Executive<\/p>\n
instructions          can       supplement        the    rules       not<\/p>\n
supplant.\n<\/p>\n
14.      Shri    Sanjay          Agarwal,       learned       counsel<\/p>\n
appearing for intervenors has supported the<\/p>\n
arguments        of       Shri     K.K.Trivedi.               He     has<\/p>\n
further submitted that Rules of 1982 provides<\/p>\n
the method of recruitment, thus, method of<\/p>\n
absorption       was      not     permissible.          For    making<\/p>\n
absorption,          it    was    necessary        to     amend      the<\/p>\n
rules.       The amended rules on 18.5.90 could<\/p>\n
not    be       said       to     have      contemplated             the
\n                                    16<\/span><\/p>\n
situation      which       arose        in    the     year        1999.<\/p>\n
Action is violative of the rules. Effort has<\/p>\n
been   made     by    the    State           Govt.    by     issuing<\/p>\n
executive instructions to supplant the rules.<\/p>\n
15.    Shri Rajendra Tiwari and Shri R.N.Singh<\/p>\n
learned Senior Counsel, Shri S.Paul, learned<\/p>\n
counsel    appearing        for     petitioners             in     writ<\/p>\n
petitions no.14599\/07, 2579\/09 and WP 2934\/09<\/p>\n
and    Shri     P.K.Kaurav,             learned           Deputy     AG<\/p>\n
appearing for State submitted that decision<\/p>\n
was    taken    of     merger       of        adult        education<\/p>\n
department and school education department on<\/p>\n
30th June, 1994. On 10.12.97 certain employees<\/p>\n
of adult education scheme were absorbed in<\/p>\n
the    school       education      department              and     were<\/p>\n
granted seniority.           Later on DAEOs were also<\/p>\n
absorbed       as     Assistant          Directors,              Public<\/p>\n
Instructions and granted seniority vide order<\/p>\n
dated 9.4.99.          The matter of absorption and<\/p>\n
merger is not governed by the rules.                          It was<\/p>\n
open to the State Govt. to frame the policy<\/p>\n
in that regard. They have also relied upon<\/p>\n
Rule 6(iv) of 1982 Rules which provides that<\/p>\n
considering          the    exigencies               of     service,
\n                                      17<\/span><\/p>\n
Government       may        with     the      approval       of     the<\/p>\n
General Administration Department adopt such<\/p>\n
methods of recruitment to the service other<\/p>\n
than     those     specified            in     said       sub-rules.<\/p>\n
Government has merged the post of DAEOs with<\/p>\n
the    approval        of     GAD.      Gazette       notification<\/p>\n
dated     16.6.94           was    issued          for    the     said<\/p>\n
purpose.       DAEOs were in the same pay scales<\/p>\n
with     effect        from       1.1.1996.         The    post      of<\/p>\n
Principal was not only the feeder cadre for<\/p>\n
the post of Assistant Director.                            Promotion<\/p>\n
could    have     been        made        from     several        other<\/p>\n
posts.     Apart from that under the Recruitment<\/p>\n
Rules of 1984 of Social Welfare Department,<\/p>\n
eight posts were inter changeable. What is of<\/p>\n
significance is that post of DAEO was inter<\/p>\n
changeable with that of Assistant Director in<\/p>\n
the Rules of 1984. Before merger the DAEOs<\/p>\n
were    already        working       in      the    Department      of<\/p>\n
Public Instructions                as Assistant           Directors.<\/p>\n
Thus, they were rightly absorbed as Assistant<\/p>\n
Directors, Public Instructions.                          The feeder<\/p>\n
cadre    for     the    post       of     Assistant        Director,<\/p>\n
Public Instructions did not require the post
\n                                     18<\/span><\/p>\n
graduation to be the essential qualification.<\/p>\n
Several channels for promotion were provided.<\/p>\n
Even     LDCs,     Asstt.,etc.            could        have       been<\/p>\n
promoted to the post of Assistant Director,<\/p>\n
feeder post carries much lesser educational<\/p>\n
qualification as compared to that of DAEOs.<\/p>\n
In     the     Rules     of    1982       for       the    post     of<\/p>\n
Assistant Director,            Public Instructions,                 no<\/p>\n
educational            qualification                 has          been<\/p>\n
prescribed.         Thus, it         was not         possible to<\/p>\n
draw     the      analogy       from          the      educational<\/p>\n
qualification          possessed         by    the     Principals.<\/p>\n
Once there is a merger, source of induction<\/p>\n
looses its importance, and seniority has to<\/p>\n
be accorded in the merged cadre irrespective<\/p>\n
of source of induction.                  It cannot         be said<\/p>\n
that the action of merger is bad in law due<\/p>\n
to reduction in chances of promotion of the<\/p>\n
Principals.       There       is    no        vested      right     in<\/p>\n
chances of promotion, they do not constitute<\/p>\n
condition of services. There was no question<\/p>\n
of treating the post of Assistant Director,<\/p>\n
Adult        Education    ex       cadre.       There      was      no<\/p>\n
separate wing of adult education department
\n                                    19<\/span><\/p>\n
in the school education department.                       In the<\/p>\n
Rules of 1982 amendment was made in Schedule<\/p>\n
4, from item 4(A) it is apparent that word<\/p>\n
“shall” has been used for the purpose of one<\/p>\n
year   experience       as     Assistant      Director       and<\/p>\n
“may” has been used for four years experience<\/p>\n
out of the posts mentioned at Sr.No.5(A),(B)<\/p>\n
and (C). The amendment is in the nature of<\/p>\n
addition.        It does not delete the previous<\/p>\n
requirement of Assistant Director possessing<\/p>\n
five years experience as eligibility for the<\/p>\n
post   of   promotion         to    the    post    of     Deputy<\/p>\n
Director    of    Public       Instructions.         In    other<\/p>\n
words, in case an Assistant Director having<\/p>\n
five years experience is available, he can be<\/p>\n
promoted         as          Deputy         Director,Public<\/p>\n
Instructions.         Even if he is not possessing<\/p>\n
experience of one of the posts mentioned in<\/p>\n
column 2 at Sr.No.5(A),(B)                 and (C)        of the<\/p>\n
Schedule 4.\n<\/p>\n
16.    Shri      P.K.Kaurav,            learned    Deputy     AG<\/p>\n
appearing     for      the    State,       faced    with     two<\/p>\n
contradictory         returns      filed    by     the    State,<\/p>\n
stands stunned, however, to the best of his
\n                                  20<\/span><\/p>\n
ability at command, he has tried to support<\/p>\n
the    stand    taken    by    the    State   Govt.      in   WP<\/p>\n
No.17767\/03 which was filed by Shyam Narayan<\/p>\n
Sharma    and    others       decided   by    the   impugned<\/p>\n
order passed by a single Bench of this Court.<\/p>\n
He has further submitted that the stand of<\/p>\n
the State Govt.beside the return filed in the<\/p>\n
said case, is best reflected in para 6 and 7<\/p>\n
of the reply to the ad-interim application<\/p>\n
filed     in     WA     No.353\/07,       decision        dated<\/p>\n
28.2.2009 rendered by the Principal Secretary<\/p>\n
was pursuant to the direction issued by the<\/p>\n
Indore Bench of this Court.              When the matter<\/p>\n
was sub-judice before this Court in the form<\/p>\n
of writ appeal, it was not appropriate for<\/p>\n
the Secretary to decide the matter contrary<\/p>\n
to the decision rendered by a single Bench of<\/p>\n
this    Court    in     WP    No.17767\/03.     As     against<\/p>\n
decision no appeal has been preferred by the<\/p>\n
State Govt. In the circumstances, it could<\/p>\n
not have been said to be a decision rendered<\/p>\n
by the State Govt. and it could not be said<\/p>\n
to have been declared in the form of policy<\/p>\n
decision        by    the      State     Govt.      It        was
\n                                     21<\/span><\/p>\n
simpliciter           a        decision              taken       on<\/p>\n
representation            by    acting          as     Principal<\/p>\n
Secretary in his personal capacity, it runs<\/p>\n
contrary to the rules and the decision taken<\/p>\n
by the State Govt.for                merger and        also the<\/p>\n
decision of single Bench of this Court.                          He<\/p>\n
has submitted that the State Govt.has taken a<\/p>\n
conscious       decision        to         absorb      all      the<\/p>\n
employees of adult education scheme in the<\/p>\n
school education department of the State of<\/p>\n
M.P. Earlier in the year 1997 when order was<\/p>\n
passed with respect to large number of other<\/p>\n
employees as the case was pending before the<\/p>\n
Tribunal, the orders of absorption were not<\/p>\n
passed      with    respect         to     DAEOs.     Thereafter<\/p>\n
decision has been taken in the year 1999 to<\/p>\n
absorb them also and to grant them seniority<\/p>\n
as    has    been    done      in        the   case    of     other<\/p>\n
employees.          There is        no illegality           in the<\/p>\n
order       dated    9.4.99,        thus,       no     case     for<\/p>\n
interference is made out in the order passed<\/p>\n
by the single Bench of this Court.<\/p>\n
17.     The main question for consideration is<\/p>\n
whether the merger of DAEOs in the cadre of
\n                                22<\/span><\/p>\n
Assistant Director,       Public Instructions           and<\/p>\n
grant of seniority to them can be said to be<\/p>\n
in accordance with law.\n<\/p>\n
18.     It is not in dispute that there used to<\/p>\n
exist    adult    education    department      which    was<\/p>\n
under Panchayat and Social Welfare Department<\/p>\n
of State of M.P. The incumbents who have been<\/p>\n
absorbed as DAEOs were appointed in the year<\/p>\n
1991 after       they were     duly selected      by the<\/p>\n
Public Service Commission.           In the year 1994<\/p>\n
on      16.6.94        while        issuing       gazette<\/p>\n
notification, the work of adult education was<\/p>\n
assigned under business allocation rules to<\/p>\n
school education department. As a sequel to<\/p>\n
the aforesaid decision, entire work of adult<\/p>\n
education        was   assigned      to     the    school<\/p>\n
education department vide communication dated<\/p>\n
30th June,94, with effect from 1st July,1994<\/p>\n
along with budget, assets, staff sanctioned<\/p>\n
under the project from time to time except<\/p>\n
the project officers and accountants of the<\/p>\n
districts, list of which was enclosed along<\/p>\n
with    letter    dated   21.7.94.     On     28.5.97    an<\/p>\n
order was passed by the Govt. of M.P., School
\n                                      23<\/span><\/p>\n
Education      Department           as     surplus        incumbents<\/p>\n
came from the adult education scheme which<\/p>\n
used     to    be      run     by        the     Social        Welfare<\/p>\n
Department.       Order       dated       10th    December,        1997<\/p>\n
was     passed        for     absorbing           the        aforesaid<\/p>\n
surplus staff of the adult education scheme<\/p>\n
in the school education department. The due<\/p>\n
seniority       was         accorded           pursuant       to   the<\/p>\n
absorption.                 However,           three         Assistant<\/p>\n
Directors out of the adult education scheme<\/p>\n
preferred not          to be        absorbed as              such they<\/p>\n
were kept outside the absorption. The cases<\/p>\n
of DAEOs were not considered at the relevant<\/p>\n
time for absorption as matter was sub-judice<\/p>\n
in the Tribunal. The Tribunal has passed an<\/p>\n
Order     in     OA    No.492\/97           on     24.11.98.         The<\/p>\n
Tribunal declined to make interference on the<\/p>\n
ground    that      matter      was       under     consideration<\/p>\n
with     the   State         Govt.        as     Adult       Education<\/p>\n
Directorate was functioning in the State. The<\/p>\n
Tribunal       suggested        the        entire        staff     and<\/p>\n
officers of the Adult Education Scheme could<\/p>\n
be     declared       as     separate          cadre     under      the<\/p>\n
School    Education          Department          for     a    specific
\n                                     24<\/span><\/p>\n
scheme      with         adequate             provisions               for<\/p>\n
protection of service conditions and chances<\/p>\n
of    promotion     in    the       form       of    an     isolated<\/p>\n
service; the incumbents of the post of DAEOs<\/p>\n
could be allowed to be borne on the seniority<\/p>\n
list of Social Welfare Department as usual<\/p>\n
till the present vacant posts of Dy.Director,<\/p>\n
Panchayat and Social Welfare are filled. It<\/p>\n
is    pertinent      to        mention          here       that         no<\/p>\n
mandatory     directions            were       issued           by     the<\/p>\n
Tribunal,     only       the    aforesaid            observations<\/p>\n
were made to be considered by the State Govt.<\/p>\n
Petition    was     disallowed           with       the    aforesaid<\/p>\n
observations.        Thereafter            State          Govt.        has<\/p>\n
passed      considered              decision           dated           9th<\/p>\n
April,1999. Order dated 9th April,1999 makes a<\/p>\n
mention to the earlier order of absorption<\/p>\n
and   grant   of     seniority           to    other       employees<\/p>\n
which was passed on 10th December, 1997 and<\/p>\n
the      decision        rendered             by      the            State<\/p>\n
Administrative        Tribunal            in        aforesaid           OA<\/p>\n
No.492\/97     decided          on    24.11.98.             As        adult<\/p>\n
education scheme has been handed over to the<\/p>\n
school education department, other employees
\n                                     25<\/span><\/p>\n
had been absorbed and given the seniority and<\/p>\n
same     is        now     part     of         the     Office         of<\/p>\n
Commissioner,             Public     Instructions.                     As<\/p>\n
Directorate          of    Adult     Education             has       been<\/p>\n
merged         with         Directorate               of         Public<\/p>\n
Instructions,            decision    was       taken       to     treat<\/p>\n
Adult      Education            Officers         as        Assistant<\/p>\n
Directors and to grant them seniority so that<\/p>\n
they     are       able    to    obtain        the     chances        of<\/p>\n
promotion also. The substance of the order<\/p>\n
appears to be of absorption as also apparent<\/p>\n
from Order dated 9th August,2007, they were<\/p>\n
treated       to    have    been     absorbed          along         with<\/p>\n
Assistant Directors of Department of Public<\/p>\n
Instructions.\n<\/p>\n
19.     The salary of DAEOs was somewhat less by<\/p>\n
at least Rs.50\/- for few years as compared to<\/p>\n
that      of         Assistant           Directors,              Public<\/p>\n
Instructions.             However,         salary          of         the<\/p>\n
Principal,           Assistant            Director,              Public<\/p>\n
Instructions, and that of DAEOs working under<\/p>\n
Adult    Education         Scheme        was    brought         at    par<\/p>\n
under the revision of pay rules with effect<\/p>\n
from 1.1.96 to the                pay scale          of Rs.8,000-
\n                                     26<\/span><\/p>\n
Rs.13,500.     The     post       of     Assistant          Director,<\/p>\n
Public Instructions under the Rules of 1982<\/p>\n
could have been filled by way of                            promotion<\/p>\n
from     the    post         of     Assistant           Divisional<\/p>\n
Supdt.of       Education,              District             Education<\/p>\n
Officer, Principal            Higher Secondary                School,<\/p>\n
Principal      Pre-Primary             Training         Institute,<\/p>\n
Supdt.    Jeewaji      Observatory,             etc.    The     Lower<\/p>\n
Division Teacher is promoted to the post of<\/p>\n
UDT,   further       promotion           is    to     the    post   of<\/p>\n
Lecturer,and          Lecturer            is        promoted         as<\/p>\n
Principal,       Higher           Secondary           School        and<\/p>\n
Principal,          Higher        Secondary            School        is<\/p>\n
promoted       as     Assistant               Director,        Public<\/p>\n
Instructions. For the post of Lower Division<\/p>\n
Teacher, the prescribed qualification, at the<\/p>\n
relevant time was higher secondary.                             There<\/p>\n
was yet another channel of promotion to the<\/p>\n
post of Assistant Director from Supdt.cadre.<\/p>\n
The basic post in the channel was that of LDC<\/p>\n
who used to be promoted as UDC, UDC used to<\/p>\n
be promoted as Asstt.Supdt. Further promotion<\/p>\n
was to the post          of Supdt.,              Directorate of<\/p>\n
Public     Instructions,           and         then     to     Asstt.
\n                                     27<\/span><\/p>\n
Director.           The     post       of     LDC     carries     the<\/p>\n
qualification          of    typing           pass    and     higher<\/p>\n
secondary. The recruitment to the post of LDT<\/p>\n
was governed by MP Education Department Non-<\/p>\n
Collegiate           Class          III         Non-Ministerial<\/p>\n
Recruitment Rules,            1973 whereas             recruitment<\/p>\n
to    the    post    of     LDC    and        other    ministerial<\/p>\n
staff was governed by MP Education Department<\/p>\n
Non         Collegiate            Class-III            Ministerial<\/p>\n
Rules,1973.         There    used        to    be     yet     another<\/p>\n
cadre       of      Assistant            Director,          Physical<\/p>\n
Education with which we are not concerned .<\/p>\n
The promotion channel was Physical Training<\/p>\n
Instructor,          for         the        said       post       the<\/p>\n
qualification of Graduate degree in Physical<\/p>\n
Education was provided.                  The first promotion<\/p>\n
was as Lecturer and then Divisional Games &<\/p>\n
Sports Inspector.             Further promotion was to<\/p>\n
the post of Principal, College of Physical<\/p>\n
Education,       and      then    as     Assistant       Director,<\/p>\n
Physical         Education,            and       these         Asstt.<\/p>\n
Directors of         Physical Education                constituted<\/p>\n
the cadre for promotion to the post of Deputy<\/p>\n
Director,        Public      Instructions.               No     doubt
\n                                        28<\/span><\/p>\n
about it that for the post of Principal, post<\/p>\n
graduation      with           B.Ed.was      necessary         whereas<\/p>\n
for the post of                 DAEOs, graduation              was the<\/p>\n
requisite qualification.                    But considering the<\/p>\n
qualifications             prescribed             for    the     other<\/p>\n
feeder    cadre          post    which       formed      channel     of<\/p>\n
promotion           to         the     post        of      Assistant<\/p>\n
Director.It         could        not        be    said    that      the<\/p>\n
qualification possessed by DAEOs was less so<\/p>\n
that they could not                   have been         absorbed as<\/p>\n
against       the    post        of     Assistant         Directors,<\/p>\n
Public        Instructions                 vide     Order        dated<\/p>\n
9.4.1999.\n<\/p>\n
20.      In    case        of        such    merger       of    cadre,<\/p>\n
obviously      it        has    to    be    the    matter      of   the<\/p>\n
policy    as    laid       down       by    the    Apex    Court     in<\/p>\n
Union of India and others vs. S.L.Dutta and<\/p>\n
others<\/a> 1991 (1) SCC 505. The Apex Court has<\/p>\n
laid down that the                   executive power           of the<\/p>\n
Union of India when it is not trammeled by<\/p>\n
any statute or rule is wide, and pursuant to<\/p>\n
its power it can make executive policy.<\/p>\n
      Rule 6(iv) of the Rules of 1982 reads thus<\/p>\n
:-\n<\/p>\n
                                      29<\/span><\/p>\n
        “6.Method    of    recruitment    :(iv)
\n        Notwithstanding anything contained in
\n        sub-rule (i) if in the opinion of the
\n        Government   the  exigencies   of   the
\n        service so require, the Government may
\n        with the approval of the General
\n        Administration Department adopt such
\n        methods of recruitment to the Service
\n        other than those specified the said
\n        sub-rules as it may, by order issued
\n        in the behalf prescribe.”<\/p><\/blockquote>\n
       Acting under the aforesaid rule, it was<\/p>\n
open to the State Govt. with the approval of<\/p>\n
General     Administration           Department         to    adopt<\/p>\n
such    method       of   recruitment        to    the       service<\/p>\n
other    than    those        specified     by    the    said      sub<\/p>\n
rule    (iv)    of    rule      6.   Rule    6    provided         the<\/p>\n
method of; (1) direct recruitment by promotion<\/p>\n
of members of the M.P.Education Service from a<\/p>\n
lower post\/cadre as specified in column (2)<\/p>\n
schedule    IV    to      a    higher     post\/cadre         (2)    by<\/p>\n
transfer of persons from such cadre\/service as<\/p>\n
may be specified in Column (5) of Schedule II.<\/p>\n
The approval of GAD was granted for merger of<\/p>\n
adult     education           department     to     the       school<\/p>\n
education       department       vide     notification        dated<\/p>\n
16th June,1994, pursuant thereto the employees<\/p>\n
were    absorbed      and      seniority     was    granted         to<\/p>\n
them on 10th December, 1997, later on on 9th
\n                                   30<\/span><\/p>\n
April,1999 the absorption of DAEOs was made as<\/p>\n
Assistant Director. It was submitted by Shri<\/p>\n
Trivedi and Shri Agrawal that absorption could<\/p>\n
not be said to be in terms of Rule 6(iv) of<\/p>\n
the Rules of 1982. In our opinion, conceptual<\/p>\n
permission was granted by the GAD for taking<\/p>\n
over   the     entire    work    of     adult    education    by<\/p>\n
school   education       and     that    would    include     in<\/p>\n
itself the assets, liabilities and taking over<\/p>\n
of employees.\n<\/p>\n
21. Even if the aforesaid Rule 6(iv) of Rules<\/p>\n
of 1982 is ignored, it was open to the State<\/p>\n
Govt. to take           policy decision independently<\/p>\n
for    absorption\/merger         of     such    employees     of<\/p>\n
Adult Education Scheme which had been handed<\/p>\n
over to the School Education Department in the<\/p>\n
year 1994.      Large number of such employees who<\/p>\n
were   surplus     in    school       education     department<\/p>\n
were absorbed and granted seniority in their<\/p>\n
respective       cadre     vide         order     dated      10th<\/p>\n
December,       1997.           Similar        treatment     was<\/p>\n
accorded to the DAEOs by adjusting them on the<\/p>\n
post      of       Assistant            Director,         Public<\/p>\n
Instructions       along        with      other     Assistant
\n                              31<\/span><\/p>\n
Directors   of     the     Department      of      Public<\/p>\n
Instructions.\n<\/p>\n
22. A Division Bench of this Court in Vijay<\/p>\n
Kumar Mishra vs.     Sanjay Rusia and others<\/a> 2004<\/p>\n
(3) MPLJ 489 has dealt with the concept of<\/p>\n
merger and has laid down that merger carries a<\/p>\n
different   facet.    It    could    not    have     been<\/p>\n
envisaged in the rules.           Division Bench has<\/p>\n
made the following observations :-<\/p>\n
     “20A :- Mr. Shrivastava has referred
\n     us to the rules of 1969 to show that
\n     the appointment are to be made to the
\n     Public Works Department by many a way
\n     namely      appointment,      promotion,
\n     transfer and deputation. The learned
\n     senior counsel has submitted that the
\n     concept    of    merger   is    not   in
\n     existence.    The concept of merger is
\n     a different facet. It could not have
\n     been envisaged in the rules which had
\n     came into existence in 1969. It is
\n     not a case where two employees are
\n     appointed in the same department, one
\n     through the mode provided in the
\n     rules, one in a different way. It is
\n     a case when a situation of merger has
\n     taken   place    and,   therefore,   the
\n     authority is required to take a
\n     policy decision for the purpose of
\n     determination of seniority.”\n<\/p><\/blockquote>\n
23. In S.P.Shivprasad Pipal vs. Union of India<\/p>\n
and others<\/a> (1998) 4 SCC 598 the Apex Court has<\/p>\n
laid down that merger is essentially a policy<\/p>\n
decision.   In     P.U.Joshi       and     others     vs.
\n                                    32<\/span><\/p>\n
Accountant General and Ors. (2003) 2 SCC 632<\/p>\n
it has been laid down that questions relating<\/p>\n
to the constitution, pattern, nomenclature of<\/p>\n
posts,             cadres,         categories,           their<\/p>\n
creation\/abolition,                 prescription            of<\/p>\n
qualifications and other conditions of service<\/p>\n
including avenues of promotions and criteria<\/p>\n
to be fulfilled for such promotions pertain to<\/p>\n
the field of Policy and within the exclusive<\/p>\n
discretion and jurisdiction of the State. It<\/p>\n
is    open    to     the   State   Govt.    by    appropriate<\/p>\n
rules to amalgamate departments or bifurcate<\/p>\n
departments into more and constitute different<\/p>\n
categories of posts or cadres by undertaking<\/p>\n
further        classification,            bifurcation       or<\/p>\n
amalgamation         as    well    as     reconstitute     and<\/p>\n
restructure the pattern and cadres\/categories<\/p>\n
of service.\n<\/p>\n
      The Apex Court in S.I.Rooplal and Anr.vs.<\/p>\n
Lt.    Governor       Through     Chief   Secretary,     Delhi<\/p>\n
and Ors. AIR 2000 SC 594 held that equivalency<\/p>\n
of two posts are not to be judged by sole fact<\/p>\n
of equal pay. While determining the equation<\/p>\n
of    two    posts    many   factors      other   than   “Pay”
\n                                           33<\/span><\/p>\n
will have to be taken into consideration, like<\/p>\n
the     nature           of     duties,             responsibilities,<\/p>\n
minimum     qualification                 etc.       The    concept        of<\/p>\n
equivalence         of    posts       was          considered      by     the<\/p>\n
Apex Court. There are many factors which are<\/p>\n
required       to   be        considered            such    as    (i)     the<\/p>\n
nature      and     duties           of        a    post,        (ii)     the<\/p>\n
responsibilities and powers exercised by the<\/p>\n
officer        holding          a     post;          the     extent        of<\/p>\n
territorial          or         other              charge        held      or<\/p>\n
responsibilities discharged;(iii) the minimum<\/p>\n
qualifications,                if     any,           prescribed          for<\/p>\n
recruitment to the post; and (iv) the salary<\/p>\n
of    the   post.        If    the    earlier          three      criteria<\/p>\n
mentioned above are fulfilled then the fact<\/p>\n
that     the      salaries           of    the        two    posts        are<\/p>\n
different, would not in any way make the post<\/p>\n
“not equivalent”. The Apex Court S.I.Rooplal<\/p>\n
and    Anr.vs.                Lt.    Governor          Through          Chief<\/p>\n
Secretary, Delhi and Ors.(supra) has held thus<\/p>\n
:-\n<\/p>\n
       “17. Equivalency of two posts is not
\n       judged by the sole fact of equal pay.<\/p><\/blockquote>\n
       While determining the equation of two
\n       posts many factors other than `Pay’ will
\n       have to be taken into consideration,
\n                        34<\/span><\/p>\n
like     the      nature       of      duties,
\nresponsibilities,minimum        qualification
\netc. It is so held by this Court as far
\nback as in the year 1968 in the case of
\nUnion of India and Anr. v. P.K. Roy and
\nOrs,AIR<\/a> 1968 SC 850, (1970) I LLJ 633
\nSC, [1968] 2 SCR 186. In the said
\njudgment,    this    Court    accepted     the
\nfactors laid down by the Committee of
\nChief Secretaries which was constituted
\nfor settling the disputes regarding
\nequation of posts arising out of the
\nStates Reorganisation Act, 1956. These
\nfour factors are : (i) the nature and
\nduties    of     a     post,      (ii)     the
\nresponsibilities and powers exercised by
\nthe officer holding a post; the extent
\nOf territorial or other charge held or
\nresponsibilities discharged; (iii) the
\nminimum     qualifications,        if     any,
\nprescribed for recruitment to the post;
\nand (iv) the salary of the post. It is
\nseen that the salary of a post for the
\npurpose of finding out the equivalency
\nof posts is the last of the criterion.
\nIf the earlier three criteria mentioned
\nabove are fulfilled then the fact that
\nthe salaries of the two posts are
\ndifferent, would not in any way make the
\npost `not equivalent’. In the instant
\ncase, it is not the case of the
\nrespondents    that     the    first     three
\ncriteria mentioned hereinabove are in
\nany manner different between the two
\nposts concerned. Therefore, it should be
\nheld that the view taken by the tribunal
\nin the impugned order        that the     two
\nposts of Sub-Inspector in the BSF and
\nthe    Sub-Inspector(Executive) in Delhi
\nPolice are not equivalent merely on the
\nground that the two posts did not carry
\nthe same pay-scale, is necessarily to be
\nrejected. We are further supported in
\nthis view of ours by another judgment of
\nthis   Court   in    the    case    of   Vice-\n<\/p>\n
Chancellor, L.N. Mithila University v.
\nDayanand Jha.AIR 1986 SC 1200, [1986] 3
\n                                35<\/span><\/p>\n
      SCC 7 wherein at para 8 of the judgment,
\n      this Court held:\n<\/p>\n
          “Learned counsel for the respondent
\n      is therefore right in contending that
\n      equivalency of the pay scale is not the
\n      Only factor in judging whether the post
\n      of Principal and that of Reader are
\n      equivalent posts. We are inclined to
\n      agree with him that the real criterion
\n      to adopt is whether they could be
\n      regarded    of    equal     status    and
\n      responsibility. The true criterion for
\n      equivalence is the status and the nature
\n      and   responsibility    of   the   duties
\n      attached to the two posts.”\n<\/p>\n
24. Considering the exposition of the law made<\/p>\n
by the Apex Court in the aforesaid decisions<\/p>\n
and the factual matrix of the case narrated<\/p>\n
above, it is apparent that the post of                   DAEO<\/p>\n
was inter changeable with that of Assistant<\/p>\n
Director.        The   post   of     Assistant     Director<\/p>\n
existed     in    Adult   Education      Scheme    run     by<\/p>\n
Social Welfare Department. Responsibilities of<\/p>\n
the    post       of    Assistant      Director,     Adult<\/p>\n
Education        Department    and     that   of    Public<\/p>\n
Instructions were more or less same.                Though<\/p>\n
there used to be slight difference of the pay<\/p>\n
scale, pay scale of Principal and DAEOs was<\/p>\n
less by approximately Rs.50\/-, but later on it<\/p>\n
was brought at par with effect from 1.1.96 and<\/p>\n
pay scale of the aforesaid posts became same
\n                                        36<\/span><\/p>\n
i.e. Rs.8,000-Rs.13,500.                    When we come to the<\/p>\n
educational        qualification            also,    promotion       to<\/p>\n
the    post        of     Assistant          Director           Public<\/p>\n
Instructions,           was   from          aforesaid      different<\/p>\n
cadres.          Even     Lower   Division          Teacher      could<\/p>\n
have been promoted ultimately to the post of<\/p>\n
Assistant        Director,        Public          Instructions       as<\/p>\n
well        as      LDC       possessing            the        minimum<\/p>\n
qualification of higher secondary and typing.<\/p>\n
The qualification possessed by Principals was<\/p>\n
no doubt a little higher,but here the question<\/p>\n
was    of    absorption          to    the        post    of    Asstt.<\/p>\n
Director, Public Instructions. For the post of<\/p>\n
Assistant        Director,        Public          Instructions       no<\/p>\n
educational qualification as such was provided<\/p>\n
in the Rules.             Only channel of promotion is<\/p>\n
provided         under     the        rules       from     different<\/p>\n
cadres. Thus, the absorption of DAEOs who were<\/p>\n
holding      the    qualification            of    graduation        and<\/p>\n
were   sufficiently           experienced           could      not   be<\/p>\n
said to be impermissible                          considering the<\/p>\n
fact that for the             post           of Asstt. Director,<\/p>\n
Public      Instructions         no    minimum       qualification<\/p>\n
was         prescribed.               The          posts         being
\n                                        37<\/span><\/p>\n
supervisory post it was considered appropriate<\/p>\n
to absorb them as Assistant Director, Public<\/p>\n
Instructions instead of the post of Principal<\/p>\n
which also carry equal pay. The post of                         DAEOs<\/p>\n
and Assistant Director in department of Adult<\/p>\n
Education      were       inter    changeable           Considering<\/p>\n
the     nature       of    work    and        duties      rendered,<\/p>\n
absorption       of       DAEOs   as        Assistant    Director,<\/p>\n
Public     Instructions           could         not     have     been<\/p>\n
faulted or termed as arbitrary or irrational.<\/p>\n
25. Coming to the submission raised by Shri<\/p>\n
K.K.Trivedi       that      as    per       Order     dated    9.4.99<\/p>\n
there was no adjustment\/absorption as against<\/p>\n
the     post     of        Assistant          Director,        Public<\/p>\n
Instructions.         Reading      of        the    entire      order<\/p>\n
makes       it            clear         that          there       was<\/p>\n
adjustment\/absorption of these incumbents with<\/p>\n
the other posts of Assistant Director existing<\/p>\n
in the school education department which also<\/p>\n
included       the    posts       of        Assistant     Director,<\/p>\n
Public Instructions. It has been mentioned as<\/p>\n
a fact that Adult Education Scheme is now part<\/p>\n
of    School      Education        Department           and     Adult<\/p>\n
Education        Directorate           is      part     of     School
\n                                       38<\/span><\/p>\n
Education Directorate. It was not intended to<\/p>\n
create a separate wing of adult education in<\/p>\n
the School Education Department                         as apparent<\/p>\n
from the earlier orders dated 10th December,<\/p>\n
1997, 16.6.94, 30.6.94 and 21.7.94.                          Thus, we<\/p>\n
have   no    hesitation         to    reject       the       aforesaid<\/p>\n
submission raised by Shri Trivedi.<\/p>\n
26. Shri       Trivedi      has       also       submitted          that<\/p>\n
considering the M.P. Public Service Promotion<\/p>\n
Rules,      2002,    if    the       qualification            for    the<\/p>\n
promotional post is not prescribed under the<\/p>\n
Schedule, it would be the qualification of the<\/p>\n
feeder      post.      Thus,      he       has    submitted         that<\/p>\n
qualification for the post of Principal has to<\/p>\n
be taken as minimum qualification for the post<\/p>\n
of    Asstt.    Director,        Public          Instructions        as<\/p>\n
already discussed by us the post of Principal<\/p>\n
was    not    only    the    feeder         post,       there       were<\/p>\n
several      other    feeder      posts      such       as    that    of<\/p>\n
Superintendent,             Directorate             of          Public<\/p>\n
Instructions          which           was         the        ultimate<\/p>\n
promotional         post   of    LDC,       Principal,         Higher<\/p>\n
Secondary School itself used to be promoted<\/p>\n
from the post of Lower Division Teacher and
\n                                         39<\/span><\/p>\n
another feeder cadre was Principal, College of<\/p>\n
Physical Education which was the promotional<\/p>\n
post    of       Physical          Training    Instructor           having<\/p>\n
qualification of graduation. Thus, submission<\/p>\n
of Shri Trivedi based upon aforesaid rules so<\/p>\n
as     to    contend          that     DAEOs       were       not     duly<\/p>\n
qualified          to         be     adjusted          as     Assistant<\/p>\n
Directors in the School Education Department<\/p>\n
cannot be accepted.\n<\/p>\n
27.     Coming to the question of promotion to<\/p>\n
the         post         of         Deputy         Director.           The<\/p>\n
qualification\/experience                     required          for     the<\/p>\n
purpose      of    promotion          to     the   post       of    Deputy<\/p>\n
Director, Public Instructions is provided in<\/p>\n
Rules       of   1982.        The    Schedule      4    of     the    said<\/p>\n
Rules has been framed under                     rule 6 containing<\/p>\n
the requisite eligibility for the purpose of<\/p>\n
promotion          to     the         various       posts.          Before<\/p>\n
18.5.90, Assistant Director having experience<\/p>\n
of    five       years    could        have    been         promoted    as<\/p>\n
Deputy       Director,             Public     Instructions.             It<\/p>\n
appears          that         as     sufficient             numbers     of<\/p>\n
Assistant          Directors            having          five         years<\/p>\n
experience were not available as such by way
\n                                               40<\/span><\/p>\n
of    amendment          certain        provision               relaxing            the<\/p>\n
aforesaid              qualification                 of         five         years<\/p>\n
experience as Assistant Director was added as<\/p>\n
under :-\n<\/p>\n
         Recruitment Rules, 1982                          Amended Rules 18.5.1990
\nSN    Name   of the       Name of     Experi                   Schedule No.4
\n      post       from  the    post    ence
\n      which            on    which    for
\n      promotions is    promotions     the
\n      to be made       is to be       post
\n                       made
\n  1          2              3            4<\/span>
\n4 A   Asstt.Director   Dy             5            Under     the     heading     “A-<\/p>\n
\n(1)   of       Public  Director       years        Administration\", in column (4)\n      Instruction\/As   of   Public                 against serial No.4 the following\n      stt. Director    Instructio                  provision, shall be added, namely\n      of       Public  n                           -\n      Instruction\n      (Physical)                                   \"out of which at least one year\n      Education                                    experience shall be on the posts\n                                                   mentioned in column (2) and the\n<\/pre>\n
                                                   remaining four years of experience
\n(2)   Dy.Divisional     Divisional                 may be on the post mentioned in
\n      Superintendent    Superintend                column (2) of Serial No.5(A), (B)
\n      of Education      ent of                     and   (C)  viz.   Asstt.Divisional
\n                        Education                  Superintendent     of    Education,
\n                                                   District     Education     Officer,
\n(3)   Principal         Science                    Principal Higher Secondary School,
\n      Basic Training    Consultant                 Principal    Preprimary    Training
\n      Institute         in                         Institute, Superintendent Jiwaji
\n                        Directorate                Observatory,    Principal    Higher
\n                                                   Sanskrit    Vidyalaya,    Principal
\n                                                   College of Physical Education on
\n                                                   the 1st day of January of that
\n                                                   year in which the promotion is to
\n                                                   be made.\n<\/p>\n
                                                   After serial No.4 and entries
\n                                                   relating thereto, the following
\n                                                   serial No. and entries shall be
\n                                                   inserted, namely –\n<\/p>\n<\/p>\n
                                                    (1)     (2)             (3)      (4)\n                                                    4-A     in case the     Dy.D     6\n                                                            required        irec     y\n                                                            number     of   tor      e\n                                                            candidates      of       a\n                                                            in the cadre    Publ     r\n                                                            of     Asstt.   ic       s\n                                                            Director        Inst\n                                                            mentioned at    ruct\n                                                            A in column     ion\n                                                            (2)   against\n                                                            Sr.No.4    is\n                                                            not\n                                                            available,\n                                                            candidates\n                                                            on the posts\n                                                            mentioned in\n                                                            column    (2)\n                                                            of\n                                                            Sr.no.5(A),(\n                                                            B) and (C)\n                                                            shall      be\n                                                            considered\n                                                            for\n                                                            promotion to\n                                                            the post of\n                                                            Dy.Director\n                                                            of     Public\n                                                            Instruction.\n                                       41<\/span>\n\n\n\n\n<\/pre>\n
      It is apparent from the amendment which<\/p>\n
was brought about that it was not a case of<\/p>\n
substitution        of   provision             but    the    addition.<\/p>\n
The basic requirement of five years experience<\/p>\n
was not substituted, but it was added that out<\/p>\n
of five years experience, at least one year<\/p>\n
experience “shall be” on the post mentioned in<\/p>\n
Column 2 and four year experience “may be” on<\/p>\n
the     post        mentioned             in        Column      2     of<\/p>\n
Sr.No.5(A),(B),(C)            shall        be        considered     for<\/p>\n
promotion      to     the     post     of       Deputy       Director,<\/p>\n
Public Instructions. It was also provided by<\/p>\n
making entry after Sr.No.4 as 4-A that in case<\/p>\n
the incumbents mentioned in item 4 at A in<\/p>\n
Column 2 are not available, candidates on the<\/p>\n
posts       mentioned            in         Column           (2)     of<\/p>\n
Sr.No.5(A),(B),(C) having six years experience<\/p>\n
on the post shall be considered for promotion<\/p>\n
to    the      post      of      Dy.Director             of     Public<\/p>\n
Instruction.             Thus,       it        is    apparent       from<\/p>\n
Schedule       4    Sr.No.4        that         in     case     Asstt.<\/p>\n
Director       having       five      years          experience       is<\/p>\n
available, he is entitled to be considered for
\n                                       42<\/span><\/p>\n
promotion    to       the     post     of        Deputy    Director,<\/p>\n
Public Instructions.                He need not possess the<\/p>\n
experience       of    four     years        on     the    posts     as<\/p>\n
mentioned in Column 2 of Sr.No.5(A),(B),(C).<\/p>\n
It was added that incumbents having at least<\/p>\n
one year experience on the post mentioned in<\/p>\n
Column     (2)     and        the     remaining           four     year<\/p>\n
experience may be on the post in Column 2 of<\/p>\n
Sr.No.5(A),(B),(C)i.e.                 Asstt.             Divisional<\/p>\n
Supdt.      of         Education,District                  Education<\/p>\n
Officer,    Principal          Higher        Secondary       School,<\/p>\n
Principal        Pre-primary           Training           Institute,<\/p>\n
Supdt.Jiwaji          Observatory,           Principal           Higher<\/p>\n
Sanskrit     Vidyalaya,             Principal            College    of<\/p>\n
Physical Education on the 1st January of that<\/p>\n
year in which the promotion is to be made. The<\/p>\n
use   of    word       “shall”        and         “may”     is     also<\/p>\n
significant.           Shri         G.P.         Singh      in      his<\/p>\n
interpretation         of     Statutes           12th   Edition     has<\/p>\n
mentioned that the use of word “may” at one<\/p>\n
place and “shall” at another place in the same<\/p>\n
section     may       strengthen           the     inference       that<\/p>\n
these words have been used in their primary<\/p>\n
sense and that “shall” should be construed as
\n                                 43<\/span><\/p>\n
mandatory.     When    the   expressions      “shall”     and<\/p>\n
“may” are defined in the Act, the explanations<\/p>\n
have to be given the meaning as defined. The<\/p>\n
experience     of   four     years   is    qualified    with<\/p>\n
word “may be” on the post specified in Column<\/p>\n
2.     It is not a mandatory requirement. The<\/p>\n
Principal Secretary while passing order dated<\/p>\n
28.2.2009 has failed to consider the aforesaid<\/p>\n
aspect. The use of word “shall” is prima facie<\/p>\n
mandatory. Sometimes it would mean as “may”<\/p>\n
also as laid down by the Apex Court in State<\/p>\n
of U.P. vs. Babu Ram Upadhyay AIR<\/a> 1961 SC 751.<\/p>\n
The effect of the word “may” has also been<\/p>\n
considered by the Apex Court to same effect in<\/p>\n
The     Chairman,Canara        Bank,       Bangalore      vs.<\/p>\n
M.S.Jasra     and   others     AIR<\/a>   1992    SC   1341.    In<\/p>\n
Mahaluxmi Rice Mills and Others vs. State of<\/p>\n
U.P.    and   others<\/a>   (1998)    6   SCC    590   the   Apex<\/p>\n
Court has considered thus :-\n<\/p>\n
       “9. It is significant to note that the
\n       word used for the seller to realize
\n       market fee from his purchaser is “may”
\n       while the word used for the seller to
\n       pay the market fee to the Committee is
\n       “shall”. Employment of the said two
\n       monosyllables of great jurisprudential
\n       import in the same clause dealing with
\n       two rights regarding the same burden
\n                               44<\/span><\/p>\n
    must have two different imports. The
\n    legislative intendment can easily be
\n    discerned from the frame of the sub-
\n    clause that what is conferred on the
\n    seller is only an option to collect
\n    market fee from his purchaser, but the
\n    seller has no such option and it is
\n    imperative for him to remit the fee to
\n    the Committee.     In other words, the
\n    Market   Committee    is  entitled  to
\n    collect market fee from the seller
\n    irrespective of whether the seller has
\n    realized it from the purchaser or
\n    not.”<\/p><\/blockquote>\n
    Considering the concept of contemporanea<\/p>\n
expositio     it      is   well     established     that<\/p>\n
exposition    by     contemporary    authority    is   of<\/p>\n
significance    in    Shiba   Shankar   Mohapatra      and<\/p>\n
Ors. vs.     State of Orissa and Ors.JT<\/a> 2009 (14)<\/p>\n
SC 298, the Apex Court has observed thus :-<\/p>\n
    “8. The question of application of the
\n    doctrine of contemporanea expositio
\n    has been considered by this Court
\n    taking into account the factual matrix
\n    of the case.      In K.P.Varghese vs.
\n    Income Tax Officer,Ernakulam and Anr.
\n    AIR<\/a> 1981 SC 1922, this Court applied
\n    the rule of contemporanea expositio as
\n    the Court found it a well established
\n    rule of interpretation of a statute by
\n    reference to the exposition it has
\n    received from contemporary authority.
\n    However, the Court added the words of
\n    caution that such a rule must give way
\n    where the language of the statute is
\n    plain and unambiguous.\n<\/p><\/blockquote>\n
        Similarly, in Collector of Central
\n    Excise, Bombay-I and Anr. vs. Parle
\n    Export (P) Ltd. AIR<\/a> 1989 SC 644, this
\n    Court observed that the words used in
\n                              45<\/span><\/p>\n
      the provision should be understood in
\n      the same way in which they have been
\n      understood in ordinary parlance in the
\n      area in which the law is in force or
\n      by the people who ordinarily deal with
\n      them. In Indian Metals and Ferro
\n      Alloys Ltd.Cuttack vs. The Collector
\n      of Central Excise, Bhubaneshwar AIR<\/a>
\n      1991 SC 1028, the Court has applied
\n      the same rule of interpretation by
\n      holding that contemporanea exposition
\n      by the administrative authority is a
\n      very useful and relevant guide to the
\n      interpretation of the expression used
\n      in a statutory instrument.”\n<\/p><\/blockquote>\n
 28. It is clear that the amendment cannot be<\/p>\n
interpreted what has been interpreted in the<\/p>\n
manner made by the Principal Secretary in its<\/p>\n
order dated 28.2.2009.\n<\/p>\n
29. We are compelled to observe in the last,<\/p>\n
but not the least that the State Govt. has<\/p>\n
filed the return in different petitions each<\/p>\n
time opposing the petitions.          Earlier when the<\/p>\n
petition was filed by the appellants they had<\/p>\n
filed their return opposing it and supporting<\/p>\n
the   case   of   respondents     DAEOs,   and   in   writ<\/p>\n
appeal when reply to ad-interim writ was filed<\/p>\n
they have taken the stand in para 6 and 7<\/p>\n
opposing      the     case      set    up        by    the<\/p>\n
appellants\/principals and as usual with them
\n                                     46<\/span><\/p>\n
as    it   has     become   their        normal    practice     to<\/p>\n
oppose whatever prayer is made dehors of the<\/p>\n
actual position of law, they have filed the<\/p>\n
return opposing it when three aforesaid writ<\/p>\n
petitions were filed by DAEOs not considering<\/p>\n
what    was   their       stand    in     the   previous      writ<\/p>\n
petition filed by Principals as well as in the<\/p>\n
reply to the ad-interim writ filed in course<\/p>\n
of the writ appeal. No doubt about it that<\/p>\n
they were        to support the order passed by the<\/p>\n
Principal Secretary on 28.2.09, but that would<\/p>\n
not    mean   that       whatever       stand     they   want   to<\/p>\n
take, they can take on the same set of rules<\/p>\n
and on same facts at different points of time.<\/p>\n
The State ought to have been careful in taking<\/p>\n
the appropriate consistent stand. However, we<\/p>\n
leave the matter at that as nothing has turned<\/p>\n
on the stand taken by the State Govt.in its<\/p>\n
returns, we have not based our decision on the<\/p>\n
stand      taken    by    the    State     Govt.but      we   have<\/p>\n
interpreted the rules and orders in accordance<\/p>\n
with law while rendering the decision.<\/p>\n
30. Resultantly, we find the order passed by<\/p>\n
the    Single      Bench    to    be     unassailable.        Writ
\n                                 47<\/span><\/p>\n
appeal is found to be devoid of merits, same<\/p>\n
is hereby dismissed.         As a consequence to the<\/p>\n
aforesaid      discussion,      order      dated       28.2.09<\/p>\n
cannot   be    allowed     to   stand,same        is    hereby<\/p>\n
quashed.      The   writ    petitions       are    allowed.<\/p>\n
However, we leave the parties to bear their<\/p>\n
own   costs    as   incurred         of   the   appeal\/writ<\/p>\n
petitions.\n<\/p>\n<\/p>\n
      (Arun Mishra)                        (S.C.Sinho)\n          Judge.                              Judge.\n\n\n\n\nJk.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Shyam Narayan Sharma vs The State Of Madhya Pradesh on 20 July, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-22338","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nShyam Narayan Sharma vs The State Of Madhya Pradesh on 20 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shyam-narayan-sharma-vs-the-state-of-madhya-pradesh-on-20-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shyam Narayan Sharma vs The State Of Madhya Pradesh on 20 July, 2010 - 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