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Judgment
Heard Ms. Mahima Maurya Kushwaha, learned counsel for the petitioner and learned Standing Counsel for the respondent-State.
Inspite of service of notice, no counter affidavit has been filed on behalf of respondent no.4.
The precise submission of learned counsel for the petitioner is that under the Clause 20.06(1) of the First Statutes of the Agra University, the minimum qualification for promotion to the post of 'Office Superintendent' has been provided; and the proviso which has been relied upon in the impugned order provides for the "experience on the post" of Routine Clerk or Assistant for least 10 years.
Learned counsel for the petitioner claims that the post of 'Library Clerk' is equivalent to 'Routine Clerk', on which admittedly the petitioner was appointed, in terms of the pay scale and the nature of duties; and in all departments/Institutions, the incumbents with experience on the post of 'Library Clerk' are being considered for promotion to the post of 'Office Superintendent'.
It has further been submitted by the learned counsel for the petitioner that the Management had handed over the charge of the 'Office Superintendent' of the College, as the petitioner was the senior-most clerk; and thereafter in pursuance of the permission granted by the respondent no. 3, i.e. the Regional Higher Education Officer, the Selection Committee after the interviews of all the clerks and ascertainment of their eligibility, has also recommended the petitioner's name for appointment on the post of 'Office Superintendent'.
It has further been submitted that on 20.11.2015, the college had also issued a promotion order to the petitioner, whereafter he has taken charge of 'Office Superintendent' on 23.11.2015; and since then he is continuously discharging the duties of the Office Superintendent; but only being paid the salary of the clerk.
In view of the aforesaid, he had approached this Court by filing Writ Petition No. 1658 of 2016, which was disposed off with the direction upon the authorities concerned to decide the representation; and now while deciding the representation, the approval has been denied, merely on the basis that since the petitioner was working on the post of 'Library Clerk' and not on the post of 'Routine Grade Clerk', he does not bears the experience of 10 years.
Learned counsel for the petitioner has placed reliance upon a decision of the Apex Court in the case of State of Madhya Pradesh Vs. Laxmishankar Mishra and Others, reported in 1979 (2) SCC 270, wherein when an identical controversy arose regarding the interpretation of the words "experience" viz.-a-viz. the substantive appointment on the post on which the experience is sought under the relevant Rules, the Apex Court determined that a person In-charge of the post also works and discharges the duties and functions, of the post, of which he has taken charge; and as such the officiating incumbent of the post, discharges identical functions, bears similar responsibilities and acquire an equal amount of experience in the respective assignment.
The emphasis was on the expression "working on the post"; and it was held that "experience on the post" meant, performing the duties and discharging the functions assigned to the post and not the capacity in which the post is held; and the rationale to believe was that, the framers of the Rule did not want to attach any importance to the capacity in which the post is held but the emphasis was on working on the post, meaning thereby discharging the duties and performing the functions assigned to the said post.
On the strength of the aforesaid ratio of the Apex Court, learned counsel for the petitioner, submits that certain identically placed persons who were also working on the post of 'Library Clerk' but performing the administrative and accounting duties which are commensurate to the post of 'Routine Clerk', have already been granted promotion to the post of 'Office Superintendent'; but in spite of the fact that Management has issued the promotion order, after adhering to the due process and verifying the "experience on the post"; in a higly arbitrary and legal manner, the impugned order has been passed.
The learned Standing Counsel does not dispute the service book which has been appended by the petitioner along with her rejoinder affidavit and the same clearly depicts that the petitioner was also performing the administrative duties as well as accounting duties, which is commensurate to the post of 'Routine Clerk'.
It has also not been disputed that petitioner has been working on the post of Officiating Principal since 2015 and as such the only reasoning in the impugned order to the extent that the petitioner was not appointed on the post of 'Routine Clerk', cannot be justified in view of the decision of the Apex Court in the case of State of Madhya Pradesh Vs. Laxmishankar Mishra (supra). For ready reference the relevant extract of the said judgement is reproduced below:-
"Mr. Gambhir, learned counsel for the petitioner urged that the expression: "should have worked on the post for a minimum period of 7 years in the same institution" would, in the context of the rule and the consequences flowing from it, mean only a substantive post on which the Head Master/Principal was confirmed and the confirmed holder of the substantive post for a period of 7 years would be entitled to absorption as envisaged by rule 3 (b). On a pure grammatical construction of the expression it would indisputably appear that the person claiming to be absorbed must have worked on the post of Head Master/Principal of a High/Higher Secondary School for a minimum period of 7 years. Emphasis is on the experience gained by working on the post of Head Master/Principal. A person incharge of the post also works and discharges the duties and functions of the post of which he has taken charge. Even an officiating incumbent of the post does discharge the functions and duties of the post. While examining the relative positions of confirmed Deputy Engineers and Officiating Deputy Engineers in S. B. Patwardhan & Ors. etc. v. State of Maharashtra & Ors.,(2) this Court observed that the officiating Deputy Engineers discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments. Viewed from this angle, the confirmed holder of a substantive post would be discharging the functions attached to the post and when some one is placed in that very post in an officiating capacity or directed to hold charge of the post, he would be required to perform the duties and discharge the functions of the post rendering identical service. If the rule expressly did not make any differentiation between the persons working as a confirmed holder of substantive post and an incharge or officiating holder of the post, is there anything in the expression itself which by necessary implication excludes service in any other capacity except as a confirmed Head Master/Principal in a substantive post ? A confirmed holder of a substantive post may look tautologous because one can only be confirmed in the substantive post.
Further, the emphasis in the expression is on working on the post meaning thereby performing the duties and discharging the functions assigned to the post and not the capacity in which the post is held. Confirmation in a post being one of the glorious uncertainties of service as observed by this Court in S. B. Patwardhan's case, (supra) it is rational to believe that the framers of the rule did not want to attach any importance to the capacity in which the post is held but the emphasis was on working on the post meaning thereby discharging the duties and performing the functions assigned to the post.
In view of the aforesaid, the impugned order dated 20.06.2016 cannot be sustained in the eyes of law and is accordingly set aside.
The Respondent No.2 is directed to grant consideration to the approval to the promotion of the petitioner, on the post of 'Office Superintendent' and give all consequential benefits to the petitioner, which are permissible to the post of Office Superintendent along with reasonable rate of interest for the arrears of salary also to be determined by the respondent authorities.
With the aforesaid observation, the petition stands allowed.