- (1.) R. B. Misra, J. Heard Sri Utpal Chatterjee, holding brief of Sri Pankaj Mithal, learned Counsel for the petitioner as well as Sri Raj Kumar, learned Standing Counsel for the respondents.
(2.) IN this writ petition the prayer has been made to treat the petitioner as Deputy Librarian from 15-7- 1994 and to recognise the post of Senior Assistant as up grated to the post of Deputy Librarian and to pay the entire arrears of salary to the post with effect from 1-7-1997 and further prayer has been made commanding the respondents to decide the representation of the petitioner in accordance with law. According to the petitioner, the petitioner is a physically handicapped (Deef) was employed as a library clerk on 18-5-1966 in N. R. E. C. College, Khurja, District Bulandshahr which is a post graduate college duly affiliated with Chaudhary Charan Singh University, Meerut formerly known as Meerut University. He was confirmed in the scale of Rs. 80-125 and was in the scale of 120-220 as Senior Assistant in the library of the institution was revised scale of Rs. 230-380 from 1-8-1972. According to the petitioner on 10-12- 1993 the committee of management of the institution decided to raise the post of Senior Assistant to the post of Deputy Librarian. Consequent upon on 4-3-1994/6-3-1994 the Principal of the college has recommended the up-gradation of the petitioner's post to that of Deputy Librarian in the scale of Rs. 200-400. The Deputy Director of Education Meerut on the representation of the petitioner fixed his pay in the scale of Rs. 230-380 on 7-11-1981 placing in the up-graded scale w. e. f. 5-7-1982 as a Deputy Librarian. On 19-9-1982 the committee of management decided and resolved to up grade the scale and the communication to this effect was made on 5-10-1982 to the higher officer on the representation of the petitioner for getting them upgraded salary. The sub-committee of the management of the college recommended the up-graded salary to be given to the petitioner and according to the petitioner he was paid arrears of salary form 15-7-1974 to 31-3-1975. Thereafter a regular post of Deputy Librarian fell vacant on 6-6-1995 and he was allowed to official that post. Thereafter he gave several representation and when no heed was taken the grievance of the petitioner therefore, he filed the writ petition. Counter affidavit has been filed on behalf of the respondents. The counter-affidavit at the out set following averments have been made: - (a) N. R. E. C. College, Khurja, Bulandshahr (hereinafter referred to as College) like any other non- Government aided colleges of State and is governed by U. P. State Universities Act 1973, First Statutes of Meerut University and Government order issued from time to time. (b) The petitioner was appointed as Library clerk in the college on 18-5-1964. Later on he was placed in the scale of Rs. 120-220 as senior assistant in the Library. (c) Since 1-4-1975 when payment of salary of teachers and employees from salary payment account was implemented besides the post of Librarian one post of Deputy Librarian was also taken for salary payment from Salary Payment Account. (d) The management committee of the college has never been empowered to create a new post or upgrade the any of the existing post. (e) There is no provision in the Act or statutes to promote the Library clerk on the post of Deputy Librarian. The post of Deputy Librarian was to be filled only through direct recruitment. (f) A post of Deputy Librarian fell vacant in the college and Regional Higher Education Officer, Meerut has given permission to appoint a Deputy Librarian vide letter dated 25-9-1995. (g) According to Statute 24. 01 the post of Deputy Librarian shall be filled by direct recruitment on the recommendation of selection committee in the manner provided in statue 24. 06 after advertisement of the vacancy in the newspaper. For ready reference the provision of Statute 24. 01 of Meerut University is being produced below: "24. 01 Appointment to the post of Librarian, Deputy Librarian, Physical Education Instructor, Pharmacist, Routine Clerk or other post either in the pay-scale of, or in a pay scale higher than that of Routine Clerk other than the posts mentioned in Statute 24. 02 and Statute 24. 03 shall be made by direct recruitment on the recommendation of a selection committee in the manner provided in statute 24. 06 after advertisement of the vacancy in the newspaper: Provided that the post of Librarian shall be filled by promotion from the post of Deputy Librarian if the incumbent of the latter post possesses the prescribed minimum qualification for the post of a Librarian. " (h) As per Statute 24. 06 the selection committee for appointment to the post of Deputy Librarian shall consider of. (i) The Head of the Management or a member of Management nominated by him, who shall be the Chairman; (ii) The Principal of the college ; (iii) One officer to be nominated by the Director of Education (Higher Education) (i) The college shall advertise the post as per statute and the petitioner is free to apply for the post of Deputy Librarian, for direct recruitment and not for promotion. Since there is no provision to promote a Library clerk against the post of Deputy Librarian, for direct recruitment and not for promotion. Since there is no provision to promote a Library clerk against the post of Deputy Librarian which is filled by direct recruitment. The Selection Committee constituted as per statutes 24. 06 may consider the candidature of petitioner in case he fulfils minimum qualification and is called for interview. According to the respondents the petitioner was appointed as library clerk and was promoted senior assistant in the library in the pay scale of Rs. 120-200 and the petitioner is getting the revised pay scale of senior assistant and there is no provision to promote a senior assistant to the post of Deputy Librarian which is a post of direct recruitment. The petitioner was not approved for the post of Deputy Librarian by the Committee of Management being contrary to the provisions of Statute 24. 01 of the statutes of Meerut University was not approved by the Director of Higher Education U. P. Allahabad. Statute 24. 04 reads as below: - "24. 04 Appointment of employees shall be subject to the approval of the Director of Education (Higher Education), or an officer authorised by him in this behalf. If the approving authority does not within two months from receiving the proposal for approval intimate its disapproval (or does not send any intimation in respect of such proposal) to the Appointing authority the approving authority shall be deemed to have approved the appointment. " According to the respondents the maintenance grant was given by the Government for one post of Librarian and one post of Deputy Librarian and accordingly from 1-4-1975 the persons working on the aforesaid posts were recommended for payment of salary from salary payment account funded by State Government Since the petitioner was not working to the post of Deputy Librarian on that date at the relevant time and the petitioner was never treated as Deputy Librarian, therefore, he was not paid against the said post. The petitioner was paid his salary from 1-4-1975 through State Fund against the post of senior library assistant. Therefore, the question of paying salary and arrears to the petitioner against the post of Deputy Librarian did not arise as he has already been informed by letter 20-8-1990 and 23-4-1996 enclosed as CA-1 and CA-2 to this counter-affidavit. The college has never treated the petitioner as a Deputy Librarian as he was always kept as a Senior Librarian Assistant in the various staff statements. (Annexures CA-3 to CA-9 ). According to the para 9 of the counter-affidavit it was the internal management of college under which Principal has allowed the petitioner to look after the work of extra of Deputy Librarian without giving appointment under the provisions as prescribed in Statutes 24. 01 and 24. 06.
(3.) THE rejoinder affidavit has been filed controverting the averments of the counter-affidavit and reiterating the paragraphs of the writ petition by further saying that the committee of management all through had been recommending for creation a new post of Deputy Librarian or to upgrade the existing post of Senior Library Clerk. However, for reasons best known of the Director of Higher Education, no steps were taken either to create a new post or to upgrade the post even though the work load required creation of post of Deputy Librarian. However, in the meantime, a substantive post of Deputy Librarian fell vacant in the year 1995 and the petitioner being the senior most was allowed to work on the said post. No reason exists on record for not holding a direct selection for the appointment of a suitable candidate on the post of a Deputy Librarian. No selection committee was constituted. This depriving the petitioner the right of appointment on the post of Deputy Librarian. However, with the passage of time as the petitioner was continuously allowed to officiate on the post of Deputy Librarian, he acquired right to hold the post of Deputy Librarian substantially by way of promotion even though the promotion was not admissible under the statute. According to the petitioner as Stated in paragraph 8 of the rejoinder affidavit the representations of the petitioner remained pending approval since the year 1990. THE petitioner has been allowed to work on the post of Deputy Librarian which fell vacant since 1995. THErefore, it is wrong to allege that the petitioner was never recognised as Deputy Librarian. THE petitioner is still working on the post of Deputy Librarian and as such is entitled to salary admissible to the said post. THE staff statement for the year 1987-88, 1988-89 and 1989-90 which have been filed as (Annexure CA-6, CA-7 and CA-8) themselves shows that the proposal for approval of up-gradation of the post on which the petitioner was working to that of the Deputy Librarian was pending with the approving authority upto the year 1990. THE approval should have been given within two months in the absence of which it would have been deemed to have been approved. Heard learned Counsel for the petitioner as well as learned Standing Counsel for the State. Admittedly the petitioner was appointed initially as library clerk and was being given salary to the post of senior library assistant in the revised scale and was allowed to discharge the extra work of Deputy Librarian in his official capacity and was eligible for being considered for Deputy Librarian, however, the post of Deputy Librarian was to be made by direct recruitment and by oppression by internal management on the post of Deputy Librarian does not entitle the petitioner to get automatic promotion and salary of Deputy Librarian as the post of Deputy Librarian has to be made in consonance to the provisions of Section (statute ?) 24. 01 and 24. 06 of the University statute. Therefore, the petitioner's prayer made in the present writ petition cannot be allowed. The writ petition is dismissed. However it is observed that keeping in view the services of the petitioner and his eligibility and the recommendation which was made by the committee of management of College on several occasions it could safely be said the petitioner's candidature may safely be considered for further promotion at appropriate time. However, this aspect could be looked for proper committee for making promotion and the authorities are not expected to keep promotional post for such a long time. Therefore, in future if the post is not fulfilled the authorities may proceed for immediately fulfilling the post directly and if under the provisions for recruitment to the post of Deputy Librarian the authorities have power for relaxing the minimum requirement of age limit, such power may be exercised sympathetically for the candidature of the petitioner. It is also indicate that this is one writ petition where the counter-affidavit filed by Dr. Suresh Chandra Tiwari, Deputy Director of Higher Education (Statistics), U. P. Allahabad on behalf of the respondents is admirable as the clear facts along with elaborately provisions of law relevant to the case have been submitted at the out set before giving para-wise reply to the contents of each paragraphs of the writ petition. The Government authorities are expected to file the counter-affidavit in such a way that proper and adequate assistance could be derived in respect of the facts and law for prompt adjudication of the case.;