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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: LAXMISHANKAR MISHRA AND ORS. ETC.

DATE OF JUDGMENT29/03/1979

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SEN, A.P. (J)

CITATION:  1979 AIR  979            1979 SCR  (3) 630  1979 SCC  (2) 270

ACT:      Madhya  Pradesh   Local  Authorities   School  Teachers (Absorption in  Government Service)  Rules, 1963, Rule 3(b)- Interpretation of  the words "should have worked on the post for a minimum period of 7 years."

HEADNOTE:      The Madhya  Pradesh Local  Authorities School  Teachers (Absorption  in   Government  Service)   Act  provided   for absorbing teachers  serving in  Middle Schools  and  Primary Schools managed by local authorities in Government service.      The relevant  rule for absorption enacted under the Act in rule 3 and rule 3(b) read as follows:           "3(b)For  absorption   on   the   post   of   Head                Master/Principal of  a High/ Higher Secondary                School, the  person concerned  should possess                the post  graduate  degree  and  should  have                worked on  the post for a minimum period of 7                years in the same institution and should have                10  years’   teaching   experience   in   any                recognised institution of Madhya Pradesh".      On the  question of interpretation of the words "should have worked on the post for a minimum period of seven years" the High  Court was of the view that the period during which a Head  Master/Principal worked  as incharge Principal ought to be  taken into  account for  computing the  period  of  7 years.      Dismissing the special leave petitions by the State the      Court, ^      HELD : 1. While computing the period of 7 years for the purpose of  rule 3(b)  what is  determinative is  performing duties  and  discharging  functions  of  the  post  of  Head Master/Principal irrespective  of the  capacity in which the post was held. [635 C]      2. The  absorption of  a person as Principal under rule 3(b) does  not depend on rank but on the nature of functions and duties  that is  incumbent discharges  for a  particular number of  years (i.e.)  the duties  of a  Principal  for  a period of  seven years.  The language,  in the instant case, indicates emphasis  on work  being done  while on  the  post irrespective of capacity. [635 B-C]

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    Ramrattan v.  State of  M.P. and Ors., I.L.R. 1964 M.P. 242; State of Madhya Pradesh v. Gokul Prasad,[1971] M.P.L.J. 609; Girja  Shanker v.  S.D.O. Harda  and Ors.,  A.I.R. 1973 M.P. 104; distinguished.      3. On a pure grammatical construction of the expression "should have  worked on  the post  for a  minimum period  of seven years  in the  same institution". it is clear 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, the emphasis being on the experience gamed  by working  on the  said post. A person in charge of the post also works and 631 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. 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, there is nothing  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. [633 D-E, G-H]      Confirmation in  a  post  being  one  of  the  glorious uncertainties of  service as observed by this Court in S. B. Patwardhan’s case,  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. [634 C-D]      S. B.  Patwardhan and Ors. etc. v. State of Maharashtra and Ors., [1977] 3 SCR 775; applied.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) Nos. 4062-4066 of 1978.      From the  Orders dated  11-1-1978 of the Madhya Pradesh High Court in M.P. Nos. 390, 391, 393, 395 and 397/75.                             AND      SPECIAL LEAVE PETITION (CIVIL) NO. 4069 of 1978.      From the  Order dated 5-1-78 of the Madhya Pradesh High Court in M.P. No. 580/75.      S. K. Gambhir for the Petitioners in all the S. L. Ps.      The Order of the Court was delivered by      DESAI,  J.   Mr.  Gambhir,   learned  counsel  for  the petitioner informed  us  that  a  number  of  petitions  are pending in  the High  Court of  Madhya Pradesh  in which the question  raised  in  the  present  group  of  petitions  is involved and as we are not inclined to grant leave, we would rather indicate our reasons by a speaking order.      At the  commencement of the British Raj both in the Raj ruled area  of India and the princely States institutions of higher education  were set  up and  manned under  Government aegis. As  the demand  for institutions  of higher education increased with  the proliferation of State activity and need of  white  collar  employees,  these  institutions  speedily multiplied and  they were  generally set  up and  manned  by educational societies or local authorities.      The turmoil  since independence  and especially  in the last one  and a half decade in the world of academicians led to the reversal of the policy of Government directly setting up educational institutions and

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632 in fact  whatever they  had set up, being slowly handed over to educational  societies and/or  local authorities,  and it has turned  a full  circle. The grievance of the teachers in such school manifested in the demand for taking over of such institutions by  the State  and all  over  the  country  the transition has begun.      In Madhya  Pradesh the  State regulated the functioning and standards  of academic  instruction in  Higher Secondary Schools under  Madhya Pradesh  Madhyamik Shiksha  Adhiniyem, 1965. This supervisory role of the State hardly improved the situation with  the result  that tensions  increased and the demand became louder that these institutions should be taken over by  the Government  for its  direct management  and the teachers  should   be  accorded  the  status  of  Government servants.      The  State  Government  responded  to  this  demand  by enacting  the   Madhya  Pradesh   Local  Authorities  School Teachers (Absorption  in Government Service) Act, 1963 (’the Act’ for  short). The  Act provided  for absorbing  teachers serving in  Middle Schools  and Primary  Schools managed  by local authorities in Government service.      The relevant rule for absorption is rule 3 of the Rules enacted under  the Act.  In these petitions we are concerned with rule 3(b) which reads as under:           "3  (b).  For  absorption  on  the  post  of  Head      Master/Principal of a High/Higher Secondary School, the      person  concerned  should  possess  the  post  graduate      degree and should have worked on the post for a minimum      period of  7 years  in the  same institution and should      have 10  years teaching  experience in  any  recognised      institution of Madhya Pradesh".      While implementing  the aforementioned rule there arose a cleavage  on the interpretation of the rule, the concerned teacher contending  that what is relevant is that working on the post  for a  minimum period  of 7  years would  for  the purpose of  computation of  7 years  include service even as incharge Head Master/Principal or officiating service in the post whereas  the State  contended that the teacher claiming to be  absorbed as  Head Master/Principal should have worked as a  confirmed Head Master/Principal in a substantive  post for the full period of 7 years. The State in accordance with its interpretation  declined absorption  to a number of Head Masters/Principals which  led to  the filing  of a number of writ petitions in the Madhya Pradesh High Court.      It appears that this question was first examined by the Madhya Pradesh  High Court in Satyendra Prasanna Singh Yadav v. State of 633 Madhya Pradesh & 3 Ors.(1), in which the High Court took the view that  the period  during which  a Head Master/Principal worked as  incharge Principal ought to be taken into account for computing the period of 7 years. Following this decision the present  group of  petitions were  allowed by a Division Bench of  the Madhya  Pradesh High  Court and an application for leave  to appeal  to this Court under Article 133 of the Constitution was rejected. Hence the State of Madhya Pradesh has filed  this group  of petitions  for  special  leave  to appeal. It  may be mentioned that the earlier decision which the High Court seeks to follow appears to have been accepted by the State of Madhya Pradesh.      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

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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 634 confirmed holder  of a substantive post may look tautologous because one can only be confirmed in the substantive post.      Now, every  High School or Higher Secondary School must of necessity  have the  post of Head Master/Principal and it was nowhere suggested that there would not be a post of Head Master/Principal. If that would mean that there was always a substantive post of Head Master/Principal it may be that the confirmed holder  of the  post may  be away  and  not  in  a position to  discharge  the  duties  and  some  one  may  be appointed in  an officiating  capacity or may be directed to hold charge  but none-the-less  such holder of the post will have to  perform duties  and discharge functions attached to the 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.      Our attention  was drawn  to State  of Assam  & Ors. v. Shri Kanak  Chandra  Dutta(1).  We  fail  to  see  how  this decision can  assist in deciding the question one way or the other. The  question that  came for  consideration  of  this Court was:  whether the  holder  of  a  post  designated  as Moujadar in the Assam valley was holding a civil post in the context of Article 311 of the Constitution ? After examining the duties  and functions  attached to the post of Moujadar,

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this Court  held that a post can exist apart from the holder of the  post and that Moujadar is the holder of a civil post under the  State and  that it makes no difference that he is remunerated by  way of  a commission  on the  collection  of Government dues  and does  not draw a salary. In fact, if at all this  decision helps, it would fortify the view which we are taking  that the  post  is  independent  of  the  holder thereof and  the requirement  of the rule is that the person claiming to be absorbed must have worked in the post of Head Master/Principal.      Perhaps  there  would  have  been  some  merit  in  the submission on  behalf of  the petitioner if in rule 3(b) the words used were "who held the post" but the language in rule 3(b) is  so materially different and it speaks that a person should have  worked on  the post.  The State  was apparently wrong in introducing the element of rank for the purpose 635 of rule  3(b). The controversy that surfaced in Ramrattan v. State of  Madhya   Pradesh &  Ors.,(1)  and  the  subsequent decision in  State of  Madhya Pradesh  v.  Gokul  Prasad,(2) which led to a reference to a Full Bench in Girja Shankar v. S.D.O., Harda  & Ors.,(3)  on account  of  the  use  of  the expressions such  as "person appointed to be incharge of the current duties  of the  office" which  indicated  that  such person did  not hold  the rank  and,  therefore,  could  not discharge statutory  functions assigned  to the  post should not detain  us. The language here indicates emphasis on work being done  while on  the post irrespective of the capacity. The absorption of a person as Principal under rule 3(b) does not depend on rank but on the nature of functions and duties that an  incumbent discharges  for a  particular  number  of years, i.e.  the duties  of a  Principal for  a period  of 7 years.      It thus  clearly transpires  that while  computing  the period of  7 years  for the  purpose of  rule 3(b)  what  is determinative is performing duties and discharging functions of the  post of  Head Master/Principal  irrespective of  the capacity in  which the  post was  held. The  High Court was, therefore, right in holding that the period during which the petitioners  (respondents  in  these  petitions)  worked  as incharge Head  Masters/Principals ought  to  be  taken  into account by  the State Government for computing the period of 7 years.      These petitions are accordingly dismissed. V.D.K.                                  Petitions dismissed. 636