KESHAV KUMAR GUPTA Vs. STATE OF U P

JUDGEMENT

(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.

(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.