JUDGMENT Honble Rakesh Sharma, J.—Heard Sri Somesh Khare, learned counsel for the petitioner and the learned Standing Counsel for respondents No. 1 to 3 and Sri K.C. Sinha, counsel for respondents No. 4 and 5. 2. The present writ petition has been filed by an officiating Office Superintendent Gr. II working in Christ Church Post Graduate Degree College, Kanpur Nagar assailing the order dated 30.7.2007 passed by the Director of Education (Higher Education) U.P., Allahabad rejecting the representation submitted by the petitioner seeking his approval, regularisation on the post of Office Superintendent Gr. II in the said Institution. 3. Brief facts of the case are as follows. The petitioner was appointed as routine clerk in Christ Church Post Graduate Degree College, Kanpur Nagar on 17.7.1967. This institution is a minority institution. Later on considering the satisfactory work, conduct and performance, he was promoted to the post of Senior Assistant on 19.9.1978. On 19.5.1988, a vacancy of Office Supdt. in the college fell vacant as a result of promotion granted to Sri H.K. Hastings on the further higher post of Bursar. Learned counsel for the petitioner has drawn attention of the Court to statute 21.03 of the U.P. State Kanpur Universities (Affiliated and Associated Colleges Non-Teaching Staff Qualification and Service Conditions) First Statutes, 1977. The promotions on the higher ministerial posts are made according to seniority subject to suitability and fitness of a candidate. The process for direct recruitment was also provided in these statutes. After promotion of Sri H.K. Hastings on the post of Bursar, the next senior most person was Mr. G.H. David who was working as Accountant in the institution. Sri G.H. David declined to accept the offer of promotion given to him. He had foregone his promotion on the post of Office Superintendent Gr. II. 4. In September, 1988 an advertisement was published in the newspaper ‘Pioneer Patrika’ inviting applications to fill up the said post of Office Superintendent. Several candidates had applied in response to the advertisement. 5. Since no suitable candidate came forward nor any other person was available having requisite qualification and experience to hold the post of Office Superintendent, the Selection Committee of the Institution recommended the name of the petitioner for promotion on the post of Office Superintendent Gr. Several candidates had applied in response to the advertisement. 5. Since no suitable candidate came forward nor any other person was available having requisite qualification and experience to hold the post of Office Superintendent, the Selection Committee of the Institution recommended the name of the petitioner for promotion on the post of Office Superintendent Gr. I. Since Sri G.H. David had declined to accept the offer of promotion, the management of the Institution acting under statute 22.03(3) sent a formal requisition addressed to Director of Education (Higher Education), Allahabad for approving the appropriate arrangement of manning the post. The petitioner being the next senior most head clerk working in the institution having all the requisite qualifications and experience was selected by the Selection Committee for appointment on the post of Office Superintendent Gr. II. Accordingly the Managing Committee had appointed or promoted the petitioner on the post of Office Superintendent Gr. II on 5.1.1990. 6. The Principal of the Institution sent all the papers for approval to the Director of Education (Higher Education) U.P., Allahabad by means of a formal letter dated 15.2.1990. These papers were duly received in the said office. 7. The matter had remained pending and vide letter dated 22.6.90, the Assistant Director of Education-3 for and on behalf of Director of Higher Education had sent a letter to the Regional Officer, Lucknow for taking appropriate necessary action. The petitioner had also submitted several representations to the concerned authorities of the Higher Education Department to accord approval of his promotion or appointment as Office Superintendent Gr. II. However on 8.8.1990 a letter was sent by the Regional Higher Education Officer to the Principal of the Institution indicating therein that the proposal of appointment of the petitioner, i.e., S.P. Joseph was not in accordance with the scheme of the rules. Another letter was sent by the Regional Higher Education Officer to the Manager of the Institution after more than 15 years, i.e., on 3.3.2006 to the same effect. It is noteworthy that the petitioner had continued to work as Office Superintendent in the Institution since 5.1.90 without any interruption. Neither his promotion was approved nor the same was disapproved by the Director of Education (Higher Education) and other concerned authorities. 8. It is noteworthy that the petitioner had continued to work as Office Superintendent in the Institution since 5.1.90 without any interruption. Neither his promotion was approved nor the same was disapproved by the Director of Education (Higher Education) and other concerned authorities. 8. On 25.2.2006, the petitioner submitted a detailed exhaustive representation addressed to the Regional Higher Education Officer, U.P., Kanpur requesting him to accord approval to the promotion/appointment as Office Superintendent Gr. II in view of the statutory provisions contained in clause 21.03(4) of the first statute of Kanpur University, 1977. According to the said provision, the appointment of the petitioner on the post of Office Superintendent could be deemed to be regular and approved. When no action was taken and the petitioner was nearing the age of superannuation, i.e., on 5.10.2006, he had filed a writ petition before this Court, that is, 35121 of 2006, S.P. Joseph v. Director of Higher Education, U.P., Allahabad and others. This writ petition was disposed of vide order dated 10.7.2006, directing the Director of Higher Education to consider and dispose of the representation of the petitioner regarding the approval on the post of Office Superintendent Gr. II. No order was passed by the Director of Higher Education, respondent No. 2 and the petitioner had to file a contempt petition bearing No. 2049 of 2007 in which notices were issued to the respondents on 23.5.2007. When the said case was listed on 1.8.2007, learned counsel appearing for Principal, Christ Church Post Graduate Degree College, Kanpur Nagar had informed the Court that the Director of Education (Higher Education), U.P. Allahabad had passed an order on 30.7.2007, rejecting the aforementioned representation submitted by the petitioner. 9. According to the learned counsel for the petitioner, the impugned order dated 30.7.2007 is an example of non-application of mind. This order is guided by irrelevant considerations as for about 17 years no decision was taken by the Director of Education ( Higher Education) but when contempt notices were issued, then only the Director of Education (Higher Education) woke up and rejected the representation, defeating the lawful claim of the petitioner. No order approving or disapproving the promotion of the petitioner as Office Superintendent Gr. II was passed by the said authority which continued from 5.1.1990 to the date of his superannuation, i.e., on 5.10.2006. No order approving or disapproving the promotion of the petitioner as Office Superintendent Gr. II was passed by the said authority which continued from 5.1.1990 to the date of his superannuation, i.e., on 5.10.2006. The action is wholly illegal as no communication was ever sent to the petitioner nor the Principal of Christ Church Post Graduate Degree College, Kanpur Nagar regarding any decision that could have been taken in terms of the mandate of statute 21.03(4) of the first statute of Kanpur University, 1977. The petitioner discharged the duties, functions and responsibilities of the post of Office Superintendent Gr. II for about 16-17 years. The entire papers of selection were sent by the Committee of Management to Christ Church Post Graduate Degree College, Kanpur Nagar to the Director of Education (Higher Education) on 5.1.1990 itself. No communication neither disapproving nor approving the promotion was sent. 10. Learned counsel for the petitioner read before the Court the provisions contained in Statute 21.03 (4) to lay emphasis on the fact that proposal/papers sent by the Principal of the Institution to the Director of Education (Higher Education) from the date of appointment, i.e. 5.1.1990, two months having elapsed from the date of receiving of such proposal in the year 1990, by virtue of the statutory provision, the appointment of the petitioner has to be treated to be approved by fiction of statute 21.03 of the first Statute of Kanpur University, 1977. Thus, the appointment of the petitioner gets deemed approval. The petitioner has continuously worked as Office Superintendent Gr. II from 5.1.1990 till the date of his retirement, i.e., 5.10.2006. Since the petitioner has worked, discharged the duties, functions and responsibilities of Office Superintendent Gr. II for the above period, he is entitled for payment of salary of higher post. It was a case of legitimate expectations in terms of the statute. The action of Director of Higher Education neither approving nor disapproving the appointment was wholly arbitrary and discriminatory. The petitioner is neither being paid salary for the higher post nor as a retired employee, he is being given pension for the said post. The action is violative of Articles 19 and 21 of the Constitution of India. There was no rational, justification for Director of Education (Higher Education) in not according approval to the post of Office Superintendent Gr. II. 11. The action is violative of Articles 19 and 21 of the Constitution of India. There was no rational, justification for Director of Education (Higher Education) in not according approval to the post of Office Superintendent Gr. II. 11. Sri Somesh Khare, learned counsel for the petitioner has submitted that in the order of the Director of Education (Higher Education) he has not taken into account that on 18.2.89, the process of selection by way of interview was held. Since no person was found fit , suitable and qualified for appointment as Office Superintendent Gr. I & II , as such the Management had sent a letter to Director of Education (Higher Education) on 5.1.1990 for approval of petitioner’s promotion and placed all the facts for his appreciation. The Committee of Management of the Institution had rightly promoted the petitioner on the post of Office Superintendent Gr. II in the interest of administration. The Selection Committee, the Committee of Management etc. had found the petitioner senior most suitable and fit for promotion on the post of Office Superintendent Gr. II in the year 1990. The Director of Education (Higher Education) without applying his own mind had misplaced reliance on a letter sent by the Regional Higher Education Officer on 8.8.1990. The Regional Higher Education Officer had not appreciated the situation prevailing in the Institution in January, 1990. Sri G.H. David had declined the promotion on the post of Office Superintendent Gr. II and despite advertising in the newspaper, no suitable candidate came forward nor was available to be promoted to the post of Office Superintendent Gr. II. The Regional Higher Education Officer had passed a vague and bald order that the resolution of promotion was not in accordance with law (Nyay Sangat Nahi Hai). The petitioner has already had 10 years’ long experience of working on higher ministerial post. He was senior most, fully qualified and suitable for promotion. The Regional Higher Education Officer had excluded from consideration the difficulties which were being faced by the institution in managing the affairs of its office at the relevant time. There was specific provision in the Government order dated 14.3.1984 clause (ga) enabling the Committee of Management to make such appointment. He was senior most, fully qualified and suitable for promotion. The Regional Higher Education Officer had excluded from consideration the difficulties which were being faced by the institution in managing the affairs of its office at the relevant time. There was specific provision in the Government order dated 14.3.1984 clause (ga) enabling the Committee of Management to make such appointment. The attention of the Court was drawn to the communication sent by the Assistant Director of Education (Higher Education)-3 on 22.6.1990 which indicated that Sri S.S. Tandon, the erstwhile, Assistant Director of Higher Education acting on behalf of Director was of the view on the said date, i.e., in the year 1990 that the approval be accorded expeditiously. The proposal of the petitioner’s promotion was admittedly received in the office of Director of Higher Education on 15.2.1990 and despite this no action was taken by the said authority. In the year 2006, the Director of Education (Higher Education) did not take into account the letter dated 22.6.1990 sent by his office signed by Assistant Director of Higher Education and has unnecessarily mechanically relied upon the letter dated 8.8.1990 in which vague, indefinite and bald opinion was recorded by the Regional Officer. The Regional Higher Education Officer was not competent nor empowered to pass any order in this regard in preference to the order passed by the Assistant Director and Director of Higher Education. 12. Since the petitioner has retired on attaining the age of superannuation, he has performed the duties, functions of the post held by him in the aforementioned period for more than 16-17 years, he is entitled for payment of salary and pension and other retiral benefits admissible to the post of Office Superintendent Gr. II after his retirement. 13. Learned Standing Counsel has filed counter affidavit on behalf of respondents No. 1, 2 and 3. In the counter affidavit, it has been indicated that the institution is affiliated to Chhatra Pati Sahuji Maharaj University, Kanpur. The provisions of first statute of Kanpur University are applicable to the said institution. It has been admitted that the appointment on the post of Office Superintendent is governed by the provisions contained in U.P. State Universities Act, 1973, the first statute of concerned University, i.e., statute 21.03(3). Statute 21.03 has been quoted in the counter affidavit. The provisions of first statute of Kanpur University are applicable to the said institution. It has been admitted that the appointment on the post of Office Superintendent is governed by the provisions contained in U.P. State Universities Act, 1973, the first statute of concerned University, i.e., statute 21.03(3). Statute 21.03 has been quoted in the counter affidavit. According to the learned counsel for the respondents No. 1, 2 and 3 , the petitioner was not appointed in accordance with the procedure in the First Statute of Kanpur University. The Committee of Management had provided Rs. 200/­ per month from its own source in appreciation of additional work of Office Superintendent. The petitioner’s appointment, promotion was not approved by the Director of Education (Higher Education). The petitioner was not promoted as per the procedure prescribed in the statute of the affiliating University. The record pertaining to his selection was to be placed by the petitioner (in fact it was to be placed by the Management of the Institution). 14. It has been further submitted by the learned Standing Counsel on the basis of para 12 of the counter affidavit that the petitioner had not fulfilled the requisite qualification for the post of Office Superintendent. The Director of Education (Higher Education) had never granted approval on his appointment. Even if the Selection Committee had not found any suitable candidate for the post of Office Superintendent Gr. II or I, it could not be assumed that the selection/promotion of the petitioner as Office Superintendent Gr. II was valid. Prior sanction of Director of Higher Education was required. The Regional Higher Education Officer, Kanpur Nagar had pointed out the irregularity in its letter dated 8.8.1990 rejecting the claim of the petitioner. Learned Standing Counsel submitted that the petitioner neither fulfilled the requisite qualification for the post of Office Superintendent nor he was recommended by any Selection Committee, he is not entitled for the relief claimed. The counter affidavit on behalf of the respondents No. 1, 2 and 3 has been filed by Dr. Ram Chandra Mishra, posted as Assistant Director in the office of Directorate of Higher Education, U.P., Allahabad. 15. Strong resistance has been put through Sri K.C. Sinha, advocate for respondents No. 4 and 5 by the Principal of Christ Church Post Graduate Degree College, Kanpur Nagar and the present Committee of Management of the said Institution. Ram Chandra Mishra, posted as Assistant Director in the office of Directorate of Higher Education, U.P., Allahabad. 15. Strong resistance has been put through Sri K.C. Sinha, advocate for respondents No. 4 and 5 by the Principal of Christ Church Post Graduate Degree College, Kanpur Nagar and the present Committee of Management of the said Institution. A detailed counter affidavit has been filed by these respondents of the institution on 18.4.2008. As far as the applicability of the statute 21.03 is concerned, the same has been admitted by the respondents No. 4 and 5 in its counter affidavit. The procedure of constitution of Selection Committee and the qualifications meant for the post of Office Superintendent have been spelt out in the counter affidavit. The details of petitioner’s service career have also been indicated in the counter affidavit and on 5.10.2006, the salary of the petitioner was admitted as Rs. 6,000/- per month. Since the institution is depending upon grant-in-aid, hence the salary of the petitioner was being paid from State Exchequer and he is also entitled for pension as per policy of the State Government on the last pay drawn. 16. In response to the advertisement inserted in two daily newspapers having wide circulation in the city of Kanpur, several candidates responded. The Selection Committee comprising of senior officers of the Education Department and Member of the Management Committee did not find any candidate fit and suitable for the post of Office Superintendent. Vide letter dated 5.1.1990, respondents No. 3 and 4 had requested the Director of Education (Higher Education) for approval of the promotion of the petitioner to the post of Office Superintendent Gr. II. The petitioner was not selected by the said committee constituted to make direct recruitment. 17. According to the Management of the Institution in its counter affidavit filed on 18.4.2008, the petitioner was holding the post of Senior Assistant not the post of senior clerk or Office Superintendent. Learned Standing Counsel, Sri K.C. Sinha appearing for the Management has laid much stress upon the letter dated 8.8.1990 sent by Regional Higher Education Officer, disapproving the proposal of institution for continuance of the petitioner as Office Superintendent Gr. II/I. However, in the counter affidavit it has been categorically admitted that no advertisement for making direct recruitment on the post of Office Superintendent Gr. II was made by the Institution after promoting the petitioner. II/I. However, in the counter affidavit it has been categorically admitted that no advertisement for making direct recruitment on the post of Office Superintendent Gr. II was made by the Institution after promoting the petitioner. The petitioner had continued to work in the said capacity till the date of his superannuation. The Management had issued an office memorandum on 17.10.1994 issuing formal appointment order in favour of the petitioner on the post of Acting Office Superintendent till regular appointment is made. The petitioner was also required to discharge all the duties of Office Superintendent Gr. II and he was to be paid difference of salary by the Management. The petitioner’s representation was also disposed of by the Committee of Management on 12.10.2006 before issuance of the order by respondent No. 2 on 30.7.2007. His representation was rightly rejected by the Director of Education (Higher Education). Thus a turnaround has been taken by the Principal and Management of the College while opposing the petition in this Court. 18. Sri Somesh Khare has responded to the submissions of Sri K.C. Sinha appearing for the Principal and Management of the Institution. He pointed out that the same institution had permitted the petitioner on 5.1.1990, allowing him to continue as Office Superintendent for more than 16 years was not supposed to take a turn around in April 2008, and oppose all the actions and orders passed by the Management of the Institution in the year 1990 and thereafter. The petitioner’s main contest is that as his continuance of the Office Superintendent was to be approved or disapproved by the Director of Higher Education (not by the Principal or Management of the Institution) and it has been admitted by the Principal and management of the Institution that the salary and other post retiral benefits were to be paid by the State Government. In view of the averments, it does not seem appropriate and proper for respondents No .4 and 5 to put such kind of resistance to the claim of the petitioner as has been demonstrated before the Court. 19. Sri Khare has placed before the Court the Chronology of all the events as to how his case was always supported by the then Principal and Management of the Institution. 19. Sri Khare has placed before the Court the Chronology of all the events as to how his case was always supported by the then Principal and Management of the Institution. In para 18, it has been categorically admitted by respondents No. 4 and 5 that the petitioner’s services were in fact required as per administrative exigencies. A reference was made to letters dated 5.1.1990 and 17.10.1994 written by the Committee of Management. It was categorically submitted in second part of para 18 that the petitioner was required to discharge all the duties of Office Superintendent Gr. II and he was to be paid the difference of salary. However, at one place Principal and Management of the Institution had already indicated that the payment of salary to the petitioner was the responsibility of the State Government, the Director of Higher Education and not of the Institution. The Selection Committee itself found that no suitable candidate was available. There was no one to man the post of Office Superintendent Gr. I/Gr. II in the institution and accordingly the petitioner was allowed to continue as Office Superintendent Gr. I in the institution. Respondents No. 4 and 5 cannot be permitted to take a complete somersault in this manner in putting such strong resistance to the claim of the petitioner which has mainly been lodged against respondents No. 1, 2 and 3. The petitioner was a senior most official of Ministerial Establishment. Sri David has already foregone his promotion and on the basis of principle of seniority subject to rejection of unfit, the petitioner was rightly asked to work as Office Superintendent Gr. II. The petitioner is having B.Com. Degree and have more than 10 years experience of work as head clerk. By the time he was promoted as Office Superintendent on 5.1.1990, he had about 23 years continuous service in the institution to his credit. 20. I have heard learned counsel for the parties and perused the record. It is admitted to the parties that the petitioner had earned 23 years experience of work in ministerial establishment of Christ Church Post Graduate Degree College, Kanpur Nagar by 5.1.1990 when he was admittedly asked to look after the work of Office Superintendent Gr. II and he held the said post. It is admitted to the parties that the petitioner had earned 23 years experience of work in ministerial establishment of Christ Church Post Graduate Degree College, Kanpur Nagar by 5.1.1990 when he was admittedly asked to look after the work of Office Superintendent Gr. II and he held the said post. It has been admitted in the counter affidavit filed by the Management and Principal of the said Institution that the petitioner had been discharging all the duties, functions and responsibilities of the post of Office Superintendent Gr. II in the administrative exigencies prevailing at the relevant time and due to non-availability of a suitable fit candidate to man the post. The petitioner was admittedly permitted to work, promoted on the post of Office Superintendent Gr. II on 5.1.90. The relevant provisions contained in Statute 21.03 of the first statute of University of Kanpur as referred above is quoted below : Statute 21.03. "The appointment to the post of Head Clerk/Accountant/Office Superintendent, shall be made by the promotion according to seniority subject to suitability and fitness from amongst the existing employee having required qualification in the case of the non-availability and suitable candidate from amongst the existing staff, appointment on the post of Head Clerk/Accountant/Office Superintendent, may be made by direct recruitment on the basis of the selection after advertisement of vacancy in newspaper." Statute 21.03(iv) : Appointment of the employee shall be subject to the approval of Director of Higher Education or an Officer authorised by him in this behalf." 21. The statute 21.06. further provides that for the post of Head Clerk-cum-Accountant, office superintendent known as Office Superintendent Gr. II in (Christ Church Post Graduate Degree College, Kanpur Nagar) 10 years experience of working as routine clerk or assistant in a Post Graduate College would be necessary. The petitioner was graduate having B.Com. Degree and had 23 years of experience of working as Assistant/Routine Clerk in Christ Church Post-Graduate Degree College, Kanpur Nagar when he was promoted/appointed on the post of Office Superintendent Gr. II in the said Institution on 5.1.1990. He was fully qualified, fit and suitable for the post as per aforementioned statutory provisions. 22. The petitioner was graduate having B.Com. Degree and had 23 years of experience of working as Assistant/Routine Clerk in Christ Church Post-Graduate Degree College, Kanpur Nagar when he was promoted/appointed on the post of Office Superintendent Gr. II in the said Institution on 5.1.1990. He was fully qualified, fit and suitable for the post as per aforementioned statutory provisions. 22. It is evident from the documents placed before the Court that the proposal and necessary papers regarding appointment/promotion of the petitioner as Office Superintendent were sent by the Principal of Christ Church Post Graduate Degree College, Kanpur Nagar to the Director of Education (Higher Education) immediately after 5.1.1990. These papers were admittedly received in the office of Directorate on 15.2.1990. This fact is evident from the letter written by Sri S.S. Tandon, Assistant Director of Higher Education to the Regional Education Officer in its letter dated 22.6.1990. This letter was in fact written on behalf of the Director of Education (Higher Education) indicating therein that the petitioner S.P. Joseph was duly selected candidate for promotion on the post of Office Superintendent in Christ Church Post Graduate Degree College, Kanpur Nagar. The relevant papers were received in the office on 15.2.1990. It was further indicated that if a suitably qualified candidate is not available, the person working in the next lower post can be appointed and the Director of Education (Higher Education), U.P., Allahabad in its letter dated 22.6.1990 (sent through S.S. Tandon, Assistant Director of Higher Education) was of the opinion that the approval could be granted (Aatah Niukti Hetu Anumodan Adhikshak-2 Ke Vetanman Mein Diya Ja Sakta Hai). In view of the statute 21.03 it is clear that by fiction of the said provision, the appointment of the petitioner got deemed approved. In the present case after receiving the proposal and papers sent by the Principal of the Institution 2 months period had elapsed on 15.4.1990 from the date of receiving the proposal and neither the proposal of appointment, promotion of the petitioner as Office Superintendent was approved or disapproved by the appropriate authority. No document has been placed on record by the respondents contesting this case demonstrating before the Court whether the proposal was even disapproved in any manner in the year 1990 and thereafter. 23. Admittedly, the petitioner in the present case was promoted on the post of Office Superintendent on 5.1.1990. No document has been placed on record by the respondents contesting this case demonstrating before the Court whether the proposal was even disapproved in any manner in the year 1990 and thereafter. 23. Admittedly, the petitioner in the present case was promoted on the post of Office Superintendent on 5.1.1990. He had continuously worked on the said post, discharged all the duties, functions and responsibilities of the said post till he retired on 5.10.2006 after attaining the age of superannuation. There is sufficient force in the submission of learned counsel for the petitioner that in view of the deemed provisions contained in statute 21.03(4) of the first statute of Kanpur University, 1977, there was no rationale or justification in withholding the payment of salary admissible to the petitioner on the post of Office Superintendent with effect from 5.1.1990 to 5.10.2006. Since no intimation with regard to approval or disapproval by the Director of Education (Higher Education) had been sent to the appointing authority within a period of two months, inference can be drawn that the petitioner’s appointment stood approved. Petitioner’s case derive strength from statute 21.03, 21.06 and the letter of Director of Higher Education dated 22.6.1990. 24. Even otherwise this Court has taken note of uninterrupted continuous service rendered by the petitioner on the post of Office Superintendent right from 5.1.1990 to 5.10.2006. It has already come on record that the post of Office Superintendent had fallen vacant on account of promotion of Sri H.K. Hastings on the post of Bursar on 19.5.1988. Exercise was taken after issuing advertisement in the newspaper of wide circulation to find out a suitable candidate for the post. A high level Selection Committee did not find any candidate fit, suitable and qualified to hold the post of Apex ministerial post of Office Superintendent Gr. II. As per administrative exigencies prevailing in the institution, the Management had no other option left except to appoint or promote the next senior most candidate, i.e., petitioner on the post of Office Superintendent. It is noteworthy that after Sri H.K. Hastings, the next senior candidate Sri G.H. David had already declined to accept the promotion and foregone the same. Now after declining the offer by Sri David, the choice fell on Sri S.P. Joseph, the petitioner who was having a B.Com. Degree and 23 years’ experience of working as clerk or assistant. It is noteworthy that after Sri H.K. Hastings, the next senior candidate Sri G.H. David had already declined to accept the promotion and foregone the same. Now after declining the offer by Sri David, the choice fell on Sri S.P. Joseph, the petitioner who was having a B.Com. Degree and 23 years’ experience of working as clerk or assistant. He was having much more experience than the required 10 years experience of working as assistant or clerk. As per record, the work, conduct and performance of the petitioner as Office Superintendent Gr. II has remained wholly satisfactory. There is nothing on record to show that he had not properly satisfactorily discharged his duties as Office Superintendent in the Institution. 25. The Court has also taken note of the fact that the Institution had in fact required the services of the petitioner. Since he was not being paid salary by respondents No. 1, 2 and 3 and the intimation regarding approval or disapproval was not received from the office of Director of Education (Higher Education), the Institution had paid him Rs. 200/- per month in appreciation and consideration of the services rendered by him on higher post. In these circumstances it was not proper for the Principal and Management of the college to put forth such strong resistance to defeat the claim of the petitioner as set out in the writ petition. In fact, the erstwhile Principal and Management of the Institution had always supported the case of the petitioner right from 5.1.1990 till 10.5.2006 when he retired while working as Office Superintendent in the College. 26. In the present case, petitioner had discharged the duties, functions and responsibilities of the post of Office Superintendent Gr. II, he must get salary and other benefits including the post retiral benefits admissible to the said post. The petitioner cannot suffer due to lethargy and inaction on the part of respondents No. 1, 2 and 3 who were sitting over the paper since 1990. There is substance in the submission of the learned counsel for the petitioner that the authorities of the Education Department woke up when the writ petitions were filed and the notices were issued in the contempt petition. The representations submitted by the petitioner were rejected by the Director of Higher Education on 30.7.2007 only. The order dated 30.7.2007 is not a well considered, reasoned and speaking order. The representations submitted by the petitioner were rejected by the Director of Higher Education on 30.7.2007 only. The order dated 30.7.2007 is not a well considered, reasoned and speaking order. The Director of Education (Higher Education) has failed to exclude from consideration the relevant provisions of law the fiction of statute 21.03 of the First Statute of Kanpur University, 1977 as discussed above. The papers were duly received in the office of Director of Education (Higher Education) on 15.2.1990, communication to this effect was sent by the said authority on 22.6.1990, in fact admitting the claim of the petitioner of working on the post of Office Superintendent Gr. II. The Director of Education (Higher Education), U.P., Allahabad has not dealt with the contents of letter dated 22.6.1990 in which an opinion had already been expressed by the Assistant Director of Higher Education on behalf of Director of Higher Education in writing (Aatah Niukti Hetu Anumodan Adhikshak-2 Ke Vetanman Mein Diya Ja Sakta Hai). He had rather given unnecessary weightage to a letter dated 8.8.1990 sent by a subordinate officer, that is, Regional Higher Education Officer, Kanpur Nagar ignoring the above opinion contained in letter dated 22.6.1990 as indicated above. The Director of Education (Higher Education) cannot ignore the provisions contained in the above mentioned statute which has statutory force. Certainly no weightage can be given to a letter and communication dated 8.8.1990 sent by the Regional Officer in preference to letter dated 22.6.1970. The relevant statute of 1977 specify that the appointment of an employee (including Office Superintendent) shall be subject to the approval of the Director of Education (Higher Education) or an officer authorised by him in his behalf. Sri S.S. Tandon while writing letter dated 22.6.1990 was in fact authorised by the Director of Education to express his opinion about the status of the petitioner as it was on 5.1.1990 and 15.2.1990 i.e. around that date. No delegation of powers has been shown by which the Director of Education (Higher Education) authorised the Regional Education Officer to write such letter on 8.8.1990. The said authority was not empowered to send this communication. The respondent No. 2 has in fact acted mechanically and did not apply his mind to the facts of the case while appreciating the legal position. The action is certainly violative of Articles 14, 19 and 21 of the Constitution of India. The said authority was not empowered to send this communication. The respondent No. 2 has in fact acted mechanically and did not apply his mind to the facts of the case while appreciating the legal position. The action is certainly violative of Articles 14, 19 and 21 of the Constitution of India. The petitioner has been deprived of his salary and, pension and other post retiral benefits admissible to him for the post held by him in the institution despite working for more than 16 years. 27. This Court has taken note of the government order dated 15.3.1984 clause (ga) regarding the status of the post of Office Superintendent Gr. II which is equivalent to the post of Head Clerk. However, as per record in this institution admittedly the post of Office Superintendent Gr. II/I is available and that had remained occupied by the petitioner from 5.1.1990 to 5.10.2006 uninterruptedly. 28. Accordingly, in view of the above discussion, the writ petition succeeds and is allowed. A writ of certiorari is issued to quash the order dated 30.7.2007. Since the petitioner has worked on the post of Office Superintendent Gr. II from 5.1.1990 to 5.10.2006, he shall be entitled for payment of salary for the post of Office Superintendent Gr. II for the said period. The respondents are directed to make payment of arrears of salary for the aforesaid period within two months from the date of presentation of a certified copy of this order. It is further provided that the petitioner’s post retiral benefits like pension, gratuity, group insurance etc. admissible to him shall be settled and paid to him treating him to be working on the post of Office Superintendent Gr. II from 5.1.1990 to 5.10.2006. The services rendered on the post of Office Superintendent shall be taken into account, counted for the purpose of calculating and settling pension and other post retiral benefits admissible to the petitioner. Necessary appropriate order shall be passed immediately by the respondents in the light of the observations and directions made in the judgment. ————