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2001 DIGILAW 215 (JK)

Malik Javed Iqbal v. Ellaqai Dehati Bank

2001-09-19

R.C.GANDHI, S.K.GUPTA

body2001
1. This Letters Patent Appeal has arisen out of judgment and order dated 31.12.1997 whereby the cause of the appellant, seeking direction for regularization of his services against the post of Manager, Planning and Development, from August, 1994 the date he has been adjusted against the said post, and also payment of charge allowance, has been dismissed by the learned Single Judge. 2. The appellant substantively holding the post of Branch Manager, Ellaqai Dehati Bank, was adjusted against the post of Manager, Planning and Development vice order dated 09.09.1994. On the strength on his adjustment against the post, he seeks the relief of regularizations of his services against the said post and also the payment of charge allowance. 3. Respondents before the learned Single Judge in their reply affidavit have submitted that the post of Manager, Planning and Development has been reduced to the status and pay scale of a Branch Manager vide Board of Directors Resolution dated 17.02.1993 arid that the appellant is not discharging the duties of the higher post, thus not entitled to the payment of charge allowance. He has also been transferred from the office of Manager, Planning and Development. 4. Learned Single Judge, after appreciating the rival contentions and examining the record and the pleadings, dismissed the writ petition, holding that the post of manager, Planning and Development has been reduced to the status of Branch Manager in the same pay scale and the appellant, being not discharging the duties of the higher post, is not entitled to the payment of charge allowance. It has also been observed by the Learned Single Judge that the appellant is not the senior most Manager who could be promoted by regularizing his services, and the rules governing the service framed by the employer envisage that the promotion to the post could be made only after examining the suitability on the basis of seniority-cum-merit. 5. Aggrieved by the order of learned Single-Judge, appellant has filed this Letters Patent Appeal challenging the legality and correctness of the order on the ground that the appellant has been adjusted against the higher pay scale and he is entitled to seek regularization and also being discharging the duties of the higher post, is entitled to the payment of charge allowance. 6. Heard the learned counsel for the parties and perused the record. 7. 6. Heard the learned counsel for the parties and perused the record. 7. To substantiate the plea that the appellant has been adjusted against the higher post, the learned counsel has relied upon the written statement filed before the learned Chief Judicial Magistrate in a suit titled Malik Javed Iqbal vs. Ellaqai Dehati Bank, Srinagar, wherein the appellant has challenged his transfer. Attention of the court has been drawn to para 1 of the written statement wherein it has been stated by the respondents that: - "It is respectfully submitted that plaintiff has been working since 1994 in the bank in officiating capacity or on an adhoc arrangement when after the beginning of disturbed law and order conditions in the valley, higher substantive positions which earlier were held by the senior staff, were delegated In Junior as a stop gap/temporary arrangement in a usual manner prevailing in the whole banking industry in the valley." 8. Learned counsel for the appellant has also submitted that this reply be read with stipulation contained in Note No. 23/1999 dated 08.06.1999 forming annexure at Page 21, relevant portion of which reads as: "As P&D Section has to be headed by Scale - II Officer, we may post Shri Hakak as Manager P&D (in officiating capacity)." 9. Perusal of these pleadings do not make out that the appellant has been placed or adjusted in a higher pay scale or post In the pleadings, it is also not made clear by the appellant either before the learned Single Judge or before us that the appellant is holding the post of Branch Manager on substantive basis in a particular pay scale and has been adjusted in a particular higher pay scale. It is settled proposition of law that if a public servant is asked to discharge the duties of a higher post, he is entitled either to the salary at the minimum of the pay scale of the higher post or the officiating allowance. It is settled proposition of law that if a public servant is asked to discharge the duties of a higher post, he is entitled either to the salary at the minimum of the pay scale of the higher post or the officiating allowance. lt is not made out from the pleadings of the parties that the appellant has been asked to discharge the duties against a particular pay scale which is higher to that of the pay scale which the appellant was holding as Branch Manager, it is also not made clear in the pleadings that the Grade - II Officer Post carrier higher pay scale to that of the pay scale of the post of Branch Manager. Taking into consideration the pleadings, it can safely be said that it is a case not only of short pleadings but of evasive pleadings. Unless the pleadings are clear and cogent making out a clear case for grant of relief, it neither can be granted nor status or entitlement of the claimant can be decided. The appellant could not make before us that he has been adjusted against a higher pay scale. Unless it is made out, he is not entitled to the relief of charge allowance also. The learned Single Judge, therefore, has rightly decided the case of the appellant on the basis of the pleadings. We do not find any reason to interfere with the judgment under appeal. 10. Accordingly, the appeal fails and is dismissed.