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Gauhati High Court · body

2001 DIGILAW 24 (GAU)

Biman Chandra Saha v. State of Tripura

2001-02-07

B.B.DEB

body2001
By this writ petition under Article 226 of the Constitution of India, the petitioners seeks for a direction for allowing/giving him the pay and allowances meant for the post of Housing Commissioner, (equivalent to the post of Chief Engineer with effect from 31.12.1997)., the date when the petitioners assumed the duties of Housing Commissioner and also seeks for a writ of Mandamus directing the authorities to appoint him to the post of Chief Engineer, PWD with retrospective effect from the date of his assumption of the office as Housing Commissioner, 2. The gist of the petitioner's case is that the petitioners being a graduate in Civil Engineering joined service as Junior Engineer in Public Works Department, Govt of Tripura, in 1966 and, thereafter., gradually phase by phase he got promotion and ultimately he was appointed by way of promotion to the post of Superintendent Engineer on 22.6.1987. In the same manner the private respondent No. 6 was also appointed on promotion to the post of Superintendent Engineer on 24.11.1987. 3. While the petitioner was so serving as Superintendent Engineer (shortly SE) he was transferred and posted in Tripura Housing Board 'to act' as 'Housing Commissioner' but he has not been allowed the higher pay scale attached/meant for the Housing Commissioner. Having exhausted the alternative remedy by way of representation to the authority concerned seeking the higher pay scale f but getting no response the petitioner served a demand notice dated 7.11.2000 (Annexure 12) and then filed this case. 4. The State Govt and Public Service Commissioner filed separate counters resisting the claim of the petitioner. Private respondent No. 6 also filed counter. But from the pleading of the parties it appears that the counter led by the Public Service Commission and also one of me respondent No. 6 are not of much important. 5. The State Govt averred that the petitioner was never appointed as Housing Commissioner but while he held the substantive post of Superintendent Engineer in the cadre was asked 'to act' as Housing Commissioner his service having been placed under the disposal of Tripura Housing Board he was allowed honorarium @ Rs. 3,000 per month and, as such, the petitioner is not entitled to be paid the h higher pay scale benefit equivalent to the pay scale of Housing Commissioner nor is he entitled to be absorbed to the post of Housing Commissioner. 6. 3,000 per month and, as such, the petitioner is not entitled to be paid the h higher pay scale benefit equivalent to the pay scale of Housing Commissioner nor is he entitled to be absorbed to the post of Housing Commissioner. 6. From the petition, counters and appended Annexures it appears that the petitioner is senior Superintendent Engineer to private respondent No. 6 as available from Annexure 2A (final seniority list of Superintendent Engineers dated 16.7.1999). It is also admitted in the pleadings of the parties that pay scale and status of the Housing Commissioner had been made equivalent to the status and pay scale of Chief Engineer vide memorandum dated 27.4.1992 the post of Housing Commissioner carries pay scale of Rs 4,000-5,900 vide memorandum dated 27.4.1992 (pre revised scale) and that scale is equivalent to the scale of the Chief Engineer PWD. 7. Learned Advocate General appearing for the State-respondents submits that though under section 12 (1) of the Tripura Housing Board Act, 1979, Housing Commissioner is declared to be the Chief Executive Officer of the Housing Board and it is also prescribed under section 12 (2) that the Housing Commissioner shall be appointed by the State Govt but till date no recruitment rules has been framed prescribing eligible criteria required for the said post and, as such, the Govt at its discretion and in the exigency of public service used to make temporary arrangement by placing the service of one or other Superintendent Engineer muter the disposal of the Tripura Housing Board 'to act' as 'Housing Commissioner' and, as such incumbent including the petitioner so posted there 'to act' as 'Housing Commissioner' acquired/acquires no right to seek for the pay scale attached to the said post though equivalent to the pay scale of Chief Engineer PWD. 8. Mr. A. Chakraborty, learned senior counsel for the petitioner submit that since the post of Housing Commissioner is a statutory post and since the said post carries the pay scale of Rs 4,000-5,900 vide memorandum dated 27.4.1992 the petitioner is entitled to be paid the aforesaid pay scale benefit. Learned counsel for the petitioner further submits that the Govt has no authority to ask any person to man the post without allowing him all amenities attached to that post. Since the petitioner is senior most Superintendent Engineer he should be given appointed substantively against the said post with pay scale benefit. Learned counsel for the petitioner further submits that the Govt has no authority to ask any person to man the post without allowing him all amenities attached to that post. Since the petitioner is senior most Superintendent Engineer he should be given appointed substantively against the said post with pay scale benefit. 9. From the related provision of the aforesaid Act, 1979, it reveals that the Housing Board is a body corporate having perpetual succession and a common seal and may sue and be sued in its corporate name and, as such, the status of the Housing Board is of an autonomous body having its independent function/ obligation and liabilities, of course, subject to over all control of the State Govt. But strange enough, till date the authority has not framed the recruitment rules for the aforesaid post prescribing eligibility criteria but has been placing the service of one or other Superintendent Engineer there with 'to act' as 'Housing Commissioner' though it is a statutory post. 10. From the aforesaid rival contentions the only question centered round the case is to decide whether the placement of any Superintendent Engineer under the Housing Board 'to act' and/or 'to perform' and/or 'to look after' and/ or 'to officiate' and/or 'to hold the charge' of the post of Housing Commissioner as a temporary arrangement/stop gap arrangement entitles the incumbent to get the pay scale meant for the said post and also as to the entitlement to be absorbed against the post of Housing Commissioner. Since the provision of section 12 of the Act remains silent as to the mood and manner of filling up the said post, the State Govt used to choose to place the service of any Superintendent Engineer against the vacancy occurred in the said post of Housing Commissioner. In absence of any statutory rules prescribing criteria for the said post, in my opinion, the State Govt has the discretion to place the service of the Superintendent Engineer to man the post of Housing Commissioner as it thinks fit and but in exercising the discretion the State Govt is supposed to act in rational manner without doing any discrimination among the officers concerned. 10A. 10A. The placement of the service of the petitioner 'to act' as 'Housing Commissioner' which is a substantive post created by statute could be termed as appointment to the said post for the purpose of allowing the pay scale attached to that post. 11. It is correct that the Govt has right to place the service of the petitioner against any substantive post as temporary measures asking the incumbent 'to c act', 'to hold the charge', 'to officiate in the substantive post' but that should be a stop gap arrangement for temporary duration. The petitioner was admittedly asked 'to act' as Housing Commissioner vide order dated 31.12.1997 and he acted as such till his retirement during the pendency of this case. 12. It is established proposition of law so far service jurisprudence is concerned that any sorts of stop gap arrangement by way of placing any incumbent against a substantive post 'to act' as such or 'to officiate as such' or 'to hold current charge' of the said post must be for shortest duration among others on the following contingencies : (i) non availability of suitable candidates in the feeder post due to lack of qualifying service; (ii) non finalisation of recruitment rules of the post concerned; (iii) sudden arisen of vacancy due to unforeseen reason like death, voluntary retirement, deputation in foreign service non constitution of Departmental Promotion Committee and the like; But for considerable longer period no appointment is permissible as stop gap arrangement against any substantively created permanent post particularly against statutory post. This sort of practice of officiating appointment or appointment 'to act' or 'to hold current charge' is/are highly condemnable. 13. In any event, if one is asked 'to act' and/or 'to perform' and/or 'to discharge' the higher responsibility in a higher post for a period exceeding 39 days he is entitled to be paid the higher pay scale provided to that higher post in view of FR 49. This legal position has been further fortified by the Hon'ble Apex % Court in the case of Selva Raj ,vs. Lt Governor of Island, Portblair & others, reported in AIR 1999 SC 838 . This legal position has been further fortified by the Hon'ble Apex % Court in the case of Selva Raj ,vs. Lt Governor of Island, Portblair & others, reported in AIR 1999 SC 838 . In the aforesaid case, the Hon'ble Supreme Court unambiguously held that while one is holding the higher post temporarily and/or on officiating basis is entitled to be paid the scale meant for that higher post so long he officiated and or hold this post. 14. Learned Advocate General submits that since the petitioner was allowed and honorarium of Rs 300/- per month in addition to his pay and allowance provided to the substantive post of Superintendent Engineer, the petitioner to claim any higher pay scale. 15.1 am not a position to share with the aforesaid view simply on the principle that no estoppel can stand against the statutory provisions. Since the provisions of FR 49 as mentioned above, coupled with the decision of the Hon'ble Supreme Court in Selva Raj (supra) the submission of the learned Advocate General cannot be sustained. 16. Under the aforesaid circumstances and legal position discussed above, I am of the considered opinion that the petitioner is entitled to be paid the higher pay scale attached to the post of Housing Commissioner which is equivalent to the post of Chief Engineer PWD for the period the petitioner 'acted' or 'officiated' as Housing Commissioner. 17. Since the petitioner already retired on attaining the age of super annuation the relief sought for by the petitioner for absorbing him in the said post of Housing Commissioner substantively cannot be granted. Through the petitioner 'acted' as or 'officiated ' in the post of Housing Commissioner for more than 3 years till his retirement. 18. In the result, the writ petition succeeds. The petitioner is entitled to be paid the higher pay scale as provided and attached to the post of Housing Commissioner (equivalent to the pay scale of Chief Engineer, PWD) from the date of his assumption of his charge as Housing Commissioner till the date of retirement with all retiral benefits. No order as to costs.