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2004 DIGILAW 778 (ALL)

Union of India (UOI) v. Tribhuvan Nath Kushwaha

2004-04-08

MARKANDEY KATJU, R.S.TRIPATHI

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JUDGMENT : M. Katju, J. This writ petition has been filed against the impugned orders of the Central Administrative Tribunal dated 4.12.2001, Annexure-1 to the writ petition, and 3.6.2002, Annexure-1A. 2. Heard learned Counsel for the parties. 3. The Respondent No. 1 Sri T.N. Kushwaha was working as Receptionist in the Central Administrative Tribunal, Allahabad. He was asked to take over the work of Court Master by order dated 10.9.1990, Annexure-2 to the writ petition. A perusal of the said order shows that the Respondent No. 1 was only asked to work till further orders vice Sri Sanjeev Sinha, Court Officer who was being relieved. Sri Kushwaha made representations on 8.4.1994 and 28.4.1994 praying that he be paid salary of the Court Master in the grade of Rs. 2,000 to 3,500 from 11.9.1990 to 30.9.1993. This representation was rejected by the Principal Bench of the Central Administrative Tribunal by order dated 5.12.1995, Annexure-3 to the writ petition. 4. The Respondent No. 1 has alleged that again he was posted in Court No. 1 by order dated 6.11.1995 of the Vice Chairman, Central Administrative Tribunal, Allahabad, copy of which is Annexure-4 to the writ petition. According to the Respondent No. 1 he was transferred from Court No. 1 to Court No. 3 by order dated 12.8.1996, with the approval of the Vice Chairman, Central Administrative Tribunal, Allahabad and on 29.10.1996 he was again posted in Court No. 1 under the order of the Vice Chairman, Central Administrative Tribunal, Allahabad. Copies of the orders dated 12.8.1996 and 29.10.1996 are Annexures-5 and 6 to the writ petition. The Respondent No. 1 worked as such till he was transferred to judicial section by order dated 20.8.1997. 5. The case of the Petitioner before the Central Administrative Tribunal was that the Respondent No. 1 was never designated as Court Master or Court Officer and he continued to work as U.D.C. during this period as is evident from the order dated 10.9.1990, 6.11.1995, 12.8.1996 and 29.10.1996. It was alleged by the Petitioner that the Respondent No. 1 could not have been appointed as Court Officer for which eight years of continuous regular service as Assistant was required as per C.A.T. Recruitment Rules while the Respondent No. 1 was only U.D.C. at that time. True copy of the C.A.T. Recruitment Rules is Annexure-7 to the writ petition. It was alleged by the Petitioner that the Respondent No. 1 could not have been appointed as Court Officer for which eight years of continuous regular service as Assistant was required as per C.A.T. Recruitment Rules while the Respondent No. 1 was only U.D.C. at that time. True copy of the C.A.T. Recruitment Rules is Annexure-7 to the writ petition. It is alleged that the post of Court Master in the scale of Rs. 1,400 to 2,600 is a promotional post from the feeder grade of Stenographer grade-D while the Respondent No. 1 was U.D.C., belonging to a different feeder grade. The feeder grade/ promotional channel of Sri Kushwaha was L.D.C. to U.D.C. then from U.D.C. to Assistant and then from Assistant to Court Officer/Section Officer. Thus, the Respondent No. 1 is seeking relief of payment of salary of Court Officer in the scale of Rs. 2,000-3,500 which is two grades higher than the post of U.D.C. in the scale of Rs. 1,200 to 2,040. Moreover the Respondent No. 1 has not completed eight years of minimum regular service as Assistant nor five years of regular service as U.D.C. for promotion to Assistant. Hence he has no claim to be appointed as Court Officer or to get salary of that post. The Respondent No. 1 was only allowed to work in Court No. 2 as U.D.C. to look after the work of Court Master. 6. However, the O.A. filed by the Respondent No. 1 has been disposed of by the Central Administrative Tribunal holding that the Respondent No. 1 was appointed to the post of Court Master and hence he was entitled to the salary of Court Master from 11.9.1990 to 30.9.1993 and from 6.11.1995 to 20.8.1997. The Tribunal has relied on Fundamental Rule 49(iii) copy of which is Annexure-8 to the writ petition. 7. Against the order of Tribunal the Petitioner filed a review petition in which it was pointed out that the Respondent No. 1 had never been appointed as Court Officer or Court Master and hence he was not entitled to salary on that post. True copy of the review petition is Annexure-9 to the writ petition. 8. 7. Against the order of Tribunal the Petitioner filed a review petition in which it was pointed out that the Respondent No. 1 had never been appointed as Court Officer or Court Master and hence he was not entitled to salary on that post. True copy of the review petition is Annexure-9 to the writ petition. 8. It is alleged in paragraph 13 of the writ petition that the order dated 10.9.1990, under which the Respondent had been posted as Court Master was passed by the Deputy Registrar, Central Administrative Tribunal, Allahabad, who was not the competent authority. The competent authority for appointment of Court Master or Court Officer is only the Chairman, Principal Bench, Central Administrative Tribunal, New Delhi. Even the Vice-Chairman is not the competent authority for making such appointment unless power is delegated to him by the Chairman. In the review petition it was specifically pointed out that there was no order of the competent authority, namely, the Chairman, Principal Bench, Central Administrative Tribunal, New Delhi, appointing the Respondent No. 1 as Court Officer or Court Master. Moreover, there was no concurrence of the Ministry of Finance for posting of Respondent No. 1 as Court Master/ Court Officer beyond three months as mentioned in proviso to Fundamental Rule 49(iii). However, the review petition has been dismissed by the order dated 3.6.2002. 9. It is alleged that the orders of the Tribunal dated 4.12.2001 and 3.6.2002 are wholly illegal and are liable to be set aside. 10. Counter and supplementary counter-affidavits have been filed and we have perused the same. In paragraph 4 of the counter-affidavit it is stated that the Respondent No. 1 is permanent U.D.C. in the Central Administrative Tribunal and is performing the duties of a higher post i.e., Court Officer for a considerable long period. Since he had done the work of a higher post he was entitled to the salary of higher post. His representation has been arbitrarily rejected. 11. Having heard the learned Counsel for the parties we are of the opinion that this petition deserves to be allowed. Merely because the Respondent No. 1 had been given work of Court Master from 11.9.1990 that does not mean that he has been appointed as Court Officer. The Respondent No. 1 was only U.D.C. and he was not appointed as Court Master or Court Officer as correctly pointed out in the writ petition. Merely because the Respondent No. 1 had been given work of Court Master from 11.9.1990 that does not mean that he has been appointed as Court Officer. The Respondent No. 1 was only U.D.C. and he was not appointed as Court Master or Court Officer as correctly pointed out in the writ petition. The Respondent No. 1 did not fulfil the eligibility conditions for being promoted as Court Officer as stated in paragraph 8 of the writ petition. In our opinion the Respondent No. 1 was not eligible to be appointed as Court Master or Court Officer and in fact he was not appointed as such. Merely working or holding charge of a higher post does not give any right to that post. 12. As regards the Fundamental Rule 49(iii), a bare perusal of the same shows that that rule applies to a Government servant formally appointed to hold charge of another post. The words 'formally appointed' are in our opinion very important. They imply that appointment must be done by the competent authority. In the present case, Respondent No. 1 could not claim to have been appointed by the competent authority as rightly pointed in paragraphs 13 and 14 of the writ petition. The Respondent No. 1 was never appointed by the Chairman, Principal Bench, Central Administrative Tribunal, New Delhi, who is the competent authority but was only appointed by the Deputy Registrar, Central Administrative Tribunal, Allahabad, by order dated 10.9.1990. Hence, Rule 49(iii) will not apply. 13. As regards the claim of the Respondent No. 1 that since he was doing the work of Court Officer or Court Master he should get salary of that post, we cannot accept this contention in view of the Division Bench decision of this Court in State of U.P. and Others Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh and Others, (2004) 1 AWC 159 . The entire case law on the point was discussed in that decision and hence we are not repeating the same. It has been held in that decision that a person who is not a regular employee is not entitled to get salary of a regular employee as held in a catena of decisions of the Supreme Court. 14. Hence following the decision in State of U.P. v. U.P. Madhyamik Shiksha Shramik Sangh (supra) this petition is allowed. The impugned orders dated 4.12.2001 and 3.6.2001 are quashed.