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2013 DIGILAW 250 (UTT)

Satveer Singh Yadav v. State of Uttarakhand

2013-05-08

SUDHANSHU DHULIA

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Judgment Sudhanshu Dhulia, J. 1. Heard Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. G.D. Joshi, and Mr. B.P.S. Mer, Brief Holder for the State of Uttarakhand. 2. The petitioner before this Court had filed the writ petition claiming several reliefs. Out of these reliefs, the two important reliefs the petitioner had sought are quashing of order dated 6.8.2009 which is Annexure No. 17 to the writ petition and consequently a Mandamus from this Court that the respondents be directed to pay the salary to the petitioner to the post of Junior Clerk cum computer operator with effect from 8.5.2006. 3. The need for filing the present writ petition and for seeking the above mentioned reliefs came up for the reasons that initially the petitioner who was working as a class IV employee in the Social Welfare Department, Government of Uttarakhand was transferred vide order dated 29.06.2005 by the Director, Social Welfare Department, Uttarakhand, Haldwani, Nainital on an in cadre post to Other Backward Commission, Dehradun. This order has been annexed as Annexure No. 1 to the supplementary counter affidavit which has been filed by the State. The exact terms and conditions, which have an important bearing with the present matter will be referred to later. 4. After the petitioner had joined as a class IV employee, the Chairman of the Other Backward Commission passed an order on 22.5.2009 in favour of the petitioner stating that there is a post of junior clerk cum computer operator which is vacant in the Commission and in order that the work may not suffer, the petitioner who is working as class IV employee is promoted to the said post. 5. Consequently thereafter an order has been passed on 6.8.2009 by the Secretary, Other Backward Class Commission by which the order dated 22.5.2009 whereby the petitioner was promoted to the post of Junior Clerk cum Computer Operator, was cancelled for the reasons that the petitioner’s lien is in Social Welfare Department and the post also belongs to Social Welfare Department and the promotion can only be made by the Director, Social Welfare. It is this order, the petitioner has challenged by means of the present writ petition. 6. It is this order, the petitioner has challenged by means of the present writ petition. 6. The respondents in the counter affidavit have justified the said order and have further prayed that the earlier order dated 22.5.2009 which was passed in favour of the petitioner was totally without jurisdiction and such an order could not have been passed by the Chairman of the Commission for promoting the petitioner, as the said post belongs to Social Welfare Department and only the Director, Social Welfare could have passed such an order. In other words, the order dated 22.5.2009 is totally without jurisdiction and was, therefore, cancelled. 7. However the fact of the matter, which is admitted by the petitioner, is that during the pendency of the writ petition the petitioner has been promoted vide order dated 19.12.2011 by the Director, Social Welfare on class III post of Junior Clerk cum Computer Operator and since then he is also getting the salary of the said post. 8. Now the petitioner has limited his prayer that he is liable to get the salary of class III post since 8.5.2006 till 19.12.2011 i.e. the date when he was promoted, for the reasons that the petitioner was working on the post of Junior Clerk cum Computer Operator, which is a higher post. He relies upon Rule 22(b) of the Fundamental Rules and says that the Fundamental Rule which are presently applicable in the matter stipulate that if a Government employee is holding the post “A” and is then promoted even officiating or permanent post or substantive post on higher post, he is liable to get higher post. Rule 22(b) is very extensive provision and the entire provision may not be cited. But the provision on which the petitioner is relying upon is the main body of the Rule which is 22(b) which reads as under :- “22. The initial substantive pay of a Government servant who is appointed substantively to a post on a time-scale of pay is regulated as follows :- (a)……. (b) If the conditions prescribed in clause (a) are not fulfilled he will draw as initial pay the minimum of the time-scale. Provided that where a Government servant holding a post in a temporary or officiating capacity and drawing pay in a pay scale, the maximum of which (exceeds Rs. 1,200 or Rs. (b) If the conditions prescribed in clause (a) are not fulfilled he will draw as initial pay the minimum of the time-scale. Provided that where a Government servant holding a post in a temporary or officiating capacity and drawing pay in a pay scale, the maximum of which (exceeds Rs. 1,200 or Rs. 1,720 in the scale of pay introduced with effect from August 1, 1972 or July 1, 1979) respectively, or Rs. 2,050 with effect from January 1, 1984 (in respect of scale of pay introduced with effect from July 1, 1979) is appointed or promoted to another post carrying duties or responsibilities of greater importance, his initial pay in the time-scale of the higher post will be fixed at the stage next above the pay drawn in the pay scale of the lower post. The benefit of pay so fixed is, however, restricted to the period during which the Government servant would have continued to work on the lower post but for his appointment/promotion to the higher post. Provided further that both in cases covered by clause (a) and in cases, other than cases of re-employment after resignation or removal or dismissal from the public service, covered by clause (b), if he either – (1) has previously held substantively or officiated in – (i) the same post, or (ii) a permanent post or temporary post on the same time-scale, or (iii) a permanent post, other than a tenure post, on an identical time-scale, or a temporary post on an identical time-scale, such post being on the same time-scale as permanent post: or (2) is appointed substantively to a tenure post on a time-scale identical with that of another tenure post which he has previously held substantively or in which he has previously officiated, then the initial pay shall not be less than the pay, other than special pay, personal pay or emoluments classed as pay by the Governor under Rule 9(21)(iii), which he drew on the last and any previous occasions for increments in the stage of time-scale equivalent to that pay. If, however, the pay last drawn by the Government servant in a temporary post has been inflated by the grant of premature increments, the pay which he would have drawn but for the grant of those increments, the pay which he would have drawn but for the grant of those increments shall be taken for the purposes of this proviso to be the pay which he last drew in the temporary post.” 9. Counsel for the petitioner has also relied upon the judgment of a learned Single Judge of this Court passed on 2.5.2008 in Nand Kishore Tripathi v. State of U.P. and Ors. (Writ Petition (S/S) No. 2882/2001), in which under a similar circumstances, it is alleged, it was directed that Rule 22(b) are applicable and since the petitioner had worked on a higher post, he is liable to get the salary for the same. However, in the said judgment, the entire provision of Rule 22(b) of Fundamental Rules has not been discussed. Since the said order is a short order, the entire order is reproduced below :- “This petition has been filed seeking writ of mandamus commanding the respondents to fill up the vacant post of Statistical Assistant by promotion of the petitioner. A writ of mandamus has also been sought to command the respondents to pay the arrears of salary treating the petitioner to be Statistical Assistant from the date of issuance of circular letter, contained in Annexure No.1 to the writ petition. 2. The petitioner was appointed on the post of Junior Account Clerk in the year 1985 in the office of the Project Director of the District Rural Development Agency, Dehradun. It is alleged that on 16.08.1986 the Project Director, District Rural Development Agency (DRDA), Dehradun, has passed an order allocating the work amongst the employees of DRDA Dehradun including the petitioner. By the said order the petitioner was entrusted some work which he alleged to be the work of Statistical Assistant. The petitioner filed this petition for the aforesaid relief making the basis of said work allocation order. 3. Heard the learned counsel for the parties and perused the record. From the record it reveals that the cadre of Junior Account Clerk and Statistical Assistant is entirely different. The petitioner does not possess the qualification for the post of Statistical Assistant. The petitioner filed this petition for the aforesaid relief making the basis of said work allocation order. 3. Heard the learned counsel for the parties and perused the record. From the record it reveals that the cadre of Junior Account Clerk and Statistical Assistant is entirely different. The petitioner does not possess the qualification for the post of Statistical Assistant. He has also been given promotion on the post of Assistant Accountant from the post of Junior Accountant Clerk. 4. The learned counsel for the petitioner pressed the petition only on one point that since the petitioner was required to work in higher post, he shall be paid salary of the higher post. Rule 22-B of The U.P. Fundamental Rules provides that if the lower rank holder is required to work in higher post, he shall be paid salary of the higher post till the work is taken from him of that post. 5. Therefore, it is provided that if the petitioner has worked on the post of Statistical Assistant, he shall be paid salary in view of provision of Rule 22-B of the U.P. Fundamental Rules of the post of Statistical Assistant till the work is taken from him. 6. The petition is disposed of accordingly.” 10. It is also not clear whether the facts of the aforesaid case are applicable in the present case. Strictly going into the provisions of the Fundamental Rules, it is clear that before a person claims the pay of a higher post, he must prove that he was promoted to that post. A promotion here would be a promotion which is made under the law or in accordance with law. In the present case, neither the Secretary of Other Backward Commission nor the Chairman of the Other Backward Commission was authorized to make the promotion in favour of the petitioner. Consequently the promotion made in favour of the petitioner by the said authorities is totally in violation of law and cannot be read to be a promotion as contemplated under Rule 22(b) of the Fundamental Rules. 11. Another judgment relied upon by the petitioner is the judgment of Hon’ble Apex Court in Judhistir Mohanty v. State of Orissa and others (1996) 10 SCC 531 . The said judgment in fact goes against the petitioner. 11. Another judgment relied upon by the petitioner is the judgment of Hon’ble Apex Court in Judhistir Mohanty v. State of Orissa and others (1996) 10 SCC 531 . The said judgment in fact goes against the petitioner. In the said judgment the person was promoted on his own request from class II to class I post on his own request and once he was promoted he claimed salary to the said post. The salary was denied and again it was upheld by the Apex Court in the said judgment. The portion of the judgment relied upon is a general proposition which is only in a nature of obiter where the Hon’ble Apex Court has held as under :- “5…It is settled position that if the Government, for want of candidate, directs an officer in the lower cadre to perform the duties of the post in the higher cadre, during that period, necessarily, the incumbent would be entitled to the payment of the salary attached to the post if the incumbent had performed the duties in that post.” 12. However, thereafter the Hon’ble Apex Court says further : “Similarly where the officer concerned is on promotion from lower cadre to the higher cadre, though on ad hoc or even temporary basis, the incumbent would be entitled to the payment of salary attached to the post for the period of his discharging the duty in that post. In this case, neither would be applicable. At request, he was transferred and though order does not speak of, but the fact remains and is not disputed that the order came to be passed pursuant to a representation made by the appellant to the Chief Minister. It was obviously on that basis that direction was issued by the Chief Minister’s Office and the transfer order came to be made to accommodate him, before his retirement, at Behrampur where he had proposed to construct the house. Since there was no equivalent post of Grade II category, necessarily he was accommodated in that post. Consequently he is not entitled to the higher scale of pay than to which he was entitled as Superintendent Leave Reserve on which post he would otherwise have retired.” 13. The petitioner further relies upon para 11 of the Jaswant Singh v. Punjab Poultry Field Staff Assn. (2002) 1 SCC 261 . Consequently he is not entitled to the higher scale of pay than to which he was entitled as Superintendent Leave Reserve on which post he would otherwise have retired.” 13. The petitioner further relies upon para 11 of the Jaswant Singh v. Punjab Poultry Field Staff Assn. (2002) 1 SCC 261 . Para 11 of the said judgment reads as under :- “11. The High Court’s decision in Gobind Singh case did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of Chick Sexer since Gobind Singh had been discharging the duties of that post. Therefore, while the appellant’s promotion to the post of Chick Sexer cannot be upheld, given the fact that the appellant had discharged the duties of a Chick Sexer, he was at least entitled to pay and other allowances attributable to that post during the period he carried out such duties.” 14. It is not under dispute before this Court that the promotion itself was done by the authority which was not authorized to pass such an order promoting the petitioner, and the order was without jurisdiction. That being the situation in the present case, the petitioner has got no benefit of the case laws cited before this Court, as the very promotion of the petitioner was passed by an authority who has no jurisdiction to pass such order. 15. Writ petition has therefore no merit and is liable to be dismissed and is hereby dismissed. 16. No order as to costs.