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2014 DIGILAW 110 (MAN)

Mutum Thaimon Singh v. State of Manipur

2014-09-05

LAXMI KANTA MOHAPATRA

body2014
JUDGMENT Laxmi Kanta Mohapatra; CJ. 1. Heard Mr. M. Devananda Singh, learned counsel appearing on behalf of the petitioner as well as Mr. D.N. Guburdhan, learned counsel appearing on behalf of the State respondents. 2. Both the writ petitions involve a common question of law to be adjudicated. Accordingly at the request of the learned counsel appearing for the parties, both the cases were taken up together for hearing and are disposed of in/by this common judgment and order. 3. The petitioner in W.P.(C) No. 96 of 2014 was initially recruited as Assistant Engineer (Mechanical) by order dated 15.5.1980. After working as Assistant Engineer for about 20 years, by order dated 7.1.2000 under Annexure-A/5 he was promoted to the post of Executive Engineer on ad hoc basis for a period of six months or until the post is filled up on regular basis whichever is earlier. This ad hoc promotion was effected in view of a dispute with regard to the inter se seniority amongst/between the Assistant Engineers. Thereafter, the petitioner under Annexure-A/7 by order dated 7.3.2003 was directed to look after the post of Superintending Engineer due to exigency of work in addition to his normal duties without any extra remuneration. By order dated 2.3.2009 in Annexure-A/9, the petitioner was directed to hold charge of the post of Additional Chief Engineer, PWD, Manipur in addition to his normal duties without any extra remuneration till the post is filled up on regular basis. Finally, by order dated 12.1.2011 in Annexure-A/10, he was directed to hold the charge of the post of Chief Engineer (Mechanical), PWD, Manipur on in-charge basis in the existing grade pay without any extra remuneration until further orders. While working as such, the petitioner submitted a representation on 24.8.2012 claiming pay and allowances for the post of Superintending Engineer, Additional Chief Engineer and Chief Engineer. The said representation having not been considered, he approached this Court in W.P.(C) No. 790 of 2012. This court disposed of the said writ petition on 22.10.2013 directing consideration of the said representation within a specific time. In compliance of the said order, the impugned order in Annexure-A/15 dated 24.1.2014 has been passed by the Deputy Secretary(Works), Govt. of Manipur rejecting the claim of the petitioner for payment of salary in the post of Superintending Engineer, Additional Chief Engineer and Chief Engineer. 3.1. In compliance of the said order, the impugned order in Annexure-A/15 dated 24.1.2014 has been passed by the Deputy Secretary(Works), Govt. of Manipur rejecting the claim of the petitioner for payment of salary in the post of Superintending Engineer, Additional Chief Engineer and Chief Engineer. 3.1. The petitioner in W.P.(C) No. 194 of 2014 initially joined as Section Officer by order dated 4.11.1971. Thereafter, as per the recruitment rules of Assistant Engineers of PWD, IFCD and PHED, the petitioner was promoted to the post of Assistant Engineer in January 1981. By order dated 7.1.2000, he was promoted to the post of Executive Engineer on ad hoc basis for a period of six months or till the post is filled up on regular basis whichever is earlier. As stated in the earlier paragraphs, the ad hoc promotion was given because of a dispute with regard to the inter se seniority amongst the Assistant Engineers. In 2012, the petitioner filed W.P.(C) No. 665 of 2012 for a direction to the respondents to pay the higher scale of pay attached to the post of Executive Engineer with effect from 2001 when he was promoted to the post on ad hoc basis. The said writ petition was disposed of on 22.10.2013 granting liberty to him to file a representation for consideration by the respondent no. 1 therein. In pursuance of the said direction, he submitted a representation on 2.11.2013 and after considering the representation the impugned order in Annexure-A/10 was passed on 5.2.2014 rejecting his claim. 4. As is evident from the facts of both the writ petitions, the petitioners were all along working on in-charge basis. The petitioner in W.P.(C) No. 96 of 2014 worked on ad hoc basis as Executive Engineer, thereafter as Superintending Engineer on in-charge basis, Additional Chief Engineer in-charge and as Chief Engineer on in-charge basis. Similarly, the petitioner in W.P.(C) No. 194 of 2014 worked as Executive Engineer on ad hoc basis for a specific period and thereafter continued in service. Therefore, the question that arises for consideration is as to whether having worked in the higher posts on in-charge basis both the petitioners are entitled to the scale of pay attached to the post held by them on in-charge basis or not. 5. Mr. Therefore, the question that arises for consideration is as to whether having worked in the higher posts on in-charge basis both the petitioners are entitled to the scale of pay attached to the post held by them on in-charge basis or not. 5. Mr. M. Devananda Singh, learned counsel appearing for the petitioners in both the writ petitions placed reliance to a decision of the Apex Court in the case of Arindam Chattopadhyay & Ors.-Vs.-State of West Bengal & Ors, reported in : (2013) 4 SCC 152 . The Supreme Court in the said decision was considering the principle of equal pay for equal work. In the said reported case, the appellants therein were regularly and properly appointed as Assistant Child Development Project Officers in Integrated Child Development Services (ICDS) but had been temporarily transferred to act as Child Development Project Officer in ICDS Projects in their existing pay scales where they had been working continuously for almost 14 years but while discharging duties of higher post. The Supreme Court held that had the arrangement been a stopgap arrangement for a few months or the appellants had been given additional charge of posts of CDPO for a fixed period, they could not have legitimately claimed salary in the scale of higher post, i.e. CDPO. The appellants therein having continued to discharge the duties of a higher post for almost 14 years, the Court held that there is no legal or other justification for denying them salary for the post of CDPO. Relying on the said decision it was contended by Mr. M. Devananda Singh, the learned counsel for the petitioners that both the petitioners have been discharging the responsibilities of higher posts continuously for several years and therefore, they cannot be denied the higher scale of pay attached to the said posts. 6. Mr. D.N. Goburdhan, learned counsel appearing on behalf of the State respondents submitted that the appointment of both the petitioners as Executive Engineers was on ad hoc basis for a period of six months, but they were allowed to continue since the inter se seniority dispute could not be resolved. Though the petitioner in W.P.(C) No. 194 of 2014 has been continuing in the post of Executive Engineer, the petitioner in W.P.(C) No. 96 of 2014 was subsequently kept on in-charge basis as Superintending Engineer, thereafter as Additional Chief Engineer and finally as in-charge Chief Engineer. Though the petitioner in W.P.(C) No. 194 of 2014 has been continuing in the post of Executive Engineer, the petitioner in W.P.(C) No. 96 of 2014 was subsequently kept on in-charge basis as Superintending Engineer, thereafter as Additional Chief Engineer and finally as in-charge Chief Engineer. The orders passed by the State Government keeping him in the post of Superintending Engineer, Additional Chief Engineer and Chief Engineer on in-charge basis clearly show that he had been posted as such without any extra remuneration and therefore, having accepted such appointments/additional charge without any extra remuneration, it is no more open for them to claim for higher scale of pay attached to the post of which they had been occupying on in-charge basis. Reliance was placed by the learned State counsel on a decision of the Full Bench of the Gauhati High Court in the case of Assm Tombi Singh-Vs-State of Manipur & Ors, reported in : 2006(4) GLT 608. In the said case three issues were raised before the Full Bench and two of them are relevant for the purpose of this case. The first issue was (a) whether or not employees simply holding the higher post without any appointment to the higher post will be entitled to get the pay scale attached to the higher post? (b) whether or not the incumbent holding the higher post on in-charge basis under an order containing specific condition that it would be without extra remuneration will be entitled to get the pay scale attached to the higher post? Both the issues were answered by the Full Bench in the negative and it was held that under these circumstances the employees shall not be entitled to a scale attached to the higher post. In the case of Pabitra Mohan Dash etc.-Vs.-State of Orissa & Ors. reported in : AIR 2001 SC 560 , on which reliance was also placed. The Supreme Court held that an in-charge Headmaster is not entitled to the scale of pay attached to the post of Headmaster. 7. On careful examination of the decisions cited by the learned counsel appearing for the parties, I find that the case of Arindam Chattopadhyay & Ors.-Vs.-State of West Bengal (Supra) is distinguishable on facts. The Supreme Court held that an in-charge Headmaster is not entitled to the scale of pay attached to the post of Headmaster. 7. On careful examination of the decisions cited by the learned counsel appearing for the parties, I find that the case of Arindam Chattopadhyay & Ors.-Vs.-State of West Bengal (Supra) is distinguishable on facts. In the present two writ petitions, both the petitioners had been kept in-charge of higher posts on the condition that they would not be entitled to any extra remuneration; whereas in the above reported case, there was no such condition when the appellants therein were transferred to act as Child Development Project Officer in ICDS Projects. On the other hand, the Full Bench of the Gauhati High Court in the case of Assm Tombi Singh-Vs.-State of Manipur (Supra) has taken note of the two conditions that has arisen in this case and has answered in the negative. Even in the case of Pabitra Mohan Dash etc.-Vs.-State of Orissa & Ors. (Supra), the Apex Court held that a Headmaster in-charge is not entitled to the scale of pay attached to the post of Headmaster. 8. Mr. M. Devananda Singh, learned counsel for the petitioners referred to FR 49(a) and submitted that under this provision the petitioners shall be entitled to scale of pay attached to the higher post. This has also been taken into consideration by the Full Bench of the Gauhati High Court and claim of the petitioner therein has been turn down. In the case of Golap Ch. Chetia-Vs.- Assam Administrative Tribunal & Ors. reported in : 2004(1) GLT 5, a Division Bench held that for application of FR 49(a) the necessary condition is appointment to two or more independent posts at the same time. So far these two writ petitions are concerned, the petitioners have not been appointed to the post of either Executive Engineer or Superintending Engineer or Additional Chief Engineer or Chief Engineer but they have only been kept in-charge of the post as stated earlier. Therefore, FR 49(a) has no application to the facts of the present two writ petitions. Accordingly, I do not find any merit in both the writ petitions and dismiss the same.