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2015 DIGILAW 1506 (GAU)

Pradip Kumar Modak v. Union of India

2015-12-09

P.K.SAIKIA

body2015
JUDGMENT AND ORDER : P.K. Saikia, J. Heard Mr. P.K. Tiwari, learned senior counsel, assisted by Mr. Lobsang Tenzin, learned counsel, appearing on behalf of the petitioner. Also heard Mr. Ajin Apang, learned senior counsel, assisted by Ms. Nani Anju, learned counsel, for Respondents No. 2 to 4 (North Eastern Regional Institute of Science & Technology). However, none has appeared on behalf of Respondent No. 1 (Union of India). 2. This proceeding has been initiated by the petitioner, seeking following reliefs: "(i) Issue a writ of certiorari quashing the decision of Government of India, Ministry of Human Resource and Development conveyed by its letter dated 27.04.2011 holding the petitioner not entitled to officiating pay of Registrar, NERIST. (ii) Issue a writ of certiorari quashing the decision of the Board of Management, NERIST taken in its 71st meeting dated 03.09.2011 holding the petitioner not entitled to officiating pay of Registrar, NERIST. (iii) Issue a writ of mandamus directing the respondents to grant officiating for the period 27.09.2008 to 31.03.2011 and all other consequential benefits." 3. The facts, necessary for disposal of the present proceeding, in short, are that while serving in a substantive post of Deputy Registrar (Finance) [DR(F), in short] in North Eastern Regional Institute of Science & Technology (NERIST, in short), the petitioner was given additional charge of Registrar w.e.f. 27.09.2008. While holding the post of D.R. (Finance) with the additional charge of Registrar, NERIST, the petitioner attained the age of superannuation on 30.11.2010 but was granted extension of service till 30.06.2011. 4. It is the case of the petitioner that while serving as DR (F), with additional charge of the post of Registrar, North Eastern Regional Science & Technology, w.e.f. 27.09.2008 to 30.06.2011, no additional financial benefits was given to the petitioner for officiating as Registrar, although he had performed all the functions and duties attached to the post of Registrar. Therefore, the authority in NERIST, on 07.10.2009, and also on 06.04.2010, sent proposal with the approval of Ministry of Human Resources and Development, Government of India, New Delhi (MHRD, in short) for granting officiating pay scale of Registrar to the petitioner. 5. Initially, the MHRD sat over the matter and did not take any decision thereon. Therefore, the authority in NERIST, on 07.10.2009, and also on 06.04.2010, sent proposal with the approval of Ministry of Human Resources and Development, Government of India, New Delhi (MHRD, in short) for granting officiating pay scale of Registrar to the petitioner. 5. Initially, the MHRD sat over the matter and did not take any decision thereon. However, by letter dated 27.04.2011, the MHRD convened its decisions that the petitioner is not entitled to officiating pay scale of Registrar since there was no formal order of appointment as officiating Registrar in favour of the petitioner as required under Rule 49 of the Fundamental Rules & Supplementary Rules (FRSR, in short). 6. Thereafter, the petitioner had submitted several representations to the NERIST authorities urging them to rectify the infirmities in the order under which he was required to hold the additional charge of the post of Registrar, NERIST. However, the NERIST authorities have declined to do so stating that in view of rejection of the prayer made by the MHRD, it is not possible on the part of the NERIST authorities to remove the deficiency in the order, aforesaid. Being aggrieved, the petitioner has approached this Court by the present petition, seeking appropriate reliefs. 7. Notice was served on the respondent authorities including the Respondent No. 1 (Union of India). The Union of India represented by MHRD received the notice of this matter but did not contest the proceedings. The NERIST authorities, on the other hand, entered appearance and through its counsel, has submitted that it has no objection if the reliefs so sought for, is granted, in favour of the petitioner. 8. Before proceeding further, I find it necessary to have a look at the circulars under which the petitioner was asked to hold the additional charge of the post of Registrar. In this connection, I also find it necessary to see the circular showing acceptance of the assignment given to the petitioner. For ready reference, circulars dated 27.09.2008 and 03.10.2008 are reproduced herein-below:- "CIRCULAR No. ESTT-99/2/2008 Dated 27.09.2008 Consequent upon the incident in the night of 26.09.2008, Shri Ashok Singh, Registrar, NF.RIST, has been taken into Police Custody. Shri P.K. Modak, senior most Deputy Registrar, is hereby directed to take over the charge of Registrar, NERIST, in addition to his own duties with immediate effect and until further Orders. Shri P.K. Modak, senior most Deputy Registrar, is hereby directed to take over the charge of Registrar, NERIST, in addition to his own duties with immediate effect and until further Orders. Shri P.K. Modak, Registrar i/c, will look into the emergent disposal of records/files at Registrar's Office after ascertaining the particulars of Keys etc. from the PA and other Officers of the Institute and ensure that time bound activities are pursued as per Rules, in the interest of the Institute. This issue with the approval of Director, NERIST (P.G. Nair) Deputy Registrar (Estt.)" "CIRCULAR No. ESTT-99/2/2008 Dated 03.10.2008 In pursuance of the Order No. ESTT-99 '2/2008 Dated 27.09.2008, Shri P.K. Modak, Deputy Registrar, Finance, NERIST, has assumed the charge of the Office of the Registrar, NERIST (Itanagar), on the fomoon of 27th September, 2008, as additional Charge. His Telephone Number at Nirjuli is as under:- Office:- (0360) 2257582 Residence :- (0360) 2257878 Fax :- (0360)2258533 e-mail :- pkm0972@gmail.com (P.G. Nair) Deputy Registrar (Estt.)" 9. In this connection, I also find it necessary to see the letter dated 07.10.2009, written by the NERIST authorities and addressed to the Joint Secretary (T), MHRD, Government of India, New Delhi, requesting the later to release the officiating pay of Registrar to the petitioner. The same is also reproduced hereunder, for better appreciation: No. EST-310/5/90 Vol.II Date: 07.10.2009 "To, Shri N.K. Sinha, IAS, Joint Secretary (T) MHRD, (Government of India) Shastri Bhawan, New Delhi Sub: Release of officiating pay to Shri P.K. Modak for additional duty performed by him in the post of Registrar, NERIST Sir, I am directed to inform you that Shri P.K. Modak, Deputy Registrar (Finance) functioning as the Finance Officer of the Institute is also assigned with the additional responsibilities of Registrar, NERIST in view of the acute shortage of officers at NERIST, (Annexure-A) fast progressing as a Deemed University w.e.f. 31.5.2005 Vide MHRD No. F. No.23-1/2008-TS.II dated 18.08.09 the UGC pay scales apply to Registrar/Deputy Registrar/Assistant Registrar, in case, they possessing due qualification and experience (Annexure-B). It is therefore, propose to revise the officiating pay scales of Registrar in the PB-4 Rs. 37400-67000 +GP 10,000/- as per CCS rules FR-49 for such combination of appointment.(Annexure-C). It is therefore, propose to revise the officiating pay scales of Registrar in the PB-4 Rs. 37400-67000 +GP 10,000/- as per CCS rules FR-49 for such combination of appointment.(Annexure-C). We will be grateful if you kindly look into the matter and arrange to accord approval to extend MHRD pattern of benefits of pay scales to the Registry Officers of the Institute possessing due qualification and experience and job responsibility to enable him to concentrate on the development of the instate to greater heights under your esteemed guidance. With regards, Yours faithfully Sd/- (Mai Ranjit) Assistant Registrar(E)" 10. A perusal of the aforesaid order demonstrates that both sides have relied on the provisions of FRSR 49(1) and I also find it necessary to quote the same, herein-below:- "F.R.49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such case, his pay is regulated as follows:- (i) Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post." 11. A perusal of the Circulars dated 27.09.2008 and 03.10.2008 together with letter dated 07.10.2009, makes it more than clear that the petitioner while holding the substantive post of DR (F), was asked to hold the additional charge of the post of Registrar, NERIST, which is undoubtedly a higher post in the same office as his own, and in the same cadre/line of promotion. 12. The above conclusion of mine finds more and more support from the Minutes of Meetings of 68th and 71st Board of Management (BoM, in short). For ready reference, the Minutes of the above-mentioned BoMs, are quoted below: "Extract of the Minutes of 68th BOM of Item No. 68.08 Item No. 68.08: To consider officiating pay to incumbents Director & Registrar as per rule. For ready reference, the Minutes of the above-mentioned BoMs, are quoted below: "Extract of the Minutes of 68th BOM of Item No. 68.08 Item No. 68.08: To consider officiating pay to incumbents Director & Registrar as per rule. While this Item was taken up, the Director and Registrar withdrew themselves from the meeting. The members of the BoM felt that the officiating pay should be extended as per rules to the incumbents. The Dy. Educational Ad visor (T), representing MHRD, assured to expediate the matter with DOPT/ACC and facilitate early release of officiating pay to incumbent Director as the incentive is long due. The case of Officiating pay of Registrar be worked out in detail and submitted to the Ministry for appreciating consideration. The Board discussed the need for filing up the post of regular Director as per Rules. The Board also took note of the vacancy in the post of-Registrar and its sub-judiced status as earlier incumbent has gone into litigation against his termination, at the Hon'ble Court, Guwahati, for which a status report may be furmished to MHRD. Sd/-I/C Registrar NERIST" "71.13.06: Officiating pay to Shri P.K. Modak as Registrar i/c from 27.09.2008 to 31.03.2011 and Dr. R.P. Bhattachariee as Registrar i/c since 01.04.2011. Sri P.K. Modak, retired Deputy Registrar of NERIST who was holding additional charge of Registrar from 27.09.2008 to 31.03.2010 has submitted a representation to grant him officiating pay for holding the additional charge of Registrar-in-charge. This is to be mentioned here that the 68th BoM meeting had cleared for payment of officiating pay as per rules. Accordingly, the institute had sought clarification from the MHRD for payment of officiating pay to Sri P.K Modak vide letter No. EST-310/5/90/vol-III dated 01.03.2011. The Ministry of HRD vide its letter no. 11.5/2010-TS.IV dated 27th April, 2011 has informed that the order through which Sri. P.K. Modak was given additional charge of Registrar i/c do not fulfil the requirement of formal appointment to officiate as stipulated under Rule FR-49( 1), it seems there was mistake in the language used in the order. So, the BoM may kindly permit to modify the previous order as per norms to request the Ministry to consider the officiating pay of Shri P.K. Modak. If the above proposal is considered the BoM may please considered officiating pay of Dr. So, the BoM may kindly permit to modify the previous order as per norms to request the Ministry to consider the officiating pay of Shri P.K. Modak. If the above proposal is considered the BoM may please considered officiating pay of Dr. R.P. Bhattacharjee, D. R. (Acad) & (Finance) who is also holding additional charge of Registrar i.e w.e.f. 1.4.2011 by modifying Office Order as required." 13. The above revelations now makes it clear that the Circular/order under which, the petitioner herein was asked to hold the Additional charge of Registrar, NERIST, in fact, fulfills all terms and conditions as specified in Rule 49 (1) of FRSR, save and except the fact that the formal word 'appointment' was missing in such circular/order. 14. Now, the moot question is whether only for such a word being found missing in the aforesaid Circular/Order, was it proper on the part of the MHRD to turn down the request of the petitioner for granting him officiating pay-scale of Registrar, NERIST, for the period w.e.f. 27.9.2008 to 31.3.2011. 15. In that connection, we can profitably peruse the decision of the Apex Court, as relied upon by the learned senior counsel for the petitioner and as reported in Secretary-cum-Chief-Engineer, Chandigarh, Vs. Hari Om Sharma & Ors. (1998) 5 SCC 87 . For ready reference, Paragraphs No. 7 and 8 of the said judgment, are reproduced, herein-below: "7. Learned counsel for the appellant has placed reliance on Sreedam Chandra Ghosh Vs. State of Assam, as also on the State of Haryana Vs. S.M. Sharma, to contend that since the respondent was promoted on the basis of stopgap arrangement, he could not claim promotion as a matter of right nor could he claim salary for the post of Junior Engineer I as he was given only current duty charge of that post. Both the contentions cannot be accepted. The Tribunal has already held that the respondent having been promoted as Junior Engineer I, though in stop-gap arrangement, was continued on the post and, therefore he has the right to be considered for regular promotion. Having regard to the facts of this case there is no differ with the Tribunal. 8. Both the contentions cannot be accepted. The Tribunal has already held that the respondent having been promoted as Junior Engineer I, though in stop-gap arrangement, was continued on the post and, therefore he has the right to be considered for regular promotion. Having regard to the facts of this case there is no differ with the Tribunal. 8. Learned, counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employer of the appellant had to break his period of stagnation, although as we have found earlier, he was the only person amongst the non-diploma-holders available for the promotion to the post of Junior Engineer-I and was, therefore, likely to be considered for promotion of his own right. As agreement that if a person is promoted to a higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefit would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872." 16. It is worth noting that in a situation very similar to the present one, as reported in the case of Union of India Vs. Y.R. Mahajan, and which has been relied upon the learned senior counsel for the petitioner, the Delhi High Court has ordered the concern authority to grant officiating pay to the petitioner in such a proceeding. The relevant part, in snippets, is also reproduced, herein-below: "FR.49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. The relevant part, in snippets, is also reproduced, herein-below: "FR.49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such case, his pay is regulated as follows:- (i) Where a Government servant is formally appointed to hold frill charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post;" 2. Guidelines on additional charge of the current duties of another post under FR-49-As per FR 49 (iv), no additional pay is admissible to a Government Servant who is appointed to hold current charge of routine duties of another post irrespective of the duration of the additional charge. In practise it is observed that in number of cases, officers are appointed to hold additional charge of current duties of another post but the duties are not defined in the order and therefore, the officer performs all the functions of other post including even some statutory function. However, no additional remuneration is paid to him in view of the specific language of the order of his appointment. In certain other cases, an officer is asked to hold additional charge of another post (which implies full charge of the other post), but he is not formally appointed to that post, and therefore no additional remuneration is paid to him under FR 49. These have led to representations and litigation. 2(i) When an officer is required to discharge all the duties of the other post including the statutory functions, e.g. exercise of power derived from acts of parliament such as Income Tax Act or the rules, Regulation, Bye Laws made under various article of constitution such as FR's, CCs(CCA) Rules, CSR’s etc then steps should be taken to process the case for getting the approval of the competent authority and formal orders appointing the officer to the additional post should be issued. On appointment, the officer should be allowed the additional remuneration as indicated in FR 49. 8. It has urged that in the instant case, the appointment of the respondent was with the approval of the Rules Mantri. Further, that the respondent has performed statutory functions of DGAQA such as arbitration apart from other administrative and financial functions. Respondent even maintains that the proposal for his selection could not be fructify on account of the paucity of time to hold the DPC. In these circumstances, especially when there is no denial also of the respondent having performed statutory functions and the current duty and financial responsibility of the higher post, it would be unfair to deprive him of his benefit simply because of the omission in the appointment letter authorising him to perform statutory functions. Reference may be invited to the case of Secretary-Cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma & Ors. reported at wherein it was held that one, who has been put to officiate as a stop gap arrangement on a higher post, is entitled to claim higher salary and any undertaking to deny him the benefit is contrary to law and against public policy.” 17. Since in the proceeding in question, the petitioner was required to perform all the duties of REGISTRAR of the NERIST over a very long period of time, it would be quite unfair to deprive him of the benefit of Higher Pay despite his holding full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, only because of the omission of the word 'appointment', in the circular/order/letter aforesaid. 18. Our foregoing discussions, therefore demonstrate that it was not proper on the part of the Union of India in MHRD to refuse the claim of the petitioner only on some technical grounds, which, as stated above, is nothing but a sharp denial of justice to the petitioner, of course, for no fault of him. 19. Situated thus, I am of the considered opinion that reliefs, sought for by the petitioner in the present proceeding, are required to be granted by the Court. 20. 19. Situated thus, I am of the considered opinion that reliefs, sought for by the petitioner in the present proceeding, are required to be granted by the Court. 20. Accordingly, this writ petition is hereby allowed, directing the respondents, herein, to grant the officiating pay-scale of Registrar, NERIST, for the period between 27.09.2008 and 31.03.2011, with all other consequential benefits, within a period of 3(three) months from the date of receipt of the certified copy of this order. 21. With the-above directions, this writ petition stands disposed of. No order as to costs.