Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 224 (JK)

State of Jammu and Kashmir v. Ahamadullah

2015-05-05

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This LP Appeal is preferred against the order of the learned Single Judge made in SWP No. 1299 of 2008, dated 23.2.2012. In SWP No. 1299 of 2008 the respondent herein prayed to quash the order dated 15.9.2007 and to issue a direction to confirm the promotion of the writ petitioner/respondent herein in the post of Head Assistant, entitling him to receive service benefits. The said writ petition was allowed by the learned Single Judge. 2. The case of the respondent herein/writ petitioner before the learned Single Judge was that though he was temporarily promoted as Head Assistant on 24.4.2003, he was not confirmed in the said post till the date of his retirement on 30.4.3004. The respondent submitted a representation seeking confirmation in the post of Head Assistant so as to enable him to get pensionary benefits. The said request was rejected by stating that he had not completed secretariat training course. 3. It is to be seen that at the age of 57, respondent was promoted as Head Assistant (in-charge) and he was not afforded an opportunity to undergo Secretariat training course. No course was conducted after promotion was given to the respondent. Considering the said fact, learned Single Judge held that the appellants are estopped from denying consideration of the claim of the respondent for being confirmed as Head Assistant and a direction was issued to consider the case of the respondent for regularizing him in the post of Head Assistant and pay all service/retirement benefits by declaring him to be a regular Head Assistant. 4. The learned Advocate General submitted that only because the respondent had not underwent the training course, he was not confirmed in the post of Head Assistant. However the learned Advocate General fairly submitted that he was given temporary promotion as Head Assistant (in-charge) and he retired while serving in the said post. 5. We have also heard the learned counsel appearing for the respondent. 6. To the persons who are given higher responsibility and allowed to serve for several months, whether salary can be claimed for the higher post, was considered by Hon'ble the Supreme Court in following decisions: (a) In (1998) 4 SCC 291 (Selvaraj v. Lt. Governor of Island, Portblair & Ors.) the Hon'ble Supreme Court considered the very issue. In paragraph No. 3 it is held thus:- "3. Governor of Island, Portblair & Ors.) the Hon'ble Supreme Court considered the very issue. In paragraph No. 3 it is held thus:- "3. It is not in dispute that the appellant looked after the duties of Secretary (Scouts) from the date of the order and his salary was to be drawn against the post of Secretary (Scouts) under GFR 77. Still he was not paid the said salary for the work done by him as Secretary (Scouts). It is of course true that the appellant was not regularly promoted to the said post. It is also true as stated in the counter-affidavit of Deputy Resident Commissioner, Andaman & Nicobar Administration that the appellant was regularly posted in the pay scale of Rs. 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter. However, in our view, these averments in the counter will not change the real position. Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum meruit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground." (b) In (2001) 8 SCC 322 (Dwarika Prasad Tiwari v. M.P. State Road Transport Corporation and another) Hon'ble the Supreme Court held that period for which the appellants discharged the duties or discharging the duties attached to a higher post, they should be paid emoluments as attached to that post. (c) In JT 2001 (9) SC 646 : (2002) 1 SCC 261 (Jaswant Singh v. Punjab Poultry Field Staff Association & Ors.), in paragraph Nos. 11 and 12, Hon'ble the Supreme Court held thus:- "11. The High Courts decision in Gobind Singhs 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 appellants 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 the pay and other allowances attributable to that post during the period he carried out such duties. 12. We accordingly allow the appeal in part. While upholding the order of the High Court, setting aside the order of the appellants promotion, we direct the respondent authorities to pay the appellant for the period he rendered service as a chick-sexer at the scales of pay together with all allowances to which chick-sexers were entitled at the relevant time" (d) In AIR 2015 SC 696 (State of Punjab & Ors. v. Rafiq Masih) Hon'ble the Supreme Court set aside the recovery order by applying the principle that a person having been allowed to serve in a higher post is entitled to get salary for that post. In paragraph 11 it is held thus:- "11..............that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post." 7. Applying the said decision to the facts of this case, respondent having been promoted temporarily as Head Assistant (in-charge) from 24.4.2003 and he having been allowed to be continued in service till the date of his retirement on 30.4.2004, i.e. for one year and eight days, the learned single Judge was right in allowing the writ petition. We are unable to see any reason to interfere with the settled legal position as stated supra. In fine, the LP Appeal is dismissed. Connected CMP is also dismissed. We are unable to see any reason to interfere with the settled legal position as stated supra. In fine, the LP Appeal is dismissed. Connected CMP is also dismissed. No costs.