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2016 DIGILAW 144 (JK)

MOHD. ISHAAQ BHAT v. STATE OF J&K

2016-03-28

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasanthakumar, J. These appeals are preferred by the appellant against the orders made in SWP No. 1734/1993 connected with SWP Nos. 2052/1999, 1067/2001 and SWP No. 1157/2005, dated 06.02.2006, wherein the learned Single Judge dismissed the writ petitions filed by the appellant seeking promotion in the cadre of Project Executive Officer with all consequential benefits.' 2. According to the appellant he was appointed as Entomologist on the basis of the recommendations of the J&K Public Service Commission on 07.03.1981 in the pay scale of Rs. 540-950 (unrevised). The said post was initially borne on Class VI Category-C whereas the post of Deputy Director was in Class-VII of the service constituted under the Jammu and Kashmir Sericulture Development Recruitment Rules, 1979. The Sericulture Department initially comprised of Research Wing and Development Wing. In the year 1983, Research Wing was transferred along with posts to Agricultural University and became integral part of the Sher-i-Kashmir University of Agricultural Sciences and Technology. Consequent to transfer along with posts, the Research Wing ceased to be part of the Sericulture Development Department. As the Research Wing was merged with Agricultural University along with posts, the posts of Entomologists/Pathologists were altered. The petitioner was placed as Incharge Development Officer in the year 2002 vide order No. 198-Agri of 2002, dated 20.06.2002. The petitioner was not given regular promotion even though there were vacancies available. Thus, the contention of learned senior counsel appearing for the appellant is that the right of the appellant to be considered for promotion at appropriate time as per the right guaranteed under the Constitution, was denied. The learned senior counsel also submitted that Government Agriculture Department by letter dated 29.07.2008, along with other persons, forwarded name of the appellant for regular promotion as Development Officer and still the Public Service Commission delayed the matter and the appellant retired from service in the year 2009 due to which his regular promotion in the cadre of Development Officer was not considered. Learned senior counsel argued that the writ court without appreciating the said facts dismissed the writ petitions as-if the appellant had no right to demand promotion as a matter of right. 3. Learned senior counsel argued that the writ court without appreciating the said facts dismissed the writ petitions as-if the appellant had no right to demand promotion as a matter of right. 3. The grievance of the appellant before the writ court was that he was appointed against the post of Entomologist (Research Wing) under the Recruitment Rules of 1979 and 1995 and he questioned Govt, order No. 396-Agri of 1999, dated 28.10.1999 giving promotion to respondents 4 to 9 to the post of Deputy Directors who were given march-over the appellant. 4. We have heard the learned counsel for the parties. 5. The appellant was put in as Incharge Development Officer in the year 2002 and he has served against the said post till 2009 i.e., till his date of retirement and he was paid against the said post on officiating basis. The fact that the appellant is eligible for promotion due to which his name was forwarded to the Public Service Commission for regular promotion in July, 2008, vide communication No. Agri/Seri/36/2007, dated 29.07.2008 is not disputed and a copy of the said communication is on record as Annexure-A5 to the status report filed by the respondents. 6. It is also to be noted at this juncture that the appellant discharged his duties against the higher post for over seven years and also retired from service while performing his duties as Incharge Development Officer. 7. Hon'ble the Supreme Court in very many decisions held that if an officer or a person is put as incharge for a long number of years and he was allowed to continue on the said post as Incharge till retirement, the salary payable to the higher post against which he was put incharge has to be paid and retrial benefits shall be fixed on the basis of the pay available to the promotion post. To cite a few are the following judgments on this aspect:- (a) In (1998) 4 SCC 291 (Selvaraj v. Lt. Governor of Island, Portblair and 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. Governor of Island, Portblair and 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 and 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 promote. 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 Anr.) 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 and Ors.), in paragraph nos. 11 and 12, Hon'ble the Supreme Court held thus:- "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 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. Similar view was taken by a Division Bench of this Court in 2015 (4) JKJ 55 [HC] (State of J&K and Ors. v. Ahmadullah and Ors.). 8. Similar view was taken by a Division Bench of this Court in 2015 (4) JKJ 55 [HC] (State of J&K and Ors. v. Ahmadullah and Ors.). 8. In the light of above decisions of the Hon'ble Supreme Court of India and having regard to the undisputed fact that the appellant served as Incharge Development Officer from 20.06.2002 to 30.11.2009, he is entitled to get Salary for the post after adjusting the salary already received and his retrial benefits re-fixed in terms of salary which he receives for the higher post on the date of retirement. Necessary order to that effect shall be issued within a period of six weeks and the benefits arising out of the same shall be calculated and paid to the appellant within a period of four weeks thereafter. Both the appeals are disposed of in the above terms. No costs.