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2017 DIGILAW 1867 (JHR)

Naresh Prasad Keshri v. State of Jharkhand

2017-11-06

S.N.PATHAK

body2017
JUDGMENT : 1. The petitioner has approached this Court with a prayer for quashing the Office Order No. 8 dated 11.02.2010 (Annexure-5) issued by the Office of the respondent No. 5, whereby and whereunder the petitioner has been deputed to the post of Accounts Clerk without extending financial benefits of the said post. 2. The petitioner was appointed as typist on daily-wages under the respondent no. 5 in the year 1980. In the year, 1984, the petitioner was appointed as Choukidar in the work charge Establishment. It is stated that as the petitioner was efficient in typing, he performed the work of typist since 1984 in the said Department/office. On 22.12.1991, the Establishment Committee of the said Department recommended the name of the petitioner for appointment as Typist against the vacant post on the basis of his experience of the said post. Thereafter, no steps were taken by the respondents in the matter of promotion of the petitioner from Class-IV post to Class-III post. As no steps were taken, the petitioner filed a writ petition before this Court vide W.P.(S) No. 1116 of 2007 for direction upon the respondents to promote him to Class-III post for which he is eligible. The said writ application was disposed of vide order dated 17.04.2007 with a direction to respondent No. 2 to consider the claim of the petition and to pass appropriate order in accordance with law. After the direction of this Hon’ble Court, vide Office Order No. 53 dated 30.12.2009 issued by the office of the respondent No. 5, the petitioner was deputed to perform the work of correspondence Clerk, which is a class-III post. Thereafter, the petitioner joined to the post of correspondence clerk as per the order contained in Annexure-3 herein. In reference to Office Order No. 53 dated 30.12.2009, it has been specifically stated in his joining letter itself that he reserved all his legal rights. 3. On 11.02.2010 vide Office Order No 8 issued by the respondent No. 5, the petitioner was again deputed to another post i.e. the post of Accounts Clerk, which is also a Class-III post. In reference to Office Order No. 53 dated 30.12.2009, it has been specifically stated in his joining letter itself that he reserved all his legal rights. 3. On 11.02.2010 vide Office Order No 8 issued by the respondent No. 5, the petitioner was again deputed to another post i.e. the post of Accounts Clerk, which is also a Class-III post. Though the petitioner is working on Class III post since the year 1991 and also he was appointed to the Class-III post by the order of this Hon’ble Court, till date the petitioner is not being paid the salary of Class-III post neither any compensatory allowances are being paid and as such, the petitioner was compelled to knock the door of this Court. 4. Mr. A.K. Sahani, learned counsel appearing on behalf of the petitioner submits that the action of the respondents is arbitrary, illegal and not tenable in the eyes of law. Learned counsel for the petitioner further submits that petitioner is working on Class-III post since 1991 and the respondents have just to comply the order of this Hon’ble Court passed in W.P.(S) No. 1116/2007, issued a formal order of appointment without fixing his pay in Class-III post. As the petitioner is working on class-III post since last 26 years, he is entitled for confirmation in class III post and also entitled for getting the entire salary of the said post. 5. Per contra, counter-affidavit has been filed by the respondents. Mr. Raunak Sahai, learned counsel appearing on behalf of the respondents draws the attention towards paragraph Nos. 15, 16 and 21 of the counter-affidavit and argues that as the respondents are yet to obtain roster clearance, the matter regarding appointment/promotion on class-III post will be considered after roster clearance meaning thereby as soon as roster clearance is obtained, the case of the petitioner will be considered. Learned counsel further argues that in the deputation order itself, it has been specifically mentioned that no financial benefits as well as claim for promotion shall be entertained and as such, even the petitioner is working on the said post for last 26 years, he is not entitled for the salary of the said post neither any compensatory allowance, as he was deputated to work on class-III post on his own pay scale. 6. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. The respondents have continuously taken work from the petitioner on Class-III post for last 26 years and when the petitioner has approached this Court in W.P.(S) No. 1116/2007, a specific direction was passed to consider the case of the petitioner for promotion to Class-III post and to pass a reasoned order in accordance with law. In compliance of the said order, the respondents have appointed the petitioner on class-III post. It is not a case that petitioner is on deputation, the petitioner has been appointed on class-III post and discharging his duties on class-III post i.e. Correspondence Clerk/Accounts Clerk. It is not a case that though the petitioner is holding Class-III post but he is not discharging his duties on Class –III post. The respondents have not complied the order of this Court in true spirit rather the respondents have circumvented the order of this Court. Any appointment on Class-III post cannot be considered without any emolument and employees is not required to work on that post, discharging the duties to utter satisfaction of the respondents without any remuneration/salary or without any compensatory allowance. The issue fell for consideration before the Hon’ble Apex Court in case of Secretary-cum-Chief Engineer, Chandigarh Vs. Hariom Sharma reported in 1998 (5) SCC 87 , the Hon'ble Apex Court considering the continuous offication and discharge of duty on higher post, issued direction for promotion and pay of salary of the post on which the incumbent has performed the duty. The Writ Court referring to the aforesaid Judgment noted that ' it has been consistently held by this Court as well as the Apex Court that if the employer asked the employee to perform a duty of higher post attached with higher responsibility, he cannot be deprived from the pay attached to that post'. The petitioner ought to have been granted the benefit of pay attached to that post i.e. Class-III post. The petitioner ought to have been granted the benefit of pay attached to that post i.e. Class-III post. The claim with regard to officiating allowance are ordinarily meant for payment for officiating on higher post in contingency of situation and not for the purpose of posting an employee for a long period of a decade as in the instant case and then deny the benefit of regular pay scale attached to the office on which the incumbent was posted and has performed the duty. In the instant case, admittedly, the petitioner was working on the said post for the last 20 years. It is not open to the respondents to deny the benefit of pay scale/salary on the ground that till date i.e. last 26 years, they have not obtained the roster clearance, the said contention of the learned counsel for the respondents is not acceptable by this Court. 7. As a cumulative effect of the aforesaid Rules, guidelines and judicial pronouncements and in view of judgment of the Hon'ble Apex Court in case of Arindam Chattopadhyay & Ors. Vs. State of West Bengal & Ors. reported in 2013 (4) SCC 152 wherein, the Hon'ble Apex Court in similar fact situation held out that the person who perform the responsibility on higher post is entitled to pay scale of that post and hence, the petitioner is entitled for the same treatment. Para 13 of the said judgment is quoted below:- “13. Reverting to the facts of this case, we find that although the appellants were recruited as ACDPOs, the State Government transferred and posted them to work as CDPOs in ICDS projects. If arrangement for few months or the appellants had been given additional charge of the posts of CDPO for a fixed period, they could not have legitimately claimed salary in the scale of the higher post, i.e., CDPO. However, the fact of the matter is that as on the date of filing of the Original Application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the date of filing of the writ petition, they had worked on the higher post for about 6 years. By now, they have worked as CDPOs for almost 14 years and discharged the duties of the higher post. By now, they have worked as CDPOs for almost 14 years and discharged the duties of the higher post. It is neither the pleaded material been produced before this Court to show that the appellants have not been discharging the duties of the post of CDPO or the degree of their responsibility is different from other CDPOs. Rather, they have tacitly admitted that the appellants are working as full-fledged CDPOs, since July, 1999. Therefore, there is no legal or other justification for denying them salary and allowances of the post of CDPO on the pretext that they have not been promoted in accordance with Rules. The convening of the Promotion Committee or taking other steps for filing up the post of CDPO by promotion is not in the control of the appellants. Therefore, they cannot be penalised for the Government's failure to undertake the exercise of making regular promotions'. 8. In the aforesaid backdrop of the fact, the respondents are directed to consider the case of the petitioner for making the payment of the salary of class-III post and pass a specific order to that effect. 9. Needless to say that the entire exercise be completed regarding the payment of salary to the petitioner of Class-III post, within a period of six weeks from the date of receipt of a copy of this order. 10. With the aforesaid observations, the writ petition stands allowed.