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2017 DIGILAW 189 (ORI)

State of Odisha v. Baishnab Charan Senapati

2017-02-21

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India preferred by the State of Odisha and its functionaries assailing the order dated 31.3.2015 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No.229 of 2011 whereby and whereunder the order of respondent-authorities directing withdrawal of pay sanctioned in favour of the applicant in the post of Personal Assistant has been held to be bad and as such, the same has been quashed by allowing the Original Application directing the authorities to extend the benefit of scale of pay attached to the post of Personal Assistant in favour of the applicant from the date of his officiating promotion. 2. The main contention raised by the petitioner-State of Odisha is that the applicant has got no vested right to get the pay scale of Personal Assistant since he has never been regularly promoted, rather, he has been asked to discharge the duties of Personal Assistant in the officiating capacity with the condition that the financial benefit will be recovered from him if the Government disallows the annual increment and continuation in the promotional post on officiating basis with further condition that the annual increment sanctioned is subject to the condition that the same amount will be recovered from his salary in case any communication to that effect is received from the Government in view of the increment in officiating post, the applicant is to furnish an undertaking to this effect before drawal of the increment and as such, whatever officiating posting has been given to the applicant that was conditional. Further ground has been taken that the officiating promotion cannot be treated to be regular promotion, however, the pay scale attached to the post of Personal Assistant has been extended in favour of the applicant, but since the applicant is not entitled to get the pay scale of Personal Assistant in course of his officiating posting and as such while granting him promotion on substantive basis as Personal Assistant vide office order No. 6251 dated 3.6.2009, office order no. 2391 dated 24.2.1998 in connection with officiating promotion to that of Personal Assistant has been cancelled, which itself suggests that whatever pay scale has been given to the applicant in course of his officiating posting as Personal Assistant, he cannot claim as a matter of right that he is entitled to get the pay scale attached to the post of Personal Assistant in view of the fact that he has never been promoted vide order no. 2391 dated 24.2.1998 as Personal Assistant on substantive basis, rather promotion was on officiating basis and it is settled that in course of officiating promotion an employee cannot be said to be entitled to get the pay scale of the higher post in which he has been directed to discharge his duties in the officiating capacity. Further submission has been made that the State authorities have not passed any order regarding making recovery of the excess payment made, rather the authorities have taken into consideration the fact that since the applicant has rendered his service in the higher post of Personal Assistant on officiating basis, decision has been taken not to make any recovery, but since the applicant was not granted regular promotion, the authorities by adopting the principle that illegalities cannot be allowed to be perpetuated, have taken a decision to fix the pension on the basis of the pay scale attached to the post of Personal Assistant from the date of substantive promotion to the post of Personal Assistant and has been granted vide office order no. 6251 dated 3.6.2009. Learned Addl. Govt. Advocate further contends that the pension of the applicant has been fixed taking into account the presumptive pay of the period when he has discharged his duties as Personal Assistant on officiating basis. According to the learned Addl. Govt. Advocate, the Orissa Administrative Tribunal has not taken into consideration these aspects of the matter and passed the order for disbursement of arrears of salary of the said period and accordingly to allow him all the consequential benefits, hence, the order is not sustainable. 3. According to the learned Addl. Govt. Advocate, the Orissa Administrative Tribunal has not taken into consideration these aspects of the matter and passed the order for disbursement of arrears of salary of the said period and accordingly to allow him all the consequential benefits, hence, the order is not sustainable. 3. Learned counsel representing the applicant has vehemently opposed the prayer made on behalf of the State of Odisha by submitting that there is no infirmity in the order impugned, rather, the learned Tribunal after taking into consideration the entire aspect of the matter and considering the fact that the applicant was allowed to continue in service as Personal Assistant although on officiating basis and as such, he is entitled to get the pay scale of Personal Assistant since he has discharged the duties of the higher post. He has further supported the order passed by the learned Tribunal by submitting that the learned Tribunal has passed the order taking into consideration the judgment rendered by the Hon?ble Apex Court and as such, the same needs no inference. 4. We have heard the learned counsel for the parties and perused the documents available on record. 5. Before going into the present issue, it would be relevant to have a discussion regarding the meaning of “officiating promotion” and “regular promotion”. There is no confusion in the settled proposition of law that „promotion? means upgradation in the post as well as the upgradation in the scale. „Promotion? is by way of appointment to fill up a post under the Service Rules and the same is to be decided by the competent appointing authorities by placing the case of one or the other employees before the duly constituted Departmental Promotion Committee and the Departmental Promotion Committee is to take a decision on the basis of the eligibility of one or the other employees as to whether they are fit to be promoted to the higher post or not and if the Departmental Promotion Committee recommends the case of one or the other eligible candidate, the competent appointing authority will accept the recommendation and issue required notification extending the benefit of promotion to one or the other candidate, who is found to be eligible by the Departmental Promotion Committee. 6. 6. There is also no confusion in the settled proposition that it is not possible for the Departmental Promotion Committee to hold the meeting of the Departmental Promotion Committee on regular interval and as such, in order to run the department smoothly, there is a practice of asking an employee to discharge his duty in the higher post if he is eligible to discharge the duties of the higher post and that is known as “officiating posting” or “officiating promotion”, but certainly while granting officiating posting or officiating promotion to the higher post, the recommendation of the Departmental Promotion Committee is not required to be taken, rather it is open to the administrative department to post an employee working in the department to discharge his duty of the higher post, which is known as “officiating promotion”. Here in the instant case, the applicant admittedly was working as Junior grade Stenographer having been promoted on the basis of the recommendation of the Departmental Promotion Committee, meeting of which was held on 26.7.1995 vide order No.110110 dated 7.8.1995. Thereafter, he has been granted promotion to the post of Senior Stenographer on ad hoc basis vide order No.11897 dated 12.9.1995. While the applicant, opposite party no.1 herein, was working as Senior Stenographer in the office of the Engineer-in-Chief, Public Health, Odisha, Bhubaneswar, one Sri Pankaj Lochan Pani, holding the post of Personal Assistant to Engineer-in-Chief, Public Health, Odisha, Bhubaneswar has retired from Govt. service on attaining the age of superannuation and as such, the applicant has been posted against the post of Personal Assistant to the Engineer-in-Chief, Public Health, Odisha, Bhubaneswar, consequent upon the retirement of Sri Pani, Personal Assistant to Engineer-in-Chief, Public Health, Odisha, Bhubaneswar, vide order no. 5093 dated 29.3.1997. The Engineer-in-Chief has passed an office order on 24.2.1998 as contained in Order no.2351 whereby and whereunder the applicant has been allowed to officiate as Personal Assistant to the Engineer-in-Chief, Public Health, Odisha, Bhubaneswar in the scale of pay of Rs.1800-60-2400-EB-75-3000/- with effect from the date of his joining with the specific condition that the officiating arrangement is purely temporary and confer no claim on him for regular promotion. The Engineer-in-Chief has issued further office order dated 26.2.1998 as contained in Order No.2431 whereby and whereunder the pay scale of the applicant (opposite party no.1) has been fixed at Rs.1800-60-2400-EB-75-3000/- w.e.f. 24.2.1998 under the provisions of Rule 74(b) of Orissa Service Code and thereafter, the benefit of increment has been extended in his favour with due effect vide various orders passed by the Engineer-in-Chief. The Engineer-in-Chief has again passed order on 5.2.2001 as contained in Order No. 5075 giving the benefit of annual increment, but with the stipulation that the financial benefit allowed shall not confer any right on him for claiming seniority or regular/ officiating appointment in the post of Personal Assistant to the Chief Engineer. The Engineer-in-Chief, Public Health, Urban has again issued an order on 2.12.2003 as contained in order No.13754 whereby and whereunder the benefit of next annual increment has been extended in favour of the applicant subject to the condition that the same amount will be recovered from him in case any communication to that effect is received from the Government in view of the increment in officiating post and further, the applicant is to furnish an undertaking to this effect before drawal of the increment. The order extending the benefit of increment has been issued by the authorities concerned from time to time, but in all these orders specific stipulation is there that it is not a promotional post rather it is on officiating basis. The applicant has ultimately been granted regular promotion vide office order no. 6251 dated 3.6.2009 after his case having been considered by the duly constituted DPC, the meeting of which was held on 24.2.2009 and the same order contains a specific stipulation of the authorities concerned that the order by which he has been granted officiating promotion to the rank of Personal Assistant vide order No.2391 dated 24.2.1998, has been cancelled. 6251 dated 3.6.2009 after his case having been considered by the duly constituted DPC, the meeting of which was held on 24.2.2009 and the same order contains a specific stipulation of the authorities concerned that the order by which he has been granted officiating promotion to the rank of Personal Assistant vide order No.2391 dated 24.2.1998, has been cancelled. The authorities after going into the fact that the applicant has never been granted regular promotion as Personal Assistant, rather he was asked to discharge his duties on officiating basis, has taken a decision to fix his pay and other benefits by passing an order directing the Chief Engineer to fix up the pay of the applicant as per the instruction of the Government in Housing and Urban Development Department by which a letter has been issued on 27.11.2010 as contained in letter No. 25815 and accordingly, the pay of the applicant has been fixed by passing a fresh order by the order of the Chief Engineer, by which the pay of the applicant was reduced. The contention raised by the learned counsel representing the State of Odisha that direction has been issued by the State authorities in right perspective reason being that the applicant cannot be said to be eligible to hold the post of Personal Assistant because the rule relating to the service conditions of the Private Secretaries, Personal Assistants and Stenographers, i.e. Orissa Heads of Department Stenographers? Service (Recruitment and Conditions of Service of Private Secretaries, Personal Assistants and Stenographers) Rules, 1988 stipulates a specific condition that 9 years of service is required as Junior Stenographer and Senior Stenographer for the purpose of consideration for promotion to the post of Personal Assistant, but as on 24.2.1998 the applicant was not having such qualification and furthermore, if the applicant will be treated to be granted regular promotion w.e.f. 24.2.1998, the same will lead to prejudice to other senior employees holding the post of Senior Stenographer and as such, taking into consideration these aspects of the matter, decision has been taken by the authority to re-fix the pay scale of the applicant. 7. 7. Learned counsel representing the applicant, while on the other hand, has submitted that the applicant has accrued a valuable right to get the pay scale of the post of Personal Assistant since he has been asked to discharge his duties to the said post w.e.f. 24.2.1998 on which he has regularly discharged his duties and as such, he is entitled to get the pay scale of the said post w.e.f. 24.2.1998. 8. We have appreciated the argument advanced on behalf of the parties and have gone through the materials available on record. Taking into consideration the specific ground taken by the State, we find that the applicant has never been granted regular promotion as Personal Assistant, w.e.f. 24.2.1998, rather, he has been asked to discharge the duties as Personal Assistant with the specific condition that the benefit of annual increment can be withdrawn and to that effect an undertaking has also been taken. These specific stipulations specifically suggest that the applicant has never been granted regular promotion as Personal Assistant rather he has been granted regular promotion w.e.f. 3.6.2009 by which the order of officiating promotion passed on 24.2.1998 has been cancelled. 9. We have considered the submission of the learned counsel representing the State of Odisha, who has vehemently argued that if the caveator opposite party would be granted the benefit of promotion to the higher post w.e.f. 24.2.1998, it would cause great prejudice to the senior employees working in his cadre. We are in agreement with this submission for the simple reason that for granting promotion to the higher post, it is necessary to see the seniority position along with eligibility. Admittedly, the private opposite party on the date when he was directed to discharge his duties of the post of Personal Assistant, who was junior to the co-employees working in his cadre, hence, accepting the contention of the private opposite party treating him to be promoted to the higher post of Personal Assistant w.e.f. 24.2.1998 would be against the principle of granting promotion to the higher post ignoring the case of the senior employees working in the cadre. 10. Further appointment can be made in favour of an employee if he is eligible to hold the said post under the recruitment Rules, otherwise appointment or promotion will be said to be illegal. 10. Further appointment can be made in favour of an employee if he is eligible to hold the said post under the recruitment Rules, otherwise appointment or promotion will be said to be illegal. Relying upon this proposition and comparing it to the fact of the instant case, it is admitted fact that as on 24.2.1998 the applicant was not possessing the required qualification/eligibility condition to hold the post of Personal Assistant as would be evident from the Orissa Heads of Department Stenographers Service (Recruitment and Conditions of Service of Private Secretaries, Personal Assistants and Stenographers) Rules, 1988, which contains a provision under clause (b) of sub-rule (1) of Rule 16 that for being eligible to hold the post of Personal Assistant, nine years of service as Junior Stenographer and Senior Stenographer is necessary, but that required eligibility condition was not having with the applicant and as such, he cannot be held to be legally entitled to hold the post of Personal Assistant. 11. We have been informed that whatever pay scale has been fixed to the applicant that is only in order to rectify the mistake basing upon the principle that illegality cannot be allowed to be perpetuated and as such, the authorities have not taken any stringent action against the applicant for making recovery of the amount, which has been paid to the applicant by way of pay scale attached to the post of Personal Assistant, but only pay has been fixed on the basis of the presumptive pay for the period he has rendered his duty as Personal Assistant by virtue of officiating promotion. 12. We have gone through the findings of the learned Tribunal, whereby and whereunder discussion has been made regarding recovery of the amount, which has been drawn in excess, but we have been informed by the learned Addl. Govt. Advocate in course of argument that the authorities have taken no decision for making recovery of the excess amount, rather scale has been fixed on the basis of presumptive pay. As such, we are not making any comment on this aspect of the matter. 13. We have closely scrutinized the order passed by the learned Tribunal and from its perusal it is evident that the learned Tribunal has taken note of the judgment rendered by the Hon’ble Apex Court in the case of Selva Raj v. Lt. As such, we are not making any comment on this aspect of the matter. 13. We have closely scrutinized the order passed by the learned Tribunal and from its perusal it is evident that the learned Tribunal has taken note of the judgment rendered by the Hon’ble Apex Court in the case of Selva Raj v. Lt. Governor of Island, Port Blair and others, AIR 1999 SC 838 by granting relief in favour of the applicant, but the learned Tribunal has failed to appreciate the factual aspect of the judgment rendered in Selva Raj (supra) since the fact of that case was that an employee was directed to look 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, but still he was not paid the salary for the work done by him as Secretary (Scouts) and as such, the Hon’ble Supreme Court has been pleased to hold in such a situation that since he had worked for the said post, hence , he is entitled to get the salary. But in the said judgment, the Hon’ble Apex Court has not laid down any proposition that even working in the higher post on officiating basis will amount to promotion. The fact of the instant case is entirely different to that of the case in Selva Raj (supra). Here in the instant case, the salary attached to the post of Personal Assistant has been disbursed in favour of the applicant and while re-fixing the pay scale taking into consideration the actual date of promotion to the said post, the pay has been fixed on the basis of the presumptive pay of the period for which the applicant has rendered his duties in officiating capacity to the post of Personal Assistant without passing any order for recovery. Hence, on fact the judgment rendered by the Hon’ble Apex Court in Selva Raj (supra) is not applicable. 14. Hence, on fact the judgment rendered by the Hon’ble Apex Court in Selva Raj (supra) is not applicable. 14. In the entirety of the facts and circumstances, according to our considered view, the authorities have passed order by re-fixing the pay scale of the applicant taking into consideration the actual date of promotion to the post of Personal Assistant and fixing the pay of the period for which he has discharged his duties to the higher post of Personal Assistant in officiating capacity, the pay scale for the said period has been fixed on the basis of presumptive pay without making any recovery. Hence, the learned Tribunal ought to have taken into consideration before allowing the Original Application by making distinction in between “officiating promotion” and “regular promotion”. But without appreciating this aspect of the matter, order has been passed in favour of the applicant, hence, the order is not sustainable and accordingly, the same is quashed. 15. In the result, the writ petition is allowed. No cost.