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2017 DIGILAW 536 (ORI)

Union of India v. Boddepalli Ramu

2017-05-08

S.N.PRASAD, SANJU PANDA

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India filed by the Union of India and its functionaries assailing the order dated 18.8.2016 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.457 of 2015 whereby and where under the Tribunal while quashing the decision of the authorities dated 24.3.2015 denying the remuneration of higher post, has remitted the matter before the authorities to pass fresh order after taking into consideration the observation made therein. 2. Brief facts of the case of the opposite party/applicant is that he was promoted to the post of Junior Clerk in the scale of Rs.3050-4590 vide order dated 28.11.2000, while he was working as Junior Clerk, was posted as Head Clerk in the scale of pay of Rs.5000-8000vide order dated 20.2.2001, he has further been posted as Office Superintendent Grade-II, vide order dated 12.2.2009. The opposite party/applicant made representation on 10.8.2014 before the authorities regarding his grievance for payment of higher arrears for the responsibilities shouldered by him as Head Clerk and Office Superintendent Grade-II, his representation was dismissed vide order dated 24.3.2015, which was challenged in O.A.No.457 of 2015 wherein the order rejecting his claim was quashed with a direction to the authorities to pass fresh order after taking into consideration the observations made above. 3. The Union of India and its functionaries, being aggrieved with the order passed by the Central Administrative Tribunal, is before this Court on the ground that the opposite party/applicant’s main grievance is to regularize his service for the period he has rendered his duty in higher post of Head Clerk upon which he was posted against retired vacancy from 23.2.2001 to 14.7.2007, which the authorities have rejected vide order dated 24.3.2015 on the ground that since he has never been promoted to the higher post rather was allowed to officiate on the higher post, he cannot be regularized in the said higher post. According to the learned representing the Union of India and its functionaries the authorities have passed order after taking into consideration the entire aspects of the matter mainly the fact that he has never been granted regular promotion to the higher post rather he was only allowed to discharge duty in the higher post, hence mainly on the ground of discharging duty in higher post, he cannot claim regularization for the period, as such the authorities have rightly rejected the claim. He further submits that the Tribunal assuming officiating post as regular promotion has quashed the order dated 24.3.2015. 4. Learned counsel for the opposite party/applicant has submitted that it is evident from the representation, one of the prayer was to regularize his officiating post but other prayer is difference of arrear of officiating post on the substantive post which he is entitled to get as per the Railway Board Executive Instruction issued on 31.10.2007 which speaks regarding eligibility of officiating pay in case a staff worked under lower post who shoulder higher responsibilities to work higher grade of sanctioned post, but the Tribunal has not taken into consideration this aspect of the matter. He further submits that the authorities while rejecting his application has also denied the benefit of officiating allowance as is admissible in view of the executive instruction dated 31.10.2007 by saying that he has never been given any officiating allowance of any higher post at any point of time, refuting other stand, by placing reliance upon the order dated 20.2.2001 by which he has been posted in place of one K. Mutyala Rao, Head Clerk in the scale of Rs.5000-8000 who is going to be retired on his superannuation w.e.f. 31.3.2001 till further orders. 5. Learned counsel representing the Union of India and its functionaries has argued by submitting that the opposite party/applicant on earlier occasion approached Hyderabad Bench of the Central Administrative Tribunal in O.A.No.1456 of 2014 with a prayer that the opposite party/applicant may be posted in the equivalent grade in the vacancy which he was holding at the material point of time i.e. Senior Clerk to deal with the duties allotted to that post which he was holding, but the Tribunal has rejected the original application. 6. We have heard learned counsel for the parties and perused the documents available on record. 7. 6. We have heard learned counsel for the parties and perused the documents available on record. 7. The case of the opposite party/applicant all along is that while he was holding the post of Junior Clerk was promoted to the post of Head Clerk in place of one K. Mutyala Rao who was to retire on his superannuation w.e.f. 31.3.2001 and thus decision was taken by the authorities by issuing office order dated 20.2.2001, in pursuance thereof, he has assumed post of Head Clerk and started discharging his duty, he continued to discharge his duty till 14.7.2007 and thereafter he has been transferred to his parent department and again posted in the death vacancy of one G. Sheshuvulu, Office Superintendent in the scale of Rs.5500-9000, has taken higher responsibilities for the period from 17.7.2007 to 3.6.2008 and remained on the post till 12.2.2009. Again he was posted in sick vacancy of Office Superintendent Grade-II namely N.V. Rama Joga Rao w.e.f. 12.2.2009 till making of the representation. He, while posted in Hyderabad, has approached the Central Administrative Tribunal, Hyderabad by filing O.A.No.1456 of 2014 with the prayer that he may be posted in the equivalent grade in a vacancy which he is holding at the material point of time i.e. Senior Clerk to deal with the duties allotted to the post he was holding but the Tribunal has dismissed the original application vide order dated 18.6.2015 by observing that the Bill section can be handled by persons right from Junior Clerk to Chief Office Superintendent and apparently, their duties were identical irrespective of their designation, hence the Tribunal held that no injustice had been caused to the opposite party/applicant by the order transferring him in place of one Sri Uday Kiran, Junior Clerk. The opposite party/applicant has made presentation to the General Manager, East Coast Railway, Bhubaneswar praying, inter alia, therein (i) to regularize and confirm officiating promotion as an Office Superintendent from the date of initial posting i.e. 23.2.2001. (ii) to settle the difference arrears of officiating fixation and other subsequent benefits from 23.2.2001, (iii) to revert him immediately from the higher post if not feasible to confirm the above officiating services. 8. (ii) to settle the difference arrears of officiating fixation and other subsequent benefits from 23.2.2001, (iii) to revert him immediately from the higher post if not feasible to confirm the above officiating services. 8. The Senior Personal Officer(Engineering) acting on behalf of the Chief Personal Officer, East Coast Railway, has taken decision on the representation of the opposite party/applicant by passing order dated 24.3.2015 whereby and where under while rejecting the claim of the opposite party/applicant regarding his arrears of difference of salary on account of shouldering higher responsibility of higher post giving reason that merely on account of being posted in higher grade vacancies does not mean that he is working in higher grade post since he has never been promoted to any higher post even in adhoc manner, to work in the higher grade post of Head Clerk, hence, he is not entitled even for officiating allowance of any higher post of any point of time and also not eligible for regularization as head clerk and Office Superintendent since he has never worked in the grades. The order 24.5.2015 has been assailed before the Central Administrative Tribunal vide O.A. No. 457 of 2015, the Tribunal after hearing the parties has passed order by quashing the order dated 24.3.2015 and remitting the matter before the General Manager to take into account all the observations made in this order and decide the claim of the opposite party/applicant in conformity with the existing guidelines and release the financial claims that accrued to him within a period of 120 days from the date of receipt of copy of the order. The order passed by the Tribunal is before us having been assailed by the Union of India through its functionaries. 9. We, after hearing the learned counsel for the parties, have gathered from the record that the opposite party/applicant is invoking jurisdiction of the Tribunal for two reliefs: (i) Regularization of service on account of discharging duty to the higher post and; (ii) to grant him officiating allowance for the period when he has been allowed to discharge duty of higher post in the light of the executive instruction dated 31.10.2007. 10. So far as the issue regarding regularization in service, learned counsel for the opposite party/applicant does not raise any dispute that merely on account of officiating posting an employee cannot claim regularization on the higher post. 10. So far as the issue regarding regularization in service, learned counsel for the opposite party/applicant does not raise any dispute that merely on account of officiating posting an employee cannot claim regularization on the higher post. It is settled that there is principle of promotion of officiating posting to regular posting which can only be given subject to recommendation of the Departmental Promotion Committee and subject to other eligibility while officiating posting is to be given subject to urgency in a particular office. Since the opposite party/applicant is agitated his claim for regularization the period he has discharged duty in higher post by officiating posting, the same cannot be allowed to be given reason being that merely on account of officiating posting a person cannot be granted promotion in the garb of officiating posting. Further on the ground of executive instruction dated 31.10.2007 which speaks regarding eligibility of employees who have been directed to shoulder responsibilities of higher grade posts, where the posts are actually not in existence, such staff would be eligible for officiating pay in terms of instruction contained in Board’s letter dated 12.12.1991, hence taking into consideration the nature of order by which the opposite party/applicant has been allowed to officiate in the higher post and also the executive instruction dated 31.10.2007, the claim of the opposite party/applicant being rejected by the authorities does not warrant any interference, but the Tribunal without taking into consideration the settled proposition of law as has been sated herein above and without considering the executive instruction dated 31.10.2007 and the Board’s letter dated 12.12.1991 has rejected the decision of the authorities, hence that part of the order passed by the Tribunal is not sustainable in the eye of law, accordingly the same is quashed. 11. 11. So far as second relief that pertains to difference of arrear of salary of officiating posting as per the executive instruction dated 31.10.2007 and Board’s letter dated 12.12.1991, we are of the considered view that the opposite party/applicant has annexed order dated 20.2.2001 he was posted in place of Sri K. Mutyala Rao, Head Clerk who was going to be retired on his superannuation w.e.f. 31.3.2001 till further orders, post on which he has discharged his duty and remained in the post till 14.7.2007, according to our considered view, what authority have said in the order of rejection dated 24.3.2015 that he has not allowed to officiate in the higher post, we are not in agreement with the said finding reason being that the petitioner was discharging his duty to the post of Head Clerk from 21.2.2001 till 14.7.2007 as shown in the order dated 20.2.2001, and as such, it cannot be said that he has not discharged his duty in the higher grade post and also it cannot be said that he has not discharged duty by shouldering responsibility of sanctioned higher post and if he has been allowed to discharge his duty by shouldering higher responsibility of higher grade sanctioned post, he will be entitled to get officiating pay as per the terms and conditions of the executive instruction dated 31.10.2007 and Board’s letter dated 12.12.1991. 12. So far as officiating duty of other higher post in the death vacancy in place of G. Sheshuvulu, which according to the opposite party/applicant, he was remained in charge of duty of Office Superintendent Grade-II for the period from 17.7.2007 to 3.6.2008 and thereafter posted in the sick vacancy of Office Superintendent, Grade-II in place of Sri U. Ramajoga Rao for the period from 12.2.2009 till making of the representation. The document pertaining to his posting from 17.7.2007 to 3.6.2008 has not been enclosed in the counter affidavit, however the document pertaining to his posting against the sick vacancy of Sri U. Ramajoga Rao dated 12.2.2009, the same is annexed to the counter affidavit as Annexure-B. On its perusal, we have found that he was posted temporarily in Bill Section-IX in place of Sri U. Ramajoga Rao who was under sick list till further order, which suggests that he has remained in higher post, accordingly the part of the decision taken by the authorities in the communication dated 24.3.2015 rejecting the claim of the opposite party/applicant for difference of arrears of officiating pay for the period from 23.2.2001 to 14.7.2007 and from 12.2.2009 till submission of representation i.e. dated 10.8.2014, we are of the considered view that the opposite party/applicant is entitled to get benefit in pursuance to the executive instruction dated 31.10.2007 read with Board’s letter dated 12.12.1991, for ready reference the executive instruction dated 31.10.2007 is being quoted herein below: “R.B.E. No. 137/2007 Subject : Grant of officiating pay to the staff who shoulder higher responsibilities (No.E(G) 2005 HO1/19, dated 31.10.2007) The staff side has raised a demand in the forum of JCM/DC for grant of officiating pay in higher grade to such of the staff as are deployed for discharging the responsibilities of higher grade posts but are denied officiating pay on the ground of non-availability of higher grade posts. The matter was examined by the Board and since the conditions stipulated for payment of special pay/officiating pay, honorarium, etc., are not fulfilled in the situation mentioned above, it was not found reasibletoagree to the demand of the staff side. However, instructions were issued vide Board’s letter of even number dated 13.12.2006 (Bahri’s 189/2006, p.222) to the effect that when staff in the lower grade are made to shoulder responsibility of higher-grade posts, they may be compensated monetarily by grant of suitable awards, as deemed fit, by the General Managers under their powers depending upon the circumstances and the extent of work involved. This matter was discussed further in the JCM/DC meeting held on 24th/25th May, 2007 when it was decided that instructions on grant of officiating pay when shouldering higher responsibilities will be reiterated. This matter was discussed further in the JCM/DC meeting held on 24th/25th May, 2007 when it was decided that instructions on grant of officiating pay when shouldering higher responsibilities will be reiterated. Accordingly, in cases where staff in lower grades are made to shoulder responsibilities of higher grade posts, where the posts are actually not in existence, it is reiterated that the instructions contained in Board’s letter dated 13.12.2006, ibid, should be complied with. However, in cases where staff working in lower grades are made to shoulder responsibility of higher grade sanctioned posts, such staff would be eligible for officiating pay in terms of instruction contained in Board’s letter No.F(E)II/89/FR1/1, dated 12.12.1991 (Bahri’s 198/91.p.254) which are hereby reiterated for strict compliance. This issues with the concurrence of the Finance Directorate of the Ministry of Railways (Railway Board).” 13. So far as the period from 17.7.2007 to 3.6.2008 is concerned, no such document has been annexed by the opposite party/applicant, hence we are not passing any specific direction. However, the petitioner is at liberty to satisfy the authority to bring that period under the purview of the executive instruction dated 31.10.2007 read with Board’s letter dated 12.12.1991 and if that will be done, the authority will take decision in this regard. 14. Accordingly, we direct the opposite party/applicant to file fresh representation annexing the documents for the period in question along with the copy of this order and the authority after receipt/production of the representation shall take decision in accordance with law. The order of the Tribunal dated 18.8.2016 is modified to the extent as discussed herein above. The writ petition is disposed of with the above direction and observation made above.