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2020 DIGILAW 589 (HP)

Savita v. State of Himachal Pradesh

2020-09-14

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this petition, petitioners have prayed for the following reliefs:- "a) That Writ of Certiorari may be issued for quashing and setting aside the impugned orders i.e. Annexure P-8 & Annexure P-10. b) That Writ of Mandamus may be issued directing the respondent to release the pay of the Senior Assistant to the petitioner for the service rendered by her husband w.e.f. 12.8.2003 alongwith all consequential benefits". 2. Brief facts necessary for the adjudication of the present petition are as under:- Original petitioner (Narayan Singh Nanta) was appointed as a Clerk in the Department of Employment at Regional Employment Exchange Shimla, H.P., in the year 1997. Vide Annexure P-1, dated 18.06.2003, the petitioner who at the relevant time was serving as a Junior Assistant in Regional Employment Exchange at Shimla, was transferred to District Employment Exchange, Keylong, against the vacant post of Senior Assistant. Vide same Office Order, one Shri Rajesh Mehta, who was serving as a Senior Assistant in District Employment Exchange, Keylong, was transferred to the Directorate of Labour Commissioner-cum- Director, Employment, Shimla, H.P., against vacant post of Senior Assistant. In other words, vide transfer order (Annexure P-1), one Senior Assistant posted at District Employment Exchange, Keylong, was transferred against the post of Senior Assistant in the Directorate of Labour Commissioner-cumDirector Employment, Shimla, H.P., whereas the petitioner who was serving as a Junior Assistant at Regional Employment Exchange, Shimla, was transferred against the vacant post of Senior Assistant at District Employment Exchange, Keylong. 3. The transfer of the petitioner against the vacant post of Senior Assistant to the District Employment Exchange, Keylong was with T.T.A.. Meaning thereby that the transfer was not on the request of the petitioner. After his being posted as such, petitioner made representation to the authority concerned inter alia to the effect that as he was serving against the post of Senior Assistant and was performing the duties of a Senior Assistant, therefore, he should be paid wages of the Senior Assistant. 4. After his being posted as such, petitioner made representation to the authority concerned inter alia to the effect that as he was serving against the post of Senior Assistant and was performing the duties of a Senior Assistant, therefore, he should be paid wages of the Senior Assistant. 4. As nothing was done by the State, he filed a petition before this Court i.e. CWP No.1175 of 2010, titled as Narayan Singh Nanta Versus State of Himachal Pradesh and anr, decided on 08.04.2010, which was disposed of in the following terms:- "The petitioner has filed the writ petition with the following prayers: "(a) That writ of Mandamus may be issued directing the respondent to promote the petitioner to the post of Senior Assistant and to release the pay of the Senior Assistant to the petitioner w.e.f. 12.8.2003 along with all consequential benefits. (b) the respondent may further be directed to promote the petitioner to the post of Sr. Assistant as the post of the Sr. Assistant is lying vacant for the last 6 years." It is seen that the petitioner has submitted Annexures P-2, P-3 and P-4 (representations). Therefore, there will be a direction to the second respondent to look into the representations and take appropriate action thereon in accordance with law, adverting also to the submissions made by the petitioner in the representations, within a period of one month from the date of the production of a copy of this judgment along with a copy of the writ petition". 5. The representation of the petitioner, however, was rejected by the competent authority, on 21.06.2010, vide Annexure P-8, by holding that as the petitioner was not performing the work of the post of Senior Assistant, but was doing the job of Junior Assistant, therefore, he was not entitled for the higher pay of the post of Senior Assistant. 6. Feeling aggrieved, the petitioner has filed this petition, praying for the relief already mentioned hereinabove. 7. During the pendency of this petition, the original petitioner Narayan Singh Nanta died and his legal representatives were brought on record. 8. 6. Feeling aggrieved, the petitioner has filed this petition, praying for the relief already mentioned hereinabove. 7. During the pendency of this petition, the original petitioner Narayan Singh Nanta died and his legal representatives were brought on record. 8. The petition has been resisted by the State, inter alia on the ground that in terms of the provisions of Fundamental Rules 49, the petitioner was not entitled for the wages of the post of Senior Assistant as he was neither posted against the higher post nor at any stage he was called upon to perform the duties of the higher post. According to the State, in the year 2010, a Departmental Promotional Committee was held to make promotions to the post of Senior Assistant and the original petitioner was duly considered, but was not found fit for promotion. As per the respondents, the petitioner never performed the duties of a Senior Assistant and performed the duties of a Junior Assistant only. On this count, a prayer has been made for dismissal of the petition. 9. Learned Additional Advocate General during the course of arguments has also relied upon the judgment of this Court in CWP No.1971 of 2011, titled as Faryad Bhatti Versus High Court of H.P., decided on 01.04.2016. 10. I have heard learned Counsel for the parties and have also gone through the pleadings as well as the documents appended therewith. 11. Fundamental Rule 49 (i) reads as under:- "(i) where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post". 12. As I have already mentioned in extenso, in the above part of the judgment the petitioner vide transfer order dated 19.06.2003, was transferred against the vacant post of "Senior Assistant". At the relevant time, he was admittedly serving as a Junior Assistant in the Department concerned. 12. As I have already mentioned in extenso, in the above part of the judgment the petitioner vide transfer order dated 19.06.2003, was transferred against the vacant post of "Senior Assistant". At the relevant time, he was admittedly serving as a Junior Assistant in the Department concerned. This means that the Department took a conscious decision to post the person who was holding the post of Junior Assistant against a vacant post of Senior Assistant by way of transfer at Keylong. In other words, it is not a case where the grievance of the petitioner is that though he was transferred against the post of Junior Assistant to Keylong, but he was called upon to perform the duties of a Senior Assistant. Here is a case where the incumbent who was holding the post of Junior Assistant was with open eyes transferred and posted against the higher post of Senior Assistant and that too against a post which was vacated by an incumbent, who vide the same order was transferred from the post of Senior Assistant and posted against the post of Senior Assistant. 13. During the course of the hearing of this case, on a query put by this Court, the State informed the Court that the post against which the petitioner actually was posted at Keylong was that of Senior Assistant. Though a feeble attempt was made by learned Additional Advocate General to argue that despite being posted against the post of Senior Assistant, the petitioner actually performed the job of a Junior Assistant, but on a subsequent query of the Court, as to whether there was any post of Junior Assistant at Keylong, the answer was in negative. 14. Be that as it may, here it is not a case where an incumbent who was posted at a station on a lower post, was in the exigency of service called upon to perform the duties of a higher post without any formal orders of his being posted to perform the duties of a higher post being passed by the competent authority. Here is a case where vide Office Order dated 19.06.2003 (Annexure P-2), the incumbent was transferred to the higher post by the competent authority. Meaning thereby that this order itself has to be treated as an order vide which the incumbent was expressly posted against the higher post to perform the duties of the said post. Here is a case where vide Office Order dated 19.06.2003 (Annexure P-2), the incumbent was transferred to the higher post by the competent authority. Meaning thereby that this order itself has to be treated as an order vide which the incumbent was expressly posted against the higher post to perform the duties of the said post. As far as the judgment relied upon by learned Additional Advocate General, of this Court in CWP No.1971 of 2011, titled as Faryad Bhatti Versus High Court of H.P., decided on 01.04.2016, in my considered view, the same is of no assistance to the State in the facts of this case. In the judgment referred to, the incumbents were the persons who though stood posted on their respective posts, but on account of increase of work in the Courts, were deputed to discharge the functions of higher post. In the said judgment, Hon'ble Division Bench of this Court, relied upon the judgment of Hon'ble Supreme Court in Ramakant Shripad Sinai Advalpalkar Vs. Union of India, (1991) AIR SC 1145 , in which Hon'ble Supreme Court was pleased to hold that where an officer who substantively held the lower post and is merely asked to discharge the duties of a higher post, then he is not entitled to get salary of higher post. Coming to the facts of this case, fortuitously, in terms of the language used in the transfer order, the petitioner was posted by the Department concerned by way of transfer against a higher post and it was not a case where the officer concerned while holding the lower post at the station in issue was merely called upon to discharge the duties of the higher post due to exigencies of service. In fact the case of the petitioner is squarely covered by the language of Fundamental Rules 49(i) and the petitioner was entitled to get the wages of the higher post in issue till the time he served as a Senior Assistant and till the time he served having been transferred against the vacant post of Senior Assistant at District Employment Exchange, Keylong. 15. 15. Accordingly, this petition is allowed, by quashing the impugned order dated 21.06.2020 (Annexure P-8), with the direction that legal representatives of deceased employee be paid the differences of the wages to which the petitioner was entitled to in terms of Fundamental Rules 49, having served against the post of Senior Assistant for the period the deceased employee remained posted on transfer against the post of Senior Assistant at District Employment Exchange, Keylong. It is clarified that in case the monetory emoluments to which legal representatives of deceased employee are entitled too, are paid to them within a period of two months from today, then the same shall not entail any interest. In case the same is not paid within two months as directed, then the same shall entail interest at the rate of 6% as from the date the petition was filed till the date of payment. The petition is disposed of in above terms. Pending miscellaneous applications, if any, also stand dismissed.