Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK WPC (OAC) NO. 3686 OF 2000 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- AFR Laxman Kumar Dhal ..… Petitioner -Versus- State of Orissa and others ….. Opp. Parties For Petitioner : M/s. D. Pattnaik, M.K. Khuntia, P.K. Dhal & N.S. Panda, Advocates For Opp. Parties: Mr. A.K. Mishra, Addl. Government Advocate [O.Ps.1 & 2] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI DECIDED ON : 05.01.2023 DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to issue direction to the opposite parties to give him appointment by way promotion to the post of Office Superintendent with effect from 01.10.2000 and // 2 // grant all consequential monetary and service benefits w.e.f. 01.03.2000. 2. The factual matrix of the case, in precise, is that the petitioner was appointed as a Lower Division Clerk in Ravenshaw College, Cuttack on 21.12.1964. He was promoted to the post of Senior Clerk on 01.03.1978. On 10.12.1990, he was appointed to the post of Cashier and, thereafter, on 11.08.1991, he was promoted to the post of Junior Accountant and on 01.06.1997 he was promoted to the post of Senior Assistant in Ravenshaw College, Cuttack. 2.1 The petitioner’s service was being governed under the provisions of the Orissa Ministerial Service Rules, 1963, as amended from time to time. Subsequently, the Government decided to prepare a separate cadre and accordingly framed the Orissa Government Colleges Ministerial Services (Method of Recruitment & Conditions of Service) Rules, 1999, which was published in the Orissa Gazettee on 08.09.1999, the // 3 // date from which the same came into force. Though it required creation of a common cadre, but the same was not prepared. The petitioner, while working as Senior Assistant in Ravenshaw College, Cuttack, one Kartik Chandra Das was serving as Office Superintendent and Gopal Krishna Mishra was serving as Head Clerk. In the meantime, Kartik Chandra Das, who was holding the post of Office Superintendent retired from service on 29.02.2000. Therefore, opposite party no.3 requested opposite party no.2 to accord necessary permission for the promotion of senior most person of the establishment holding the post of Head Clerk as Office Superintendent and the next senior most person (the petitioner herein) as Head Clerk, since the common cadre was not framed by then. 2.2 The Director, Higher Education, after receiving the letter under Annexure-2 dated 28.02.2000 issued by opposite party no.3, directed that the Head Clerk of Ravenshaw College will remain in charge of Office // 4 // Superintendent temporarily till a regular appointment is made against the post in addition to his own duty, as the common gradation list was not prepared. Consequentially, the petitioner made a representation to the authority with regard to his promotion to the post of Head Clerk, as he was discharging the duty and responsibility of the post of Head Clerk in addition to his own duty as Senior Assistant, but the opposite party-authorities turned a deaf ear. 2.3 As the opposite party no.2 did not take any steps to fill up the post of Head Clerk and Office Superintendent in Ravenshaw College, Cuttack, the opposite party no.3, vide letter dated 21.09.2000 under Annexure-4, again requested to opposite party no.2 that the petitioner may be permitted to take over the charge of
Legal Reasoning
of this Court in the case of Dillip Kumar Sahoo v. State of Orissa & Ors, 2008 (I) OLR 162. 4. Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties, per contra, disputed the factual position and contended that the petitioner was never allowed to discharge the duty and responsibility of the higher post by following the due procedure prescribed under the Rules, 1999. Once the petitioner has not been given promotion, he cannot claim the benefit of higher scale of pay and re- fixation of pensionary benefit. As such, fixation of scale of pay to the post of Head Clerk cannot be made automatic. It is contended that even though the petitioner has discharged his duty as Head Clerk in addition to his own duty, he may have got higher remuneration, but he is not // 7 // entitled to be promoted to the said post without following due procedure. 5. This Court heard Mr. P.K. Dhal, learned counsel appearing for the petitioner and Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties by hybrid mode and perused the records. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the
Arguments
the Office Superintendent from Sri G.K. Mishra by appointing him to hold temporarily or to officiate the posts of Head Clerk and Office Superintendent of Ravenshaw College, Cuttack with effect from 01.10.2000, in addition // 5 // to his normal duties as Senior Assistant. Since opposite party no.2, after receiving the letter of opposite party no.3 as at Annexure-4, remained silent over the matter, the opposite party no.3, vide office order dated 29.09.2000, directed the petitioner to take over the charge of Office Superintendent and accordingly the petitioner on 30.09.2000 took over the charge of Office Superintendent and continued to discharge his duties to the utmost satisfaction of the authorities. The petitioner should have been promoted to the post of Head Clerk w.e.f. 01.03.2000 and thereafter to the post of Office Superintendent w.e.f. 01.10.2000, but the opposite parties in the name of the Orissa Government Colleges Ministerial Services (Method of Recruitment & Conditions of Service) Rules, 1999 (for short “Rules, 1999” have deprived the petitioner of getting such benefits. Hence, this writ petition. 3. Mr. P.K. Dhal, learned counsel appearing for the petitioner contended that for holding the higher post, the petitioner is entitled to get higher scale of pay. // 6 // Accordingly, his pensionary benefit should be re-fixed. To substantiate his contentions, he has relied upon the judgment of the apex Court in Selva Raj v. Lt. Governor of Island, Port Blair, AIR 1999 SC 838 and the judgment
Decision
parties, this writ petition is being disposed of finally at the stage of admission. 6. On the basis of the factual matrix, as delineated above, at the outset, it is to be decided whether the petitioner is entitled to get the relief sought in the writ petition or not. 7. As a matter of fact, the petitioner has sought the following reliefs:- “Under the circumstances it is prayed that the Hon’ble Tribunal be pleased to direct the Opp. the to give appointment/promotion Parties applicant in the post of Office Superintendent with effect from 1.10.2000. And direct the respondents to // 8 // to grant all consequential and monetary and service benefits from 1.3.2000 towards. And further order pass (s)/directions as this Hon’ble Tribunal thinks fit and proper”. appropriate 8. There is no doubt that the petitioner was allowed to discharge his duty as Head Clerk in addition to his own duty, pursuant to letter dated 21.09.2000 under Annexure-9. It is the admitted fact that due to retirement of Gopal Krishna Mishra, the petitioner was holding the post of Head Clerk and remained in-charge of Office Superintendent in addition to his own duty. As per the provisions contained in Rule-8(1) of the Rules, 1999, which came into force w.e.f. 08.09.1999, it has been provided that a gradation list of ministerial employees in a particular grade shall be prepared by the D.H.E. (O). Besides this, it has also been provided in Rule 2(A) that the “Appointing Authority” means Director Higher Education, Orissa and in Rule 13(1) the power has been vested on the appointing authority to transfer the ministerial employees of Government Colleges borne on the common cadre from one College to another College as // 9 // and when deemed necessary. As the gradation list of ministerial staff, i.e., Office Superintendent, Head Clerk, Senior Clerk and Junior Clerks have been finalized and notified, but not implemented. 9. In Selva Raj (supra), the apex Court held as follows:- “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 & Nicobar Administration that the appellant was regularly posted in the pay scale of 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 // 10 // scale of 1640-2900. Consequently, on the principle of quantum merit 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 required to be given to the appellant only on this ground.” 10. In Dillip Kumar Sahoo (supra) at Para-5 of the judgment, this Court held as under:- In the this claim of factual background, let me “5. examine the petitioners. Admittedly, the petitioners were discharging their duties as Court Masters, which have been included in the cadre of Superintendent, Level-II carrying the higher scale. It is well settled in law that if an employee is ordered to work in a higher post though temporarily and in an officiating capacity, he is entitled to the salary attached the higher post, as payment of higher salary shall not amount to promotion.” to 11. An additional affidavit has been filed by the petitioner wherein it has been stated that one similarly situated person, namely, Gopal Krushna Mishra, who held the post of Office Superintendent in-charge and from whom the petitioner had taken the charge, had approached the State Administrative Tribunal by filing // 11 // O.A. No. 3465 (C) of 2000, which was disposed of vide order dated 08.04.2010, wherein the tribunal held as under:- “Apparently, the applicant has discharged the functions of a higher post in addition to his own duties in pursuance of orders at Annexure -2 with effect from 4.09.2000 and the aforesaid order has been withdrawn on 16.10.2000 i.e only after retirement of the applicant vide Annexure-3. Hence, as the applicant has discharged the functions of a higher post, the applicant will be entitled to the salary benefits accruing on that account in accordance with the decision of the Hon’ble Apex Court in the case of Selvaraj Vrs. Lt. Governor, Islands, Port Blair reported in A.I.R 1999 S.C.838 and Dillip Kumar Sahu Vrs State of Orissa (2008(I) OLR- 162 of the Hon’ble Orissa High Court. As such Annexure-3 and Annexure-4 stand quashed. The pay and other benefits of the applicant may be settled accordingly.” 12. The order of the tribunal having not been complied with, Gopal Krushna Mishra also filed C.P. No. 204 of 2011, pursuant to which the order passed by the tribunal has been implemented. Therefore, in this backdrop of law and taking into consideration the fact that the petitioner had remained in-charge of the higher post of Head Clerk w.e.f. 01.03.2000 and thereafter of the post of Office Superintendent w.e.f. 01.10.2000 till his // 12 // retirement, i.e., 31.01.2004 uninterruptedly, he is entitled to get the scale of pay admissible to the higher post in which he has discharged his duty. Meaning thereby, he is entitled to get the scale of pay admissible to the post of Head Clerk w.e.f. 01.03.2000 and thereafter the scale of pay admissible to the post of Office Superintendent w.e.f. 01.10.2000 till his retirement, i.e., 31.01.2004. Even though there was no order to the effect that the petitioner was allowed to hold the higher post either on temporary or officiating basis, but effectively he remained in-charge of the higher post and discharged the duties and responsibilities of the same till his retirement, i.e., 31.01.2004. 13. It is of relevance to note that Code 45 of Orissa Service Code deals with the term ‘temporary post’, which means a post carrying a definite rate of pay and sanctioned for a limited time. 14. The word ‘temporary’ otherwise means, lasting for a time only; existing or continuing for a limited time; // 13 // not of long duration; nor permanent; transitory; changing; lasting for a short time. 15. In Katyani Dayal v. Union of India, (1980) 3 SCC 245, while considering Rule-106 of Railway Establishment Code, the apex Court held that the word ‘temporary’ in the expression Temporary Asst. Officer in the note does not qualify the words Asst. Officer. It is not proper to look at attended definition of Asst. Officer in isolation and conclude that the expression ‘Asst. Officer’ includes Temporary Asst. Officer because Temporary Asst. Officer was also a gezetted Government servant who drew the junior scale of pay. 16. This Court discussed the meaning of temporary in the context that though the petitioner was allowed to discharge the responsibility of higher post, it was not for a temporary purpose rather he was allowed to discharge the responsibility till his superannuation. Thereby, a right has been accrued in favour of the petitioner to get the benefit // 14 // of scale of pay admissible to the higher post in which he has discharged the duty for a quite long period. 17. Similarly, the meaning of ‘officiate’ has been defined in Code-31 of Orissa Service Code, which reads as under:- “31. Officiate – A Government servant officiates in a post when he performs the duties of a post on which another person holds a lien. A Government servant may, however, be appointed to officiate in a vacant post on which no other person holds a lien by the authority competent to make a substantive appointment to the vacant post.” 18. In Puroshotamlal Dingra v. Union of India, AIR 1958 SC 36, the apex Court held as under:- the the “An to officiate in a permanent post is usually made when incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on incumbent return of substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a notice of termination as agreed upon or as may be reasonable under the ordinary law. It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation or on the // 15 // in rule time. In short, regulating to a permanent post an officiating basis, is from the very nature of such employment, is itself of a transitory character and, in the absence of any special the contract or specific conditions of the service, the implied term of such appointment under ordinary law of Master and Servant is that it is terminable at the case of an any appointment in a Government service on probation or on officiating basis, the servant so appointed does not acquire any substantive right to the post and consequentially cannot complain any more than a private servant employed on probation or on an officiating basis can do if his service is time. Likewise an terminated at any in a appointment Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period.” temporary post to a 19. If the word ‘officiating’ would be taken into consideration in literate form, it is acting in an official capacity, filling a position temporarily. 20. In Yugraj Singh v. State of Punjab, 1968 SLR 363, the apex Court held that officiates means to perform the duties of an office. // 16 // 21. In A.K. Chatterjee v. South Eastern Railway, 1995 (1) SLR 500, the apex Court held that the word ‘officiating’ generally used when a servant having held one post permanently is appointed to a post in a higher rank but not permanently or substantively. 22. In Arun Kumar v. S.E. Railway, AIR 1985 SC 482, while considering Rule-312 of Railway Establishment Manual, the apex Court held that the word ‘officiating’ is generally used when a servant having held one post permanently or substantively is appointed to a post in a higher rank, but not permanently or substantively. The word ‘temporary’ usually denotes a person appointed in the Civil Service for the first time and the appointment is not permanent but temporary for the time being, with no right to the post. 23. But, in the present case, the materials available on record clearly indicate that the petitioner was in-charge of the posts of Head Clerk and Office Superintendent. Meaning thereby, he was in-charge of the higher post and // 17 // responsibility to conduct all the work, as a result, there was overall control of the day to day affairs of the post. It is also made clear that the petitioner was allowed to continue in the higher post in addition to his own duty, though it is not considered to be promotion but carrying out the higher responsibility, therefore, the scale of pay admissible to the post should be extended to him. This position remains no more res integra, in view of the law as discussed above. 24. Considering the facts and law, as discussed above, this Court is of the considered opinion that the petitioner is entitled to get the scale of pay admissible to the post of Head Clerk w.e.f. 01.03.2000 and thereafter to the post of Office Superintendent w.e.f. 01.10.2000 till his retirement, i.e., 31.01.2004. Thereby, the opposite parties are directed to calculate the differential amount, which the petitioner is entitled to, and extend such benefit to the petitioner, and that his pension be re-fixed on the basis of the last pay drawn in the post of Office Superintendent // 18 // and revised pension admissible to the petitioner be extended in favour of the petitioner as expeditiously as possible, preferably within a period of three months from the date of production of certified copy of this judgment. 25. In the result, the writ petition stands allowed. However, there shall be no order as to costs. JUDGE …………….………….. DR. B.R. SARANGI, Orissa High Court, Cuttack The 5th January, 2023, Alok