Dilip Kumar v. United India Insurance Company Ltd. and Others

Mr. Anil Bhandari for the petitioner. Mr. Rakesh Arora for the respondents. BY THE COURT By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks fixation of pay on the post of Senior Assistant while treating him in cash job and quashing of order Annex.7 dated 23.07.2004 by which the cash job was withdrawn and order Annex.13 dated 11.11.2004 as also a direction to release a sum of Rs. 415/- per month in addition to the usual pay with effect from 27.07.2004. Briefly stated the facts of the case to the extent they are necessary and relevant for the decision of the instant writ 2 petition are that the petitioner is serving with the respondent United India Insurance Company Limited (for short 'the Insurance Company' hereinafter) on the post of Senior Assistant. One Kamini Bhatia, Assistant, who was working as Cashier in Divisional Office, Ajmer was promoted to the cadre of Senior Assistant against promotion exercise 2003 placing her name at serial No.10 in the ranking list Annex.2. The Promoting Authority issued promotion order of Mrs. Kamini Bhatia on 20.11.2003 and the same was received by her and she was relieved from the Divisional Office, Ajmer on 20.11.2003 to join at Branch Office, Makrana of the Insurance Company. As per the practice prevailing in the respondent Insurance Company, the job of cash is assigned as per the seniority and senior most person is given cash job and as per the guidelines, the senior most person on the clerical cadre should be allowed to handle cash department. Mrs. Kamini Bhatia was relieved on 20.11.2003 and the petitioner was directed to take the charge of Cash Department as Cashier w.e.f. 21.11.2003 vide Annex.3. The petitioner was also promoted to the post of Senior Assistant by the Promoting Authority on 20.11.2003 and the promotion order came to be served on the petitioner on 11.12.2003 and was relieved on the same day, vide Annex.4. However, after receiving the promotion order, the petitioner submitted a letter dated 11.12.2003 Annex.5 by which he has foregone the promotion. The request of 3 the petitioner having foregone the promotion was accepted by the respondent vide order Annex.6 dated 12.12.2003 and thus according to the petitioner since the petitioner has foregone the promotion and therefore, was entitled to be given the work of cash handling and for such cash handling he is entitled to get the additional amount i.e. Cash Functional Allowance of Rs. 415/- per month which came to be withdrawn by the respondent Insurance company by order impugned Annex.7 dated 23.7.2004 and consequence thereto the pay of the petitioner was fixed vide Annex.13 dated 11.11.2004. Hence this writ petition. A reply to the writ petition has been filed by the respondents denying the claim of the petitioner for his entitlement to cash allowance stating therein that the petitioner was in the promotion list and was offered promotion to Senior Assistant vide letter dated 20.11.2003 but the petitioner declined to accept the said promotion vide letter dated 11.12.2003 and at the time of promotion the petitioner was not handling the cash function so as to entitle him for additional amount of Rs. 415/- per month as functional allowance while fixing his salary and on these premises, the petitioner's claim has been refuted in the reply filed by the respondents. I have heard learned counsel for the parties. Carefully gone through the material available on record. 4 By a Notification dated 21st December, 2005 under the Caption “II. Functional Allowances”: Clause (b) of Special Functional Allowance it has been provided that with effect from 1st day of August, 2002, an employee in the scale of Assistant (or Senior Assistant, in the event of non-availability of Assistant) engaged in handling cash in an office, as his regular and main function, where the amount of cash transactions during a calendar month is ordinarily Rs. 25,000/- or more, shall be paid monthly Special Functional Allowance. Thus, by Notification dated 21.12.2005, the special functional allowance has been made available to the persons handling the cash in the office of the respondent insurance company. From the various documents placed on record, it is clear that the respondent insurance company have the policy of job rotation, the policy of transfer within the same station and grant of functional allowance when the employee of the rank of assistant is assigned the work of handling the cash. The respondent company vide letter Annex.R/1 dated 25.09.1989 provided guidelines according to which, the senior most Assistant (C) is assigned the duty of cashier and in case of non-availability, the said function is assigned to senior most Assistant (T) and once it has been assigned to an Assistant (T) he shall not be divested from the said function unless he is on promotion or transfer or the like. However, the guidelines have been subsequently modified 5 according to the administrative exigency vide Annex.R/2 dated

28.6.2000 and the said function designation like Assistant (C) or Assistant (T) has been eliminated and irrespective of functional designation, the competent authority can assign the said function to any senior most person in the clerical cadre and vide Annex.R/3 dated 02.09.1997 it was clarified that the Assistant whose name has appeared in the promotion list/ contingency list for promotion to Senior Assistant cannot be assigned the function of cashier after publication of the said list. In the instant case, undisputedly, the petitioner was in the promotion list and was offered the promotion to the post of Senior Assistant by letter dated 20.11.2003 and the petitioner declined to accept the said promotion vide his application dated 11.12.2003 and even the petitioner himself came with this case and therefore, the cash function was assigned to the petitioner on 3.2.2004 with retrospective operation. So far as the case of Mrs. Kamini Bhatia is concerned, the respondents did not dispute that she was relieved on 20.11.2003 and after her relieving, the Senior Divisional Manager was directed by the competent authority to make temporary arrangement to discharge the function of cashier and sought recommendation of the name of senior most Assistant for allocation of such cash function. Since the petitioner did not accept the promotion and has foregone the same and therefore, by letter dated 14.1.2004, the Senior 6 Divisional Manager recommended the name of the petitioner for allotment of cashier function and accordingly the competent authority accorded the approval for assignment of cash function vide letter dated 3.2.2004. However, subsequently, the petitioner has shown the interest in promotion and therefore, placing his name in the merit/ contingency list of promotion, the cash function was withdrawn and the petitioner was given second offer of promotion to Senior Assistant vide promotion order dated 25.08.2004 which the petitioner accepted and joined as Senior Assistant at Kankroli on 27.08.2004. From the pleadings of the parties and policy dealing with the cash function, it is clear that the cash function is assigned to the senior most person from the clerical cadre but when promoted as Senior Assistant is not entitled for such function and even when name of an Assistant has in the promotion/ contingency list, he is not entitled for the cash function. In the instant case, initially at one point of time, the petitioner had foregone the promotion vide letter dated

11.12.2003 but subsequent thereto he has shown the inclination to accept the promotion and he was placed in the promotion list and was offered promotion and accordingly was promoted to the post of Senior Assistant and post at Kankroli Branch of the Insurance Company and therefore, the respondents were justified in withdrawing the cash function of the petitioner. 7 Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in Bhagwan Shukla Vs. Union of India and Others AIR 1994 SC 2480 wherein Hon'ble Supreme Court held that the basic pay of the Govt. servant cannot be reduced with retrospective effect without granting opportunity to show cause. The decision relied on by learned counsel for the petitioner turns on its own facts and is of no help to the petitioner for the reason that in the instant case the petitioner very well knew at the time of accepting the cash function, foregoing the promotion and again showing inclination for promotion and accepting the promotion to the post of Senior Assistant and therefore, in my view the respondents were justified in passing the order impugned as also holding that the petitioner is not entitled for cash functional allowance. In this view of the matter, I do not find any merit in the writ petition. The writ petition is therefore, dismissed. No order as to costs. (H.R.PANWAR), J.