Gauhati High Court
Md. Islahuddin Shah vs State Of Manipur And Ors. on 15 December, 1998
Equivalent citations: (2004)2GLR302
Author: H.K.K. Singh
Bench: H.K.K. Singh
JUDGMENT H.K.K. Singh, J.
1. Heard Mr. Ng. Kumar, the learned counsel appearing on behalf of the petitioner and Mr. R.S. Reisang, learned Additional Government Advocate appearing on behalf of the respondents.
2. The petitioner joined service in the Department of Agriculture, Government of Manipur as L.D.C. in the Year 1957. On 25.11.1992 he was promoted to the post of Superintendent carrying the pay scale of Rs. 1600-2650. Thereafter by an order dated 24.2.1993 he was put to be in-charge Accounts Officer of the Horticulture and Soil Conservation Department, Manipur in addition to his normal duty without extra remuneration and he took the charge as Accounts Officer on 1.8.1993 (F.N.). He continued to hold the duel charge of Superintendent and that of the Accounts Officer till the date of his retirement on superannuation on 28.2.1998. While performing the duties of the aforesaid 2 posts, the petitioner was not allowed to enjoy the pay scale of the Accounts Officer, i.e., Rs. 1640-3-2600-EB-75-2900, nor was he allowed to enjoy any charge allowance etc. The petitioner made representation to the authority for allowing him to enjoy the pay scale of the counts Officer but of no effect. Hence the present writ petition.
3. The order dated 24.2.1993 by which the petitioner was put to be in-charge of Accounts Officer is reproduced below :-
"ORDERS BY THE GOVERNOR : MANIPUR Imphal, the 24th February, 1993 No. 23-A/3 0/90-Agri: The Governor of Manipur is pleased to order the transfer and posting of Shri Th. Babu Singh, Accounts Officer of the Directorate of Horticulture & Soil Conservation, Manipur as Accounts Officer in the Agriculture Deptt. Manipur vice Shri Md. A. Rehman, retired with immediate affect until further order in the public interest.
2. Further, the Governor of Manipur is pleased to order that Shri Md. Islahuddin Shah, Superintendent of the Horticulture & Soil Conservation on Deptt. Manipur will be in-charge Accounts Officer of the Horticulture & Soil Conservations Department, Manipur in addition to his normal duty without extra-remuneration with immediate effect until further order.
By orders & in the name of the Governor, (Ksh. Tombi Singh) Under Secretary (Agri), Government of Manipur."
4. Mr. Ng. Kumar, the learned counsel for the petitioner has submitted that the petition was holding the post of Accounts Officer in addition to his normal duty. Thus, the petitioner should be allowed to enjoy the pay scale of Accounts Officer.
5. The only question to be determined in the present case is whether the petitioner should be allowed to enjoy the pay scale of Rs. 1640-60-2600-EB-75-2900 of the Accounts Officer even though under terms at Annexure-A/2 i.e. order dated 24.2.1993 he was not allowed to get any extra remuneration for his additional duty.
6. The relevant provision concerning the matter is found at F.R.49. It is not disputed that the post of Accounts Officer is the next promotion post of Superintendent. It is also not disputed that the petitioner was regularly appointed to the post of Superintendent only on 25.11.1992. Thus, under the provisions of F.R.49(i) the petitioner may be allowed to enjoy the pay scale of Accounts Officer unless the competent authority reduces his officiating pay under Rule 35. But as noted above, there was a clear term as imposed by the appointing authority that "the petitioner shall not be allowed to enjoy any extra remuneration." Here the learned Government Advocate has submitted that the petitioner was not eligible for promotion to the post of Accounts Officer and he was only put in-charge of the duty of Accounts Officer and that his pay was restricted to his original pay scale of Rs. 1660-2660 i.e. the pay scale of the Superintendent and as such the petitioner is not entitled to get the pay scale of the higher post i.e., the pay scale of the Accounts Officer.
7. In the case of Selvaraj v. Lt. Governor of Island, Port Blair and Ors. reported in (1998) 4 SCC 291 a Primary School leacher was ordered to look-after the duties of Secretary (Scouts) though in the order itself it was mentioned that his pay will be drawn against the post of Secretary (Scouts) under GFR 77. The petitioner was enjoying his original pay scale of Rs. 1200-2040 for the post of Primary School leacher and he was not allowed to enjoy the pay scale of Rs. 1640-2900 for the post of Secretary (Scouts), Thus, he approached the Central Administrative Tribunal claiming higher pay scale. Central Administrative Tribunal rejected the prayer. The Apex Court held that as the appellant worked in the higher post though temporarily and in an officiating Capacity pursuant to the aforesaid order, his salary was to be drawn during that time against the post of Secretary (Scouts), on the principle of quantum merit, thus the respondents authorities ware directed to pay the higher pay scale of Rs. 1640-2900 for the period during which the petitioner actually worked in the said post in an officiating capacity and not as a regular promotee. Relying upon this decision of the Apex Court, Mr. Ng. Kumar has submitted that on the same principle the petitioner should be allowed to enjoy the higher pay scale' of the Accounts Officer as facts are almost similar with the aforesaid reported case so much so that the petitioner was actually performing the duty of Accounts Officer from 1.3.1993 (actual data of taking aver charge of the Accounts Officer) till he retired on superannuation on 28.2.1998.
8. In another case being the case of Mohd. Swaleh v. Union of India and Ors. reported in (1997) 6 SCC 200 the Deputy Registrar who was holding the additional responsibilities of higher post of Registrar by an order passed by the Vice Chairman, Central Administrative Tribunal was not allowed to enjoy the higher pay scale of the Registrar on the ground that the Vice Chairman was not competent to make the appointment and in the aforesaid case the Apex Court held that the principle of quantum merit was not applicable where the field is governed by specific statutory rules, namely Rule 49 of the F.R.
9. In other case being the case between Ramakant Shripad Sinai v. Union of India Ors. reported in AIR 1991 SC 1145 the Apex Court held that if an Officer holding a lower post is asked to discharge the duties of a higher post he will not be entitled to the salary of the higher post as it is not a case of promotion ; but the employee will get only that in service parlance called "charge allowance".
10. In our present case, as noted above, the petitioner was holding duel charge/performing both the duties of Superintendent and Accounts Officer. In other words, it is a question of combination of appointments and the relevant Rule applicable in the present Case is Rule 49 of F.R. and as the terms and conditions of appointment (Annexure-A/2) clearly postulated that his pay should be restricted to his pay of Superintendent, I am of the opinion that he is not entitled to enjoy the pay scale of the higher post. Again, the facts in the case of Selveraj (supra) are quite different from the facts of our present case, in the reported case the petitioner was performing the duties of secretary (Scouts) and in the order of appointment it was stated that his pay would be drawn against the post of Secretary (Scouts) under GFR-77 whereas in our present case at hand, as noted above, the relevant Rule is FR-49 which concerns regarding combination of appointment and his pay was restricted to his pay of the lower post of Superintendent as permissible under the provisions of FR-35 and this fact of restricting the pay of the lower post is generally followed in such Case.
11. Lastly the submission of Mr. Ng. Kumar is that under order No. DH&SC.-I/165-CR./98 dated 16.9.1998 (copy produced before the Court at the time of hearing and kept along with the records) the Director of Horticulture & Soil Conservation, Manipur stated that the Government was to grant the pay scale of the Accounts Officer for the period from 1.3.1993 to 28.2.1998 and as such the prayer made by the petitioner should be allowed. Here, learned Government Advocate has strongly contended that it is a mere communication from the Department to the Commissioner (H &SC), Government of Manipur regarding the present case. A mere opinion of one of the officers will not carry any weight against the established provisions of law.
12. Here, it may also be noted that the submission of the learned Government Advocate that though the petitioner performed the duties of both the posts from 1.3.1993, he never claimed the higher pay scale of the Accounts Officer except submitting representation only on 5,5.1998, thus, the writ petition is also to be rejected on the ground of delay, waiver and laches has considerable force.
13. For the aforesaid reasons and conclusion, the writ petition is dismissed but under the circumstances there is no order as to costs.
14. It is clarified that if there he was any Special Pay or any other Allowance attached to the post of Accounts Officer during the aforesaid period from 1.3.1993 to 28.2.1998, the petitioner shall be entitled to get the same.