Delhi High Court
Government Of National Capital ... vs Prem Prakash on 5 October, 2005
Author: Mukundakam Sharma
Bench: Mukundakam Sharma, Sanjiv Khanna
JUDGMENT Mukundakam Sharma, J.
1. The order dated 19th March, 2002 passed by the learned Central Administrative Tribunal in OA No. 2651/2001 is under challenge in this writ petition, which is filed by the Government of National Capital Territory of Delhi. By the aforesaid order, the learned Tribunal has directed the petitioners to pay to the respondent pay and allowances of the post of Head of the Department (Electrical Engineering) pay for the period from 5th January, 1993.
2. The respondent is Lecturer (Electrical Engineering) in Boys Polytechnic Directorate of Training and Technical Education. In the month of January 1993 the post of the Head of the Department (Electrical Engineering) Aryabhat Polytechnic fell vacant. The Principal of Aryabhat Polytechnic vide office order dated 13th January, 1993 issued instructions that the respondent being senior-most Lecturer shall also look after the duties and responsibilities of Head of the Department (Electrical Engineering) in addition to his normal duties with clear stipulation that he shall not be entitled for any extra remuneration/honorarium in this regard. The said order reads as follows:
"In continuation of this office order No. F.2(5)/ABP/Admn./43 dated 5.1.93 Shri P.P. Gupta, Lecturer, Elect. Engg. shall also look after the duties and responsibilities of Head of Department Elect. Engg. in additional to his normal duties, however, he shall not be entitled for any extra remuneration/honorarium in this regard. He shall also not have any claim on ad hoc or regular basis to the said post on this basis and his seniority amongst the Lecturers cadre shall remain unchanged.
... ... ... Copy to-- 1. ... ... ...
2. Shri P.P. Gupta, Lecturer Elect. Engg., Aryabhat Polytechnic for compliance.
3. ... ... ... "
Pursuant to the order, the respondent has been acting as the Head of the Department (Electrical Engineering) since 5th January, 1993. On 6th July, 2000 the respondent submitted a representation addressed to the Director, Directorate of Training and Technical Education on the subject of promotion to the post of Head of Department (Electrical Engineering).
It is contended by the Counsel for the petitioner that the said representation was filed after a delay of seven years. He never raised any demand for pay and allowances for the post of Head of Department (Electrical Engineering) till 2001 when for the first time he filed the Original Application. No explanation is also given for the delay in filing the said representation/Original Application. Even in the said representation, no request was made for making additional payment of additional remuneration for acting as Head of Department (Electrical Engineering).
3. Since no decision was taken by the petitioners on the said representation, the respondent filed an Original Application before the Central Administrative Tribunal which was registered as OA No. 2651/2001. The said Original Application was taken up for consideration by the learned Tribunal and after hearing the parties it allowed the Original Application directing the petitioners herein to make payment of pay and allowances of the post of Head of Department (Electrical Engineering) to the respondent herein with effect from 5th January, 1993 with a further direction to the petitioners herein to consider the respondent for promotion to the post of Head of Department (Electrical Engineering) in terms of the old recruitment rules. Consequently, the present writ petition is filed in this Court as against the aforesaid order passed by the learned Tribunal.
4. Since reliance was placed by both the parties on the provisions of Fundamental Rule 49, the relevant provision of the same is also extracted herein below:
"F.R. 49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such cases, his pay is regulated as follows:
(i) ... ... ... (ii) ... ... ...
(iii) Where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/ line of promotion, he shall be allowed the pay of the higher post, or of the highest post, if he holds charge of more than two posts, in addition to ten per cent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding [45] days but not exceeding 3 months:
Provided that if in any particular case, it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of the [Department of Personnel and Training] shall be obtained for the payment of the additional pay beyond the period of 3 months;
(iv) ... ... ...
(v) no additional pay shall be admissible to a Government servant who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge;
(vi) ... ... ... "
We may now, therefore, proceed to decide the writ petition in the light of the submissions made before us and in the context of the facts of the present case with due regard to the aforesaid provisions, which have been mentioned herein before for the purpose of convenience. Claim of the respondent is for payment of higher salary/additional remuneration on the ground that he has acted as the Head of the Department (Electrical Engineering) consequent to which he has shouldered additional responsibility and discharged all the duties as that of the Head of the Department (Electrical Engineering) and, therefore, he is entitled to additional remuneration as available to the post of Head of the Department (Electrical Engineering) in terms of the provisions of Fundamental Rule 49. He has relied upon the provisions of Sub-clause (iii) of F.R. 49 in support of the aforesaid claim. The learned Tribunal allowed the aforesaid claim relying on the aforesaid provision.
The learned Counsel for the petitioners has drawn our specific attention to the order passed whereby the respondent was asked to act as the Acting Head of the Department (Electrical Engineering) wherein also it was stipulated that he would not be entitled to draw any additional remuneration for the aforesaid purpose other than what he was getting as Lecturer (Electrical Engineering) in Boys Polytechnic Directorate of Training and Technical Education. Reliance is placed on the fact that the respondent was not formally appointed as Head of the Department (Electrical Engineering) and, therefore, the provisions of Clause (iii) of F.R. 49 are not attracted and at best Clause (v) of said FR 49 would be attracted in the facts of the present case. Counsel also drew our attention to the decision of the Supreme Court in Mohd. Swaleh v. Union of India and Ors., .
Counsel appearing for the respondent while refuting the aforesaid submissions submitted that clearly the provisions of Clause (iii) of FR 49 are applicable in the present case. He also relied upon the Division Bench decision of this Court in CWP No. 6368/2001 titled Department of Training & Technical Education v. R.L. Yadav and Anr., decided on 22.3.2002.
Counsel for the respondent in the context of the aforesaid provisions submitted before us that since there was a vacancy in the office of the Head of the Department (Electrical Engineering), therefore, the respondent was required to act as the Head of the Department (Electrical Engineering) and discharge all the functions and duties of the Head of the Department (Electrical Engineering) which are required to be discharged by the Head of the Department (Electrical Engineering) and in that view of the matter he is entitled to draw additional remuneration as is available to the post of the Head of the Department (Electrical Engineering). It is no doubt true that in the present case the order was passed by the Principal of Aryabhat Polytechnic stating that the respondent would act as the Head of the Department (Electrical Engineering).
5. But the issue is even if there be such an order whereby he was to act as a Head of the Department (Electrical Engineering), the same would give a cause to claim any additional remuneration. The order whereby he was asked to act as the Head of the Department (Electrical Engineering) it was clearly stipulated in the said order that he would not get any additional remuneration for the aforesaid purpose. The order which is issued directing that the respondent would act as the Head of the Department (Electrical Engineering), it was not a case of formal appointment, for there was no order passed by the competent authority formally appointing the respondent as the Head of the Department (Electrical Engineering). In fact there could not have been such an order also as such formal appointment to the post of Head of the Department (Electrical Engineering) could only be made by the competent authority. The Principal was not the competent authority to make such an appointment on regular basis or on temporary basis. The scale of pay of the Head of the Department was also upgraded and, therefore, it also required higher qualification. No order could be passed for formal appointment pending required revision/amendment in the Recruitment Rules. The only alternative provision which could be said to be applicable to the petitioner is the provisions of Clause (v) of F.R. 49, which clearly states that no additional pay would be admissible to a government servant, who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge.
6. We may also appropriately refer to the decision of the Supreme Court in the case of Mohd. Swaleh (supra) wherein almost in the context of similar facts and relying on F.R. 49, the Supreme Court held that the Deputy Registrar was not entitled to Registrar's salary under FR 49 (i) despite the fact that he discharged the Registrar's functions under the orders of the Vice-Chairman. In the said case it was held that President of India is the appointing authority of the Registrar as it was a Group -A post. Therefore, in absence of any delegation, the Vice-Chairman of the Central Administrative Tribunal is not empowered to make Registrar's appointment. Since the order was passed by the Vice-Chairman, who is an incompetent authority to appoint a Registrar, therefore, he is not entitled to claim such salary of the post of the Registrar. In the said decision it was also held that right to claim the pay is squarely governed by Rule 49 of the Fundamental Rules. It was also held that there was no order of the Central Government passed under Rule 49 in favor of the Deputy Registrar appointing him as the Registrar and, therefore, he is not entitled to claim such benefits. It was also held in the said decision that principle of quantum meruit, which is based on the provisions of Section 70 of the Contract Act, is not applicable to the present situation where the field is governed by specific statutory rules, namely, Rule 49 of the Fundamental Rules.
7. In our considered opinion, the ratio of the aforesaid decision is squarely applicable to the facts of the present case as in the present case the appointment is made by the Principal, who is not an competent authority to make such an appointment. Similar is the case of the Supreme Court in State of Haryana v. R.K. Aggarwal, reported in 1997 (4) SLR 733. In the said case also the Supreme Court was examining the case where the respondent R.K. Aggarwal was assigned to hold the current duty charge first, as Chief Engineer and thereafter as the Engineer-in-Chief. It was held by the Supreme Court that since substantive promotion was not given to the respondent during the impugned period because of pending litigation, therefore, he is not entitled to claim any salary of the promotional post that is held on current duty charge. In the case of Selvaraj v. Lt. Governor of Island, Port Blair and Ors., , following the principle of quantum meruit directed the authorities to pay the employee as per the emolument available in the higher pay scale during the period he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee.
8. We have perused the said judgment. The said judgment was rendered in the facts of that case where the employee was given officiating promotion and, therefore, his salary was allowed to be drawn during the aforesaid period against post of Secretary (Scouts). The decision of the Division Bench of this Court in Department of Training & Technical Education v. R.L. Yadav and Anr. (supra), on which reliance is placed, in our considered opinion is also distinguishable on facts as in the said case the employee was transferred and was posted in the school in order to enable him to take over as the Principal of the said school although on the basis of current duty charge. In that context, the Division Bench relying on the Supreme Court decision in Selvaraj (supra) allowed payment of additional remuneration in the higher post which he was holding on current duty charge. The facts of the said case are clearly distinguishable from the facts of the present case. Here the respondent was only working as a Lecturer (Electrical Engineering) in Boys Polytechnic Directorate of Training and Technical Education and being the seniormost Lecturer he was asked to act as the Head of the Department (Electrical Engineering) as the said post had fallen vacant. In our considered opinion, therefore, the claim of the respondent is untenable and misplaced. The learned Central Administrative Tribunal committed manifest error of law both on facts as also on law in allowing the Original Application and for directing for payment of additional emoluments for acting in the post of Head of Department (Electrical Engineering). We accordingly set aside the order of the learned Tribunal and hold that the claim of the respondent is without any merit. The writ petition stands allowed and the order of the learned Tribunal stands quashed.