Andhra Pradesh High Court - Amravati
Superintendent Of ... vs Sri A.Mrutyumjaya Rao,Tenali on 20 September, 2024
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+ WRIT PETITION NO.19718 OF 2012
%Dated: .09.2024
# The Superintendent of Railway Mail Service
Vijayawada and 4 others ...... Petitioners
and
$ Sri A.Mrutyumjaya Rao ..... Respondent
! Counsel for the Petitioners : Sri Sridhar Tummalapudi
Central Government Counsel
^ Counsel for the Respondent : Sri P.Venkata Rama Sarma
< GIST :
> HEAD NOTE :
? Cases referred :
1. (1998) 5 Supreme Court Cases 87
2. AIR 1991 SC 1145
3. 1995 SCC (6) 162
4. (1998) 4 SCC 291
5. R.Kuppuswamy v. The Registrar, Central Administrative Tribunal in
W.P.No.15512 of 2013 decided on 13.08.2014
2
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO.19718 OF 2012
Between:
The Superintendent of Railway Mail Service
Vijayawada and 4 others ... Petitioners
and
Sri A.Mrutyumjaya Rao ..... Respondent
DATE OF ORDER PRONOUNCED: .09.2024
(per Hon'ble Sri Justice Ravi Nath Tilhari)
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their Lordship wishes Yes/No
to see the fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
____________________
NYAPATHY VIJAY, J
3
APHC010418952012
IN THE HIGH COURT OF ANDHRA
PRADESH
[3470]
AT AMARAVATI
(Special Original Jurisdiction)
FRIDAY ,THE TWENTIETH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO: 19718/2012
Between:
Superintendent Of Railway,vijayawada,& 4 and ...PETITIONER(S)
Others
AND
Sri A Mrutyumjaya Rao Tenali ...RESPONDENT
Counsel for the Petitioner(S):
1. SRIDHAR TUMMALAPUDI ( CENTRAL GOVT COUNSEL)-
24217/AP/1692/2006
Counsel for the Respondent:
1. P VENKATA RAMA SARMA
The Court made the following:
ORDER:(per Hon'ble Sri Justice Ravi Nath Tilhari) Heard Sri Sridhar Tummalapudi, learned Central Government Counsel, for the petitioners and Sri P.Venkata Rama Sarma, learned counsel for the respondent. 4
2. This Writ Petition under Article 226 of the Constitution of India is filed by the Union of India and others, challenging the order of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad(in short „the Tribunal‟), dated 21.09.2011 in O.A.No.100 of 2006 filed by the respondent herein.
3. The Tribunal ordered that the respondent shall be permitted to draw the pay scale of HSG-1 i.e. Rs.6500-200- Rs.10,500 from 1st October, 2004 to 31st May, 2005 and he shall also be entitled to all the consequential payments and arrears of pay and allowances and all the retiral benefits, accordingly. The Tribunal provided that the entire exercise shall be completed within a period of three months from the date of receipt of a copy of that order.
4. The respondent, Sri A.Mrutyumjaya Rao, was recruited as Sorting Assistant with effect from 18.08.1964. While working as Sorting Assistant in R.M.S. „Y‟ Division, he was given 1st Financial Upgradation under Time Bound One Promotion Scheme (TBOP), after completion of 16 years of service w.e.f. 30.11.1983 vide Memo No.B-1/48-1, dated 5 15.08.1984. He was given the 2nd financial upgradation under BCR Scheme after completion of 26 years of service w.e.f. 01.10.1991 vide Memo No.B-1/4-1/BCR, dated 13.03.1992. Thereafter, the respondent was promoted to the cadre of Lower Selection Grade(„L.S.G‟, in short) w.e.f. 01.07.2001 vide order dated 24.10.2003, in pursuance of the instructions of the Director General (Posts), New Delhi vide letter No.4-16/2002- SPB.II, dated 12.11.2002 and Chief Postmaster General, Andhra Pradesh Circle, Hyderabad, letter No.ST/10-1/1997, dated 08.09.2003 conveyed through the Postmaster General, Vijayawada, vide letter No.ST-1/FTP/RMS dated 12.09.2003. While working as Norm Based LSG SA HRO RMS „Y‟ Division, Vijayawada, the respondent was ordered, vide letter of the Senior Superintendent, RMS „Y‟ Division, Vijayawada, dated 29.09.2004, to work as Higher Selection Grade-I(HSG-I), Head Record Officer, RMS „Y‟ Division, Vijayawada in the leave vacancy of Sri B.K.Partha Sarathi, the regular incumbent, HSG-I Head Record Officer, RMS „Y‟ Division, Vijayawada w.e.f. 04.10.2004. The respondent officiated as HSG-1 Head Record Officer during the period from 04.10.2004 to 6 03.12.2004. He also officiated in the same post during the period from 06.12.2004 to 31.05.2005 as the regular incumbent of the said post retired from service voluntarily. The respondent finally retired from service on 31.05.2005 on superannuation, while officiating as Head Record Officer (HSG- I). The pensionary benefits of the respondent were calculated, fixed, drawn and paid without taking into account the pay drawn by the official in HSG-1 scale during the period from 01.10.2004 to 31.05.2005 as he was not promoted to HSG-1 cadre on regular basis and did not fulfill the prescribed eligibility condition for promotion to the cadre of HSG-1.
5. During the course of inspection of the office of the Superintendent, RMS „Y‟ Division, Vijayawada by the Internal Check Party(ICP), in March, 2006, an objection with respect to payment of allowances during the respondent‟s officiated period, in excess of Rs.4,243/- and for recovery was placed. The letters dated 28.03.2006 and 09.08.2006 were issued to the respondent for recovery from his pension in four monthly instalments.
7
6. The respondent filed O.A. for the following reliefs:
i) to call for the relevant records from the respondents leading to the issue of the following impugned orders:
a) No.ST/RMS/HSG-1/04 dated 27.07.2005 (Annexure -
A.XVI) of R-3 denying him pension and other retiral benefits based on the pay actually drawn and paid to him during the 10 months prior to his superannuation on 31.05.2005;
b)No.1056/Pen.No.III/C.No.477/04-05/PPONo.16987/ LPR dt. 25.05.2005 (Annexure-A.XI) of R-5:
c)No.1053/Pen.III/C.No.477/04-05/Com. Item No. 59/05-06 dated 25.05.2005 (Annexure- A.XII) of R-5:
d)No.J.30/Pen/AMR/LSG (BCR)SA/04-05 dated 30.05.2005 and 09.06.2005 (Annexure-A. XIII & A.XIV) of R-1 resulting in short payment of retiral benefits due to him as per rules.
ii) to declare the Lr. No. 137-10/96-SPB.II dated 11.2.2002, GSR 88(E) dt. 24.01.2002/22-02-2002, No. 22- 1/89-PE.1 (Vol.II) dt. 01.04.2002 22.02.2002, No. 22-1/89- PE.I (Vol.II) dt. 01.04.2002 and 18.4.2002 (Annexures- A.XVIII, A.XIX & A.XXI) and Lr. No. 4-19/2005-SPB. dated 28.07.2005 (not communicated to the applicant) of Respondent No.4 as invalid in law and in applicable to his case.
ii) to consequently direct the respondents to sanction and pay him the pension, commuted value of pension, DCRG encashment of leave based on his pay as already actually drawn and paid to him prior to 10 months to 31.5.2005, the date of his superannuation, and award interest on the short payment and costs and pass such other order orders as deemed fit and proper in the circumstances of the case"
7. Mainly, the challenge was to the orders denying his pension and other retirement benefits basing on the pay 8 actually drawn and paid to him during ten months, prior to his superannuation on 31.05.2005 i.e. on the post of HSG-I and to sanction pay, pension etc., based on his pay actually drawn and paid to him prior to ten months before 31.05.2005 with interest.
8. The petitioners‟ case was that while working as LSG(Norm Based) Supervisor, the respondent was asked to look after the duties of HSG-1 as Head Record Officer from 04.10.2004 in the leave vacancy and he officiated so as HSG-1 Head Record Officer from 04.10.2004 to 03.12.2004 and was continued till his retirement on 31.05.2005 as the regular incumbent of that post retired from service voluntarily. No formal order was issued promoting him to work as HSG-1, because he was not eligible for promotion to HSG-I even on adhoc basis. The pension and other retiral benefits had been calculated on the basis of his last ten months pay in BCR Grade. He was never promoted to HSG-II cadre, which is a feeder cadre for promotion HSG-I cadre. The respondent was not eligible for promotion to HSG-1 cadre as per the Directorate letter dated 12.11.2002, which clarified that 9 HSG-I cadre was required to be filled up from HSG-II cadre officials and those who completed the requisite period of three years of service in HSG-II cadre were eligible for promotion to HSG-1 cadre. Their further case was that Time Bound One Promotion (TBOP) was not equal to LSG and Biennial Cadre Review(BCR) was not equal to HSG-II as per the Ministry of Communications, Department of Posts, O.M.No.137-18/2001- SPB-II dated 23.04.2001.
9. The Tribunal allowed O.A. of the respondent in the following terms:
"Therefore, the O.A. is allowed as follows:
a) The following impugned orders as quashed and set aside:-
i) No.ST/RMS/HSG-1/04 dated 27.07.2005 of R-3 (Annexure.A-XVI).
ii)No.1056/PenNo.III/C.No.477/04-05/PPO No.16987 / LPR dated 25.05.2005 of R-5 (Annexure-A.XI).
iii) No.1053/Pen.III/C.No.477/04-05/Com.Item No.59/ 05-06 dated 25.05.2005 of R-5 (Annexure-A.XII)
iv) No.J/30/Pen/AMR/LSG(BCR)SA/04-05 dated 30.05.2005 and 09.06.2005 of R-1 (Annexure-
A.XIII & A.XIV) V) Lrs. No. 137-10/96-SPB.II dt. 11.2.2002 (Annexure-A.XVIII) of R-4 10
vi) GSR 88(E) dt. 24.01.2002/22.02.2002 (Annexure-
A.XIX) or R-4.
vii) Lrs. No.22-1/89-PE.I (Vol.II) dated 01.04.2002 and 18.04.2002 of R-4 (Annexure-A.XΧΙ)
viii) Memo.No.J.30/Pen/AMR/LSG(BCR)SA/05-06 dated Nil-03-2006 of R-1 (Annexure-A.XXVI)."
(b) The applicant is permitted to draw the pay scale of HSG-1 i.e., Rs.6500- 200-10500 from 1" October, 2004 to 31 May, 2005. He shall be entitled to all the consequential payments and arrears of pay and allowances and all the retiral benefits accordingly. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
(c) No order as to costs.
10. The Tribunal took a view that the issue as raised in the O.A of the respondent had been elaborately adjudicated in the matter of another employee in O.A.No.679 of 2003 vide order dated 19.03.2004 by the Coordinate Bench of the Tribunal at Madras and the same attained finality. In the said O.A., the applicants had joined in the year 1965 and based on the P&T Selection Grade Recruitment Rules, 1976, they were entitled to get promotion to Lower Selection Grade(LSG). However, since 1983 the scheme called Time Bound One Promotion Scheme (TBOP) was introduced. It was followed by another scheme, Biennial Cadre Review(BCR) in the year 1991. In the said 11 case, the Tribunal had allowed the O.A. The matter was carried to the High Court at Madras in W.P.No.27062 of 2004 by the Department, which was dismissed on 24.09.2004. The Civil Appeal No.1852 of 2006 filed by the Department was also dismissed by the Hon‟ble Supreme Court on 09.03.2011. Consequently, the Tribunal, in the present O.A of the respondent, considering that it was bound by the decision of the Tribunal at Madras, allowed the claim of the present respondent.
11. Learned counsel for the petitioner submitted that the respondent did not fulfil the prescribed eligibility condition of three years notional or regular service in HSG-II cadre, which is the feeder category for promotion to HSG-I cadre. He was not qualified to hold the post of HSG-II. He was also not eligible for promotion nor was promoted even on adhoc basis even in HSG-I. His officiated period in HSG-I could not be taken into consideration while calculating his retiral benefits.
12. Learned counsel for the petitioner further submitted that the order of the Tribunal, Madras Bench, had no application. 12 He submitted that though the said order was confirmed by the Madras High Court, against which the appeal of the petitioners‟ was also dismissed by the Hon‟ble Apex court, but the Hon‟ble Apex Court did not interfere in the matter on the ground that the respondent therein had retired from the service on attaining the age of superannuation when the matter was pending in the High Court and he had derived the fruits of the decision of the Tribunal as confirmed by the High Court. The Hon‟ble Apex Court also made observation while dismissing the SLP that "the question of law raised is left open for its consideration in an appropriate case," and had also observed that "we, however, have reservation as to the manner in which the Tribunal and the High Court proceeded in the matter". Consequently, he submitted that the judgment of the Tribunal, Madras Bench was only final between the parties thereto and could not be applied to the facts of the present O.A.
13. Learned counsel for the petitioner placed reliance in Secretary-cum-Chief Engineer, Chandigarh v. Hari Om 13 Sharma1, Ramakant Shripad Sinai Advalpalkar v. Union of India2, R.Kuppuswamy v. The Registrar, Central Administrative Tribunal3 and K.Kandaswamy v. Union of India4
14. Learned counsel for the respondent submitted that under the scheme of BCR, the respondent was promoted on completion of 26 years of service. That would be equal to the promotion on HSG-II and consequently, the respondent was eligible for promotion to HSG-I. His officiating period of HSG-I till his retirement had to be taken into consideration and the retiral benefits should have been fixed at the last pay drawn for the last 10 months on the post of HSG-I. He submitted that there is no illegality in the order of the Tribunal.
15. Learned counsel for the respondent placed reliance in the case of Selvaraj v. LT.Governor of Island, Portblair5.
16. We have considered the aforesaid submissions and perused the material on record.
1 (1998) 5 Supreme Court Cases 87 2 AIR 1991 SC 1145 3 W.P.No.15512 of 2013 decided on 13.08.2014 4 1995 SCC (6) 162 5 (1998) 4 SCC 291 14
17. The facts are not in dispute that the respondent was granted 1st Financial Upgradation under TBOP scheme after completion of 16 years of service w.e.f. 30.11.1983 and 2nd Financial Upgradation under BCR scheme after completion of 26 years of service w.e.f. 01.10.1991. There is also no dispute that as per the promotional channels, the official, who had completed 10 years of service as Sorting Assistant will be given the next promotion to the Lower Selection Grade(L.S.G) by conducting Departmental Promotion Committee(DPC), subject to availability of L.S.G posts and after competition of three years in L.S.G cadre, the official will be considered by D.P.C to Higher Selection Grade II (HSG-II), subject to availability of posts. Subsequently, the official, who had completed three years of service in HSG-II will be considered by D.P.C. to the next post of HSG-I. There is also no dispute that the respondent was not promoted to HSG II cadre and there was also no promotion granted to HSG-I from HSG-II on consideration by the DPC. Consequently, he had not completed three years of service in HSG-II cadre. 15
18. The question is if under BCR Scheme by virtue of the 2nd Financial Upgradation, the petitioner can be considered as having been promoted to HSG-II. The further question is whether for the officiating period on HSG-I post the respondent can be entitled for payment of such post and based on ten months salary drawn on HSG-I, his pension and retiral benefits are liable to be fixed accordingly.
19. The instructions in Director General Posts letter dated 12.11.2002 are as under:
". I am directed to invite a reference to this Department's letter no. 22-1/89-PEI (Vol.II) dated 18-04-2002 by which certain clarifications in connection with the upgradation of 1622 HSG-II posts to HSG-I were issued. References were received from various Circles stating that they were facing difficulties in filling up these HSG-I posts due to non availability of eligible officials who had completed 3 years service in BCR was taken up with the Department of Personnel and Training. That Department advised that norm based LSG/HSG II posts may be filled up notionally in terms of the relevant Recruitment Rules. The question of relaxing the Recruitment Rules to allow the Circles to fill up these posts from amongst officids who had completed 3 years service in BCR was taken up with the Department of Personnel and Training. That Department advised that norm based LSG/HSG II posts may be filled up notionally in terms of the relevant Recruitment Rules from the year when the norm based promotions have not been carried out and promotions to the upgraded posts in HSGI could be made in accordance with the Recruitment Rules from amongst those formally appointed in HSG II with the requisite 3 years 16 actual/notional service in the grade, as the case may be.
2. It has been decided to implement the advice of the Department of Personnel and Training. You are requested to immediately carry out the exercise as above and fill up the upgraded posts of HSG-I accordingly, by convening Departmental Promotion Committees (DPCs) as required."
20. The office memorandum dated 04.12.2003 of Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi, reads as under:
"Detailed instructions on the subject of making appointments on ad-hoc basis were circulated vide this Department's OM No.28036/8/87-Estt.(D) dated 30.03.1988. Further, instructions relating to procedure to be observed by Departmental Promotion Committees regarding model calendar for DPCs were circulated vide this Department's OM No. 22011/9/98-Estt. (D) dated 08.09.1998. These instructions, inter-alia, prescribed January 1 as the sole crucial date for determining eligibility of candidates to be considered for promotion during the panel year, whether the panel year began on January 1 (calendar year), or April 1 (financial year) immediately following January 1.
2. This Department has been receiving references from some Ministries/Departments seeking clarification whether the crucial date of eligibility, as prescribed vide the aforementioned OM dated 08.09.1998 is also to be applied while considering ad-hoc promotions. In this connection, it is clarified that this Department's OM No. 28036/8/87-Estt. (D) dated 30.03.1988 enjoins upon all Ministries/Departments to ensure that all appointments made on ad-hoc basis are limited to posts which cannot be kept vacant until regular candidates become available. In other words, ad-hoc appointments are more in the 17 nature of exception. Further, paragraph 4 (iii) of the aforementioned OM dated 30.3.88 stipulates that where an ad- hoc appointment is made by the promotion of the officer in the feeder grade, only those employees in the feeder grade who fulfil the eligibility conditions prescribed in the Recruitment Rules should be considered for such ad-hoc appointment, In the case of regular promotions, eligibility service, as prescribed in the Recruitment Rules, is determined with reference to the crucial date of eligibility as per this Department's OM No.22011/9/98- Eslt. (D) dated 08.09.1998. Hence, for considering adhoc promotions too, the crucial date of eligibility would be the same as for regular promotions i.e., January 1.
3. All Ministries/Departments are requested to take note of the above clarifications for wide circulation and strict compliance in their Attached/Subordinate Offices etc.
4. Hindi version will follow"
21. The clarification letter dated 27.07.2005 reads as under:
"I am directed to refer to your representation mentioned above and to communicate that your request has been considered but not agreed to by the competent Authority, since you are only LSG Official and to get HSG-1 Promotion should complete 3 years of regular service in HSG-!! Grade which is a prerequisite for HSG-1 promotion even on adhoc basis.
Therefore you can not be promoted to HSG-I Cadre."
22. From the aforesaid, it is evident that the respondent was not eligible for considering his promotion to HSG-I cadre as he did not fulfil the condition of promotion to HSG-II cadre having three years notional or regular service. The same was communicated to him vide Ex.P12 dated 26.03.2004 as under: 18
"Circle office, Hyderabad intimated through RO, Vijayawada that as per the instructions contained in Directorate letter No. 4-16/SPB-II-2002 dtd 12.11.2002, those officials having 3 years notional or regular service in HSG II cadre are only eligible for promotion to HSG I cadre. Since Sri A Mrutyunjaya rao has not fulfilled the above condition, he is not eligible for considering his promotion to HSG I cadre."
23. The Tribunal, simply followed the order of the Tribunal of the Madras Bench, which was affirmed by dismissal of the petition by the Madras High Court followed by the dismissal of S.L.P.
24. The order of dismissal of S.L.P. reads as under:
" The respondents retired from the service on attaining the age of superannuation even while the matter was pending in the High Court. In the Circumstances, we are not inclined to interfere and adjudicate this appeal on merits. The same is accordingly, dismissed.
It is obvious that the respondents herein have derived the fruits of the decision of the Tribunal as confirmed by the High Court by the impugned order. It is for that reason we are not interfering in this matter We, however, have reservation as to the manner in which the Tribunal and the High Court proceeded in the matter.
The question of law raised is left open for its consideration in an appropriate case.
Since we have left the question of law open, we deem it appropriate not to hear the intervenor in this matter reserving liberty to the intervenor to avail such remedies as may be available to them in law in which event the matter shall be decided on its own merits."19
25. In Hari Om Sharma(supra), relied upon by the learned counsel for the petitioners, the Hon‟ble Apex Court held that if a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. In the said case, the Tribunal had noticed that the respondent therein was promoted in a stop-gap arrangement as Junior Engineer-I in 1990 and was continued on that post for a long period of time. It was observed that such period of time could not be treated as stop gap arrangement. Therefore, he had a right to be considered for regular promotion. In the said case, the respondent had given an undertaking that on the basis of a stop-gap arrangement, he would not claim promotion as of right nor would claim any benefit pertaining to that post, the Hon‟ble Apex Court observed that such undertaking could not be enforced in law, the same being contrary to law and the public policy.
26. From the aforesaid judgment, we are of the view that if a person is put to officiate on a higher post with greater responsibility, he is normally entitled to salary of that post. 20
27. With respect to the post, there was promotion in a stop- gap arrangement as Junior Engineer-I and such person was continued for long period. In the present case, the respondent was not promoted as HSG-I nor had completed the eligibility for promotion, to HSG-I, which is norm based promotion of HSG-II and working for three years as HSG-II. He only officiated for certain period on the post of HSG-I.
28. Consequently, at the most, the respondent may be entitled for salary to that period of officiating post, following Hari Om Sharma (supra).
29. In Ramakant Shripad Sinai, Advalpalkar(supra), upon which the learned counsel for the petitioners placed reliance, the facts were that the appellant therein joined the service as „Aspirante", said to correspond to the post of an Upper Division Clerk but he was acting in the higher post of Grade-III Officer in the services of Caixa Economica De Goa. On 30.08.1963 the post of Treasurer in the establishment of Caixa Economica having fallen vacant upon the death of the person who then held that post, the appellant was asked to perform the duties 21 of the treasurer on the stipulation that he would draw, besides the monthly salary of his own post as acting Grade III Officer which he then was, an allowance of Rs.100/- per month. After the liberation of the territories in the Portuguese occupation, a question arose as to the equivalent post to which the appellant therein would be entitled in the corresponding service in India, which was regulated by the Goa, Daman and Diu (Absorbed Employees) Act, 1965 read with the Goa, Daman and Diu (Absorbed Employees Conditions of Service) Rules, 1965. His post was not equated to that of the treasurer but to a post lower in rank. The Hon‟ble Apex Court found that the appellants therein, on the strength of the office order dated 30.08.1963, could not claim to have been promoted to the post of Treasurer. It also held that in view of the definition of expressions "Absorbed post" and "Absorbed employee" in Section 2 of the Act, 1965, the appellant became an absorbed employee on such post. The Hon‟ble Apex court further observed that the appellant‟s „in-charge‟ arrangements in the higher post, was not a recognition of or was necessarily based 22 on seniority and therefore, no rights, equities or expectations could be built upon.
30. In R.Kuppuswamy(supra), the Division Bench of the High Court held that a mere payment made to a higher post to which an officer was not entitled to on merit could not give him any right. When such arrangement was only a stop gap arrangement made by the authorities in favour of the officer, who was also not eligible to the said post on a permanent basis, then resultantly, he was not entitled for pay fixation in the higher category. It was merely based upon necessity and not on either seniority or merit. Therefore, no right, equity or expectation could be built upon it.
31. It is apt to refer Paras 5 to 8 of R.Kuppuswamy(supra), as under:
"A perusal of the clarification issued under Rule 49 of CCS (Pension) Rules would show that it does not have any bearing to the present case on hand. Merely be- cause, the petitioner has been asked to work in the posi- tion of Higher Selection Grade-I Postmaster, he will not get any benefits of the said post for the purpose of claiming fixation of pension and other retiral benefits. As per the Posts and Telegraphs (Selection Grade Posts) Recruitment Rules, 1976, an employee concerned is promoted to Higher Selection Grade-I only when he has got three years of service as in the cadre of Higher Se- lection Grade-II. Merely because the pay is available for the work done by the petitioner, it will not give any vested right. Admittedly, no order was issued giving any 23 adhoc promotion to the petitioner by the competent au- thority viz., Circle Office. The mere order asking the pe- titioner to work in the vacancy of Higher Selection Grade-I cadre by way of local arrangement for functional necessity will not give any right. The decisions relied upon by the learned counsel appearing for the petitioner will not help his case. Even in SECRETARY CUM CHIEF ENGINEER, CHANDIGARH V. HARI OM SHARMA AND OTH- ERS (1998 Supreme Court Cases (L&S), 1273), the officer concerned was found eligible for promotion and in such circumstance only, the Supreme Court has held that the pay of promotion post cannot be denied even if the pro- motion was an officiating or stop-gap arrangement. It al- so deals with only the payment of salary
6. The other decision relied upon by the petitioner in SELVARAJ V. LT.GOVERNOR OF ISLAND, PORT BLAIR AND OTHERS (1998) Supreme Court Cases (L&S) 1127 did not say that notwithstanding the appointment made as stop gap arrangement, that too, without any qualification for considering the post in which the officer is working in the said capacity, he is entitled for pay fixation.
7. Further, the decision rendered by the Honourable Su- preme Court in RAMAKANT SHRIPAD SINAI ADVALPA LKAR V. UNION OF INDIA (1991 Supreme Court 1145) has not been taken into consideration by this Court on the earli- er occasion. On the contrary, we are of the view that the decision of this Court rendered in W.P.No.26803 of 2012 dated 26.07.2013 has got a direct bearing to the present case, wherein it has been held as follows:
"6.Even though the petitioner was a regular employee in HSG Grade II post, as pointed out by the Tribunal, only when the senior officer in HSG Grade I Post went on leave, to cope up with the requirement of work, the pe- titioner has been asked to attend to the duties of the higher post only under a local arrangement. Such an ar- rangement will not confer any right in pay fixation of HSG Grade I Post and consequential pensionary benefits as contemplated in Office Memorandum No.45/10/98- P&PW(A) dated 17.12.1998. The petitioner has not pro- duced any order or proceedings to show that he was or- dered to officiate in HSG Grade I Post. In the absence of any such documents, the Tribunal was right in dismissing the petitioner's Original Application. We do not find any infirmity, warranting interference with the order of the 24 Tribunal. Accordingly the writ petition is dismissed. No costs."
8. A mere payment made to a higher post to which an officer is not entitled to on merit cannot give him any right. When such arrangement is only a stop gap ar- rangement made by the authorities in favour of the officer, who was also not eligible to the said post on a permanent basis, then resultantly, he is not entitled for pay fixation in the higher category. It is merely based upon necessity and not on either seniority or merit. Therefore, no right, equity or expectation could be built upon it. Considering the said legal posi- tion, the Supreme Court in RAMAKANT SHRIPAD SINAI ADVALPALKAR V. UNION OF INDIA (1991 Supreme Court 1145) has held as follows:
"4. On the first contention, the very terms of the office order dated 30th August, 1963 (Exhibit A) is clear and conclusive. It says :
"Shri Ramakanta Sripada Sinai Advol-palcar, acting 3rd grade officer of the Caixa Economica de Goa will per- form the duties of the Treasurer of Caixa Economica de Goa, vice Shri Antonio Xavier Furtado, who died this morning. Shri Advolpalcar should assume the function of the post from today.
Shri Advolpalcar will draw besides the monthly salary of his own post as acting 3rd grade officer an allowance of Rs. 100/- p.m. which is payable to the post of treasurer under the existing rules...." (Emphasis supplied) The ar- rangements contemplated by this order plainly does not amount to a promotion of the appellant to the post of Treasurer. The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the du- ties of the higher post is too clear to require any rei- teration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only that in service parlance is called a "charge al- lowance". Such situations are contemplated where ex- igencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower 25 post and only discharges the duties of the higher post essentially as a stop-gap arrangement. We may recall the observations of this Court in the con- text of a rule requiring as a condition for eligibility that the "person should have worked on the post for seven years" where the difference between merely working on the post and holding a post was indicated : "13. Perhaps, there would have been some merit in the submission on behalf of the petitioner if in Rule 3(b) the words used were "who held the post" but the language in Rule 3(b) is so materially different and it speaks that a person should have worked on the post. The State was apparently wrong in introducing the element of rank for the purpose of Rule 3(b)."
See : State of M. P. v. Laxmishankar Mishra (1972) 2 SCC 270 at p.273:(AIR 1979 SC 979 at p.981). .
In Girja Shankar v. S.D.O., Harda it was held that a "per- son appointed to be in charge of the current duties of the office" did not hold the rank and, therefore, could not discharge the statutory functions assigned to the post. In the present case appellant cannot, on the strength of the office order dated 30th August 1963, claim to have been promoted to the post of the "Trea- surer". The first contention is, therefore, unsubstantial. ............
6. The third contention is that appellant's 'in charge' arrangements in the higher post had continued for so long a period that a determination of equivalence on the basis of his lower substantive post would become arbitrary. This contention ignores the fact that an 'in charge' arrangement is not a recognition of or is nec- essarily based on seniority and that, therefore, no rights, equities or expectations could be built upon it. The third contention is also unmeritorious."
32. In the present case also, the respondent was asked to officiate on HSG-I grade post due to the leave vacancy and for the another term due to the retirement of the incumbent. The respondent was not promoted to the post of HSG-I. He did not have the requisite qualification of HSG-II and had not worked on 26 such HSG-II post for three years. There was only upgradation under BCR Scheme on completion of 26 years. That did not amount to the promotion to the post of HSG-II or HSG-I on the criteria for promotion through DPC, under the Rules. The fact remained that the respondent was not promoted to HSG-II and consequently was not eligible for promotion to HSG-I.
33. In K.Kandaswamy(supra) also, the petitioner therein was not eligible to officiate against the norm based supervisory post in HSG-I cadre since he had not fulfilled the criteria laid down in the Recruitment Rules prescribed for HSG-I posts. The petitioner therein was not promoted to HSG-I cadre. The petitioner therein was asked to look after the duties of higher post without any extra remuneration on getting his willingness for functional necessity for certain period. The High Court of Madras affirmed the order of Tribunal dismissing the O.A. for direction to the respondents therein, for payment of officiating allowance for the officiating period.
34. Selvaraj(supra), was placed reliance by the learned counsel for the respondent to contend that the respondent having worked actually on HSG-I post would be entitled for the 27 salary of that post as also his fixation of the retiral benefits based on the last drawn salary on 10 months in HSG-I.
35. We have considered the judgment in Selvaraj (supra). In the said case, the question was if the petitioner was entitled to draw the salary attached to the post of Secretary (Scouts) during the time he actually worked on that post pursuant to the order dated 28.01.1992 and if so, what was the scale of pay for the said post. The Hon‟ble Apex Court observed that under the order dated 28.01.1992 under which the appellant therein was called upon to look after the duties of the Secretary (Scouts), it was provided that "his pay will be drawn against the post of Secretary(Scouts) under GFR 77". The Hon‟ble Apex Court held that the appellant had worked on the higher post though temporarily and in an officiating capacity pursuant to the order dated 28.01.1992 and his salary had to be drawn during that time against the post of Secretary(Scouts). So, in the said case, though the appellant worked on the post of Secretary(Scouts) in an officiating capacity and not as a regular promote, the limited relief was granted to him that he would be entitled to the payment of the difference of salary of the psot on 28 which he was appointed and of the post on which he was officiated for the period he actually worked on the Post of Secretary(Scouts), because of the terms of the order of his appointment dated 29.01.1992, which provided that his pay will be drawn on Secretary(Scouts).
36. In the present case, the respondent officiated in leave vacancy from 04.10.2004 to 03.12.2004 and said order is as under:
"The competent authority has granted Earned Leave w/o MC to Sri B.K.Partha Sarathi, HSG I HRO RMS „Y' Division Vijayawada for 15 days w.e.f.04.10.2004 with permission to prefix optional Holiday on 02.10.2004 & Sunday on 03.10.2004.
In this connection Sri A.Mruthumjaya Rao Norm Based LSG SA HRO RMS „Y‟ Division, Vijayawada is ordered by the competent authority to work in the above leave vacancy."
The above shows that it did not provide that the respondent would not be entitled for the salary of the officiating post for the period officiated, as was in the case of K.Kandaswamy (supra) in which, the petitioner therein, was asked to officiate without extra remuneration. The present respondent‟s further officiation is from 06.12.2004 to 31.05.2005 i.e till his superannuation . 29 However, nothing has been placed before us, for this period to show that such officiation was without extra remuneration.
37. In the present case, therefore, applying Selvaraj (supra) and Hari Om Sharma (supra), the respondent at the most may be entitled to the salary of that post (HSG-I), only for the period he officiated in that post. But, based on such officiation, his pensionary benefits or retiral benefits cannot be fixed.
38. We find that the order of the Tribunal is contrary to the settled legal position and deserves to be set aside.
39. We set aside the impugned order of the Tribunal and allow this writ petition in part, providing however that the respondent would be entitled only for the difference of salary, for the period of his officiation on the post of HSG-1, but only for the period he officiated. The difference paid to the respondent as mentioned, for which recovery order was passed, shall not be enforced against the respondent and if the amount has already been recovered, the same shall be refunded to the respondent.
40. No order as to costs.
30
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
_____________________
RAVI NATH TILHARI, J
_____________________
NYAPATHY VIJAY, J
Date: .09.2024
Pab
L.R.Copy to be marked
31
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION No.19718 OF 2012 Date:- .09.2024 Pab 32 * THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY + WRIT PETITION NO.19718 OF 2012 %Dated: .09.2024 # The Superintendent of Railway Mail Service Vijayawada and 4 others ...... Petitioners and $ Sri A.Mrutyumjaya Rao ..... Respondent ! Counsel for the Petitioners : Sri Sridhar Tummalapudi Central Government Counsel ^ Counsel for the Respondent : Sri P.Venkata Rama Sarma < GIST :
> HEAD NOTE :
? Cases referred :
1. (1998) 5 Supreme Court Cases 87
2. AIR 1991 SC 1145
3. 1995 SCC (6) 162
4. (1998) 4 SCC 291
5. R.Kuppuswamy v. The Registrar, Central Administrative Tribunal in W.P.No.15512 of 2013 decided on 13.08.2014 33 34 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION NO.19718 OF 2012 Between:
The Superintendent of Railway Mail Service Vijayawada and 4 others ... Petitioners and Sri A.Mrutyumjaya Rao ..... Respondent DATE OF ORDER PRONOUNCED: .09.2024 (per Hon'ble Sri Justice Ravi Nath Tilhari)
1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No Marked to Law Reporters/Journals.
3. Whether Their Lordship wishes Yes/No to see the fair copy of the Judgment?
____________________ RAVI NATH TILHARI, J ____________________ NYAPATHY VIJAY, J 35