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.
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
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
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.
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
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
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
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
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.
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
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.
(1998) 5 Supreme Court Cases 87
AIR 1991 SC 1145
W.P.No.15512 of 2013 decided on 13.08.2014
1995 SCC (6) 162
(1998) 4 SCC 291
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.
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
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
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:
"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."
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.
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
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
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
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
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
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
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
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
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 .
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.
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
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION No.19718 OF 2012
Date:- .09.2024
Pab
* 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
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
