Union Of India & Ors vs Sher Singh
2009 Latest Caselaw 4562 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C.) No.6659/2007

%                        Date of Decision: 10.11.2009

Union of India & Ors                                   .... Petitioners
                        Through Mr.H.K.Gangwani, Advocate


                                 Versus


Sher Singh                                               .... Respondent
                        Through Mr.Sant Lal, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI
1.  Whether reporters of Local papers may be                 YES
    allowed to see the judgment?
2.  To be referred to the reporter or not?                    NO
3.  Whether the judgment should be reported in                NO
    the Digest?


ANIL KUMAR, J. (Oral)

*

1. The petitioners, Union of India & Ors have assailed the order

dated 2nd March, 2007 passed in O.A No.1024/2006, Sh.Sher Singh v.

Union of India and Ors granting officiating allowance on the post of Sub

Post Master in the grade HSG-I to the respondent and setting aside the

orders dated 14th September, 2005 and 30th March, 2006 passed by the

petitioners denying him the officiating allowance.

2. The respondent joined the petitioners service as a Postman with

effect from 15th July, 1966. He was promoted to the post of Postal

Assistant after he qualified the departmental examination with effect

from 14th July, 1973. The respondent was also placed in higher pay

scale of LSG (Lower Selection Grade) with effect from 14th July, 1989

under the time bound one promotion scheme and he was promoted to

the norms based LSG post with effect from 25th January, 1994.

3. According to the respondent he was placed in the next higher pay

scale of HSG-II with effect from 1st January, 1995 vide memo dated 12th

May, 1995 under the BCR Scheme.

4. The respondent was then directed to officiate as Sub Post Master

(SPM) in HSG-I in Hauz Khas Post Office, New Delhi during 6th

November, 2002 to 29th November, 2002; 1st December, 2002 to 1st

February, 2003; 1st November, 2003 to 20th December, 2003 and 23rd

May, 2004 to 30th June, 2005.

5. The petitioners contended that the orders for the respondent to

officiate as SPM, Hauz Khas were passed by the Senior Superintendent

of Post Office on 14th May, 2004 whereby, besides directing the

respondent to officiate at the post of HSG-I, Sh.R.N.Manjhi, 59 other

POs were also transferred. Though the petitioners have relied on the

order dated 14th May, 2004, however, they have not produced the

earlier orders under which the respondent was directed to officiate on

the post of HSG-I for the period 6th November, 2002 to 29th November,

2002; 1st December, 2002 to 1st February, 2003; 1st November, 2003 to

20th December, 2003 and 23rd May, 2004 to 30th June, 2005.

6. The respondent contended that he had been sanctioned rent free

accommodation/additional HRA for the abovenoted periods applicable

to HSG-I. However, he has not been granted officiating pay during the

said period. He further contended that there was no senior qualified

official for the local arrangements and since he was shouldering the

higher responsibilities and also discharging the function of the

particular higher post, therefore, he be granted officiating pay during

abovesaid period in the light of para 3 of Rule 50 of P&T Manual

Volume IV, Chapter 11 and Postal Manual Volume III Schedule 2 of

Schedule of Administration of Powers of Head of Circle.

7. The request of the respondent for granting the officiating

pay/emoluments was declined by the petitioners by order dated 14th

September, 2005 and 30th March, 2006 holding that since the

respondent was not approved as HSG-II, therefore, the respondent

being LSG is not entitled for officiating allowance of HSG-I post on

adhoc/local arrangement.

8. The respondent had impugned the orders of the petitioners

declining the officiating allowances on the post of HSG-I in O.A

No.1024/2006, Sh.Sher Singh v. Union of India and Ors which was

allowed by order dated 2nd March, 2007. It is this order of the Tribunal

which is impugned in this writ petition.

9. The learned counsel for the petitioners has contended that the

respondent was LSG and, therefore, for officiating as HSG-I, he is not

entitled for officiating allowances. The learned counsel has also

contended that the decision of the tribunal in A.P.Nandwani‟s case i.e

Shri A.P.Nandwani v. UOI and Anr (O.A No.1432/2005) decided on

21.3.2006 case is not distinguishable from the case of the petitioner

and, therefore, the Central Administrative Tribunal could not have

differed from the same and in case the bench of the tribunal had to

differ with the said case, the only course open to the Tribunal was to

refer it to the larger bench. The emphasis has also been laid by the

learned counsel on behalf of petitioners that the respondent was not

even an officer of HSG-II but an officer of LSG on notional basis and,

therefore, he could not be eligible for officiating allowance of the post of

HSG-I. The counsel for the petitioners has also challenged the

impugned order on the ground that the respondent was not ordered by

a competent officer to officiate as HSG-I and therefore, he cannot be

granted pay and allowance of post of HSG-I.

10. We have heard the learned counsel for the parties. It cannot be

disputed that in the case of Sh.A.P.Nandwani v. Union of India and Ors,

O.A No.1432/2005 decided on 21st March, 2006 the employee was

working in HSG-II and he was transferred and posted to the post of

Deputy Post Master. The post on which A.P.Nandwani was working was

in the scale of HSG-II. However, the post was upgraded to HSG-I with

effect from 9th October, 2001 to 30th June, 2002 when A.P.Nandwani

voluntarily retired. The said employee claimed allowances for working

on the post of HSG-I which was declined by the tribunal holding that

HSG-I post are to be filled up by holding the DPC of the eligible

candidate from HSG-II but the said employee was neither promoted nor

he was officiating even on ad-hoc basis as no order was passed

directing him to officiate on the said post or on regular basis to HSG-I.

The Tribunal in the case relied on by the petitioners categorically

recorded a finding that the up-gradation in the case of Mr. Nandwani

did not involve shouldering of higher responsibilities or discharging

more onerous functions and duties by the incumbent who was holding

that post and consequently it was held that he was not entitled for the

pay of the officiating post.

11. The case of the respondent is distinguishable as in case of the

respondent, the post was not upgraded and the officiating work on the

post of HSG-I did involve shouldering higher responsibilities. The

respondent was shouldering higher responsibilities and discharging

onerous functions while officiating on the post of HSG-I and, therefore,

on the basis of the ratio of A.P.Nandwani (Supra) the claim of the

respondent cannot be denied and the observations and the finding of

the Central Administrative Tribunal cannot be faulted.

12. The petitioners cannot carve out an exception in case of

respondent to the principle of equal pay for equal work and contend

that respondent is not entitled for pay during the period he worked on

higher post pursuant to categorical order passed by the petitioners. In

Sh.Bhagwan Dass and Ors v. State of Haryana and Ors, 1987 (3)

SC (SLJ) 93 it was observed by the Supreme Court that whether the

appointment was for temporary period or the scheme was temporary in

nature is not relevant and what is to be seen is that once it is

established that the nature of duties and functions discharged and the

work done is similar, the doctrine of equal pay for equal work would be

attracted. The respondent had been posted to officiate as Sub Post

Master in HSG-I at Post Office Hauz Khas and he shouldered the higher

responsibilities of the department and, therefore, he became entitled for

emoluments of the post of HSG-I for those periods and he could not be

denied those emoluments.

13. The Tribunal has also relied on Rule 50(1) of P& T Manual

Volume IV, Chapter II, which allows officiating arrangement confined to

the officials at the Station wherever the vacancies occur and that the

orders were passed by the petitioners and the respondent was put to

officiate on higher post and he could not be denied officiating

allowances of higher posts. The learned counsel for the petitioner has

not been able to refute this plea. The contention raised by the counsel

for the petitioners that the orders directing responded to officiate were

not passed by the competent officers cannot be accepted. This plea was

not taken by the petitioners before the tribunal and has also not been

taken in the writ petition. The petitioners have not produced all the

orders by which the respondent was directed to officiate except one of

the orders dated 14th May, 2004 which was passed by Senior

Superintendent of Post Office. They have not produced any rules or any

other regulations to demonstrate that by said order the respondent

could not be directed to officiate as SPM Hauz Khas PO till further

orders. This order was not confined to the direction to the respondent to

officiate as SPM Hauz Khas but it also directed transfer of about 60 POs

to different post offices. The petitioner have not been able to show as to

how the senior Supt. of Post Office who was competent to transfer about

60 PO was not competent to direct the respondent to officiate. In the

circumstances the petitioners cannot succeed on this plea to deny pay

to the respondent of the post of HSG-I for the periods he officiated

pursuant to orders passed by the petitioners. The respondent had been

discharging the functions of the higher post and he cannot be deprived

of officiating allowance i.e the difference of the salary attached to the

higher post on the cardinal principle of 'equal pay for equal work'.

14. The Supreme Court in Selvaraj Vs Lt. Government of Island of

Port Blair & Ors, (1998) 2 SCC 291 had held that if an employee has

worked on the higher post though temporarily and in an officiating

capacity pursuant to orders passed by the authorities, he would be

entitled for salary of that post and payment of salary of higher post on

account that officiation is not the promotion to the said post. The

Supreme Court while dealing with the cases of employees appointed

under a temporary scheme and the posts which were sanctioned from

year to year basis in Bhagwan Dass v. State of Haryana, (1987) 4

SCC 634, at page 643 had held as under:

"13. Lastly we have to deal with the contention that the scheme is a temporary scheme and the posts are sanctioned on an year to year basis having regard to the temporary nature of the scheme. We are unable to comprehend how this factor can be invoked for violating "equal pay for equal work" doctrine. Whether appointments are for temporary periods and the schemes are temporary in nature is irrelevant once it is shown that the nature of the duties and functions discharged and the work done is similar and the doctrine of "equal pay for equal work" is attracted. As regards the effect of the breaks given at the end of every six months, we will deal with this aspect shortly hereafter. That however is no ground for refusing to respect the "equal pay for equal work" doctrine."

15. In the circumstances the decision of the Tribunal setting aside

the orders of the petitioners declining officiating allowances to the

respondent for the post of HSG-I on which he worked for different

periods pursuant to orders passed by the petitioners and directing them

to make payments of pay and allowances on officiation of the higher

post of sub postmaster by the respondent cannot be faulted. The writ

petition, in the facts and circumstances is without any merit and is

therefore, dismissed for the foregoing reasons. In the facts and

circumstances the petitioners shall also be liable to pay the cost of

Rs.10,000/-to the respondent.

ANIL KUMAR, J.

NOVEMBER 10, 2009                                  VIPIN SANGHI, J.
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