R.K. Bansal vs Uoi
2012 Latest Caselaw 4067 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+            WRIT PETITION (CIVIL) NO.13837 OF 2004

      R.K.Bansal                                            ...... Petitioner

                                    versus

      UOI                                                   ..... Respondent

                                             Date of Decision: July11, 2012

Advocates who appeared in this case:

For the Petitioner              :       Petitioner in person.
For the Respondent              :       Mr. Ravindu Aggarwal, Advocate

CORAM:
   HON'BLE MR. JUSTICE ANIL KUMAR
   HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

SUDERSHAN KUMAR MISRA, J.

1. This writ petition impugns the decision rendered by the

Central Administrative Tribunal, Principal bench, New Delhi, on 31st

March, 2004 in OA No.1800/2003. By that decision, the Original

Application of the petitioner was dismissed after concluding that the

petitioner is not entitled to the monetary benefits of the post of Director

(F & VP) in the Ministry of Food Processing Industries.

2. In short, the petitioner‟s case is that to deny him the

monetary benefits of the post of Director (F & VP); while continuously

taking the full work of that post from him right from 25.1.1991 till his

retirement nearly 16½ years later, on 31.3.2007, under the garb of a,

"current charge", and that too after bestowing full powers of that post,

including that of a Licensing Officer, on him, is, under the circumstances,

not sustainable in law.

3. In the year 1980, the petitioner was directly recruited as Joint

Director (Consultancy Services), in the Directorate of Food and

Vegetable Products. This post was later re-designated as Joint Director

(F&VP). At the relevant time, when the question of promotion of the

petitioner to the post of Director (F&VP) arose; recruitment to that post

was governed by the Food and Nutrition Board (Non-Secretariat Gazetted

Post) Recruitment Rules, 1967. Admittedly these rules did not envisage

promotion to the next post of Director (F&VP) from the post of Joint

Director, which was held by the petitioner, because the feeder grades

prescribed for that post were only the posts of Deputy Director (F&VP)

and Senior Marketing Officer (Fruit Products).

4. Later on, the Ministry of Food Processing Industries was set up;

and the Directorate of Food and Vegetable Products, where the petitioner

was employed, along with the post of Director (F&VP), was transferred

to that Ministry. Since the extant Rules did not envisage the post of

Joint Director (F&VP) as one of the feeder grades for filling the next post

in the hierarchy, which was of Director (F&VP); the petitioner

represented that the Recruitment Rules be amended to bring him within

the zone of eligibility for promotion to the said post of Director (F&VP).

That representation was rejected by the Government on 6 th January, 1986.

Aggrieved, the petitioner filed O.A. No. 13/86 before the Tribunal for a

direction to the Government to appropriately amend the recruitment rules.

The said O.A. was dismissed on 9th April, 1987, on the ground that the

Tribunal would not like to interfere in the amendment of the Recruitment

Rules. The petitioner appealed to Supreme Court, but later on he

withdrew that appeal.

5. On 31st December, 1990, the post of Director (F&VP) fell

vacant. As already noticed, recruitment to this post is governed by the

Food and Nutrition Board (Non Secretariat Gazetted Post) Recruitment

Rules, 1967. Admittedly, the rules provide for promotion as the first

method only from the grades of Senior Marketing Officer (Fruit Products)

and Deputy Director (F&VP), with five years regular service in the

respective grade. No officer from these two grades had the requisite

length of service to be eligible for promotion.

6. Consequently, although the petitioner was also not eligible

for promotion to that post because he did not hold either of the two feeder

posts prescribed by the rules as aforesaid; a notification was issued by the

Ministry of Food Processing Industries on the 25th January, 1991, giving

the petitioner the current charge of the duties of the post of Director

(F&VP). By the same notification, the petitioner was also appointed as

the Licensing Officer under the Fruit Products Order, 1955. The said

notification of 25th January, 1991, reads as follows:

"The President is pleased to appoint Shri R.K. Bansal Joint Director (Consultancy) in the Ministry of Food Processing Industries to hold the current charge of the duties of the post of Director (F&VP) in addition to his own duties as Joint Director (Consultancy) in the Ministry of Food Processing Industries until further orders. The President is also pleased to appoint Shri. R.K. Bansal, as the Licensing Officer under the Fruit Products Order 1955 until further orders."

7. After the petitioner had functioned for nearly four years as

the Director (F&VP) pursuant to the aforesaid order, the respondent

issued an order on 14.12.1994 appointing one Sh A.K. Paliwal to the post

of Director (F&VP). Aggrieved, the petitioner moved O.A. 2547/1994

before the Central Administrative Tribunal, New Delhi. On 25.10.1995,

the Tribunal quashed the appointment of Mr. Paliwal. The matter rested

there.

8. It appears that after he had continuously held the aforesaid

charge for more than 8½ years, the petitioner requested the respondent on

25th August, 1999 for payment of salary in the grade of Director (F&VP);

he also sought arrears of pay, with effect from 25th January, 1991, i.e., the

date on which he was first given charge of the duties of that post. He

renewed his request on 9th October, 2002. It is, therefore, obvious that at

least from 25th August, 1999, the respondent became aware of the

petitioner‟s claim for salary and arrears commensurate to the grade of

Director (F&VP). Almost immediately thereafter, on 4 th October, 1999,

the aforesaid current duty charge conferred on the petitioner by the

notification of 25th January, 1991, was terminated. Aggrieved by this, the

petitioner moved O.A. No. 2181/99 before the Tribunal. The said O.A.

was allowed by the Tribunal on 25th January, 2000 and the impugned

order was quashed. Aggrieved by that decision, the respondent filed Writ

Petition (C) No. 580/2000 before this Court. That petition was dismissed

by this Court on 29th May, 2002 and the Tribunal‟s order favouring the

petitioner was upheld. After another year, the petitioner was suspended

on some unrelated grounds, with effect from 15th September, 2003. That

suspension order was reviewed and he was reinstated by the competent

authority on 23rd March, 2004, and he continued to function as before till

his retirement on 31.7.2007.

9. Since he had received no reply to his aforesaid

representations dated 25th August, 1999 and 9th October, 2002 requesting

salary and arrears commensurate to the grade of Director (F&VP), with

effect from 25th January, 1991, the petitioner filed O.A. No. 1800/2003

before the Tribunal. That petition was dismissed by the Tribunal on 31 st

March, 2004. Aggrieved by that dismissal, the petitioner has invoked the

writ jurisdiction of this Court in the instant petition.

10. By its order of 31.3.2004, which is impugned before us, the

Tribunal has concluded that the petitioner was not entitled to the

monetary benefits of the post of Director (F&VP) because no formal

orders appointing him to that post had been issued by the respondent.

11. Before us, the decision of the Tribunal is challenged by the

petitioner primarily on the grounds that the Tribunal failed to appreciate

the fact that his case was also covered under Fundamental Rule [FR] 49

and other instructions related to the subject, because, in addition to his

normal duties, he was also discharging statutory duties under the Fruit

Products Order, 1955 normally exercisable by the Director(F&VP), such

as, holding of Departmental Promotion Committees and acting as the

Disciplinary Authority under the Statute. And furthermore, even the

powers of the Licensing Officer, which could only be exercised by the

Director (F&VP), were specifically conferred upon him by the

respondent.

12. In reply, counsel for the respondent contends that the

petitioner has no case in view of the provisions of sub-clause (v) of

F.R.49 which states that no additional pay is admissible to a government

servant who is appointed to hold current charge of routine duties of

another post irrespective of the duration of the charge. According to him,

in fact the petitioner was only given, "routine duties", and therefore, the

question of any additional pay being given to the petitioner does not arise.

As regards the appointment of the petitioner as the Licensing Officer

under the Fruit Products Order, 1955, in substance, the contention of

learned counsel for the respondent is that notwithstanding the fact that

under section 2(g) of that order, the Director (F&VP) is the Licensing

Officer; in this case, that appointment was conferred separately and did

not form part of the appointment of 25th January, 1991, ".......to hold the

current charge of the duties of the post of Director (F&VP)......."

13. In addition, counsel for the respondent has also attempted to

justify the denial of relief to the petitioner on the ground that since the

post that he was substantively holding, i.e. Joint Director (Consultancy),

was an ex-cadre post; and he did not belong to either of the two feeder

grades in the Cadre from which an officer can be substantially appointed

as Director (F & VP); therefore he did not have the requisite qualification

to hold the said post of Director (F & VP). He states that the Ministry of

Food Processing Industry came into being in 1988. At that time, the post

of Joint Director (Consultancy); which was the petitioner‟s substantive

post; stood transferred to the Ministry. However, the Recruitment Rules

did not incorporate that post in the cadre list. Therefore, till the

Recruitment Rules were amended, the petitioner could not be appointed

as Director (F & VP) and for this reason, the petitioner is not entitled to

the pay of Director (F&VP).

14. Fundamental Rule [FR] 49 which falls under Chapter VI,

titled, "Combination of Appointments" in Swamy‟s Compilation of

Fundamental Rules and Supplementary Rules, 18th Edition, regulates the

pay of Government Servants who are appointed to officiate as a

temporary measure in one or more independent posts. FR 49 is as

follows:-

CHAPTER VI

Combination of Appointments

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) where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post;

(ii) where a Government servant is formally appointed to hold dual charges of two posts in the same cadre in the same office carrying identical scales of pay, no additional pay shall be admissible irrespective of the period of dual charge:

Provided that, if the Government servant is appointed to an additional post which carries a special pay, he shall be allowed such special pay;

(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 [49] 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) where an officer is formally appointed to hold full additional charge of another post, the aggregate of pay and additional pay shall in no case exceed [Rs.26000];

(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) if compensatory or sumptuary allowances are attached to one or more of the posts, the Government servant shall draw such

compensatory or sumptuary allowances as the Central Government may fix:

Provided that such allowances shall not exceed the total of the compensatory and sumptuary allowances attached to all the posts."

15. In this case, the relevant portion of the notification of

25.1.1991 appointing the petitioner, that has been reproduced above, uses

the words, "....to hold the current charge of the duties of the post of

Director (F & VP).....". As far as the duties of the post of Director

(F&VP) are concerned, there can be no doubt, they include both routine

administrative work, as well as functions required to be carried out under

statutes, notifications etc. If the petitioner had been appointed to the post

substantively, then the notification would undoubtedly have read, „...is

appointed to the Post of ....‟. Instead of that, the petitioner had in fact

been appointed, "...to hold current charge of the duties of the

post......till further orders." The issue therefore is whether, under this

appointment to hold the, "current charge of the duties of the post of

Director (F&VP)"; the duties assigned to the petitioner under the

notification have been truncated in any way.

16. Initially, while the matter was being argued before us, we

had felt that at least as far as the plain, grammatical meaning of the words

of the notification of 25.1.1991 is concerned, there could be no doubt.

However, faced with respondent‟s counsel‟s insistence that, even the

very words used, amount to the conferment of, "routine duties", only; we

are obliged to go into that aspect of the matter also while ascertaining the

scope of the petitioner‟s appointment. It becomes necessary therefore, to

examine the expressions, "....to hold current charge of..." and "....the

duties of the post...", used in the aforesaid appointment notification. The

first expression, "... to hold current charge of..." is further qualified by

the phrase, "....till further orders..", used at the end of the notification.

The word, "current", in the expression, "current charge"; which has been

used as an adjective to define the nature of the charge, means, "belonging

to the present time; happening now" (Concise Oxford Dictionary of

Current English, 8thEdn). According to the same dictionary, the next

word, "charge", which has been used as a noun here, means, "--n.....a

task, duty or commission.... or thing entrusted;..". In the context, the two

words can only mean, the thing entrusted at the present time or, for the

time being. The next phrase, "duties of the post", spell out the nature of

the current charge, or, to put it differently, clarify what is that thing that

the petitioner, as the person named in the notification, is being entrusted

with, for the time being. It follows therefore, that the notification of 25th

January 1991, clearly entrusted the petitioner with the duties of the Post

of Director (F&VP) for the time being, till further orders; and there is

nothing, at least in the language of the notification of 25.1.1991, to

suggest that the petitioner is being appointed to discharge only some of

the duties or that his appointment is restricted to only the, "routine

duties", of the post in question.

17. Counsel for the respondent has also tried to suggest that

because the petitioner merely held an ex cadre post, which was not one of

the two feeder posts prescribed by the Rules for substantive appointment

to the post in question, therefore, the powers of the President of India

were limited to only conferring charge of, "routine duties" of that post;

and consequently, even an order conferring all the duties of the post in

question, must be construed as one limited only to what he calls, "routine

administrative duties" of that post. We do not think this argument is well

founded. While there is no gainsaying the power of the President, or in

other words, of the Government, to limit the scope of the powers being

conferred on an officer if it thinks fit to do so; it cannot be, and nothing

has been brought to our notice to demonstrate that even if the order of the

President is not qualified in any way; and the appointment on the face of

it covers the entire scope of the duties of that post; that order must

nevertheless be construed as granting only some of the powers of that

post, and not the others, because of some unique, inherent limitation in

the power of the President which compels him to entrust only what is

referred to as, "routine administrative work" to such an officer, but not,

"statutory duties". If the president did not have the power to entrust

temporary charge of the duties of such a post, for the time being, to an

officer who is not eligible for substantive appointment to that post; then

the notification entrusting such a charge would be bad in its entirety; and

the issue whether the charge conferred by such an appointment was in the

nature of a full or complete charge of the widest scope and amplitude, no

different from that conferred upon any eligible officer substantively, or

whether it was limited to only routine administrative duties, would be

immaterial.

18. In this context, we also find that while sub rules (i) & (ii) of

FR 49 refer to appointment in the same cadre and same office. However,

sub rule (iii) is slightly different. It mentions appointment to a post

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.". This shows

that FR 49 contemplates both situations; where the post is in the same

cadre and line of promotion, and also where it is not so. If the

government did not even have the power to appoint in this manner, there

would have been no occasion for the government to make this sub rule

settling the pay of an officer in exactly such a situation. In the same

context, although some limitations to their application are prescribed in

sub rules (i), (ii) & (iii) themselves; nevertheless, sub rules (iv), (v) and

(vi) are also in the nature of provisos or qualifications or limitations on

the entitlement to pay conferred by sub rules (i), (ii) & (iii). Of these, sub

rule (v) is the only part of FR 49 which contemplates a situation where

power is conferred to carry out only, "routine duties", of another post.

This postulates that in such a situation, "no additional pay" is admissible

to a government servant. This sub rule obviously operates as one of the

provisos limiting the entitlements carved out in sub rules (i),(ii) & (iii) of

FR 49. The fact that it has been found necessary to provide separately for

cases where a limited, or truncated, charge is given; which amounts to

only, "routine duties", of a post, only goes to reinforce the conclusion

that the Government does indeed have the power to grant full charge of

the duties of a post in circumstances similar to that of the petitioner.

19. Furthermore, looking to the scheme of FR 49 and the

language of sub rule (v) thereof; the limitation placed on additional pay

by sub rule (v), in that it will not be admissible, is confined only to cases

where the appointment in question is only to hold current charge of,

"routine" duties, and not otherwise. Whether the charge is given of a post

in the same cadre or the same line of promotion as the post held by the

officer concerned or not, is wholly irrelevant here, and makes no

difference. The submission of respondent‟s counsel that sub rule (v)

debars the petitioner from claiming the pay of the post in question

because he is ineligible to hold that post substantively since he was

neither in the same cadre to which the post belongs, nor was the post in

the same line of promotion as the substantive post held by him; is without

substance and merits rejection.

20. Counsel for the respondent has also argued that in fact no

right can accrue to the petitioner under FR 49(iii) because, according to

him, the expression, "formally appointed to hold charge", used there

means holding, "complete charge" of the post; and it is only then that the

consequences of sub-rule (iii) follow. After positing this equivalence, he

then submits that since the powers of the Licensing Officer under the

Fruit Products Order, 1955, which are normally exercised by the Director

(F&VP), have been conferred on the petitioner separately, albeit by the

same notification, it must be taken to mean that the preceding portion of

the notification of 25.1.1991, appointing him to hold charge of that post,

did not give him, "complete charge". To begin with, we are unable to

understand the process by which learned counsel for the respondent has

equated the phrase, "formally appointed to hold charge", with the idea of

holding, what he terms as, "complete charge" specially in the context of

the purpose of this sub-rule. In the language of FR 49(iii) at least there is

nothing to suggest this. The adverb, "formally", used in that phrase,

derives its meaning from the adjective, "formal", which means, "Used or

done or held in accordance with rules, convention, or ceremony..... in

accordance with recognized forms or rules" (see Concise Oxford

Dictionary of Current English 8th Edn). Therefore, the only requirement

is that the appointment in question must have been done in accordance

with the rules. In other words, it should have been made by the person

authorized to do so and in the prescribed manner. Here, this has been

done. Indeed, counsel for the respondent has not even ventured to suggest

that the petitioner‟s appointment was improper, or that it ought to have

been made by some other Authority. The submission that the President

did not have the power to confer, what he calls, "full charge" of the post

has been examined by us and rejected in the preceding paragraphs. Also,

we can find nothing to suggest that the word, "charge" in the phrase,

"formally appointed to hold charge", means only complete charge of a

post. On the contrary, the fact that sub clause (v) has been inserted in FR

49 goes to show that the current charge given to an officer as a temporary

measure, can also be limited to the routine duties of another post. We

also notice that it is only in FR 49 sub clause (i), which admittedly has no

application to the present case, that the expression, "to hold full

charge..............", has been used, whereas sub clause (iii) of FR49, with

which we are concerned, merely uses the expression, "to hold charge of

..........". This also leads to the conclusion that the framers of FR49 were

conscious of the distinction between the expression, "to hold full charge

of ........." and the expression, "to hold charge of", and the word "full",

was omitted in FR 49 sub clause (iii) to serve a definite purpose and,

therefore, the expression, "formally appointed to hold charge" employed

in FR49 sub clause (iii), cannot be taken to mean, „formally appointed to

hold "full" charge‟. The only qualification placed by the appointment

notification in question here regarding the nature of the charge given, is

that it is a, "current" charge. The word, "current", as we have analysed

earlier, only refers to the periodicity of the charge; and not to the scope of

the duties conferred, in that it does not truncate or limit them in any way.

Therefore, to our mind, the requirement of FR 49 sub clause (iii) has been

satisfied by the aforesaid appointment notification of 25th January, 1991.

The other part of the argument to the effect that the separate conferment

of powers of the Licensing Officer by the same notification should be

taken to imply that the government intended to confer only a limited

charge of "routine administrative duties" of the post of Director (F &

VP), also does not impress us. This is because nothing prevented the

government from specifically limiting the scope of the charge if that was

really the intention, and, in fact, as concluded below, the intention

appears to have been quite to the contrary. Indeed, we are convinced that

the government resorted to this device of a separate additional

appointment to make doubly sure that there is no challenge to the

petitioner exercising all the powers of the Post in question, which he

admittedly did exercise.

21. In pressing his case to the effect that the petitioner must be

denied the pay of the post of Director (F&VP) on the plea that his case is

covered only by sub rule (v) of FR 49, counsel for the respondent has

tried to suggest that in fact, except sub rule (v), none of the other sub

rules has any application in the petitioner‟s case. According to him, sub

rule (iii) of FR 49 has no application for the reason that if sub rule (iii) is

interpreted to mean that officers such as the petitioner, who are appointed

to hold charge of posts to which they are not eligible because they either

do not belong to the same cadre or are not in the same line of promotion,

are entitled to the pay of the higher post, then sub rule (v) will be

rendered redundant. We are afraid that counsel is mistaken. In his

eagerness to bring the petitioner‟s appointment notification squarely

within sub rule (v) with a view to justifying the denial of pay for the

higher post to the petitioner, he has been unable to perceive the obvious

difference between the two provisions. Both the sub rules have their own

clear cut roles to play. On a true construction of the sub clauses of

F.R.49; while the main sub rules are actually sub rules (i), (ii) and (iii);

sub rule (iv) merely restricts the amplitude of sub rule (iii). Similarly,

Sub-rule (v) would be applicable in cases where only, "routine duties",

are given. Therefore, sub-rule (v) is also to be read as a limiting clause. It

clarifies that no additional pay will be given if the conditions mentioned

therein are fulfilled. However, if those conditions are not fulfilled, then

this sub-rule would not be attracted. Thus, what FR 49 (v) does is it

reduces or dilutes the benefit available, inter alia, under FR 49 (iii) by

saying that no additional pay would be given where the person is

discharging only "routine duties". In other words, even if, in a given

case, an officer is appointed to hold charge of another post, but the nature

of the charge in question is limited in scope to only, "routine" duties, then

the benefit of clause (iii) would be unavailable. Obviously, if what he is

discharging is something more than mere, "routine duties", that benefit

would be available. Looked at in this way, both the sub rules (iii) and (v)

have their own unique functions and there is no force in the submission of

counsel for the respondent that if the petitioner‟s case were to be

considered as falling under sub rule (iii) then sub rule (v) would be

rendered redundant. It is also possible that counsel for the respondent has

first taken for granted that the appointment order in question is

unquestionably one conferring only, "routine duties" and then

propounded the proposition that if such an appointment is taken to fall

under sub rule (iii), it would render sub rule (v) redundant. If that is so,

then we can only say that counsel has missed the point totally.

22. Under the circumstances, and since we have concluded that

the appointment notification of 25.1.1991 satisfies the requirements of

FR 49(iii), the requirements of the proviso to that sub rule are of some

importance and need to be addressed by us. That proviso states as

follows;

"(iii)....................

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;"

This proviso to sub rule (iii) of FR49 places an obligation

upon the respondent to obtain the concurrence of the Department of

Personnel and Training in case the charge as contemplated under this sub

rule is required to hold charge for more than 3 months. The obligation

was cast upon the respondent. The fact that the respondent failed to carry

out its obligation for any reason whatsoever; be it under a mistaken

impression as to the nature of charge or otherwise; cannot be allowed to

stand in the way of complete justice to the petitioner once this court has

concluded that his appointment falls under the ambit of FR 49(iii)

particularly since we cannot see how the petitioner can be held

responsible for this lapse on the part of the respondent.

23. Our attention has also been drawn to, "Guidelines on

additional charge of the current duties of another post under FR 49"

issued by the Department of Personnel and Training, O.M. No. 4/289-

Est. (pay-II), dated 11.8.1989 which appears to be directly on the point. It

states as follows;

"As per FR 49(v) no additional pay is admissible to a Government Servant who is appointed to hold current charge of the routine duties of another post irrespective of the duration of the additional charge. In practice it is observed that in a number of cases, officers are appointed to hold additional charge of current duties of another post but the duties are not defined in the order and therefore, the officer performs all the functions of the other post including even some statutory function. However,no additional remuneration is paid to him in view of the specific language of the order of his appointment. In certain other cases, an officer is asked to hold additional charge of another post (which implies full charge of the other post), but he is not formally appointed to that post and, therefore,no additional remuneration is paid to him under FR 49. These have led to representations and litigations.

2. With a view to avoiding recurrence of such situations, the following guidelines may be followed while considering the question of entrusting additional charge of another post to an officer:--

(i) When an officer is required to discharge all the duties of the other post including the statutory functions, e.g., exercise of power from Acts of Parliament such as Income Tax Act or the Rules, Regulations, By-Laws made under various Articles of Constitution such as FRs, CCS (CCA) Rules, CSRs., DFPRs., etc., then steps should be taken to process the case for getting the approval of the Competent Authority and formal orders appointing the officer to the additional post should be issued. On appointment, the officer should be allowed the additional remuneration as indicated in FR 49.

(ii) Where an officer is required only to attend to the usual routine day-to-day work of non- statutory nature attached to the post, an office order may be issued clearly stating that the officer will be performing only the routine day-to-day duties of non statutory nature and that he would not be entitled to any additional remuneration. The office order should also specify what duties he would be discharging or what duties he would not be discharging."

The above guidelines bring out the practical difficulties

faced by officers in situations where they are either appointed to hold

current charge of another post or merely asked to hold additional charge

of another post without being formally appointed to that post, often

without the duties they are required to perform being clearly defined. It is

to address such anomalous situations that paragraphs 2(i) and (ii)

reproduced above, have been notified. A reading of those paragraphs

clearly bear out the petitioner‟s case. Para 2(i), above, makes it clear that

if the officer is required to discharge all the duties of the post, including

the statutory functions, formal orders appointing the officer to the

additional post should be issued. And on such appointment, the officer

should be allowed additional remuneration in terms of FR49. In this case

also, the petitioner has been appointed to hold current charge of the duties

of the post in question through a formal appointment. To remove any

doubts, we are satisfied that, in the context of the aforesaid guidelines,

and particularly the reference to the type of duties envisaged in the

opening paragraph of the guideline, and the difficulties which the sub

paragraphs thereof have been designed to overcome; the expression,

"...formal orders appointing the officer to the additional post..." ,

includes formal orders appointing an officer to hold current charge of the

duties of another post, as in the instant case. We are persuaded to this

view for the reason that if the expression, "formal orders appointing the

officer to the additional post ..........." envisaged in paragraph 2(i) of the

said guideline, is interpreted to mean only a substantive appointment to

another post, then, this guideline as a whole would fail to address the

difficulties that have been highlighted in the opening portion thereof. It

would also fail to fulfill the avowed intention expressed in the second

paragraph of the guideline, of which sub para (i) forms a part.

Furthermore, such an interpretation would also militate against the fact

that it is issued in furtherance of the objects of FR 49; which clearly has

as its object the regulation of pay of officers in those cases where a

government servant has been appointed, "to officiate as a temporary

measure in one or more of other independent posts at one time.........".

(Emphasis added. See FR 49). It follows, therefore, that since the object

of FR49 is clearly to regulate pay specifically in those situations where

government servants are appointed to officiate as a temporary measure in

another post; the aforesaid phrase extracted from guideline 2(i) cannot,

and does not, envisage a substantive appointment to the additional post

for which remuneration under FR 49 is being contemplated therein.

Consequently, since the required formal notification was in fact issued in

the name of the President on 25.1.1991 by the government, the petitioner

was clearly empowered to discharge all functions of the post of Director

(F&VP) including statutory functions. Our view is further fortified by the

fact that admittedly, no office order of the type envisaged in para 2(ii) of

the aforesaid guideline was issued by the respondent.

24. Indeed, throughout the protracted course of arguments, and

despite repeated assertions to the contrary by the petitioner, learned

counsel for the respondent has failed to demonstrate to our satisfaction

even a single function of a substantively appointed Director (F&VP),

which the petitioner either did not, in fact, discharge; or was prohibited

from discharging, pursuant to the aforesaid notification of 25th January,

1991, appointing him to hold the current charge of the duties of that post.

The petitioner specifically claims to have discharged all the functions of

the post of Director (F & VP) which included; convening of

Departmental Promotion Committees; writing of Annual Confidential

Reports; acting as the Licensing Officer, etc. for a period of more than

16½ years, right from 25.1.1991 till his retirement in July, 2007.

25. In order to substantiate his contention that the notification of

25.1.1991 had conferred only, "routine administrative duties" of the post

of Director (F & VP) upon the petitioner; and that he was not empowered

to exercise statutory functions, thereby disentitling him to the pay of the

higher post of Director (F & VP), counsel for the petitioner has also tried

to rely upon the later portion of the aforesaid notification which further

confers the appointment of Licensing Officer under the Fruit Products

Order, 1955, upon the petitioner. The said portion of the notification

reads as follows:

"........The President is also pleased to appoint Shri R.K. Bansal as a Licensing Officer under the Fruit Products Order, 1955 until further orders."

He has tried to suggest that the fact that since the

Government has thought it fit to appoint the petitioner as a Licensing

Officer, separately, albeit as a part of the same notification, demonstrates

that the scope of the charge of the duties of the post of Director (F&VP),

which was given to the petitioner by the said appointment, was limited to,

"routine duties" only. His reasoning, as far as we have been able to

ascertain, is that normally, a substantively appointed Director (F&VP)

also functions as the Licensing Officer under the Fruit Products Order,

1955; and therefore, the separate conferment of the appointment as

Licensing Officer can only mean that it was never intended to appoint the

petitioner to exercise the full charge of the duties of the post of Director

(F&VP). In our view, this contention also has no merit for a number of

reasons.

26. Firstly, as we have already analyzed above, there is nothing

either in the language of the appointment notification of 25.1.1991 or in

the provisions of FR 49 or even in the aforesaid Guidelines of additional

charge on current duties of another post issued on 11th August, 1989, all

of which have been reproduced and discussed above, to suggest that the

appointment is limited to routine administrative duties only.

27. Secondly, the expression, "Licensing Officer", has been

defined in Rule 2(g) of the Fruit Products Order, 1955, as follows:-

"Licensing Officer" means the Director (Fruit and Vegetables Preservation), Food and Nutrition Board, Department of Food, Ministry of Agriculture, Government of India and includes any other officer

empowered in this behalf by him with the approval of the Central Government."

Once, we have concluded on the basis of the aforesaid

analysis that the appointment notification of 25th January, 1991 conferred

an unrestricted charge of the duties of the post of Director (F&VP), to the

petitioner; the petitioner automatically came within the ambit of the

aforesaid definition of the Licensing Officer and could exercise all

powers in that regard and, in our view, the further specific appointment of

the petitioner as the Licensing Officer, was unnecessary.

28. Thirdly, although, the respondent is supporting the aforesaid

order separately appointing the petitioner as Licensing Officer; we have

some doubts about its validity. This is because we notice that from the

definition of, "Licensing Officer", under the Fruit Products Order, 1955,

which has been extracted above, that, "Licensing Officer", means either

the Director (F&VP), himself, or any other officer, "empowered in this

behalf by him.............. with the approval of the Central Government."

In other words, for there to be a valid empowerment of some officer,

other than the Director (F&VP), as the Licensing Officer, under the Fruit

Products Order, 1955; that officer must first have been, "empowered in

this behalf", by the Director (F&VP) himself. Once such an

empowerment is done by the Director (F&VP), it is then to be approved

by the Central Government. In this case, since the post of Director

(F&VP) was vacant, there was no Director (F&VP) to empower the

petitioner, who was only functioning as the Joint Director (F&VP) in the

Ministry of Food Processing Industries at that time. If there could be no

empowerment in terms of the aforesaid section 2(g), there could be no

question of the Central Government giving its approval or of appointing

the petitioner as the Licensing Officer. And once he was appointed to

discharge the duties of the Post of Director (F&VP), the power of

Licensing Officer automatically vested in him.

29. Fourthly, the only reason that we have been able to fathom

for the respondent to have separately notified the petitioner‟s

appointment as, "Licensing Officer", is that since the substantive post

held by him was a subordinate ex cadre post; there was some doubt with

regard to the legitimacy of the petitioner to function as Licensing Officer

also while he was holding the current charge of the duties of the post of

Director (F&VP) in terms of his appointment notification of 25 th January,

1991 and, therefore, in order to obviate any objections that may be raised,

and keeping in view the sensitive nature of the post, the respondent

decided to also notify his appointment separately as the, "Licensing

Officer" under the Fruit Products Order, 1955, notwithstanding the fact

that they had no recommendation in hand in terms of Rule 2(g) of that

order. We might also mention that the only circumstance that we have

been able to think of under which the power of Licensing Officer under

the Fruit Products Order can be conferred without a recommendation in

that behalf as envisaged in Rule 2(g) thereof, is when the power of the

Director (F&VP) is being conferred on an officer by appointing him as

such. However, in such a case, the power of the Licensing Officer is

conferred on the Director (F&VP) by virtue of the Fruit Products Order,

1955 itself, and any further notification in this behalf by the Government

would be superfluous. It follows therefore, that in this case also, either

the conferment of the power of Licensing Officer separately by the same

notification is bad because it purports to confer the power on an Officer

other than the Director (F&VP) without his empowerment in this behalf

by the Director (F&VP); or the said notification is superfluous since it

merely purports to clothe the petitioner with a power that has

automatically accrued to him with his appointment to discharge the

functions of the Director (F&VP). We are inclined to prefer the later

option and consider that notification appointing him as Licensing Officer

as merely superfluous.

30. Fifthly, regardless of the legal validity of the aforesaid

notification appointing the petitioner as the Licensing Officer, the one

thing that emerges clearly under the circumstances is that the respondent

expected, and definitely wanted, the petitioner to exercise all the duties of

the Post of Director (F&VP) without exception, and to this end the

respondent was prepared to go to the extent to issuing a separate

notification if necessary. In this, the respondent was undaunted even by

its own belief, which we have now concluded was erroneous, that under

only the notification appointing him to hold the, "current charge of the

duties of the post...", he could not validly function as the Licensing

Officer because he was not substantively appointed to the Post of

Director(F&VP). Under the circumstances, the intention of the

respondent to confer, in one form or the other, the full powers of the

Director (F&VP) on the petitioner, could not be more transparent.

We might add this anomaly in the appointment notification,

appointing the petitioner as Licensing Officer was specifically pointed

out by the petitioner during his arguments but counsel for the respondent

has not addressed this aspect of the matter at all.

31. Counsel for the respondent further submits that there were

three occasions, between 14th December, 1994 to 25th October, 1995, 4th

October,1999 to 29th May, 2002 and between 15th September, 2003 to

23rd March, 2004, when the petitioner was not holding current duty

charge and, therefore, it cannot be said that he has functioned

continuously as Director (F&VP). A perusal of the records reveal that in

the office order dated 14th December, 1994 the respondent appointed Shri

A.K. Paliwal, Deputy Director (F&VP), as Director (F & VP) on ad hoc

basis. Against the said order, the petitioner filed an original application in

the Tribunal which was allowed by quashing the impugned office order.

It was also found that in another office order dated 4th October, 1999, the

current charge of the petitioner as Director (F & VP) was terminated. The

petitioner, thereafter, filed an application before the Tribunal against the

said order, which was also allowed and the impugned order was quashed.

The matter then went up to the High Court which upheld the decision of

the Tribunal vide order dated 29th May, 2002. As far as the third

period, i.e. the period between 15th September, 2003 to 23rd March, 2004,

is concerned, the petitioner was under suspension. This was reviewed

departmentally and he was reinstated. Therefore, this contention of the

respondent has no force.

32. Counsel for the respondent has also contended that the claim

of the petitioner is barred by limitation on the ground that although the

notification appointing the petitioner to hold charge of the post in

question was issued on 25th January, 1991, he has approached the

Tribunal only in the year 2003. This has no force. It is settled law that

the right of remuneration in terms of the correct salary to be computed on

the basis of proper pay fixation, "subsists during the entire tenure of

service and can be exercised at the time of each payment of the

salary......". It is only the recovery of arrears that can be limited to the

period of three years from the date of filing the petition before the

Tribunal. (See M.R.Gupta Vs. Union of India 1996(5) SCC 628).

When the petitioner moved the Tribunal in the year 1993, he was still in

service and he had retired only on 31st July, 2007. In the instant case,

therefore, the petitioner would be entitled to all arrears for three years

before the date he filed the petition before the Tribunal, and thereafter.

33. Learned counsel for the respondent relies on a decision of

this Court titled UOI v. D.P. Sharma, CWP No. 7751/2003 decided on

5th October, 2005. We are afraid this decision does not apply to the facts

of this case, specially for the reason that in that case, Shri D.P.Sharma

was working as a part time Member of the Tribunal; and since he was the

senior most part time Member, he was asked to act as the Chairperson of

the Tribunal after the post fell vacant. On the facts, the court concluded

that this was a case which fell under clause (2) of FR 49 because the

remuneration of the post in question was the same as that of the post to

which the petitioner was appointed as a part time Member. Furthermore,

it was made clear in the order granting him part time appointment that he

would not be entitled for any remuneration for his appointment as a part

time Member.

34. Respondent‟s counsel also relies on the case of Mohd.

Swaleh vs. Union of India & Ors. in Civil Appeal No. 4412/1996

decided on 9th May, 1997. This case is clearly distinguishable from the

present case as it was concerned only with delegation of powers. In that

case, Mohd. Swaleh was appointed as Registrar by the Vice-Chairman of

the Central Administrative Tribunal whereas the competent appointing

authority was the President of India. On the other hand, in the present

case, the petitioner was appointed by the competent authority i.e. the

President of India.

35. It is settled law that if a person is asked to discharge all the

duties of a higher post, he is entitled to the pay scale of that higher post.

The Supreme Court, in the case of Secy-cum-Chief Engineer,

Chandigarh v. Hari Om Sharma & Ors. (1998) 5 SCC 87 and further in

the case of Selvaraj Vs. Lt. Governor of Island, Port Blair and Ors.

AIR 1999 SC 838, had enunciated this position. In paragraph 6 of Secy-

cum-Chief Engineer (supra), the Supreme Court, while upholding the

order of the Tribunal, observed that:

"The Tribunal was also justified in ordering payment of salary to the respondent for the post of Junior Engineer I with effect from 1990 when he was made to work on that post. It is true that the respondent, to begin with, was promoted in stop-gap arrangement as Junior Engineer I but that by itself would make no difference to his

claim of salary for that post. If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The Tribunal has noticed that the respondent has been working on the post of Junior Engineer I since 1990 and promotion for such a long period of time cannot be treated to be a stop-gap arrangement."

36. Further, in Selvaraj's case (supra), the appellant had worked

on the higher post of Secretary (Scouts) pursuant to an order. The

Supreme Court held that on the principle of quantum meruit the

respondent authorities should have paid the appellant as per the

emoluments available in the aforesaid higher pay scale during the time he

actually worked on the said post of Secretary (Scouts) though in an

officiating capacity and not as a regular promotee. To our mind, the

circumstances of the case at hand also warrant relief to the petitioner

under the principle of Quantum Meruit.

37. Again, in GNCT of Delhi v. B.S. Jarial and Anr. W.P. (C)

No. 5742/2010, a Division Bench of the Delhi High Court observed that

if an employee is directed to work on a higher post, he has no option but

to work at the higher post at the dictates of the employer, as his not doing

so would attract penalty proceedings against him. The Court, therefore,

held that when a person is told to discharge the functions and duties of a

higher post till the same is filled up and he works for years together, it

would be unjust to deny him wages for the said post.

38. Again, in the case of Union of India (UOI) and Anr. Vs.

Y.R. Mahajan WP(C) No. 20210/2005 decided on 1st February, 2008,

the respondent was directed to hold the additional charge of Director

General in addition to his own duties as Deputy Director General. The

respondent, after his retirement, claimed emoluments and pensionary

benefits for having performed higher duty of the post of Director General.

A Division Bench of the Delhi High Court held that since the respondent

was appointed with the approval of the Raksha Mantri, who was the

competent authority, and he had discharged statutory functions apart from

administrative and financial functions, "the decision of the Tribunal in

granting difference of the pay of the higher scale of the DGAQA for the

period 2.9.2002 to 28.2.2003 would sub serve the ends of justice on a

meaningful and purposive interpretation of Fundamental Rule 49 and the

Government instructions referred to earlier."

39. In view of the facts and circumstances, the respondent,

having taken the full work of Director (F & VP) for 16½ years, under the

garb of an order appointing him to hold the current charge of the duties of

that post, from the petitioner, is clearly obliged to pay him the full

monetary benefits of that post. Consequently, the impugned order passed

by the Tribunal on 31st March, 2004 in O.A. No. 1800/2003 is set aside

and the writ petition is allowed. The petitioner would be entitled to the

same pay scale as applicable to the post of Director (F&VP) and the

respondent is directed to pay the arrears to the petitioner for holding that

post, calculated from three years before the date he filed the petition

before the Tribunal. The arrears are to be calculated on the basis of the

difference in his salary and emoluments between the substantive post of

Joint Director (F&VP) held by the petitioner, and that of the Director

(F&VP). The respondent shall also pay interest to the petitioner @ 8%

per annum from the date the aforesaid arrears are to be reckoned up to the

date of payment.

40. The petitioner shall also be entitled to costs of Rs. 20,000/-.

41. All the amounts in terms of this judgment be paid by the

respondent to the petitioner within four weeks from today.

SUDERSHAN KUMAR MISRA, J.

ANIL KUMAR, J.

July 11, 2012