Union Of India vs Lalit Kumar (Retd.)
2015 Latest Caselaw 13 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Date of hearing & Order: 5th January 2015.
+     W.P.(C) 6276/2013
      UNION OF INDIA
                                                           ..... Petitioner
                           Through:    Ms. Anita Pandey, Advocate

                           versus

      LALIT KUMAR (RETD.)                                  ..... Respondent
                   Through:            In person.

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MR. JUSTICE I.S.MEHTA

                      ORDER

%                      05.01.2015
KAILASH GAMBHIR, J. (ORAL)

1. By this petition filed under Article 226 and 227 of the Constitution of India the petitioner seeks to issue a writ of certiorari and to set aside the impugned order dated 19.4.2012 passed in R.A. No.192/2012 and order dated 10.1.2012 passed in O.A. No.436/2009 by the learned Central Administrative Tribunal.

2. The brief facts of the present petition are that the respondent - Lalit Kumar had joined in Civil Construction Wing, All India Radio, under the Ministry of Information and Broadcasting as Junior Engineer (Electrical) on 13.04.1972 and was promoted to the post of AE (E) on regular basis on 25.7.1980. Vide order bearing No. A-22012/1/87-CW-I dated

6.4.1987, the respondent was transferred and posted to function in the substantive capacity of Assistant Surveyor of Works (Electrical), Delhi Division II, when for some period, he was also given dual charge of Executive Engineer (Electrical), Delhi Division II, by order dated 6.4.1987. This order dated 6.4.1987 is primarily at the heart of the controversy between the parties. The petitioner had held the dual charge, as per the admitted case of the parties only for a limited period, i.e., between April 1987 to July 1988. As per the petitioner, the pay scale of the two posts i.e. of Assistant Surveyor and that of Executive Engineer were different and in fact the post of Assistant Surveyor of Works/Assistant Engineer happened to be a feeder cadre to the promotional post of the Executive Engineer, as per the Recruitment Rules, then applicable.

3. The grievance raised by the petitioner in the present petition is that firstly the order dated 6.4.1987 conferring dual charge on the petitioner disentitled the respondent to claim any monetary benefits to hold the said

-dual charge on the post of Executive Engineer and secondly, the respondent did not carry the substantive post of Executive Engineer in terms of the said order dated 6.4.1987. Another grievance raised by the petitioner to assail the impugned order is that the issue with regard to grant of higher pay scale pertains to the period starting April 1987 to July 1988 and the respondent had raised this issue of higher pay scale corresponding to the period when he was holding dual charge for the first time i.e., after a gap of 19 years, i.e., in May 2006.

4. We have heard Ms. Anita Pandey, the learned counsel for the

petitioner as well as the respondent, who is present in person.

5. Ms. Anita Pandey, the learned counsel for the petitioner submits that the learned Central Administrative Tribunal has not even touched the issue of limitation although the same was specifically raised by the petitioner, of the respondent approaching the learned Central Administrative Tribunal after a gap of 19 years to claim the said higher pay scale for holding the dual charge. Another contention raised by the learned counsel for the petitioner is that the order dated 6.4.1987 itself stipulated that the petitioner will not be entitled to any monetary benefits for the said dual charge of discharging the duties of a higher post of Executive Engineer, Delhi Division II.

6. Respondent present in person on the other hand stands by the impugned order passed by the learned Central Administrative Tribunal. The same as per him is a well reasoned order warranting no interference by this Court in exercise of its writ jurisdiction. Respondent also submits that he had filed the O.A. before the CAT within the prescribed period of limitation as laid down under Section 21 of the Administrative Tribunals Act, 1985 as the claim of the appellant was finally dismissed by the petitioner vide impugned order dated 6-24.11.2008.

7. By the order dated 6th April 1987, the petitioner while being posted to function in the substantive capacity of Assistant Surveyor of Works (Electrical) Delhi Division-II was also given the dual charge of Executive Engineer (Electrical) Delhi Division II. It is not in dispute that the pay scales of the two posts were different as the post of Executive Engineer

(Elect.) was in the higher pay scale of Rs.3,000 - Rs.4,500 than the post of Assistant Surveyor of Works which was in the pay scale of Rs.2,000 - 3,500. It is also an admitted fact that the respondent was asked to shoulder the responsibility of the said higher post of Executive engineer in addition to carrying out his duties on the post of Assistant Surveyor of Works as well. The learned Tribunal found the respondent entitled for the emoluments in the higher pay scales during the period he had actually discharged the duties on the post of Executive engineer (Electrical) in an officiating capacity on the principal of 'quantum meruit'. In taking this view the learned Central Administrative Tribunal has placed reliance on many of its previous decisions on the subject and all such previous decisions drew strength from the authoritative decision of the Apex Court in the case of Selvaraj vs. Lt. Governor of Island, Port Blair & Ors., JT 1998 (4) SC 500.

8. In Selvaraj (supra) also, the Supreme Court was dealing with an officer who was given the charge to look after the duties of Secretary (Scouts) although he was regularly posted in the lower pay scale than the one attached to the post of Secretary (Scouts) and the view taken was that on the principle of quantum meruit the respondent authority should have paid the appellant as per the emoluments available in the higher pay scale during the time he actually worked on the said post, though in an officiating capacity. For better appreciation, the relevant portion of the said judgment is reproduced herein as under:-

"It is not in dispute that the appellant looked after the duties of Secretary (Scouts) from the date of the order

and his salary was to be drawn against the post of Secretary (Scouts) under GFR 77. Still he was not paid the said salary for the work done by him as Secretary (Scouts). It is of course true that the appellant was not regularly promoted to the said post. It is also true as stated in the counter-affidavit of Deputy Resident Commissioner, Andaman & Nicobar Administration that the appellant was regularly posted in the pay scale of Rs 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter. However, in our view, these averments in the counter will not change the real position. Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum meruit the respondents 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. This limited relief is required to be given to the appellant only on this ground.

The decision of the Central Administrative Tribunal rejecting iliac claim of the appellant to the aforesaid limited extent is therefore required to be set aside. The appeals are allowed to the limited extent that the respondents will be called upon to make available to the appellant the difference of salary in the time scale

of 1640-2900 during the period from 29-1-1992 to 19- 9 1995 during which time the appellant actually worked. It is made clear that the payment of the aforesaid difference amount of salary shall not be treated to amount to any promotion given to the appellant on the said post. It is only on the ground that he had actually worked, as such this relief is being given to him. The difference of salary as aforesaid shall be paid over to the appellant within eight weeks from today."

9. In the light of the aforesaid settled legal principles, we find no ground to interfere in the order passed by the learned Central Administrative Tribunal. The contention raised by the learned counsel for the petitioner that the negative stipulation in the office order dated 6 th April 1987, that the dual charge will not entitle the respondent to any monetary benefits, falls in the very face of FR-49, which really envisages that 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. Relevant portion of the FR-49 as has been reproduced by the respondent in his O.A., is referred as under:-

"FR 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 2 (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, 2 (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 39 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 2 (another post) or posts for a period exceeding 3 months, the

concurrence of the Ministry of Finance 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.8,000;

v. No additional pay shall be admissible to a Government servant who is appointed to hold current charge of the routine duties of 2 (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 allowance shall not exceed the total of the compensatory and sumptuary allowances attached to all the posts."

10. The learned Central Administrative Tribunal has also rightly held the said negative term in the office order dated 6th April 1987 as unreasonable as the same is in clear contravention of FR-49. On the limitation also, we find the contention raised by the learned counsel for the petitioner is groundless and fallacious, once the decision by the respondent which was under challenge before the learned Central Administrative Tribunal, itself was taken on 6-24.11.2008.

11. Finding no merit in the present petition filed by the petitioner, the

same is hereby dismissed and the petitioner is directed to comply with the directions given by the learned Central Administrative Tribunal in its order dated 10.01.2012 within a period of four weeks from the date of this order.

12. In the light of the aforesaid, the present petition stands disposed of.

KAILASH GAMBHIR, J

I.S.MEHTA, J JANUARY 05, 2015 pkb