Afr Laxman Kumar Dhal vs State Of Orissa And Others
2023 Latest Caselaw 207 Ori

                     ORISSA HIGH COURT: CUTTACK


                       WPC (OAC) NO. 3686 OF 2000

          In the matter of an application under Articles 226 and 227
          of the Constitution of India.
                                  ---------------

AFR Laxman Kumar Dhal ..... Petitioner

-Versus-

State of Orissa and others ..... Opp. Parties

For Petitioner : M/s. D. Pattnaik, M.K. Khuntia, P.K. Dhal & N.S. Panda, Advocates

For Opp. Parties: Mr. A.K. Mishra, Addl. Government Advocate [O.Ps.1 & 2]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

DECIDED ON : 05.01.2023

DR. B.R. SARANGI, J. The petitioner, by means of this writ

petition, seeks to issue direction to the opposite parties to

give him appointment by way promotion to the post of

Office Superintendent with effect from 01.10.2000 and // 2 //

grant all consequential monetary and service benefits

w.e.f. 01.03.2000.

2. The factual matrix of the case, in precise, is

that the petitioner was appointed as a Lower Division

Clerk in Ravenshaw College, Cuttack on 21.12.1964. He

was promoted to the post of Senior Clerk on 01.03.1978.

On 10.12.1990, he was appointed to the post of Cashier

and, thereafter, on 11.08.1991, he was promoted to the

post of Junior Accountant and on 01.06.1997 he was

promoted to the post of Senior Assistant in Ravenshaw

College, Cuttack.

2.1 The petitioner's service was being governed

under the provisions of the Orissa Ministerial Service

Rules, 1963, as amended from time to time.

Subsequently, the Government decided to prepare a

separate cadre and accordingly framed the Orissa

Government Colleges Ministerial Services (Method of

Recruitment & Conditions of Service) Rules, 1999, which

was published in the Orissa Gazettee on 08.09.1999, the // 3 //

date from which the same came into force. Though it

required creation of a common cadre, but the same was

not prepared. The petitioner, while working as Senior

Assistant in Ravenshaw College, Cuttack, one Kartik

Chandra Das was serving as Office Superintendent and

Gopal Krishna Mishra was serving as Head Clerk. In the

meantime, Kartik Chandra Das, who was holding the post

of Office Superintendent retired from service on

29.02.2000. Therefore, opposite party no.3 requested

opposite party no.2 to accord necessary permission for the

promotion of senior most person of the establishment

holding the post of Head Clerk as Office Superintendent

and the next senior most person (the petitioner herein) as

Head Clerk, since the common cadre was not framed by

then.

2.2 The Director, Higher Education, after receiving

the letter under Annexure-2 dated 28.02.2000 issued by

opposite party no.3, directed that the Head Clerk of

Ravenshaw College will remain in charge of Office // 4 //

Superintendent temporarily till a regular appointment is

made against the post in addition to his own duty, as the

common gradation list was not prepared. Consequentially,

the petitioner made a representation to the authority with

regard to his promotion to the post of Head Clerk, as he

was discharging the duty and responsibility of the post of

Head Clerk in addition to his own duty as Senior

Assistant, but the opposite party-authorities turned a deaf

ear.

2.3 As the opposite party no.2 did not take any

steps to fill up the post of Head Clerk and Office

Superintendent in Ravenshaw College, Cuttack, the

opposite party no.3, vide letter dated 21.09.2000 under

Annexure-4, again requested to opposite party no.2 that

the petitioner may be permitted to take over the charge of

the Office Superintendent from Sri G.K. Mishra by

appointing him to hold temporarily or to officiate the posts

of Head Clerk and Office Superintendent of Ravenshaw

College, Cuttack with effect from 01.10.2000, in addition // 5 //

to his normal duties as Senior Assistant. Since opposite

party no.2, after receiving the letter of opposite party no.3

as at Annexure-4, remained silent over the matter, the

opposite party no.3, vide office order dated 29.09.2000,

directed the petitioner to take over the charge of Office

Superintendent and accordingly the petitioner on

30.09.2000 took over the charge of Office Superintendent

and continued to discharge his duties to the utmost

satisfaction of the authorities. The petitioner should have

been promoted to the post of Head Clerk w.e.f. 01.03.2000

and thereafter to the post of Office Superintendent w.e.f.

01.10.2000, but the opposite parties in the name of the

Orissa Government Colleges Ministerial Services (Method

of Recruitment & Conditions of Service) Rules, 1999 (for

short "Rules, 1999" have deprived the petitioner of getting

such benefits. Hence, this writ petition.

3. Mr. P.K. Dhal, learned counsel appearing for

the petitioner contended that for holding the higher post,

the petitioner is entitled to get higher scale of pay.

// 6 //

Accordingly, his pensionary benefit should be re-fixed. To

substantiate his contentions, he has relied upon the

judgment of the apex Court in Selva Raj v. Lt. Governor

of Island, Port Blair, AIR 1999 SC 838 and the judgment

of this Court in the case of Dillip Kumar Sahoo v. State

of Orissa & Ors, 2008 (I) OLR 162.

4. Mr. A.K. Mishra, learned Additional

Government Advocate appearing for the State-opposite

parties, per contra, disputed the factual position and

contended that the petitioner was never allowed to

discharge the duty and responsibility of the higher post by

following the due procedure prescribed under the Rules,

1999. Once the petitioner has not been given promotion,

he cannot claim the benefit of higher scale of pay and re-

fixation of pensionary benefit. As such, fixation of scale of

pay to the post of Head Clerk cannot be made automatic.

It is contended that even though the petitioner has

discharged his duty as Head Clerk in addition to his own

duty, he may have got higher remuneration, but he is not // 7 //

entitled to be promoted to the said post without following

due procedure.

5. This Court heard Mr. P.K. Dhal, learned

counsel appearing for the petitioner and Mr. A.K. Mishra,

learned Additional Government Advocate appearing for the

State-opposite parties by hybrid mode and perused the

records. Pleadings having been exchanged between the

parties and with the consent of the learned counsel for the

parties, this writ petition is being disposed of finally at the

stage of admission.

6. On the basis of the factual matrix, as delineated

above, at the outset, it is to be decided whether the

petitioner is entitled to get the relief sought in the writ

petition or not.

7. As a matter of fact, the petitioner has sought

the following reliefs:-

"Under the circumstances it is prayed that the Hon'ble Tribunal be pleased to direct the Opp. Parties to give appointment/promotion to the applicant in the post of Office Superintendent with effect from 1.10.2000. And direct the respondents // 8 //

to grant all consequential and monetary and service benefits from 1.3.2000 towards.

And further pass appropriate order

(s)/directions as this Hon'ble Tribunal thinks fit and proper".

8. There is no doubt that the petitioner was

allowed to discharge his duty as Head Clerk in addition to

his own duty, pursuant to letter dated 21.09.2000 under

Annexure-9. It is the admitted fact that due to retirement

of Gopal Krishna Mishra, the petitioner was holding the

post of Head Clerk and remained in-charge of Office

Superintendent in addition to his own duty. As per the

provisions contained in Rule-8(1) of the Rules, 1999,

which came into force w.e.f. 08.09.1999, it has been

provided that a gradation list of ministerial employees in a

particular grade shall be prepared by the D.H.E. (O).

Besides this, it has also been provided in Rule 2(A) that

the "Appointing Authority" means Director Higher

Education, Orissa and in Rule 13(1) the power has been

vested on the appointing authority to transfer the

ministerial employees of Government Colleges borne on

the common cadre from one College to another College as // 9 //

and when deemed necessary. As the gradation list of

ministerial staff, i.e., Office Superintendent, Head Clerk,

Senior Clerk and Junior Clerks have been finalized and

notified, but not implemented.

9. In Selva Raj (supra), the apex Court held as

follows:-

"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 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 // 10 //

scale of 1640-2900. Consequently, on the principle of quantum merit 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 promote. This limited relief required to be given to the appellant only on this ground."

10. In Dillip Kumar Sahoo (supra) at Para-5 of the

judgment, this Court held as under:-

"5. In this factual background, let me examine the claim of the petitioners. Admittedly, the petitioners were discharging their duties as Court Masters, which have been included in the cadre of Superintendent, Level-II carrying the higher scale. It is well settled in law that if an employee is ordered to work in a higher post though temporarily and in an officiating capacity, he is entitled to the salary attached to the higher post, as payment of higher salary shall not amount to promotion."

11. An additional affidavit has been filed by the

petitioner wherein it has been stated that one similarly

situated person, namely, Gopal Krushna Mishra, who held

the post of Office Superintendent in-charge and from

whom the petitioner had taken the charge, had

approached the State Administrative Tribunal by filing // 11 //

O.A. No. 3465 (C) of 2000, which was disposed of vide

order dated 08.04.2010, wherein the tribunal held as

under:-

"Apparently, the applicant has discharged the functions of a higher post in addition to his own duties in pursuance of orders at Annexure

-2 with effect from 4.09.2000 and the aforesaid order has been withdrawn on 16.10.2000 i.e only after retirement of the applicant vide Annexure-3. Hence, as the applicant has discharged the functions of a higher post, the applicant will be entitled to the salary benefits accruing on that account in accordance with the decision of the Hon'ble Apex Court in the case of Selvaraj Vrs. Lt. Governor, Islands, Port Blair reported in A.I.R 1999 S.C.838 and Dillip Kumar Sahu Vrs State of Orissa (2008(I) OLR- 162 of the Hon'ble Orissa High Court.

As such Annexure-3 and Annexure-4 stand quashed. The pay and other benefits of the applicant may be settled accordingly."

12. The order of the tribunal having not been

complied with, Gopal Krushna Mishra also filed C.P. No.

204 of 2011, pursuant to which the order passed by the

tribunal has been implemented. Therefore, in this

backdrop of law and taking into consideration the fact

that the petitioner had remained in-charge of the higher

post of Head Clerk w.e.f. 01.03.2000 and thereafter of the

post of Office Superintendent w.e.f. 01.10.2000 till his // 12 //

retirement, i.e., 31.01.2004 uninterruptedly, he is entitled

to get the scale of pay admissible to the higher post in

which he has discharged his duty. Meaning thereby, he is

entitled to get the scale of pay admissible to the post of

Head Clerk w.e.f. 01.03.2000 and thereafter the scale of

pay admissible to the post of Office Superintendent w.e.f.

01.10.2000 till his retirement, i.e., 31.01.2004. Even

though there was no order to the effect that the petitioner

was allowed to hold the higher post either on temporary or

officiating basis, but effectively he remained in-charge of

the higher post and discharged the duties and

responsibilities of the same till his retirement, i.e.,

31.01.2004.

13. It is of relevance to note that Code 45 of Orissa

Service Code deals with the term 'temporary post', which

means a post carrying a definite rate of pay and

sanctioned for a limited time.

14. The word 'temporary' otherwise means, lasting

for a time only; existing or continuing for a limited time;

// 13 //

not of long duration; nor permanent; transitory; changing;

lasting for a short time.

15. In Katyani Dayal v. Union of India, (1980) 3

SCC 245, while considering Rule-106 of Railway

Establishment Code, the apex Court held that the word

'temporary' in the expression Temporary Asst. Officer in

the note does not qualify the words Asst. Officer. It is not

proper to look at attended definition of Asst. Officer in

isolation and conclude that the expression 'Asst. Officer'

includes Temporary Asst. Officer because Temporary Asst.

Officer was also a gezetted Government servant who drew

the junior scale of pay.

16. This Court discussed the meaning of temporary

in the context that though the petitioner was allowed to

discharge the responsibility of higher post, it was not for a

temporary purpose rather he was allowed to discharge the

responsibility till his superannuation. Thereby, a right has

been accrued in favour of the petitioner to get the benefit // 14 //

of scale of pay admissible to the higher post in which he

has discharged the duty for a quite long period.

17. Similarly, the meaning of 'officiate' has been

defined in Code-31 of Orissa Service Code, which reads as

under:-

"31. Officiate - A Government servant officiates in a post when he performs the duties of a post on which another person holds a lien. A Government servant may, however, be appointed to officiate in a vacant post on which no other person holds a lien by the authority competent to make a substantive appointment to the vacant post."

18. In Puroshotamlal Dingra v. Union of India,

AIR 1958 SC 36, the apex Court held as under:-

"An to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a notice of termination as agreed upon or as may be reasonable under the ordinary law. It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation or on // 15 //

an officiating basis, is from the very nature of such employment, is itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment under ordinary law of Master and Servant is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a Government service on probation or on officiating basis, the servant so appointed does not acquire any substantive right to the post and consequentially cannot complain any more than a private servant employed on probation or on an officiating basis can do if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period."

19. If the word 'officiating' would be taken into

consideration in literate form, it is acting in an official

capacity, filling a position temporarily.

20. In Yugraj Singh v. State of Punjab, 1968 SLR

363, the apex Court held that officiates means to perform

the duties of an office.

// 16 //

21. In A.K. Chatterjee v. South Eastern Railway,

1995 (1) SLR 500, the apex Court held that the word

'officiating' generally used when a servant having held one

post permanently is appointed to a post in a higher rank

but not permanently or substantively.

22. In Arun Kumar v. S.E. Railway, AIR 1985 SC

482, while considering Rule-312 of Railway Establishment

Manual, the apex Court held that the word 'officiating' is

generally used when a servant having held one post

permanently or substantively is appointed to a post in a

higher rank, but not permanently or substantively. The

word 'temporary' usually denotes a person appointed in

the Civil Service for the first time and the appointment is

not permanent but temporary for the time being, with no

right to the post.

23. But, in the present case, the materials available

on record clearly indicate that the petitioner was in-charge

of the posts of Head Clerk and Office Superintendent.

Meaning thereby, he was in-charge of the higher post and // 17 //

responsibility to conduct all the work, as a result, there

was overall control of the day to day affairs of the post. It

is also made clear that the petitioner was allowed to

continue in the higher post in addition to his own duty,

though it is not considered to be promotion but carrying

out the higher responsibility, therefore, the scale of pay

admissible to the post should be extended to him. This

position remains no more res integra, in view of the law as

discussed above.

24. Considering the facts and law, as discussed

above, this Court is of the considered opinion that the

petitioner is entitled to get the scale of pay admissible to

the post of Head Clerk w.e.f. 01.03.2000 and thereafter to

the post of Office Superintendent w.e.f. 01.10.2000 till his

retirement, i.e., 31.01.2004. Thereby, the opposite parties

are directed to calculate the differential amount, which

the petitioner is entitled to, and extend such benefit to the

petitioner, and that his pension be re-fixed on the basis of

the last pay drawn in the post of Office Superintendent // 18 //

and revised pension admissible to the petitioner be

extended in favour of the petitioner as expeditiously as

possible, preferably within a period of three months from

the date of production of certified copy of this judgment.

25. In the result, the writ petition stands allowed.

However, there shall be no order as to costs.

..............................

DR. B.R. SARANGI, JUDGE

Orissa High Court, Cuttack The 5th January, 2023, Alok