Dr. Geeta Jain vs State Of Uttarakhand
2022 Latest Caselaw 587 UK

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL

                        Writ Petition (SB) No. 447 of 2014

Dr. Geeta Jain
and others.                                                        .................Petitioners.

                                            -Versus-

State of Uttarakhand
and others.                                                           .........Respondents.
Present:
Shri Alok Mehra, learned counsel for the petitioners.
Shri Anil Bisht, learned Addl. CSC for the State of Uttarakhand.



                                       With
                        Writ Petition (SB) No. 448 of 2014

Dr. Ajay Kumar Sinha
and others.                                                        .................Petitioners.

                                            -Versus-

State of Uttarakhand
and others.                                                           .........Respondents.
Present:
Shri Alok Mehra, learned counsel for the petitioners.
Shri Anil Bisht, learned Addl. CSC for the State of Uttarakhand.


                  Date of hearing and judgment : 07.03.2022

Coram:
Sri Sanjaya Kumar Mishra, ACJ.
Sri Alok Kumar Verma, J.

Upon hearing the learned counsel for the parties, the Court made following judgment (Per Sri Sanjaya Kumar Mishra, ACJ)

1. Common questions of facts and law are involved in both the writ petitions, therefore, with the consent of learned counsel for the parties, both the petitions are heard together and disposed of by this common judgment.

2. Petitioners, in Writ Petition (SB) No. 447 of 2014, who are working as Professor in the Sushila Tiwari Medical College, have prayed for the following reliefs:

"i. Declare denial of salary for the promoted post of Professor to the petitioners even after taking work of a higher post from them, as arbitrary and illegal.

ii. Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 to pay salary for the post of Professor to the petitioners in Pay Band - 4 Rs. 37400 - 67000/- with Grade Pay Rs. 8900/- from the date of their joining on the promoted post and to continue to pay salary in Pay Band - 4 to the petitioners till they discharge duties of the post of Professor.

iii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to release the entire arrears / difference of salary from the date of joining of the petitioners on the post of Professor with a further direction upon respondent no. 1 to pay interest on the delayed payment of the said amount."

3. Similar prayer is made by the petitioners in Writ Petition No. 448 of 2014 but they are demanding pay for the post of Associate Professor in Pay Band - 4 with grade pay Rs. 8700.

4. This is brought to our notice that the question - whether petitioners shall get higher pay scale, when they are being promoted in officiating capacity to the post of Professor (in WPSB No. 447 of 2014) and Associate Professsor in (WPSB No. 448 of 2014), is no more res integra. The coordinate Bench of this Court in Writ Petition (SB) No. 443 of 2012 has examined this question and has given a categorical finding vide judgment dated 03.03.2014. We find it appropriate to quote the words used by the Coordinate Bench of this Court:

"5. A careful perusal of the record shows that all the petitioners were having all eligibility criterion under the qualification to be promoted to the post of Associate Professor. While making such promotion, it was nowhere a condition or that they were forewarned that such promotions are temporary or only officiating in nature. On the other hand, the minutes of the meeting dated 20.10.2010, on which the petitioners are relying heavily clearly shows that, inter alia, the promotion to the post of Associate Professor is a post which carries pay scale of Rs.14300-18400. In such circumstances, once this was done, there was no reason for the respondents to deny such salary to the petitioners, even if it is presumed for the sake of argument that their promotion is only temporary.

6. Learned Chief Standing Counsel who appears in this matter on behalf of the respondents and has also filed a detailed counter affidavit in this case, on the other hand, urges this Court that it was clearly spelt out in the promotion order that their promotion is purely officiating and temporary and they shall not be given any service benefit merely because of this condition.

7. Learned counsel for the petitioners placed reliance on Rule 30 of the Financial Hand Book, which reads as under:-

"30. Pay of officiating Government servants:

(1) Subject to the provisions of Chapter VI, a Government servant who is appointed

to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post, unless the post in which the appointment is made in an officiating capacity belongs to a Selection Grade of a service, or, unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, on which he holds a lien or would hold a lien had his lien not been suspended:

Provided that the Government, subject to such conditions as they may prescribe, may exempt from the operation of this Rule any service which is not organized on a time-scale basis and in which the system of officiating promotion from grade is in force.

Provided further that Government may specify posts outside the ordinary line of a service the holders of which may, notwithstanding the provisions of this Rule and subject to such conditions as the Government may prescribe, be given any officiating promotion in the cadre of the service which the authority competent to order promotion may decide, and may thereupon be granted the same pay (whether with or without any special pay attached to such posts) as they would have received if still in the ordinary line."

8. Undoubtedly, the duties of Associate Professor is of a greater nature than that of an Assistant Professor, as they have to teach post graduate classes. Therefore, Rule 30 of the Financial Hand Book also comes in favour of the petitioners.

9. From the pleadings of the respondents, though the promotion to the post of Associate Professor may not be a regular promotion nor can the petitioners

claim any benefit for the services rendered as Associate Professor, yet having said this, it is also clear that the petitioners ever since their promotion are discharging the duties of Associate Professor and not that of Assistant Professor. They have been taking post graduate classes which is admitted to the respondents. Moreover, in the minutes dated 20.10.2010, it is absolutely clear that the petitioners were promoted on the post which carries higher pay scale. Therefore, the denial of such pay scale to the petitioners is not justified.

9. The State of Uttarakhand assailed that order passed by the Coordinate Bench of this Court in Special Leave to Appeal No. 16720 of 2014 before the Hon'ble Supreme Court and the Hon'ble Supreme Court was pleased to dismiss the Special Leave to Appeal vide order dated 21.07.2014 observing that there is no merit in it. However, contending that by virtue of Rule 22B of the Fundamental Rules, the petitioners are not entitled to get higher pay scale and earlier order should not be followed. For that purpose relevant portion of Rules 22B and 22-C are quoted below:

"22-B (1) Notwithstanding anything contained in these rules, where a government servant holding a post in a substantive, temporary or officiating capacity is promoted or appointed either in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay arrived at by notionally increasing his pay in respect of the

lower post by one increment at the stage at which such pay has accrued:

xxxxx

Provided also that where a government servant is immediately before his promotion or appointment to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by an amount equal to the last increment in the time-scale of the lower post:

xxxxx

22-C Notwithstanding anything contained in these rules, where a Government servant who does not hold a lien on any permanent post is appointed either in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of lesser or same importance than those attached to the post held by him, and, in cases not covered by Fundamental Rules, 22, 22-B or 26(c), his initial pay in the time scale of the lower or the equivalent post shall be fixed at the stage arrived at by allowing over the minimum of the time-scale of such post one increment for each completed year of service rendered in the previous post provided that the pay so fixed shall not exceed-

(a) the pay last drawn in the previous post, and

(b) the maximum of the scale of the new post:

Provided further that where the new post is in an identical time-scale of pay, the pay of such Government servant shall be fixed at the stage last drawn in the

previous post and service rendered in it at that stage shall count for increments in the scale of pay of the new post:

Provided further that where the new post is in an equivalent scale of pay, pay of such Government servant shall be fixed at the stage next below the pay last drawn and the difference will be made good by the grant of a personal pay under Fundamental Rule 9 (23) (b) which will be absorbed in future increments."

10. Thus, by applying this Rule, the petitioners are entitled to get the pay attached to the higher post because by officiating the post of Associate Professor or Professor, as the case may be, petitioners are required to discharge higher functions and responsibilities. Hence, we find sufficient merits in both the writ petitions. Both the writ petitions are allowed. Respondents are directed to pay the salary to the petitioners for the post of Professor (in WPSB No. 447 of 2014) and Associate Professor (in WPSB No. 448 of 2014) from the date of their joining on the promoted post along with arrears within a period of three months from today.

11. Let a copy of this judgment be placed in the connected petition.

12. Urgent copy be supplied to the learned counsel for the parties, as per Rules.

(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra) Acting Chief Justice.

SKS