STATE OF UTTARAKHAND Vs. HARI SINGH

JUDGEMENT

(1.) THERE has been 22 days delay in preferring the present Special Appeal. We have considered the averments made in the application (CLMA No. 5765 of 2012) for condonation of delay in preferring the appeal and being satisfied with the reasons furnished therein, allow the same and thereby condone the delay in preferring the present Special Appeal.

(2.) THERE appears to be no dispute that in the year 1981, respondent writ petitioner was appointed as a Truck Cleaner in the Work Charge Establishment of the State. It appears that there is also no dispute that the respondent writ petitioner was regularized as Truck Cleaner in the year 1989. At the same time, there is no dispute that on 29th November, 1993, respondent writ petitioner was asked to discharge the duties of Truck Driver and, since then, he had been discharging the duties of Truck Driver. He is still doing so. It is not in dispute that the post of a Truck Cleaner is an inferior post than the post of Truck Driver and, accordingly, a Truck Cleaner is entitled to a lesser pay than a Truck Driver. Respondent writ petitioner discharged the duties of a superior post of Truck Driver since 29th November, 1993, but was paid the remuneration payable for an inferior post as that of Truck Cleaner. He, accordingly, filed a writ petition on 23rd October, 2008. On the writ petition, an order has been passed to create a post of Driver and to regularize the respondent writ petitioner on the said post. A further direction has been issued to pay to the respondent writ petitioner salaries payable to Truck Drivers from 23rd October, 2008. The present appeal is principally against that part of the judgment, where a direction has been issued to regularize the respondent writ petitioner in the post of Truck Driver to be created.

(3.) THERE is no cross objection to the judgment and order under appeal. At the same time, there is no dispute that Fundamental Rules (Financial Hand Book, Volume -II) apply to the respondent writ petitioner. Rule 49 thereof provides that if a person is asked to discharge the duties of a superior post, until such time he will be discharging such duties, he will be entitled to salaries payable for the superior post. The order dated 29th November, 1993 did not hold out that the respondent writ petitioner will not be entitled to remuneration payable to Driver. Therefore, respondent writ petitioner, in accordance with the Rules, became entitled to remuneration payable to the Drivers right from 29th November, 1993. That right upto 22nd October, 2008 has been denied to the respondent writ petitioner by the judgment and order under appeal in view of his regularization on the post to be created.