UNION OF INDIA Vs. RADHELAL GOUD

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India, the petitioners have called in question the order dated 12-3-2008 passed in O.A. No. 793/2007 by the Central Administrative Tribunal, Bench at Jabalpur (hereinafter referred to as the Tribunal for brevity). It is contended that the Original Application filed by the respondent was wrongly allowed directing fixation of the pay of the respondent in the higher pay scale, treating it as an appointment to a post carrying higher responsibility and pay him the arrears and pensionary benefits based on such fixation. It is contended that the respondent was only given the charge of the next higher post, since he has discharged the duty of the said post, he was entitled to grant of benefit of pay of the said post, but was not entitled to get the benefit of fixation of pensionary claims on the basis of such pay of the higher post and to that extent the order passed by the learned Tribunal is bad and is liable to be set aside. Hence, this writ petition is required to be filed. Briefly stated facts of the case are that the respondent was working as Head Sorting Assistant. While discharging the duty as such, he was posted as officiating Head Record Officer vide order dated 20-1-2006. However, since the pay of the post of Head Record Officer was not granted to the respondent, he made an approach to the Tribunal by way of filing Original Application No. 917/2006. The said Original Application was disposed of vide order dated 20-2-2007 by the Tribunal directing the petitioners herein to consider and decide the representation of the respondent by passing a reasoned and speaking order within three months. The representation of the respondent was decided by the petitioner on 13/16-4-2007 and since the same was rejected, the Original Application No. 793/2007 was filed by the respondent seeking a direction against the petitioners to pay the salary to the respondent in the pay scale of Rs. 6500-10,500/- with effect from 20-1-2006 to 31-7-2006. The respondent in fact had attained the age of superannuation and had retired on 31-7-2006. A further prayer was made by the respondent for refixation of his pensionary claim on the basis of refixation of his salary in the higher post.

(2.) Such a claim made by the respondent was opposed by the petitioners stating that the recruitment Rules prescribed promotion on the higher post and since the respondent was not selected for promotion, mere officiating working of the respondent was not enough for grant of pay of the higher post. It was contended that since the respondent was not substantively holding the post of Head Record Officer which falls within the cadre of higher service Grade-I, the respondent was not entitled to the pay of the said post and was also not entitled to get the pensionary benefits fixed on the basis of such higher pay scale.

(3.) After hearing learned counsel for the parties at length, the Tribunal came to the conclusion that once the respondent was made to officiate on a post carrying higher responsibility and he actually discharged the duties of the higher post he was entitled to salary attached to the higher post. Merc payment of the salary of the higher post will not amount to a regular promotion on the said post if on account of officiating working on the higher post such salary of the higher post is paid. Relying on the decisions rendered by the Apex Court in the case of Selva Raj vs. Lt. Governor of Island, Port Blair and others, 1999 AIR(SC) 838 and in the case of Dwarika Prasad Tiwari vs. M.P. State Road Transport Corporation and another, 2002 SCC(L&S) 9, the Tribunal reached to the conclusion that the respondent was entitled to the salary of the post on which he was made to officiate and, accordingly, if he has retired from the services, while working on the higher post, he would be entitled to grant of pensionary benefits only on the basis of calculation to be done taking into account the salary of the higher post. In view of this finding, the Original Application of the respondent was allowed, against which order this writ petition is filed.