MALI RAM Vs. STATE

JUDGEMENT

(1.) THIS petition is directed by the petitioner an employee of the Office of the Collector, Jhunjhunu under Article 226 of the Constitution and the prayer has been made therein for quashing and setting aside of the orders Annexure-5 and 9 of the respondents. The second prayer made is for direction to the respondents to appoint the petitioner on the post of L. D. C. with effect from 29. 4. 74, the date on which his junior was appointed on this post. The next prayer has been to restrain the respondent from making any recovery from the petitioner against the alleged excess amount of salary paid to him.

(2.) THE facts of the case in brief are that the petitioner entered in service of respondent No. 2 when he was appointed as Class-IV under the order dated 26. 6. 1970. THE petitioner was promoted to the post of L. D. C. under the order dated 15. 4. 1978 of the respondent No. 2.

(3.) THE matter may yet to be examined from another angle. THE petitioner worked on the post of L. D. C. and the respondents took from him the work of LDC and by virtue of the principles of equal pay for equal work he could have been given the minimum of the pay scale of L. D. C. for this period i. e. 1974 to 18. 9. 78. It is not in dispute that the respondents have taken the work of L. D. C. from the petitioner for the period from the date of his promotion upto 18. 9. 78. It is also not the case of the respondents that on the day on which the petitioner was promoted to the post of L. D. C. , the substantive post was not available. From the facts of this case, it can reasonably be inferred that on the date on which the petitioner was appointed on the post of L. D. C. substantive/permanent post was available. In view of this fact on which there is no dispute when the petitioner worked on this post under the order of respondent No. 2 he is entitled for the minimum of the pay scale with allowance of the post of LDC and that what have been given to the petitioner etc. THE reference here may have to the provisions of sub-rule (3) of Rule 26 of the Rules, 1957 which reads as under:- " (3) Urgent Temporary Appointment- (i) A vacancy in the Service cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the (Authority competent to make appointments) as the case may be, by appointing in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direction recruitment to the Service, where such direct recruitment has been provided under the provisions of these Rules. Provided that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary, and shall be terminated immediately on its refusal to concur. "