Court No. - 34
Case :- WRIT - A No. - 22177 of 2013
Petitioner :- Sri Krishn Agrawal Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Shachindra Mishra Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Bachchoo Lal,J.
1. Rejoinder affidavit filed today is taken on record.
2. This writ petition has been filed against order dated 14.09.2011 passed by respondent 2, Director Treasury U.P., rejecting claim of petitioner for grant of selection grade and promotional pay-scale pursuant to Government Order dated 2.12.2000.
3. By office order dated 27.1.1988 passed by Senior Treasury Officer, Allahabad, Sri Chandra Nath Trivedi, Chief Cashier was directed to hand over charge of Chief Cashier to petitioner in compliance of orders of Commissioner, Allahabad Division, Allahabad and District Magistrate, Allahabad.
4. Commissioner Allahabad Division, Allahabad vide letter dated 06.08.1988 informed that petitioner has been authorized to deposit security. By said letter, approval for payment of salary of petitioner on the post of Chief Cashier was also accorded. Petitioner is claiming benefit of selection grade and other benefits in accordance with Government Order dated 2.12.2000. He has also sought a writ of mandamus for arrears of salary with interest.
5. Learned counsel for petitioner submits that since petitioner was discharging duties as Chief Cashier from 27.1.1988, he is entitled to pay scale and other benefits in consonance with Government Order dated 2.12.2000 w.e.f. 27.1.1988. However, on the basis of record, competent authority found that petitioner was not actually appointed as Chief Cashier on 27.1.1988. He was simply given charge of Chief Cashier since Sri Chandra Nath Trivedi was suspended, as is evident from following extract of letter of Chief Treasury Officer dated 27.1.1988 (Annexure 2 to writ petition) addressed to Chandra Nath Trivedi, Chief Cashier.
ßJh pUnz ukFk f=osnh] eq[; jksdfM+;k ¼fuyfEcr½ vk;qDr] bykgkckn e.My] bykgkckn ds vkns'k la[;k 1829 ls 32@ukS&92&1985 fnukad 25-1-88 ds vuqikyu esa ftykf/kdkjh bykgkckn ds vkns'k fnukad 27-1-88 ds vUrxZr vkidks funsZ'k fn;k x;k gS fd eq[; jksdfM+;k dk dk;ZHkkj vki rRdky Jh Jh d`".k vxzoky] mi jksdfM+;k dks lksai nsaA ujsUnz Hkw"k.k ofj"B dks"kkf/kdkjh bykgkcknß “Shri Chandra Nath Trivedi, Head Cashier (Under Suspension) In compliance with Order No. 1829 to 32 / 9-92- 1985 dated 25.1.88 of the Commissioner, Allahabad Division, Allahabad, and vide order of District Magistrate, Allahabad dated 27.1.88. You are directed to immediately handover charge of Head Cashier to Sri Sri Krishna Agrawal, Deputy Cashier.
Narendra Bhusan Senior Treasurer Allahabad”
(English Translation by Court)
6. From aforesaid, it is clear that petitioner was only required to discharge duties of Chief Cashier (Mukhya Rokadiya). We find no order appointing petitioner on the post of Chief Cashier at any point of time, nor any such letter of appointment could be shown by petitioner, despite repeated query.
7. Mere continuance of petitioner to discharge duties of a post, in absence of appointment to such post does not confer any right of salary of such post.
8. This aspect has been considered in detail by a Division Bench of this Court in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools Region- I, Meerut & others 2007 (2)ESC 987 where this Court held as under:
".................The aforesaid documents cemented the conclusion that the Petitioner-Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. In other words, it can be said that the Petitioner- Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed over. In State of Haryana Vs. S.M. Sharma AIR 1993 SC 2273, the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer.
A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under:-
"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion."
It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it.
In this view of the matter, the Petitioner-Appellant has miserably failed to show that the management ever appointed her as officiating Principal of the College and, therefore, we hold that she was only allowed to discharge duties of the office of officiating Principal, but was never appointed/promoted by the management as officiating Principal of the College."
9. In view of settled principal of law, merely on the basis of discharging duty as Chief Cashier from 27.1.1988 petitioner cannot claim any right or entitlement to regularization or payment of salary etc. In absence of valid appointment having been made in accordance with law, on the said post, no such relief can be granted.
10. Writ petition lacks merit and is, accordingly, dismissed.
Order Date :- 27.4.2018 Siddhant Sahu