1. Heard Sri R.U.Pandey, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.
2. Admittedly, petitioner has never been recruited on the post of Clerk, no process of recruitment in accordance with rules has undergone. In these circumstances none of the relief sought by the petitioner can be granted.
3. Learned counsel for the petitioner placed reliance on a judgment of Apex Count in Selvaraj Vs. Lt. Governor of Island, Port Blair & Ors., (1998) 4 SCC 291 and a Single Judge decision of this Court in Writ Petition No.64399 of 2009 (Bhagwat Prasad Pandey Vs. State of U.P. & Ors.) decided on 27.11.2009 and said that if the petitioner is working on higher post he must be paid salary. However, the said judgment will render no help to the petitioner.
4. It is not the case of the petitioner that he has been ever appointed on the post of Clerk. Even if he is discharging duties, which are amount to be discharged by a Clerk, that itself would not entitle him to claim salary payable to a person, who has been appointed as Clerk, and, thereafter, entitle for payment of salary accordingly. No letter of appointment of the petitioner appointing him even as Clerk has been placed on record. Learned counsel for the petitioner, even otherwise, could not show any provision under which the respondents could have appointed the petitioner Clerk. Whether a person, who is allowed to look after the duties of the higher post can be treated to be a person appointed on the post in order to claim salary is a question considered 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 and this Court observed 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Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post.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. The question no. 1 is answered and decided accordingly."
5. Neither any regulation nor any material has been shown to this Court to fortify that the petitioner was ever appointed in accordance with the procedure prescribed for appointment for the post of Clerk. The question where no appointment whatsoever has been made, whether an incumbent can be directed to be paid salary of the higher post though he is substantively holding another post was also considered at length by this Court in Daljeet Singh Vs. State of U.P. & others 2007 (7) ADJ 117 and negatived therein.
6. In Selva Raj (supra), the case relied by the petitioner, the Court found that when the petitioner (Selva Raj) was allowed to discharge duties of Secretary (Scouts), his salary was also drawn against the post of Secretary (Scouts) under GPR 77, yet he was not paid the salary. In these factual circumstances, the Apex Court found when he was allowed to work on a higher post, though in temporary and officiating capacity and his salary was drawn during that time against the post of Secretary (Scouts), on the principle of quantum merit, the respondents-authorities should have paid him the emoluments of the post of Secretary (Scouts). In para 4 the Apex Court further clarified that the payment made under the order of the Apex Court shall not be treated as if any promotion was given to the appellant Selva Raj on the post of Secretary (Scouts). Besides, the order by which he was posted is also quoted in the judgment of the Apex Court and it shows that by the order passed by the competent authority, Selva Raj was specifically attached to look after the duties of Secretary (Scouts) with a further condition that his salary shall be drawn against the post of Secretary (Scouts) under GPR 77. In the case in hand there is no order of appointment of the petitioner in any manner. He was never appointed at any point of time on the post of Clerk.
7. In the case of Bhagwat Prasad Pandey (supra), this Court as such has not decided any issue but has referred to the earlier judgment of this Court in Narmedeshar Misra Vs. District Inspector of Schools, Deoria & others 1982 UPLBEC 171 which has been considered by the Division Bench (in which I was also a member) in Daljeet Singh (supra) and in view of the discussion made therein, I do not find that the same, in any manner, help the petitioner.
8. The decision of Selvaraj (supra) has also been considered by a Division Bench of this Court in Civil Misc. Writ Petition No.19248 of 2004 Vs. Central Administrative Tribunal, Allahabad & Anr., decided on 23.04.2010 and it has been distinguished by observing as under:
"In Selva Raj (supra), the Supreme Court found that the petitioner was required to work on officiating basis by a specific order, which also provided that his pay shall be drawn on the higher post and thus the respondent authorities should have paid him the emoluments available for the higher post. In the present case, there is no specific order requiring the applicant-Pyare Lal to work as Shunting Master nor there is any office order or direction to allow the higher pay scale to the applicant. The applicant was entitled to and has been paid allowance whenever he was required to work as Shunting Master/Jamadar."
9. In the present case also, I do not find that any specific order has been passed requiring the petitioner to work as Clerk and/or entitling him to pay salary on the post of Clerk. Therefore, the aforesaid observations made by Division Bench equally apply to the present case also and would negate the claim of the petitioner.
10. The petitioner also claims that some other persons similarly placed with the petitioner are being paid salary and scale applicable to the post of Clerk but could not tell as to under which statutory provision it is permissible. If something has been done wrongly no parity can be claimed. It is well settled that if a wrong has been committed by the respondents in respect to some other persons, that will not provide a cause of action to claim parity on the ground of equal treatment since the equality in law under Article 14 is applicable for claiming parity in respect to legal and authorized acts. Two wrongs will not make one right. The Apex Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 5565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 has held that Article 14 has no application in such cases.
11. The writ petition, therefore, lacks merit. Dismissed.
12. Interim order, if any, stands vacated.
Order Date :- 21.8.2014 KA