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IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (S) No. 2032 of 2020

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1.The Union of India through the Director General,

Department of Posts, Dak Bhawan, Sansad Marg, P.O. & P.S.

Sansad Marg, New Delhi-110001.

2. The Chief Postmaster, General, Jharkhand Circle, Ranchi,

P.O. Doranda, P.S. Doranda, Ranchi-2.

3. The Director of Accounts (Postal), Patna, P.O. G.P.O.

Patna, P.S. Kotwali Thana, Patna, Bihar.

4. The Senior Accounts Officers, Admin. I, Patna. P.O. G.P.O.

Patna, P.S. Kotwali Thana, Patna, Bihar.

Petitioner nos. 1 to 4 duly represented Assistant

Post Master General, in the Office of Chief Post Master

General, Jharkhand Circle, P.O. Doranda, P.S. Doranda,

Ranchi-2.

… … Petitioners

Versus

Ratan Kumar Kapoor, S/o Late Triloki Nath Kapoor, Resident

of D/141, P.C. Colony, Kankarbagh, Working as Assistant

Accounts Officer I.C.O (SB), O/o the Chief Postmaster

General, Jharkhand Circle, P.O. Doranda, P.S. Doranda,

Ranchi-2.

Presently residing at: C/o- Sri Ashok Kumar, Assistant

Accounts Officer, Gauri Shankar Nagar, P.O. & P.S. Doranda,

Ranchi. … … Applicant/Respondent

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

HON’BLE MR. JUSTICE ARUN KUMAR RAI

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For the Petitioners : Mr. Anil Kumar, ASGI

Mr. Abhijeet Kumar Singh, Adv

For the Respondent : Mr. Sunil Kumar Mahto, Advocate

Mr. Kishore Kumar Mishra, Advocate

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Order No. 12: Dated 21

st

March, 2024

Per Sujit Narayan Prasad, J:

Prayer:

1. The instant writ petition has been filed under Article

226 of the Constitution of India directing against order dated

16.02.2018 passed by learned Central Administrative

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Tribunal, Patna Bench, Patna at Circuit Court, Ranchi in

O.A. No. 051/185/2016 whereby and whereunder while

allowing the Original Application, the writ petitioners, who

were respondents in Original Application, have been directed

to pay the difference of back wages/remuneration between

AO and Assistant Accounts Officer w.e.f. 11.01.2016 to the

date the applicant has performed duties of AO, ICO (SB),

Circle Office within a period of three months from the date of

receipt of copy of order.

Brief Facts of the case:

2. Brief facts of the case, as per the pleadings available on

record, reads as under:

3. The applicant, who was initially appointed in Postal

Department, was promoted to the post of Assistant Accounts

Officer (AAO) in PB-2 of Rs. 9300-34800 with Grade Pay of

Rs. 4800/- under SCF (10%) quota against the vacancy

earmarked for UR category w.e.f. 03.02.2015, vide office order

dated 17.03.2015 issued by the Assistant Chief Accounts

Officer Admn-1, Office of the Director of Accounts (Postal),

Patna G.P.O. Vide order dated 16.12.2015, the applicant was

transferred to Jharkhand Circle on the vacant post of A.O

ICO (SB) in the Office of Chief Post Master General,

Jharkhand Circle. Thereafter, through partial modification,

the revised terms and conditions, in connection with transfer

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of the applicant vide order dated 16.12.2015, were issued

vide corrigendum dated 17.12.2015, according to which, the

applicant was directed to look after the duties and post of AO

till further orders without any extra remuneration, however,

he was allowed to claim TA/DA as per admissible rules.

4. It is stated that the applicant took charge of the post of

Senior Accounts Officer on 11.01.2016. Thereafter, the

applicant was rendering his service uninterruptedly as Senior

Accounts Officer and as such, he was performing the duties

of Internal Financial Advisor (IFA) of the Chief Post Master

General, Jharkhand Circle. In this regard, various office

orders dated 25.04.2016, 3.06.2016 and 19.08.2016 are

relied upon by the applicant.

5. Pursuant thereto, the applicant submitted repeated

representations dated 16.2.2016, 10.3.2016 and 8.8.2016

requesting the competent authority for fixation of his pay and

Grade Pay of Rs. 5400/-, as he has been posted to the post of

AO/Senior AO, ICO (SB), Jharkhand Circle, and he has been

performing the duties of the post of AO cadre in obedience of

order dated 16/17.12.2015 of respondent-authority.

6. The applicant further placed reliance on the order

passed in O.A. No. 7 of 2013 in the case of Mahesh Chandra

Rai vs. UOI & Ors passed by the Tribunal in which it was held

that the applicant is entitled for remuneration as claimed.

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But no decision was taken on the representation so

submitted by the applicant. Therefore, the applicant

approached the learned Tribunal by filing the Original

Application ventilating his grievance, which was allowed vide

order dated 16.02.2018 directing the respondents-UOI to pay

the difference of back wages/remuneration between AO and

Assistant Accounts Officer w.e.f. 11.01.2016 to the date the

applicant has performed duties of AO, ICO (SB), Circle Office

within a period of three months from the date of receipt of

copy of order, which is the subject matter of instant writ

petition.

7. It is evident from the factual aspect that the respondent-

applicant while performing duty as Assistant Accounts Officer

(AAO) in substantive capacity was asked to perform duty in

officiating capacity on the vacant post of Accounts Officer,

ICO (SB) in the Office of Chief Post Master General,

Jharkhand Circle w.e.f 16.12.2015.

8. Thereafter, the applicant-respondent took charge of the

post of Senior Accounts Officer on 11.01.2016. The applicant

has submitted repeated representations requesting the

competent authority for fixation of his pay and Grade Pay of

Rs. 5400/-, as he has been posted to the post of AO/Senior

AO, ICO (SB), Jharkhand Circle and since then he has been

performing the duties of the post of AO cadre, but it did not

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evoke any response, against which, the original application

being O.A. No. O.A. No. 051/185/2016, which was allowed,

against which the instant writ petition has been filed by the

respondents-Union of India.

Grounds raised by petitioners-UOI:

9. Mr. Anil Kumar, learned ASGI, appearing for the

petitioners-respondents while assailing the impugned order

has taken the following grounds:

I. The very basis of the order whereby and

whereunder the applicant was directed to perform

his duty wherein specific condition has been made

that such direction to discharge the duty of Account

Officer till further orders has been made without

any extra remuneration but the aforesaid condition

has not been taken into consideration by the

learned tribunal, hence the impugned order suffers

from patent illegality.

II. The applicant-respondent once accepted the

aforesaid order dated 17.12.2015 and as such it is

not available for him to turn around and seek

direction for disbursement of arrears of salary for

the aforesaid period for which he performed the duty

of Accounts Officer even though specific condition is

there which has also not been questioned at any

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point of time. As such in view of the aforesaid

condition and the same having been accepted by the

respondent-applicant he cannot be held entitled to

get the pay-scale attached with the Accounts Officer,

but this aspect of the matter has also not been

taken into consideration by the learned tribunal.

III. Ground has been taken that the judgment which

has been relied upon i.e., State of Punjab Vs.

Dharam Pal [(2017) 9 SCC 395] and State of

Punjab Vs. B.K. Dhir [(2017) 2 SCC (L&S) 847] is

on different facts but without examining the same, it

has been applied in this case. Hence on this ground

also the order passed by learned Tribunal requires

interference by this Court.

Grounds raised by Original Applicant- respondent:

10. Learned counsel for the respondent-Original Applicant

have taken following ground in defending the order passed by

learned tribunal:

I. The condition although is there ‘wit hout any

remuneration’ but such condition is not fit to be

considered denying the pay-scale attached with the

Accounts Officer/Sr. Accounts Officer reason being

that the applicant the moment has been handed

over the accountability of higher post, then as per

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the law laid down by Hon’ble Apex Court in the case

of State of Punjab Vs. Dharam Pal (supra) and

State of Punjab Vs. B.K. Dhir (supra) , the

respondent-applicant has become entitled to get the

pay-scale attached to the higher post till he holds

the said post. The learned tribunal taking into

consideration the law laid down by Hon’ble Apex

Court in those cases has passed the order directing

the respondents-writ petitioners to release the

arrears of salary, which cannot be said to suffer

from error.

II. The argument, which has been advanced that the

condition which has been stipulated in the rule that

without any extra remunerations the aforesaid

aspect of the matter has already been taken into

consideration by Hon’ble Apex Court in the case of

State of Punjab Vs. Dharam Pal (supra) and

hence the learned tribunal while applying the ratio

in this case has not committed any error.

Analysis:

11. This Court, after having heard learned counsel for the

parties, is required to answer the following issues:

Issues framed:

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I. Whether the original applicant is held entitled to the

pay-scale attached to the higher post of Accounts

Officer/Sr. Accounts Officer in pursuance to order passed

by the authority asking to discharge the duty of higher

post while he holds the substantive post of the Assistant

Accounts Officer?

II. Whether the entitlement of the original applicant which

has been found to be in favour of the respondent-

applicant can be said to be contrary to the provision of

rule 49 of the Fundamental Rule read with rule 35

thereof?

III. Whether the order passed by the learned tribunal in the

facts and circumstances of the present case can be said

to be different to that of the consideration having been

made by Hon’ble Apex Court in the case of State of

Punjab Vs. Dharam Pal (supra) and State of

Punjab Vs. B.K. Dhir (supra)?

Provisions of Law:

12. Since all the issues are inter-linked, therefore, they are

taken up together to be discussed hereinbelow.

13. But before considering the said issues it needs to refer

herein the relevant provisions as applicable in the facts of the

present case i.e., rule 49 of the fundamental rules .

Department of Personnel & Training (Do.P&T) has issued

instructions from time to time regarding combination of

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appointments for holding charge of one or more posts and

regulation of pay in such cases. These instructions

incorporated in Fundamental Rule 49 {FR 49} have been

consolidated hereunder for reference and guidance:

“F.R. 49 The Central Government may appoint a government

servant already holding a post in a substantive or officiating

capacity to officiate, as a temporary measure, in one or more

of other independent posts at one time under the

Government. In such cases, his pay is regulated as follows: -

(i) Where a Government servant is formally appointed to hold

full charge of the duties of a higher post in the same office as

his own and in the same cadre/line of promotion, in addition

to his ordinary duties, he shall be allowed the pay

admissible to him, if he is appointed to officiate in the higher

post, unless the Competent Authority reduces his officiating

pay under Rule 35; but no additional pay shall, however, be

allowed for performing the duties of a lower post;

(ii) Where a Government servant is formally appointed to hold

dual charges of two posts in the same cadre in the same

office carrying identical scales of pay, no additional pay

shall be admissible irrespective of the period of dual charge

provided that, if the Government servant is appointed to

an additional post which carries a special pay, he shall be

allowed such special pay;

(iii) Where a Government servant is formally appointed to

hold charge of another post or posts which is or are not in the

same office, or which, though in the same office, is or are not

in the same cadre/line of promotion, he shall be allowed the

pay of the higher post, or of the highest post, if he holds

chargé of more than two posts, in addition to ten per cent of

the presumptive pay of the additional post or posts, if the

additional charge is held for a period exceeding

1

[45] days

but not exceeding 3 months provided that if in any particular

case, it is considered necessary that the Government servant

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should hold charge of another post or posts for a period

exceed 03 months, the concurrence of the

1

[Department of

Personnel and Training] shall be obtained for the payment of

additional pay beyond the period of 03 months;

(iv) Where an officer is formally appointed to hold full

additional charge of another post, the aggregate of pay and

additional pay shall in no case exceed

2

[Rs. 2,25,000];

(v) No additional pay shall be admissible to a Government

servant who is appointed to hold current charge of the

routine duties of another post or posts irrespective of the

duration of the additional charge;

(vi) If compensatory or sumptuary allowances are attached to

one or more of the posts, the Government servant shall draw

such compensatory or sumptuary allowances as the Central

Government may fix provided that such allowances shall not

exceed the total of the compensatory and sumptuary

allowances attached to all the posts”.

14. Thus, it is evident that Rule 49 empowers the Central

Government to appoint a government servant already holding

a post in a substantive or officiating capacity to officiate, as

a temporary measure, in one or more of other independent

posts at one time ‘‘under the Government.’’ The Rule also

stipulates the circumstances and the extent to which the

Government servant shall be entitled to additional pay on

formal appointment to hold full additional charge of another

post under Government.

15. Fundamental Rule 49 (i) in unequivocal terms speaks

that when an officer is required to discharge all the duties of

the other post including the statutory functions, steps should

be taken to process the case for getting the approval of the

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Competent Authority and formal orders appointing the officer

to the additional post should be issued. On appointment, the

officer should be allowed additional remuneration as

indicated in FR 49.

16. It further requires to refer herein that Fundamental

Rules 49 takes care of a condition if the provision as

contained under 49(i), (iii) and (v) will be taken together. It is

evident that the Fundamental Rules 49 provides that the

Central Government has got power to appoint a government

servant already holding a post in a substantive or officiating

capacity to officiate, as a temporary measure, in one or more

of other independent posts at one time under the Government

and his pay is to be regulated as follows.

17. The provision as contained under FR 49(iii) provides

that where a Government servant is formally appointed to

hold charge of another post or posts which is or are not in the

same office, or which, though in the same office, is or are not

in the same cadre/line of promotion, he shall be allowed the

pay of the higher post, or of the highest post, if he holds

chargé of more than two posts, in addition to ten per cent of

the presumptive pay of the additional post or posts, if the

additional charge is held for a period exceeding 45 days but

not exceeding 3 months provided that if in any particular

case, it is considered necessary that the Government servant

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should hold charge of another post or posts for a period

exceed 03 months, the concurrence of the Department of

Personnel & Training shall be obtained for the payment of

additional pay beyond the period of 03 months.

18. The provision of Rule Fundamental Rule 49(v) provides

that no additional pay shall be admissible to a Government

servant who is appointed to hold current charge of the

routine duties of another post or posts irrespective of the

duration of the additional charge.

19. It is, thus, evident that in a situation if the Government

servant is appointed to hold charge of one of other post(s), he

shall be entitled to get the pay-scale attached to higher post.

In addition to ten per cent of the presumptive pay of the

additional post or posts, if the additional charge is held for a

period exceeding 45 days but not exceeding 3 months .

However, additional pay shall be admissible to the

government servant who is entitled to get additional pay, who

is appointed to hold current charge of the routine duties of

another post or posts irrespective of the duration of the

additional charge.

20. Rule 35 of the Fundamental Rules is also required to be

dealt with, which reads as under:

“F.R. 35 The Central Government may fix the pay of an

officiating Government servant at an amount less than that

admissible under these rules.”

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21. The reference of Rule 35 is required to be made since in

view of provisions of Fundamental Rules 49 as under 49(i), it

has been provided that if the public servant is appointed to

officiate in the higher post unless the Competent Authority

reduces his officiating pay under Rule 35; but no additional

pay shall, however, be allowed for performing the duties of a

lower post.

Judicial Pronouncements:

22. This Court, after having discussed the aforesaid

statutory provision also needs to refer herein the judicial

pronouncement of Hon’ble Apex Court on the subject so as to

appreciate the findings recorded by learned tribunal since the

learned tribunal has passed the impugned order while

allowing the prayer based upon the judgment passed by

Hon’ble Apex Court in the case of State of Punjab Vs. B.K.

Dhir (supra) and the State of Punjab Vs. Dharam Pal

(supra).

23. In the case of State of Punjab Vs. B.K. Dhir (supra), at

paragraph 2 thereof, the extract of order passed by learned

Division Bench of Punjab & Haryana High Court passed i n

LPA No. 198 of 2003 has been referred, which reads as

under:

“2. … …. … “Having thoughtfully considered the rival contentions,

we find merit in the prayer of the appellant and are of the view that

his case is squarely covered by the ratio of the judgment in Pritam

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Singh Dhaliwal case [Pritam Singh Dhaliwal v. State of Punjab,

2004 SCC OnLine P&H 1428]. It was not a case where the

appellant had laid a claim to promotion on the basis of the

officiating status conferred on him, but had prayed only for the pay

which was admissible to incumbents working on the said posts

and performing similar duties. Resultantly, therefore, if the

respondents had extracted work from him as Joint Director and

Additional Director, he would certainly be entitled to pay as is

admissible to the regular incumbents working on the said posts,

regardless of any condition that may have been sought to be

imposed upon him.”

24. The Hon'ble Apex Court, in the said judgment, however,

has considered the fact about adjudication of the issue by the

Punjab and Haryana High Court wherein the concerned

employee has been held entitled to salary of the post of Joint

Director and Additional Director, Panchayats for the period

he worked as such.

25. Before the Division Bench of the Punjab and Haryana

High Court the State has taken the stand that the view of the

learned Single Judge was correct inasmuch as the orders

passed posting the appellant on officiating posts incorporated

a condition that he would continue to draw his pay in the pay

scale of Deputy Director, Panchayat and no extra financial

benefit would be given to him for the officiating charge.

Additionally, it was asserted that the officer concerned had

submitted to the said terms and conditions and not raised

any protest.

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26. The matter fell for consideration before the Hon'ble Apex

Court and while considering the issue, reference has been

made to the judgment rendered in State of Punjab and

Another v. Dharam Pal (Supra), in which, at paragraph 22 it

has been held as under :-

“22. In the instant case, the Rules do not prohibit grant of pay

scale. The decision of the High Court granting the benefit gets

support from the principles laid down in P. Grover [(1983) 4 SCC

291] and Hari Om Sharma [(1998) 5 SCC 87]. As far as the

authority in A. Francis [(2014) 13 SCC 283] is concerned, we would

like to observe that the said case has to rest on its own facts. We

may clearly state that by an incorporation in the order or merely by

giving an undertaking in all circumstances would not debar an

employee to claim the benefits of the officiating position. We are

disposed to think that the controversy is covered by the ratio laid

down in Hari Om Sharma [(1998) 5 SCC 87] and resultantly we

hold that the view expressed by the High Court is absolutely

impeccable.”

27. The Hon'ble Apex Court, in view of the decision rendered

in P.Grover (Smt) v. State of Haryana and Another [(1983 )

4 SCC 291], Secretary-cum-Chief Engineer, Chandigarh v.

Hari Om Sharma and Others [(1998) 5 SCC 87] and A.

Francis v. Management of Metropolitan Transport

Corporation Limited, Tamil Nadu [(2014) 13 SCC 283] has

been pleased to hold that the issue of eligibility to hold the

post was not taken before the High Court and the appeal was

disposed of taking into consideration the fact that when the

respondent had worked in the officiating post and has been

granted the benefits by the High Court, he should be

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extended the said benefit by making an observation that had

there been a contest on the eligibility of the respondent,

possibly the matter would have been different and taking note

of the situation, the order passed by the Punjab and Haryana

High Court has been declined to be interfered with.

28. We have also gone across the judgment rendered in yet

another case by the Hon'ble Apex Court on the issue i.e.,

State of Punjab and Another v. Dharam Pal (Supra)

wherein controversy involved was regarding disbursement of

salary in course of discharging duty in the officiating

capacity. The provision of Rule 4.13 and 4.22 of Punjab Civil

Services Rules has been considered by the Hon'ble Apex

Court.

29. We, after close scrutiny of the provisions as contained in

Rule 4.13 and 4.22 (Pay of Officiating Government

Employees) prevalent in the State of Punjab, have found

therefrom that the provisions as contained under Rule 89

and 103 of the Jharkhand Service Code, 2001 are pari

materia.

30. For ready reference both the provisions are being

referred hereunder :-

“4.13. (1) Subject to the provisions of Rules 4.22 to 4.24, a

government employee who is appointed to officiate in a post shall

not draw pay higher than his substantive pay in respect of a

permanent post, other than a tenure post, unless the post in which

he is appointed to officiate is one enumerated in the Schedule to

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this Rule or unless the officiating appointment involves the

assumption of duties and responsibilities of greater importance

than those attaching to the post, other than a tenure post on which

he holds a lien:

Provided that the competent authority may exempt from the

operation of this Rule, any service which is not organised on a

time-scale basis and in which a system of acting promotions from

grade to grade is in force at the time of the coming into force of

these Rules:

Provided further that the competent authority may specify

posts outside the ordinary line of a service the holders of which

may, notwithstanding the provisions of this Rule and subject to

such conditions as the competent authority may prescribe, be given

any officiating promotion in the cadre of the service which the

authority competent to order promotion may decide and may

thereupon be granted the same pay (whether with or without any

special pay, if any, attached to such posts) as they would have

received if still in the ordinary line. (2) For the purpose of this Rule,

the officiating appointment shall not be deemed to involve the

assumption of duties or responsibilities of greater importance if the

post to which it is made is on the same scale of pay as the

permanent post, other than a tenure post, on which he holds a lien,

or on a scale of pay identical therewith.”

***

4.22. The competent authority may appoint one government

employee to hold substantively, as a - 20 - temporary measure or to

officiate in, two or more independent posts at one time. In such

cases, the government employee shall draw the highest pay to

which he would be entitled if his appointment to one of the posts

stood alone:

Provided that the employee must fulfil the requisite

qualifications and conditions for services for both the posts.”

31. The Hon'ble Apex Court, after considering the aforesaid

provisions of law, has been pleased to hold at paragraph 13

to the effect that as the respondent herein was holding higher

posts and further, he was performing the duties of higher

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responsibility attached to the posts, the conclusion has been

arrived at that the Rules do not bolster the proposition

advanced by the learned counsel for the State. Paragraph 13

reads as hereunder: -

“13. On a careful scrutiny of the aforesaid prescription, it is

perceptible that the said Rule envisages a different situation

altogether. The present factual matrix is quite different. We

are inclined to so hold as the respondent herein was holding

higher posts and further he was performing the duties of

higher responsibility attached to the posts. Thus analysed,

we arrive at the conclusion that the Rules do not bolster the

proposition advanced by the learned counsel for the State.”

32. However, reference herein also needs to refer herein the

judgment rendered by Hon’ble Apex Court in the case of A.

Francis v. Management of Metropolitan Transport

Corporation Limited, Tamil Nadu (supra) that judgment

has been rendered taking into consideration the judgment

rendered in Secretary-cum-Chief Engineer, Chandigarh v.

Hari Om Sharma and Others (supra) has been pleased to

hold at paragraph 22 that the fact in the Francis case has to

rest on its own facts and thereafter it has been clarified that

by an incorporation in the order or merely by giving an

undertaking in all circumstances would not debar an

employee to claim the benefits of the officiating position and

further holding therein that the controversy is covered by the

ratio laid down in Secretary-cum-Chief Engineer v. Hari

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Om Sharma (supra) and it has been held that the view

expressed by the High Court is absolutely impeccable.

33. The factual aspect involved in the said case was that the

respondent of the said case, namely, Dharam Pal, was

promoted as Superintendent Grade-II (in officiating capacity)

with a condition stipulated in the order that the official work

in the own pay scale and above promotion shall be subject to

the recommendation of the Departmental Promotion

Committee as would appear from paragraph – 7 and 8 of the

aforesaid judgment, which read as hereunder :-

“7. In the beginning, it is seemly to state that there is no factual

dispute with regard to the appointments or the posts. That being

the position, we think it appropriate to refer to the orders of

appointment as Ms Babbar, learned counsel for the appellant State

of Punjab, would harp on the same. The order dated 9-12-2004

reads as follows:

“ORDER

On the retirement of Smt Chand Prabha, Superintendent

Grade I on 31-7-2004 the post of Superintendent Grade I had

become vacant. On that vacant post Shri Kewal Singh,

Superintendent Grade II is promoted as Superintendent Grade I in

his own scale.

On account of promotion of Shri Kewal Singh, Superintendent

Grade II as Superintendent Grade I and on account of proceeding

on earned leave of Shri Bhinder Singh, Superintendent Grade II

w.e.f. 7- 9-2004 Shri Ashwani Kumar Senior Assistant (Officiating

Superintendent Grade II) and Shri Dharam Pal (Officiating

Superintendent Grade II) are promoted as Superintendent Grade II.

The officials will work in their own pay scale and above

promotions will be subject to the recommendations of the

Departmental Promotion Committee. On the approval of the above

committee they will be given financial benefits.

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On the basis of these orders the officials will not claim any

seniority, etc.” On the basis of the aforesaid order, the respondent

functioned as the officiating Superintendent Grade II.

8. As stated earlier, while he was officiating on the said post, he

was promoted on officiating basis to function in the post of

Superintendent Grade I. The relevant portion of the said order

reads as follows:

“The officials will work in their earlier own pay scale and

above promotions will be subject to the recommendations of the

Departmental Promotion Committee. On the approval of the above

committee they will be given financial benefits. On the basis of

these orders the officials will not claim any seniority, etc.”

34. The case since is under the department of posts for

which the provision of fundamental rules is applicable.

35. This Court in order to assess the ratio as has been laid

down by Hon’ble Apex Court in the case of State of Punjab

Vs. B.K. Dhir (supra) and State of Punjab Vs. Dharam Pal

(supra) wherein the consideration of pari material rule of

Rule 49 has been taken note and based upon the same, the

judgment has been rendered, is of the view that the provision

as applicable in the case of present petitioner as per the

fundamental rules needs to be appreciated. Further for the

reason that learned Addl. S.G.I also has relied upon the

provisions of Rule 49 of the Fundamental Rules, which has

been quoted hereinabove.

36. This Court after assessing the provision upon which the

judgment passed in State of Punjab Vs. Dharam Pal

(supra) has been rendered, which is based upon the

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provision as contained under the Service Code applicable in

the State of Punjab the public servant belonging to the State

Government, as provided under Rule 4.22 and Rule 4.23 is

pari materia to the provision as contained under

Fundamental Rule 49 particularly III and V thereof.

37. The Hon’ble Apex Court since in the case of State of

Punjab Vs. Dharam Pal (supra) has been pleased to hold

that in case of the discharge of duty in the post higher than

the substantive being held by the concerned public servant

then for the period for which the such public servant has

been asked to discharge his duty he will become entitled to

get the pay-scale attached to the said post.

38. This Court, therefore, is of the view that the judgment

rendered by Hon’ble Apex Court in the case of State of

Punjab Vs. Dharam Pal (supra) covers the case of the

respondent-original applicant.

39. Since herein also it would be evident from the order by

which the respondent-original applicant has been directed to

discharge his duty is that although the respondent-original

applicant was holding the substantive post of Assistant

Accounts Officer, but he was asked to discharge duty of the

higher post but with the rider that no additional pay will be

admissible of the post on which he is being directed to

discharge duty i.e., Accounts Officer/Sr. Accounts Officer.

- 22 -

For ready reference, the content of said letter is quoted

hereunder as:

“In partial modification of this office order no. Admn 1/155

connection with the transfer of Sri Ratan Kumar Kapoor, AAO/PCD

to office of the CPMG, Jharkhand Circle, Ranchi to work as

Accounts Officer (in charge)/ICOSB. The revised terms and

conditions are as follows:

1. Sri Ratan Kumar Kapoor, AAO/PCD will look after the

duties of the post of Accounts Officer till further

orders without any extra remuneration .

2. He will be entitled to TA/DA as per admissible rules.

The rest will remain same.”

40. The said order since stipulates that the respondent-

original applicant is to discharge duty to the higher post

although not on substantive basis rather as a temporary

measure. But there is no direction to discharge duty to the

said higher post in addition to the duty which is to be

discharged on substantive post . Meaning thereby the

respondent-original applicant has been directed even though

he was holding the substantive post of Assistant Accounts

Officer not in addition to the discharge of duty to the

Assistant Accounts Officer but exclusively to discharge duty

to the post of Accounts Officer.

41. In view of the specific stipulation made in the aforesaid

order and coming back to the provision of Rule 49 in

particular under III and V it is evident that in such

circumstances even the rule provides that such publi c

servant is to be allowed to the pay of higher posts. As such

- 23 -

this Court is of the view that based upon the factual aspect

particularly the order by which the respondent-original

applicant was directed to discharge duty on temporary

measure to the post of Accounts Officer is held to be

admissible the pay-scale of the higher post of Accounts

Officer till he has already held the post, in view of the

judgment passed in the case of State of Punjab Vs.

Dharampal (supra).

42. The argument has been advanced by learned ASGI by

referring to the condition as stipulated in order dated

17.12.2015 that there is specific stipulation made therein

that there will be no admissibility of higher pay. As such

submission has been made that since the condition is there

in the order itself that the respondent-original applicant will

not be entitled for pay-scale attached to the higher post,

hence the respondent-original applicant will not be entitled to

claim the pay-scale of the post of the Accounts Officer.

43. But even this issue has been dealt with by Hon’ble Apex

Court in the case of State of Punjab Vs. B.K. Dhir (supra)

wherein the issue of condition has been considered and the

Hon’ble Apex Court has laid down that in case of any

condition making the entitlement of the pay-scale attached to

the higher post in such circumstances will not be proper.

- 24 -

44. After having discussed the factual aspect and legal

position, as above, and coming back to the order passed by

learned Tribunal, this Court has found that the original

application has been allowed basing upon the principle laid

down by Hon’ble Apex Court in the case of State of Punjab

and Another v. Dharam Pal (Supra) and State of Punjab

v. B.K. Dhir (Supra).

45. It need to refer herein that the identical matter has been

decided by the Division Bench of this Court in the case of

The State of Jharkhand & Ors Vs. Baneshwar Rabidas

[LPA No. 735 of 2019] by putting reliance upon the judgment

rendered in the cases of State of Punjab and Another v.

Dharam Pal (supra) and State of Punjab v. B. K. Dhir

(supra) holding therein as under:

“We have considered the factual aspect involved in the given

case wherein also the writ petitioner has been directed to

perform his duty as Superintending Engineer (Current

Charge) for the period from 26.07.2007 till 25.07.2011 and

thereafter asked to perform his duty as Chief Engineer

(Current Charge) for the period from 26.07.2011 till his

superannuation on 30.04.2013, however with the condition

that he will work in his earlier own pay scale and his

promotion will depend upon the final decision to be taken for

regular promotion and, therefore, according to our

considered view, the factual aspect involved in State of

Punjab and Another v. Dharam Pal (Supra) is almost

similar to the instant case as also the provision of Rule

which is the subject matter of the argument advanced on

behalf of the parties is also pari materia, as has been

- 25 -

referred hereinabove, therefore, the ground which has been

agitated by the appellant-State for reversal of the order

passed by the learned Single Judge that as because the writ

petitioner has never been granted promotion to the post of

Superintending Engineer and Chief Engineer, rather he was

holding the post in the substantive capacity of Executive

Engineer and as such, he is not entitled to get the pay scale

of the post of Superintending Engineer and Chief Engineer,

is not acceptable to this Court taking into consideration the

fact that the issue has already been dealt with by the

Hon'ble Apex Court in the case of State of Punjab and

Another v. Dharam Pal (Supra).

Therefore, this Court is of the view that the learned

Single Judge since has come to a conclusion holding the writ

petitioner entitled to get the pay scale of the post of

Superintending Engineer and Chief Engineer as also for

fixation of pension on the basis of the last pay drawn i.e.,

the pay scale attached to the post of Chief Engineer,

therefore, the order passed by the learned Single Judge

suffers from no infirmity.”

46. It further needs to refer herein that the respondent-

State of Jharkhand has preferred SLP against the aforesaid

order before the Hon’ble Supreme Court being Special Leave

to Appeal (C) No(s). 4104 of 2022 which has been dismissed

vide order dated 16.03.2022.

47. Therefore, this Court, on the basis of discussion made

hereinabove, is of the view that if in the facts and

circumstances, particularly the order passed by the

authority [the writ petitioner herein] directing the respondent-

original applicant to perform duty as Accounts Officer on a

temporary measure, the claim of the salary attached to the

- 26 -

post of Accounts Officer, if it is being claimed the same has

been held to be proper and in that view of the matter, the

learned tribunal has passed order directing the respondent,

the writ petitioners herein to release the arrears of difference

of pay/remuneration for the period for which the respondent-

applicant has discharged his duty to the post of Accounts

Officer on temporary measure.

48. This Court is exercising the power of judicial review of

an order passed by the learned tribunal and the law is well

settled as per the judgment rendered in L. Chandra Kumar

v. Union of India and Others , reported in (1997) 3 SCC

261 whereby and whereunder the power of judicial review

has been dealt with which is to be exercised by the High

Court in exercise of power conferred under Article 227 of the

Constitution of India, for ready reference the relevant

paragraph of the aforesaid judgment is being quoted and

referred hereunder as :-

“99. In view of the reasoning adopted by us, we hold that clause

2(d) of Article 323-A and clause 3(d) of Article 323-B, to the

extent they exclude the jurisdiction of the High Courts and the

Supreme Court under Articles 226/227 and 32 of the

Constitution, are unconstitutional. Section 28 of the Act and the

“exclusion of jurisdiction” clauses in all other legislations

enacted under the aegis of Articles 323-A and 323-B would, to

the same extent, be unconstitutional. The jurisdiction conferred

upon the High Courts under Articles 226/227 and upon the

Supreme Court under Article 32 of the Constitution is a part of

the inviolable basic structure of our Constitution. While this

- 27 -

jurisdiction cannot be ousted, other courts and Tribunals may

perform a supplemental role in discharging the powers conferred

by Articles 226/227 and 32 of the Constitution. The Tribunals

created under Article 323-A and Article 323- B of the

Constitution are possessed of the competence to test the

constitutional validity of statutory provisions and rules. All

decisions of these Tribunals will, however, be subject to scrutiny

before a Division Bench of the High Court within whose

jurisdiction the Tribunal concerned falls. The Tribunals will,

nevertheless, continue to act like courts of first instance in

respect of the areas of law for which they have been constituted.

It will not, therefore, be open for litigants to directly approach the

High Courts even in cases where they question the vires of

statutory legislations (except where the legislation which creates

the particular Tribunal is challenged) by overlooking the

jurisdiction of the Tribunal concerned. Section 5(6) of the Act is

valid and constitutional and is to be interpreted in the manner

we have indicated.”

45. This Court after having discussed the fact as also the

legal position is now proceeding to discuss about the scope of

judicial review conferred to the High Court under Article 226

of the Constitution of India.

46. In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors.,

AIR 1955 Supreme Court 233 , the Hon'ble Supreme Court

has held in paragraph no.21 as under:-

“With regard to the character and scope of the writ of

certiorari and the conditions under which it can be

issued, the following propositions may be taken as

established: (1) Certiorari will be issued for correcting

errors of jurisdiction, as when an inferior Court or

Tribunal acts without jurisdiction or in excess of it, or

fails to exercise it. (2) Writ of certiorari will also be

issued when the Court or Tribunal acts illegally in the

- 28 -

exercise of its undoubted jurisdiction, as when it decides

without giving an opportunity to the parties to be heard,

or violates the principles of natural justice. (3) The Court

issuing a writ of certiorari acts in exercise of a

supervisory and not appellate jurisdiction. One

consequence of this is that the Court will not review

findings of fact reached by the inferior Court or Tribunal

even if they be erroneous. This is on the principle that a

Court which has jurisdiction over a subject-matter has

jurisdiction to decide wrong as well as right, and when

the Legislature does not choose to confer a right of

appeal against that decision, it would be defeating its

purpose and policy, if a superior Court were to rehear

the case on the evidence and substitute its own findings

in certiorari.”

47. In Sawarn Singh and Anr. vs. State of Punjab and

Ors., (1976) 2 SCC 868 their Lordships, while discussing the

power of writ under Article 226 of the Constitution of India

for issuance of writ of certiorari, has been pleased to hold at

paragraph nos.12 and 13 as hereunder:-

“12. Before dealing with the contentions canvassed, it

will be useful to notice the general principles indicating

the limits of the jurisdiction of the certiorari jurisdiction

can be exercised only for correcting errors of jurisdiction

committed by inferior courts or tribunals. A writ of

certiorari can be issued only in the exercise of

supervisory jurisdiction which is different from appellate

jurisdiction. The Court exercising special jurisdiction

under Article 226 is not entitled to act as an appellate

Court. As was pointed out by this Court in Syed

Yakoob's case (supra).

13. In regard to a finding of fact recorded by an inferior

tribunal, a writ of certiorari can be issued only if in

recording such a finding, the tribunal has acted on

evidence which is legally inadmissible, or has refused to

- 29 -

admit admissible evidence, or if the finding is not

supported by any evidence at all, because in such cases

the error amounts to an error of law. The writ

jurisdiction extends only to cases where orders are

passed by inferior courts or tribunals in excess of their

jurisdiction or as a result of their refusal to exercise

jurisdiction vested in them or they act illegally or

improperly in the exercise of their jurisdiction causing

grave miscarriage of justice.”

48. In Heinz India (P) Ltd. and Anr. vs. State of U.P. and

Ors., (2012) 5 SCC 443, their Lordships have been pleased to

hold at paragraph nos.66 and 67 as hereunder:-

“66. That the court dealing with the exercise of power of

judicial review does not substitute its judgment for that

of the legislature or executive or their agents as to

matters within the province of either, and that the court

does not supplant “the feel of the expert” by its own

review, is also fairly well settled by the decisions of this

Court. In all such cases judicial examination is confined

to finding out whether the findings of fact have a

reasonable basis on evidence and whether such

findings are consistent with the laws of the land.

67. In Dharangadhara Chemical Works Ltd. v. State of

Saurashtra this Court held that decision of a tribunal on

a question of fact which it has jurisdiction to determine

is not liable to be questioned in proceedings under

Article 226 of the Constitution unless it is shown to be

totally unsupported by any evidence. To the same effect

is the view taken by this Court in Thansingh Nathmal

case where this Court held that the High Court does not

generally determine questions which require an

elaborate examination of evidence to establish the right

to enforce for which the writ is claimed.”

49. In the case of West Bengal Central School Service

Commission & Others Vs. Abdul Halim & Others reported

- 30 -

in (2019) 18 SCC 39, their Lordships have been laid down

pleased to hold at paragraph no. 30 that the power of the

judicial review must be exercised by the Court after

determining that the impugned is vitiated by an error

apparent on the face of the record and not the same has been

established by a process of reasoning, Para-30 of the

aforesaid judgment reads as under:-

“30. In exercise of its power of judicial review, the Court

is to see whether the decision impugned is vitiated by

an apparent error of law. The test to determine whether

a decision is vitiated by error apparent on the face of the

record is whether the error is self-evident on the fact of

the record or whether the error requires examination or

argument to establish it. If an error has to be

established by a process of reasoning, on points where

there may reasonably be two opinions, it cannot be said

to be an error on the fact of the record, as held by this

Court in Satyanarayan Vs. Mallikarjuna reported in AIR

1960 SC 137. If the provision of a statutory rule is

reasonably capable of two or more constructions and

one construction has been adopted, the decision would

not be open to interference by the writ Court. It is only

an obvious misinterpretation of a relevant statutory

provision, or ignorance or disregard thereof, or a

decision founded on reasons which are clearly wrong in

law, which can be corrected by the writ Court by

issuance of writ of Certiorari.”

50. In the case of T.C. Basappa Vs. T. Nagappa reported

in (1955) 1 SCR 250, their Lordship hold that the patent

error in a decision can be corrected by writ of certiorari, when

it is manifested by the error apparent on the face of the

- 31 -

proceedings. The relevant portion of the aforesaid judgment is

quoted hereunder: -

“10. … … An error in the decision or determination itself

may also be amenable to a writ of certiorari but it must

be a manifest error apparent on the fact of the

proceedings, e.g. when it is based on clear ignorance or

disregard of the provisions of law. In other words, it is a

patent error which can be corrected by certiorari but not

a mere wrong decision. …”

51. This Court considering the judgment rendered by

Constitution Bench of Hon’ble Apex Court and taking into

consideration the scope of judicial review is of the view that

the order which has been passed by learned tribunal as

impugned in this writ petition as per the discussion made

herein above cannot be said be faulted with.

52. Accordingly, the instant petition lacks merit and is

dismissed.

53. Pending Interlocutory Application(s), if any, stands

disposed of.

(Sujit Narayan Prasad, J.)

(Arun Kumar Rai, J.)

A.F.R.

Alankar/-