(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard Mr Biren A Vaishnav, learned counsel for the petitioner
and Ms. R V Acharya, learned counsel for respondent No. 1.
2.
This petition has been filed by the petitioner challenging the order
of the Central Administrative Tribunal, Ahmedabad Bench dated
12.3.2004 by which the Tribunal has refused to grant charge
allowance of the higher post of Director to the petitioner though the
petitioner who was Deputy Director holding the post of Director
(Regional) in the Department of Lighthouses and Lightships, Jamnagar
in pursuance of order dated 21.4.1995. The order was to take effect
from 1.6.1995. It is necessary to extract the order dated 21.4.1995
hereunder:
Shri
S.G. Malpathak, Director (Regional), Deptt. of Lighthouses and
Lightships, Jamnagar is transferred to the post of Director
(Electronics) at the Head Quarter Office, New Delhi in public
interest vice Shri R.N. Sethi retiring from service on superannuation
with effect from 31st May, 1995 (A.N.)
The order
takes effect from 1st June, 1995.
The note
appended to the order is also relevant. Para 1 of the note is
extracted below:
Director
(Regional), Deptt. of Lighthouses and Lightships, Jamnagar. The
cadre of Head of Office will be delegated to Shri R.K. Bhanti, Deputy
Director (Regional) till the post of Director (Regional) is filled
up.
Since the
petitioner was required to work as Director, he was also required to
operate the Accounts and for this purpose another order dated
17.5.1995 was issued by which the petitioner was authorised to
operate the accounts. Copy of the order dated 17.5.1995 is extracted
below:
"The
Director General of Lighthouses & Lightships under the powers
vested in him as Head of Department under Rule-14 of the Delegation
of Financial Power Rules 1978 has delegated the powers of Head of
Office and controlling officers to Shri R.K. Bhanti, Deputy Director,
Jamnagar with effect from the date of handing over the charges and
until further orders vice Shri s.G. Malpathak, Director (R)
Department of Lighthouses & Lightships, Jamnagar is trasferred to
the post of Director (Electronics) at Head Quarter Office, New Delhi.
Shri R. K.
Bhanti is authorised to operate the 'Assignment Account' and
'Personal Ledger Account' in the Syndicate Bank, Jamnagar. A set of
specimen signature of Shri R.K. Bhanti, Deputy Director duly attested
will be furnished in due course."
3. Learned
counsel for the respondent has vehemently urged that the petitioner
was assigned only financial duties and he did not work as Director
but the learned counsel failed to produce any material on record to
support her case that the administrative work was performed by some
other officer. We are in agreement with the learned counsel Mr
Vaishnav that the petitioner had worked as Director (Regional),
Department of Lighthouses and Lightships w.e.f. 24.5.1995 to
26.5.1997 and 1.9.1999 to 2.5.2000. But his initial appointment was
to take effect from 1.6.1995. Therefore, he would only be entitled
for higher pay scale or charge allowance from 1.6.1995 to 26.5.1997
and 1.9.1999 to 2.5.2000. Learned counsel for the petitioner has
placed before us the fundamental Rule 49 (i) of the Government. We
find that since the petitioner was officiating at a higher post under
the orders of the superior authority and the competent authority has
not passed any order reducing his officiating pay. Therefore, the
petitioner is entitled to higher pay of Director
for the period he worked as Director (Regional).
4. The
Apex Court in Selva Raj v. Lt.Governor of
Island, Port Blair AIR 1999 SC 838 has
held that the employee who is ordered to look upon duties of higher
posts and if he has worked on higher post temporarily or in an
officiating capacity is entitled to salary attached to the higher
post. This decision applies to the facts of the instant case and
the petitioner would be entitled for charge allowance of the higher
post w.e.f. 1.6.1995 to 26.5.1997 and 1.9.1999 to 2.5.2000.
5. In
the result, this petition succeeds. Rule is made absolute
accordingly. The order of the Tribunal dated 12.3.2004 in O.A.
No.734 of 2001 is quashed. Writ of mandamus be issued to the
respondents with a direction to pay the charge allowance of the
higher post of Director (Regional), Department of Lighthouses and
Lightships for the period from 1.6.1995 to 26.5.1997 and 1.9.1999 to
2.5.2000 within a period of two months from the date a copy of this
order is produced before the respondents. The parties shall bear
their own costs.
[V
M SAHAI, J.]
[G
B SHAH, J.]
msp
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