R.K Bhanti Petitioner(S) v. Union Of India & 1 (S)

(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 Top