Mtr. Jawahira Bano and Others vs State and Others

Mohd. Yaqoob Mir, J.—Petitioners holding the post of Senior Lecturers on substantive basis, pursuant to series of orders had been posted

as Incharge Principals in their own pay and grade for a period of six months or till the posts are filled up by DPC/PSC whichever is earlier. The

charge allowance as was admissible under rules was also permitted. Petitioners by the instant petition prayed for issuance of following directions:

i/Mandamus, the Respondents be commanded to release the salary in favour of the Petitioners attached to the post of Principal i.e. 2500-

4000(unrevised) from the day the Petitioners were so adjusted in terms of annexure-A to A-9 annexed with this writ petition. ii/Mandamus,

commanding the Respondents to regularize the services of the Petitioners as Principal from the day they are holding the posts with all consequential

benefits. iii/OR IN ALTERNATIVE, the cases of the Petitioners be referred to the Departmental Promotion Committee or Public Service

Commission, as the case may be, for their confirmation/regularization and once the Petitioners are regularized, the effect thereof be given to them

from the day they are holding the post of Principal in pursuance of annexure-A to A-9 with all consequential benefits.

The Respondents have failed to file the counter affidavit despite various opportunities.

When the matter was taken up for hearing, learned Counsel for the Petitioners at the very outset stated that the Petitioners by now on reaching

the age of superannuation have retired, therefore, prayer in the petition is now restricted only to the release of salary attached to the post of

Principal i.e. the grade of 2500-4000 (unrevised) from the date Petitioners were so adjusted in terms of the orders issued from time to time in their

favour.

The contention of the learned Counsel for the Petitioners is that the Petitioners had an independent charge and have discharged the duties of a

Principal uninterruptedly until their retirement, therefore, they were entitled to the regular grade attached to the post of Principal. Grant of charge

allowance under such circumstances was not enough.

The question which is for determination is as to whether the Petitioners who were holding the post of Senior Lecturers substantively and were

made incharge Principals in their own pay and grade, can be held entitled to the regular grade attached to the post of Principal. This position has

been dealt with by the Division Bench of this Court in the judgment rendered in National Insurance Company Ltd. and Ors. v. Showkat Ahmad

and Ors. 2000 SLJ 22, wherein one of the contentions of the Petitioners therein was that they were called upon to function as Branch Managers

though they were holding the post of Development Officer Grade-I. On eligibility they could be promoted as Assistant Administrative officers and

thereafter as Branch Managers. In opposition therein it was contended that the Petitioners therein were simply asked to supervise the functioning of

certain branches, therefore, they could neither be appointed as Assistant Administrative Officers nor Branch Managers. Such appointments are

government by promotion rules of the corporation. The appointments were supervisory in nature and Petitioners therein could not claim

regularization against these posts simply because they happened to supervise functioning of certain branches of the company.

It was held that ""in our considered opinion, Petitioners were neither appointed on ad hoc basis nor on officiating basis. They were simply asked

to supervise the functioning of the Branches. Whether they are entitled to the pay of Assistant Administrative Officers or Branch Managers or

nothing, shall be answered at later part of the judgment"".

After referring to various judgments rendered by the Hon'ble apex Court, finally while referring to the case Selvaraj Vs. Lt. Governor of Island,

Port Blair and Others, , it was held that on the principle of quantum merit, the Petitioners who were asked to supervise functioning of certain

branches shall be paid the salary of Assistant Administrative officers. It shall be quite apt to quote para 20 and 21 of the said judgment;

in Selvaraj Vs. Lt. Governor of Island, Port Blair and Others, , the Apex Court held in that: (para 3 P. 839):

It is not in dispute that the Appellant looked after the duties of Secretary (Scouts) from the date of the order and his salary was to be drawn

against the post of Secretary (Scouts) under GFR.77. Still he was not paid the said salary for the work done by him as Secretary (Scouts). It is of

course true that the Appellant was not regularly promoted to the said post. It is also true as stated in the counter affidavit of Deputy Resident

Commissioner Andaman and Nicobar Administration that the Appellant was regularly posted in the pay scale of Rs. 1200-2040 and he was asked

to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to

be transferred to the interior Islands where the post of PST was available, but the Appellant was keen to stay in Port Blair as averred in the said

counter. However, in our view, these averments in the counter will not change the real position. Fact remains that the Appellant has worked on the

higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against

the post of Secretary (Scouts), It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of Rs. 1640-

2900. Consequently, on the principles of quantum merit the Respondents authorities should have paid the Appellant as per the emoluments

available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity

and not as a regular promotes. This limited relief is required to be given to the Appellant only on this ground. 21. Shri Qureshi contended that some

of the Petitioners discharged all the functions of the Branch Managers, irrespective of what is contained in the appointment order, they are entitled

to the post of Branch Managers. Shri Javed Ahmad Kawoosa vehemently repudiated the contention and submitted that the Petitioners did not

function as Branch Manager. They have no power to sanction loans and transact other financial business, since no such power was conferred on

them. They were asked simply to supervise the functioning and pass on the papers to Divisional Manager/Senior Divisional Manager for sanction.

Side by side, they continued to discharge the functions of Development Officers Grade-I and they did not suffer any kind of monetary loss; rather

during this period, their financial business was increased. We have held that the Petitioners are not entitled to regularization as. Assistant

Administrative officers or Administrative Officers or Branch Managers, since appointments/promotions to these posts are to be done in

accordance with Rules of promotion made by the Corporation. They have claimed the grade of Assistant Administrative Officers for the period

they supervised the functioning of the Branches. Facts remains that they supervised the functioning of certain Branches, though they were not

conferred the power of Branch Managers stricto sensu. The normal promotional post from Development Officer Grade-I is Assistant

Administrative officer. Therefore, following Apex Court decision in Selva Raj (supra) on principle of quantum merit, those Petitioners, who were

asked to supervise the functioning of certain Branches by issuance of orders in their favour, shall be paid the salary of Assistant Administrative

Officer calculated in accordance with law from the period they were called upon to supervise the functioning of these Branches till the date of this

decision. They have also asked for the salary of Assistant Administrative officer and not of branch Manager. Learned Single Judge has erroneously

granted the relief, which was neither claimed by them nor admissible under the Rules. Court has no jurisdiction to mould the relief in the absence of

pleadings and claim by a party by jumping over the statutory fences resulting in gain to some and loss to others."" While concluding it has been held:

What emerges out of the aforesaid discussion is that Petitioners are not entitled to regularization as Assistant Administrative Officers or

Administrative Officers or Branch Managers; the promotions to these posts shall be made in accordance with Promotion Policy, Rules and

Regulations, orders and decisions of Corporation. Similarly, prayer for creating/keeping Jammu and Kashmir a separate zone for promotion is

rejected. However, those Petitioners, who had supervised the functioning of certain Branches in the absence of Branch Managers by virtue of

specific orders in their favour, shall be entitled to the pay of Assistant Administrative officers from the date of their appointment till the date of this

decision, calculated in accordance with law taking into consideration the receipt of pay and allowances by these Petitioners of the post of

Development Officers Grade-I, the substantive posts they are holding. Stay, if any, granted in these cases is hereby vacated.

The ratio as has been laid down applies to the case of the Petitioners as the Petitioners admittedly were holding the posts of Senior Lecturers

who were made as incharge Principals and undoubtedly and admittedly have discharge the duties of Principals, when it is so, they are also entitled

to the same treatment. Therefore, they are also held entitled to the pay of the post of Principal from the date of their appointment till the date they

held such posts, calculated in accordance with law taking into consideration the receipt of pay and allowances of the posts of Senior Lecturers, the

substantive posts as they were holding. It is to be made clear that the appointment to the post of Principal is subject to clearance by the DPC,

therefore, Petitioners claim for absorption as Principals was impermissible as was also agreed to by the learned Counsel for the Petitioners while

making submission that he is restricting the prayer to the grant of grade as attached to the post of Principal.

The petition succeeds. Petitioners shall be paid the salary as payable to the Principal from the date of their appointment as incharge Principal till

the date of their retirement after making proper calculations as indicated above.