Mutum Thaimon Singh vs State Of Manipur

[1] Heard Mr. M. Devananda, learned counsel appearing for the appellant and Mrs. Momota Oinam, learned Additional Advocate General appearing for the respondents.

[2] The present writ appeal has been filed assailing the judgment and order dated 05.09.2015 passed by the learned Single Judge in W.P.(C) No. 96 of 2014, order dated 17.09.2014 passed in Review Petition Case No. 37 of 2014 and judgment & order dated 24.03.2015 passed in M.C.(Review Petition) No. 24 of 2014.

[3] The brief facts of the case are as follows :

The appellant was initially appointed as an Assistant Engineer (Mechanical) in the combined cadre of PWD/ IFC/ PHE, Manipur on regular basis w.e.f. the date he joined his duty, vide order dated 15.05.1980.

[4] The learned counsel appearing for the appellant submitted that due to pendency of litigation in connection with fixation of interse seniority of Assistant Engineers of the PWD, Manipur and non-finalisation of the seniority list of the Assistant Engineers, none of the Assistant Engineers including the appellant could be given regular promotion to the higher post of Executive Engineer. In fact, the petitioner was never given any regular promotion to any higher post during his service career.

[5] Due to exigency of work and in public interest, the State Government allowed the appellant, who was the senior most A.S.W. in the Circle to hold the current charge of S.W. to S.E. Circle - IV w.e.f. 27.07.1995 until further orders by order dated 27.07.1995 issued by the Commissioner, Government of Manipur. While the appellant was holding the charge of SW, the State Government issued an order dated 07.01.2000 appointing the appellant on promotion to the post of Executive Engineer (Mechanical) in the scale of pay of Rs. 10,000 - 15,200/- p.m. on adhoc basis w.e.f. 07.01.2000 for a period of 6 (six) months.

[6] The learned counsel for the appellant submitted that the appellant was allowed to enjoy the said pay scale during the period of his adhoc promotion.

[7] By an order dated 07.03.2003 issued by the Government, the appellant was allowed to look after the charge of Superintending Engineer in addition to his normal duties and without any extra remuneration. While the appellant was holding the charge of S.E., an order was issued by the Government on 02.03.2009 allowing the appellant to hold the charge of Additional Chief Engineer, PWD, Manipur on in-charge basis in addition to his normal duties and in his grade pay without any extra remuneration till the posts are filled up on regular basis. Subsequently, by order dated 12.01.2011 issued by the Government, the appellant was allowed to hold the charge of Chief Engineer (Mechanical and Electrical), PWD, Manipur on in-charge basis in his grade pay and without any extra remuneration until further orders.

[8] It is the case of the appellant that while he was holding the charge of Chief Engineer(Mechanical/Electrical), PWD, Manipur on in-charge basis, he submitted a representation on 24.08.2012 to the Principal Secretary (Works), Government of Manipur requesting for allowing him to enjoy the financial benefits entitled to a regular Executive Engineer, Superintending Engineer, Additional Chief Engineer and Chief Engineer. When the authorities of the State Government failed to consider his representation, the appellant approached the Hon'ble Gauhati High Court by filing a writ petition being W.P.(C) No. 790 of 2012. The said petition was disposed of on 22.10.2013 by directing the Principal Secretary (Works), Government of Manipur to consider the representation submitted by the appellant and to take appropriate decision within a period of 6 (six) weeks from the date of communication of the order.

[9] In compliance of the order of the High Court, the State Government issued an order dated 24.01.2014 rejecting the claim of the appellant by relying on the judgment dated 28.09.2006 passed by the Full Bench of the Hon'ble Gauhati High Court in the case of Assm Tombi Singh - vs- State of Manipur & Ors. reported in 2006 (4) GLT 608.

Having been aggrieved, the appellant approached this Court by filing W.P.(C) No. 96 of 2014 with the prayer for quashing the order dated 24.01.2014 issued by the Government of Manipur and also for directing the respondents to allow the appellants to enjoy the financial benefit entitled to a regular Executive Engineer/Superintending Engineer, Additional Chief Engineer and Chief Engineer. The writ petition was dismissed by the learned Single Judge by the impugned judgment and order dated 05.09.2015.

[10] The appellant, thereafter, filed a Review Petition Case No. 37 of 2014 assailing the judgment and order dated 05.09.2015 of the learned Single Judge. However, the said review petition was also dismissed on 17.09.2014. The appellant, thereafter, filed M.C.(Review Petition) No. 24 of 2014 for modification of the order dated 17.09.2014 passed in Review Petition Case No. 37 of 2014 and also seeking for direction to the respondents to allow the applicant to enjoy the financial benefits payable to a regular Executive Engineer. The said miscellaneous application was also dismissed by the learned Single Judge by order dated 24.03.2015.

Having been aggrieved by the said judgment and order of the learned Single Judge, the appellant approached this Court by filing the present writ appeal assailing the order of the learned Single Judge.

[11] Mr. M. Devananda, learned counsel appearing for the appellant submitted that as the appellant was allowed to hold the charge of Executive Engineer, Assistant Engineer, Additional Chief Engineer and Chief Engineer right from 27.07.1995 till his retirement in 2014 and as he was functioning and discharging the full responsibility and duties of the said higher post, the appellant is entitled to get the financial benefits of the said higher posts.

In support of his contension, Mr. M. Devananda, learned counsel appearing for the appellant relied on FR49 and submitted that when a Government servant is normally allowed to hold charge and discharge the full 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 entitled to enjoy the pay of the higher post.

[12] We are not impressed by the argument of Mr. M. Devananda, learned counsel appearing for the appellant. In our considered opinion, what FR49 contemplates is regulating the pay of a Government servant when appointed to OFFICIATE, as a temporary measure, in one or more of other independent posts at one time under the Government. The provision of FR49 is attracted only when a Government servant already holding a post in a substantive or officiating capacity is appointed to officiate, as a temporary measure, in one or more post at one time under the Government.

In our view, the provision of FR49 is not applicable in the case of the appellant for the simple reason that the appellant was never appointed to officiate in any higher post, rather he was only allowed to hold the charge of higher post on in-charge basis in his grade pay and without extra remuneration.

[13] According to Mr. M. Devananda, learned counsel appearing for the appellant, the judgment rendered by the Full Bench of the Hon'ble Gauhati High Court in the case of Assm Tombi Singh (supra) is not at all applicable to the case of the appellant. He also submitted that as the claim of the appellant for allowing him to enjoy the pay scale of the higher post had been rejected by the Government by relying on the judgment rendered by the Full Court of the Hon'ble Gauhati High Court in the case of Assm Tombi Singh (supra), the said order of the Government dated 24.01.2014 is also liable to be quashed and set aside.

[14] Mr. M. Devananda, learned counsel appearing for the appellant further submitted that the case of the appellant is squarely covered by the judgment of the Apex Court rendered in the case of Arindam Chattopadhyay & Ors. -vs- State of West Bengal & Ors. reported in (2013) 4 SCC 152.

[15] It may be pointed out that the learned Single Judge had already considered the case of Arindam Chattopadhyay (supra) in the impugned judgment and distinguished it on the ground that the present appellant had been kept in-charge of the higher post on the condition that he would not be entitled to any extra remuneration; whereas in the case of Arindam Chattopadhyay(supra) there was no such conditions when the appellants therein were transferred to act as Child Development Project Officer in ICDS Project. When confronted with this fact, Mr. M. Devananda could not point out any error with the finding of the learned Single Judge.

[16] In the case of Assm Tombi Singh (supra), the points formulated and put up before the Full Bench of the Gauhati High Court for decision are as under :

"a) Whether or not the employee simply holding the higher post without any appointment to the higher post will be entitled to get the pay scale attached to the higher post?

b) Whether or not the incumbent holding the higher post on incharge basis under an order containing specific conditions that it would be without extra remuneration will be entitled to get pay scale attached to the higher post?

c) Whether or not the incumbent who had been delegated the power of higher post without any order for appointment to the higher post will be entitled to get any scale attached to the higher post?"

[17] After considering a number of judgments rendered by the Apex Court, the Full Bench decided the formulated points at Para No. 20 of the judgment which reads as under :

"20. In view of the aforesaid discussion, we hold that an employee simply placed in charge of the higher post, without any appointment therein, in terms of FR 49 is not entitled to claim pay and allowances for such higher post. Similarly, an incumbent holding a higher post on Incharge basis under an order which contains specific conditions that it would be without extra remuneration, is not entitled to read in the order more than what it discloses. Likewise, such employee who is simply delegated the power of the higher post, while serving in his substantive post in the lower cadre, is also not entitled to get the higher pay scale, unless directed by the authority, otherwise. The reference is answered accordingly."

In our considered opinion, the case of the appellant is squarely covered by the judgment rendered in Assm Tombi's case.

[18] Relying on the judgments of the Apex Court in the case of Secretary -cum- Chief Engineer, Chandigarh -vs- Hari Om Sharma & Ors. reported in (1998) 5 SCC 87, State of Punjab -vs- B.K. Dhir reported in (2017) 9 SCC 337, and State of Punjab & Anr. -vs-Dharam Pal reported in (2017) 9 SCC 395, the learned counsel appearing for the appellant submitted that despite the conditions incorporated in the order of officiating appointment that the incumbent would continue to draw his salary in his grade pay and no extra financial benefit would be given to him for the officiating charge, the Apex Court, in the above cited cases held that an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefit of officiating position.

The learned counsel for the appellant submitted that the Apex Court also clearly held that an agreement that, if a person is promoted to higher post or put to officiate on that post, he would not claim higher salary or other attendant benefit, would be contrary to law and thereafter, upheld the pay scale of higher post against which the incumbent had been on officiating basis.

The learned counsel vehemently submitted that the above judgments of the Apex Court squarely covered the case of the present appellant.

[19] On careful perusal of the aforesaid decisions in its entirety, we are of the considered opinion that it is not an authority for the proposition canvassed by the learned counsel for the appellant that a person who had been allowed to hold the charge of higher post on in-charge basis in his grade pay and without any extra remuneration, shall be entitled to enjoy the pay scale of the higher post.

[20] In all the above cases cited by the learned counsel for the appellant, the nature of appointment was on officiating basis and not on in-charge basis, as in the case of the present appellant. We should not lose sight of the provision of FR33 and FR49 wherein it is provided that if a Government servant is appointed to officiate in a higher post, he is entitled to the pay of higher post. As the appellant had not been appointed to officiate in any of the higher post, all the cases of the Apex Court relied on by the learned counsel appearing for the appellant are not applicable and are clearly distinguishable on facts.

[21] In view of the aforesaid premises, we do not find any merit in this appeal and accordingly, the writ appeal stands dismissed. No order as to costs.