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Judgment
The petitioner, who is a Head Clerk in the Office of the Regional Provident Fund Commissioner, Bangalore, has claimed that he has a right to continue in the post of Care Taker which has been upgraded to the post of Superintendent on the ground that he must be deemed to have been appointed to the said post by force of Fundamental Rule 23.
The facts of the case in brief are as follows:
The petitioner was working as a Head Clerk. There were several other persons who were also working as Head Clerks. There existed a post of Care Taker of Government Buildings and the question of granting special pay to the said post was under consideration of the Government. By an Office Circular dt. 20th August 1980 (Annexure-B), Regional Provident Fund Commissioner, Bangalore informed all the Head Clerks that a special pay was admissible for a person who was willing to go on deputation to the post of Care Taker which was an ex-cadre post. By communication dt. 22.8.1980 (Annexure-C), the petitioner expressed his willingness. By Office Order dt. 14.11.1980 (Annexure-D), the petitioner was transferred and posted as Care Taker in the Sub-Regional Office Mangalore.
The Central Board of Trustees considered the question of upgrading the post of Care Taker having regard to the higher duties and responsibilities proposed to be entrusted to the post of Care Taker. Sanction was accorded for the upgradation of one post of Head Clerk equivalent to that of Superintendent (Regional) and to designate it as Care Taker by making a corresponding reduction of one post of Head Clerk (Vide Annexure-F). The relevant portion of the order reads:
Accordingly I am to convey the approval of Central Provident. Fund Commissioner to the conversion of the existing post of Cart Taker sanctioned to your Regional Office from the existing cadre of Head Clerk to Supdt. (Regional) as detailed below:
On conversion of the Care taker''s post as explained above, the sanctioned strength of the post of Supdt. (Regional)/Head Clerk/of your region stands modified as under:
Existing (EPF side) After Conversion
Supdt. Regional 3 4
Head Clerk 43 42
Upper Division Clerk Not applicable.
Please acknowledge receipt.
After the upgradation of the post, the petitioner represented that he was entitled to be treated as having been appointed to the post of Superintendent consequent on the upgradation of the post of Caretaker as equal to that of Superintendent. The said representation was rejected as per endorsment dated 17.10.1981. It reads:
OFFICE MEMO
Subject: Upgradation of the post of Caretaker to the level of Supdt (Regl) Head, Clerk Regarding.
With reference to his representation dt. 10.9.1981, Sri Sampath Kumar, Head Clerk is hereby informed that the post of Caretaker which was hitherto in the cadre of Head Clerk has since been upgraded to Superintendent (Regional). His seniors will have to be considered to fill up the upgraded post. If his seniors are found unsuitable, only then his case can be considered for this post.
Aggrieved by the said order the petitioner has presented this writ petition.
The petitioner relies on Fundamental Rule 23 which provides that in cases where the post is upgraded, the holder of a post shall be deemed to have been appointed to the upgraded post.
In my view the contention of the petitioner is untenable. The real meaning and purpose of a rule of that type came up for consideration in the case of Munireddy, M. v. State of Karnataka1. The rule interpreted in that case was Rule 43 of the Karnataka Civil Service Rules which is in pari materia with Fundamental Rule 23. In that case, it is pointed out that there would be a deemed promotion and appointment of an incumbent to a higher post, if there is only one post held by an incumbent and that post is upgraded, there being no post in which he could continue. That was the position in that case. In the same judgment it has been pointed that if one among several posts is upgraded, no person holding a post in the lower cadre can claim that he must be deemed to have been promoted to the upgraded post. The relevant portion of the judgment reads:
"....It should however be pointed out that it is only in cases where a few unoccupied posts belonging to a cadre are upgraded and the recruitment rules indicate that all such upgraded posts belong to a higher cadre and are required to be filled up by direct recruitment or promotion, no person would be entitled to occupy such higher post unless by a specific order made by a competent authority he is appointed to such higher post. This is obviously so, because when a cadre consists of a large number of posts, and some of them only are upgraded no one can say that he was holding the upgraded post..." (underlined (italics) by me).
The case of the petitioner is not similar to that of Munireddy, as in that case the only post of Manager held by that petitioner was upgraded and the
(1981) 2 Kar.L.J. 417. revision of pay rules framed under Art. 309 also provided that the incumbet would get the pay scale of the higher post from the date of upgradation. In the present case, admittedly, there are as many as 9 persons who are seniors to the petitioner in the cadre of head clerk whose names are found in Annexure-B. Therefore, unless the case of every one of the persons who is senior to the petitioner is considered for promotion, the petitioner has no right to be considered for promotion to the post of Caretaker which has been upgraded to that of Superintendent. Learned counsel for the petitioner, however, submitted that none of the seniors had any right for consideration for promotion, because some of them did not express their willingness to go as Caretaker when their consent was asked for as per Office Circular dt. 20th August 1980, and though others had given willingness, the petitioner was preferred and transferred to work as Caretaker. I do not find any force in this submission. At the point of time when the consent was asked for and the petitioner was transferred, the post was only equivalent to that of Head Clerk and the transfer did not amount to promotion. The mere fact that some special pay was given to a person transferred as Caretaker did not make the transfer to such a post a promotion. In fact as indicated in Annexure-B it was treated as an ex-cadre post. It was only on 11.8.1981 (vide Annexure-F) one post of Head Clerk which had been designated as Caretaker was upgraded to that of Superintendent and, therefore, the endorsment issued on 17-10-81 to the effect that consequent on the upgradation of the post of Caretaker to that of Superintendent, the case of every one among the head clerks who is senior to the petitioner has to be considered for promotion, is in conformity with Clause (1) of Art. 16 of the Constitution and the contention of the petitioner is contrary to it.
Learned counsel for the petitioner also made a grievance that even the special pay fixed for the post of Caretaker has not been given to him. That is entirely a different issue. The petitioner is at liberty to make a demand for payment of the special pay and if the same is not paid within 3 months, he is at liberty to present a writ petition to this court. The writ petition is rejected.