Mohanty Vs. State of Orissa & Ors  INSC 1133 (13 September 1996)
O R D
have heard learned counsel on both sides.
appeal by special leave arises from the two orders dated April 26, 1988 of the
Administrative Tribunal at Bhubaneswar made in T.A. No. 29/87(OJC No.2540/84) traneferred
from the High Court and M.P. No. 281/88.
admitted position is that the appellant, while working as Superintendent of Jail
in leave reserve in the head Office of l.G. (Prisons) made a representation on February 5, 1978 to the Chief Minister stating that
he had, no house of his own and had recently secured a site at Behrampur. He
wanted to settle down at Behrampur. He had served the Department for more than
37 years. His children were prosecuting studies near Behrampur. If he is
transferred to Behrampur or near about Behrampur, he would be able to construct
the house and settle him down after retirement at Behrampur. Taking that
representation into consideration, the Government granted sanction on January 27, 1978 directing that he was transferred
and posted as Superintendent of Jail at Circle Jail at Behrampur. By
proceedings dated January
27, 1978, the
Government have sanctioned two posts of Superintendent of Jail for Circle Jail
at Behrampur in the pay scale of Rs.850-1450/ with D.A.
of the above sanctioned posts, the appellant came to be adjusted by proceedings
dated March 28, 1978 and it is dispute that he worked during the period from
April 1, 1978 to October 31, 1978 the date on, which he attained superannuation
and retired from service. The writ petition filed in the High Court was
subsequently transferred to the Tribunal. Though there is no mention as regards
his entitlement to the payment of the salary in the post of Superintendent
referred to hereinbefore, the same was not paid to him for the reason that he
was transferred and posted to the said post at his request. It is the
contention of Shri Y. Prabhakara Rao, learned counsel for the appellant, that
since he was asked to discharge that duty for the said period, he is entitled
to the payment of the salary Prima facie, we are impressed with the arguments
addressed by Shri Y.P. Rao, but it is pointed by Shri Misra, learned counsel
appearing for the State, that the Superintendent leave reserve is only Class II
post whereas the Superintendent of the Circle is Class I post. Since the
appellant made a request for adjustment of him at Behrampur and since there was
no other post equivalent to Class II available, he came to he adjusted in that
post at request.
he was not eligible to the scale of pay attached to the post. We are in
agreement with Shri Misra, learned counsel for the State. It is a settled
position that if the Government, for want of candidate, directs an officer in
the lower cadre to perform the duties of the post in the higher cadre, during
that period, necessarily, the incumbent would be entitled to the payment of the
salary attached to the post if the incumbent had performed the duties in that
where concerned officer is on promotion from lower cadre to the higher cadre,
though on ad hoc or even temporary basis, the incumbent would be entitled to
the payment of the salary attached to the post for the period of his
discharging the duty in that post. In this case, neither would be is
applicable. At request, he was transferred and though order does not speak of,
but the fact remains and is not disputed that the order came to be passed
pursuant to a representation made by the appellant to the Chief Minister.
obviously on that basis that direction was issued by the Chief Minister's
Office and the transfer order came to be made to accommodate him, before his
retirement, at Behrampur where he had proposed to construct the house.
there was no equivalent post of Grade II category, necessarily he was
accommodated in that post. Consequently he is not entitled to the higher scale
or pay than to which he was entitled as Superintendent Leave Reserve on which
post he would otherwise have retired.
appeal is accordingly dismissed, but in the circumstances, without costs.