IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 OP.No. 4297 of 2002(J) ------------------------------- PETITIONER: ------------------ MOHANDAS V.K., DEPUTY TOWN PLANNER, OFFICE OF THE TOWN PLANNER, MALAPPURAM. BY ADV. SRI.M.CHATHUKUTTY NAMBIAR SRI.K.B.DAYAL RESPONDENTS: ----------------------- 1. THE SECRETARY, PALAKKAD DEVELOPMENT AUTHORITY, PALAKKAD. 2. STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT (G) DEPARTMENT, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A & E/AUDIT), THIRUVANANTHAPURAM. BY ADV. SRI.V.CHITAMBARESH -R1 SRI.T.C.SURESH MENON GOVERNMENT PLEADER SMT.N.SUDHA DEVI R2 & R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.4297/2002 ORDER ON CMP. NO.7767/2002 IN OP. 4297/2002 DISMISSED 07.03.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER BY NO.A1/6066/96/PDA DT. 9.6.98. EXT.P2:- COPY OF THE ORDER BY NO.A1/236/2000/PDA DT. 27.4.2000. EXT.P3:- COPY OF THE RESOLUTION BY NO.1257 DT 24.8.2000. EXT.P4:- COPY OF THE LETTER BY NO.A1/236/2000/PDA DT. 30.8.2000 TO THE 2ND RESPONDENT FROM SECRETARY IST RESPONDENT EXT.P5:- COPY OF THE ORDER BY NO.G.O.(RT) 3418/89/LDGD DT. 3.10.89. EXT.P6:- COPY OF THE ORDER BY NO.G.O.(RT) 2676/91/LSGD DT. 22.6.91. EXT.P7:- COPY OF THE ORDER BY NO.G.O.(RT) NO.3059/2001/LSGD DT. 5.10.01. EXT.P8:- COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER DT. 4.7.01. ET.P9:- COPY OF THE ORDER BY NO.G.O.(RT) NO.23/02 /LSGD DT. 3.1.02. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J. ========================= O.P.No.4297 of 2002-J. ========================= Dated this the 7th day of March, 2008. J U D G M E N T The petitioner herein is aggrieved by the orders Exts.P7 and P9 whereby the Government refused sanction to draw charge allowance by him while he was holding the additional full charge of Executive Engineer of the Palakkad Development Authority. Even though he filed Ext.P8 representation seeking reconsideration of Ext.P7, without reconsidering the matter the Government directed him to remit the whole amount received in six equal monthly instalments, as per Ext.P9. 2. While the petitioner was working as Deputy Town Planner with the Palakkad Development Authority he was put in additional full charge of Executive Engineer as per Ext.P1. The appointment granted under Ext.P1 is on the basis of resolution OP.No.4297/2002-J. -: 2 :- No.1129 dated 8.5.1998 of the Executive Committee of the Palakkad Development Authority. He continued in that post till 16.12.2000. He was sanctioned a special allowance at the rate of 20% of minimum monthly salary of an Executive Engineer by the Palakkad Development Authority. This was approved and sanctioned by the Local Fund Audit after verification. Subsequently he was drawing the amount from the own fund of the Palakkad Development Authority for the period from 8.5.1998 to 16.6.2000. The Palakkad Development Authority as per Ext.P2 sanctioned the same with effect from 8.5.1998 onwards as prescribed already. Later on by Ext.P3 the Executive Committee of the Palakkad Development Authority had passed a resolution seeking approval of their action before the Government. It appears that they passed the resolution as the petitioner continued for a period of two years in full charge of Executive Engineer. As per Ext.P4 forwarded along with Ext.P3 resolution, the Secretary of the Palakkad Development Authority sought ratification of their OP.No.4297/2002-J. -: 3 :- action in sanctioning 20% of pay as special allowance to the petitioner. The Government by Ext.P7 rejected the said request and directed the petitioner to refund the amount drawn by him. The Government of the view that there is no provision in the Kerala Service Rules to give charge allowance for the period which exceed 90 days and it is also at the rate of 10% of the basic pay for full additional charge and no Development Authority is empowered to grant such benefits outrightly without Government sanction. 3. In Ext.P8 representation it was pointed out by the petitioner that the Development Authority was competent to make such appointments under Rule 21(c) of the Development Authority Rule, 1984. It was submitted out that no prior Government sanction is necessary. The petitioner had also pointed out that no objection was raised by the Audit Department at the relevant time. But without considering the above points the Government, as already noticed, by Ext.P9 allowed him to remit the amounts in six OP.No.4297/2002-J. -: 4 :- equal monthly instalments. 4. The learned counsel for the petitioner submitted that the stand taken by the Government in Exts.P7 and P9 is not correct. Attention is drawn to Rule 53(b)(2) of Part I KSR. It is contended that this not a case where the petitioner was appointed to discharge only the current duties but he was appointed to hold full additional charges. The distinction between the two has not been considered by the Government while passing Exts.P7 and P9 orders. It is also pointed out that even going by sub rule (2) of Rule 53(b) he was entitled for the additional pay at 20% of the minimum of the scale of pay of that post. 5. In the counter affidavit the stand taken is that going by Rule 35(b)(2) [probably a mistake for Rule 53(b)(2)] granting of charge allowance at 20% of the basic pay is against it. It is also pointed out that there is no provision in those rules to give charge allowance which exceed 90 days. Surprisingly the counter affidavit does not mention anything about the permissible allowance which OP.No.4297/2002-J. -: 5 :- the petitioner is entitled to draw under the rules. It is also contended that the Palakkad Development Authority was not right in sanctioning the same. It is admitted in the counter-affidavit that he was given additional charge of not only the Executive Engineer but also the Secretary of the Palakkad Development Authority on the basis of the decision of the Executive Committee of that authority. 6. For convenience, Rule 53(b)(1) and (2) are extracted below: “53(b)(1). If an officer is appointed to officiate in a second post and to hold in addition full charge of his own post, he may be allowed to draw the highest pay to which he would be entitled if his appointment to one of the posts stood alone and in addition, pay which should not exceed 20 per cent of the minimum of the scale of pay of the other post. The highest pay referred to above may be specifically reduced by the competent authority at its discretion. If compensatory allowance is attached to one of the posts, he may be permitted to draw it in full and if compensatory allowances are attached to more than one of the posts, the allowance which may be granted to him should not exceed the larger allowance. OP.No.4297/2002-J. -: 6 :- 53(b)(2). If the officer is appointed to hold full charge of one or more posts in addition to his own, the additional pay which may be granted to him in respect of each additional post should not exceed 20 per cent of the minimum of the scale of that post. The drawal of compensatory allowances will be regulated as in the sub-para under clause (1) above.” 7. Rule 53(b)(3) will show that, if the officer is appointed to discharge only the current duties of one or more posts in addition to his own, he will be entitled for an additional pay which should not exceed 10% of the minimum of the scale of pay of that post. Obviously there is a difference here as far as the case of the petitioner is concerned. He was put in full additional charge of the post of Executive Engineer and it is not a case where he was put in charge for performing the current duties. The Government decision No.2 under Rule 53 clearly spells out the distinction between “full additional charge” and discharge of “current duties”. Under the former arrangement he has to perform all the administrative, financial and and statutory functions and duties in respect of that post, and under the latter arrangement he need OP.No.4297/2002-J. -: 7 :- attend only the work of a routine nature in respect of that post. The stand taken, therefore that he is only entitled for 10% of the basic pay that too only for a period of 90 days is un- understandable. What is applicable here is Rule 53(b)(2) and not Rule 53(b)(3). If so, he is entitled for drawing the allowance as granted by the Development Authority and the action should have been ratified. Rule 53(b)(3) applies only when an officer is put on charge to perform current duties alone, which is not the situation here. To hold that if a person is holding full additional charge and that too for a period exceeding 90 days, he is disentitled to draw such allowance will be without any justification. A person holding charge of the post cannot be deprived of such allowance merely because of the fact that the competent authority concerned has failed to put an officer on a regular basis to man that post. A period of 90 days, if at all provided is only to see that a mere charge arrangement to perform current duties should not extend beyond 90 days and regular arrangements should be made before OP.No.4297/2002-J. -: 8 :- the said period. Herein as pointed out by the learned counsel for the petitioner, he is covered by the provisions of sub rule (2) of Rule 53(b) as he was in full additional charge. Hence the stand taken in Exts.P7 and also the contentions raised in the counter affidavit are totally against the specific provisions of the Rules. Hence I quash Exts.P7 and P9 orders. It is declared that the petitioner is entitled to draw the special allowance as ordered in Ext.P2. The Original Petition is allowed as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-