1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 503 of 2004 Decided on: 15th May, 2009 Union of India & ors …..Petitioners. VERSUS Daljit Singh & anr …..Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr.Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners : Mr Anup Rattan , Advocate. For Respondent No.1. : Mr.R.K. Gautam, Sr. Advocate with Ms. Archana Dutt, Advocate. Per Surjit Singh, Judge (Oral) Writ Petitioners have sought judicial review of order dated 6th April, 2004, passed by Central Administrative Tribunal, Chandigarh Bench in O.A. No. 984-HP-2003, filed by respondent, Daljit Singh, whereby allowing the said OA, the Tribunal has directed the present writ petitioners to pay him salary of HSG-1 for the period from 16.1.1998 to 28.9.2001 when he worked as HRO, Mandi. 2. Factual background, which led to the institution of the aforesaid OA and passing of the impugned order, may be noticed. Respondent, Daljit Singh Dadwal was HSG Grade-II employee of the 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 writ petitioners and was posted in RMS/I, Pathankot. Vide order dated 8.1.1998 ( Annexure A-4 ), he was ordered to officiate as HRO, HSG-II in RMS Mandi, purely on temporary and adhoc basis, with a categorical condition that he shall have no claim for being permanently absorbed against the post of HRO. RMS, Mandi Division was created vide notification dated 29th July, 1994 and the existing Sub Record Officer was directed to function as HRO (Head Record Officer). Admittedly, Sub Record Officer was in HSG Grade-II. Posts of HROs were earlier in HSG Grade-II, but on recommendation of third Central Pay Commission, they were converted into HSG Grade-I vide notification dated 25.1.1975 ( Annexure A-3). The communication said that Head Record Clerk in RMS will be placed in HSG Grade-I. Parties are not at dispute that HROs in RMS Division are in the grade of HSG- I. However, in the present case, contention raised on behalf of writ petitioners is that RMS Division was created at Mandi in the year 1994, vide letter dated 29th July, 1994, but no post of HRO in HSG-I was created and the existing Sub Record Officer, who was in HSG-II, was to work as HRO. The contention is that the post of HRO in HSG-I was created in RMS, Mandi for the first time in the year 2001, vide order dated 26.7.2001 ( Annexure A-2 ). 3. Respondent, after having been posted as HRO at Mandi, made representations for being paid the salary in the pay scale of HSG-I because according to him, vide order dated 25.1.1975, posts of Head Record Clerks in RMS, which are equivalent to HROs, had been placed in HSG-I. His representations were rejected and the reasons given were that the post of HRO, Mandi was in HSG-II and not 3 in HSG-I and that post in Grade-I had been created only in 2001 vide Annexure A-2. Respondent then filed O.A in the year 2003 before Central Administrative Tribunal, Chandigarh Bench, claiming that HROs in all the RMS Divisions were in Grade-I and so he was entitled to the pay of HSG-I for the period he worked as HRO in RMS Division, Mandi. Learned Tribunal, relying upon the order dated 25.1.1975 ( Annexure A-3), has held that the post of HRO in RMS Division, Mandi, is to be assumed to be in HSG-I. 4. Petitioners are aggrieved by the view taken by the Tribunal and the consequential order. We have heard the learned counsel for the petitioners as also the counsel representing the respondent. Undoubtedly, vide order dated 25.1.1975 (Annexure A-3 ), Government of India, accepting the recommendations of third Pay Commission directed that Head Record Clerks in RMS Divisions be placed in HSG-I grade in a higher pay scale. But the order was applicable to the posts of Head Record Clerks already existing in RMS Divisions. RMS Division, Mandi was created subsequently vide order dated 29th July, 1994. The order said that the existing Sub Record Officer shall function as HRO. That means there was no post of Head Record Clerk, the designation referred to in the communication dated 25.1.1975, in the existing Sub Record Office at Mandi. The post was only of a Sub Record Officer and, therefore, it did not come within the purview of the order dated 25.1.1975. The order dated 29th July, 1994, creating RMS Division at Mandi, speaks of creation of various posts, but it does not speak of creation of a post of HRO in either grade. It simply says that existing Sub Record Officer shall function as HRO. The order nowhere 4 says that the post is upgraded as HRO. On the other hand, the fact that the existing Sub Record officer has been directed to function as HRO implies that the existing incumbent was to discharge the duties of HRO, without being promoted to Grade-I. Had there been any intention of upgrading the post of Sub Record Officer, the existing incumbent would not have been asked to work as HRO, because in that case, the senior most HSG-II Officer in the circle would have been promoted and appointed to discharge those functions. 5. As a matter of fact, post of HRO in HSG-I was created for RMS, Mandi Division for the first time in the year 2001 vide order dated 26.7.2001 ( Annexure A-2 ). And when this was done, the respondent was transferred out and posted as HSG-II and some other HSG-II official was promoted and appointed as HRO. It is not the case of the petitioner that he was entitled to be promoted as HSG-I even when in the year 2001 the post of HRO in HSG-I was created, leave also his claiming that the he was so entitled in 1998 when transferred to work as HRO in RMS Mandi. 6. Learned counsel representing the respondent has urged that by virtue of provision of F.R. 49, respondent is entitled to higher pay when he was ordered to perform the duties of higher post vide order dated 8.1.1998 ( Annexure A-4) . We have gone through the aforesaid Rule 49. From a bare reading of this rule, it is clear that its applicability presupposes the existence of a higher post and a higher post exists or comes into being only when it is created. Existence of a post cannot be assumed or presumed. 5 In view of the above stated position, we are of the considered view that the impugned order of the learned Central Administrative Tribunal is patently illegal . Hence, the writ petition is allowed and the impugned order dated 6th April, 2004 passed by Central Administrative Tribunal in OA No. 984-HP-2003, is set aside and consequently the Original Application filed by the respondent is dismissed. ( R.B. Misra ), Judge. ( Surjit Singh ), Judge. 15th May, 209(sl)