IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 4705/2008. Reserved on: 28.5.2010. Decided on:15.6. 2010 _____________________________________________ Virender Singh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 yes For the petitioner : Mr. Dilip Sharma, Advocate.. For the respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. R.P. Singh, Asstt. Advocate General. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that petitioner joined as a Clerk Apprentice under the erstwhile Nahan Foundry on 24.7.1974. He was regularized as Clerk in the pay scale of Rs. 260-400 with effect from 1.2.1976. He was posted in Stockyard of Sales Section of the erstwhile Nahan Foundry vide office order dated 13.3.1985 and was attached to Sh. Om Prakash, 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 Inspector/Assistant. The text of office order dated 13.3.1985 reads thus: “In partial modification of office order No.MD/85-1968 dated 15th Jan., 1985 Shri Virender Singh, Junior Clerk is posted in stockyard of sales section, with immediate effect. He will be attached to Shri Om Prakash and will pick up the work being done by him so that he could take over the same on the retirement of Sh. Om Prakash.” Sh. Om Prakash retired as Assistant/Inspector on 31.8.1985. The Manager (Sales) issued duty sheet of sales staff at Nahan on 23.12.1985. Petitioner was permitted to work as Incharge/Stockyard with the present duties. Petitioner made a representation to grant him officiating allowance for discharging the duties of higher post in stockyard of sales section. The same was rejected by the Manager (Personnel) on 14.1.1988. Petitioner and similarly situate persons were asked to exercise option whether they would like to be transferred/absorbed in Public Works Department vide letter dated 28.9.1988. Petitioner exercised his option and subsequently was absorbed in the Himachal Pradesh Public Works Department. Petitioner was directed by the Chief Engineer to deal with the sales tax and excise matters. Vide office order dated 22.6.1994, one Sh. A.K. Nanda of Sales Section was ordered to work as attached officer to the Chief 3 Engineer and the senior most person in the sales section was ordered to work as Incharge Sales Section in his place. The text of office order dated 22.6.1994 reads thus: “In the interest of smooth working of this State Workshop Sh. A.K. Nanda of Sales Section will work as attached officer to the Chief Engineer and the senior most person in the sales section will work as Incharge Sales Section in his place. It is further ordered that Sh. Mohinder Singh Suptd., C.E. (Purchase) Section will also work as Superintendent Estt. In Chief Engineer office.” Petitioner was also permitted to sign the papers and documents relating to central excise and gate passes vide office order dated 23.6.1994. Petitioner made representation for granting him officiating allowance for working against the post of Senior Assistant/Inspector on 10.5.1996 followed by another representation dated 4.1.1997. He also served legal notice on 6.4.1997 for the redressal of his grievance. Petitioner represented that he had been discharging higher duties of Senior Assistant/Inspector after the retirement of Sh. Om Prakash with effect from 31.8.1985. Case of the respondent-State, in a nutshell, is that petitioner has never been directed to work on the higher post and has relied upon F.R. 9 (17). It is also stated in the reply that the Manager (Sales) was looking after the work of sales and the petitioner has not discharged the duties of higher post. 4 Mr. Dilip Sharma has vehemently argued that petitioner started discharging the duties of Inspector/Senior Assistant on the basis of Annexures A-1, A-2, A-6, A-7 and A-8 and was entitled to officiating allowance. He further contended that the case of the petitioner was also recommended by the Executive Engineer on 23.8.1997. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the petitioner has not discharged the duties of higher post and thus was not entitled to get any officiating allowance. I have heard the learned counsel for the parties and have perused the pleadings carefully. A bare perusal of Annexure A-1 reveals that the petitioner was attached to Sh. Om Prakash to pick up the work being done by him so that he could take over the same on the retirement of Sh. Om Prakash. Sh. Om Prakash retired from service on 31.8.1985. Thereafter petitioner started discharging the duties, which were being discharged by Sh. Om Prakash. Sh. Om Prakash was working as Senior Clerk, however, he was promoted to the post of Inspector (Sales) on 17.8.1985. Petitioner was directed to work as Incharge Stockyard as per letter dated 23.12.1985. He continued to discharge the duties of higher post of Inspector (Sales) even after his absorption pursuant to letter dated 28.9.1988. Chief Engineer as per Annexure A-7 ordered Sh. A.K. Nanda to 5 work as attached officer to the Chief Engineer and the senior most person in the sales was to work as Incharge Sales Section in his place. He was also permitted to sign papers relating to central excise and gate passes etc. He started discharging the duties as Incharge Sales Section after the attachment of Sh. A.K. Nanda to the Chief Engineer. He has worked in this capacity except in September/October 1995 to October, 1996. He made representation for the redressal of his grievance. The case of the petitioner was recommended by the Executive Engineer on 23.8.1997 vide Annexure A-16. The matter was also taken up by the Executive Engineer (Mechanical) with the Superintending Engineer (Mechanical), HPPWD and IPH State Workshop for the grant of officiating allowance on assumption of the charge of higher post. He has given need based requirement for officiating allowance/promotion/ ad hoc promotion for ministerial staff/technical staff. Superintending Engineer (Mechanical) has sent a communication to the Executive Engineer (Mechanical-I) on 30.5.2001 advising him that the senior most employees working in the section may be asked to attend the work on retirement of any senior employee in the section. Petitioner was ordered to work as Incharge of Sales Section vide office order dated 22.8.2001 (Annexure A-13). Similarly situate Sh. Harish Chander was granted the officiating allowance for discharging the duties of Superintendent 6 Grade-II during the period 16.4.1990 to 2.6.1990 vide office order 19/20.1.1993. It is evident from the facts enumerated hereinabove that petitioner was discharging the duties of higher post after the retirement of Sh. Om Prakash and thereafter as per Annexures A-2, A-6, A-7, A-8 and A-14. Case of the petitioner also stood recommended by the Executive Engineer on 23.8.1997. A bare perusal of Annexures A-14 and A-15 reveals that there was acute shortage of the officers after the retirement of senior officers and the senior most employees working in the sections were asked to work on the post on the retirement of the employees in the section. Thus, it can safely be presumed that since number of vacancies were lying vacant, petitioner and similarly situate persons were ordered to discharge the duties of the higher posts. There is no merit in the contention of Mr. R.K. Sharma that since the Manager (Sales) was looking after the section, he was also discharging the duties of Inspector Sales. The Manager (Sales) is not supposed to discharge the duties of Inspector (Sales) as projected in the reply and argued by Mr. R.K. Sharma as well. Petitioner was trained by attaching him with Sh. Om Prakash and started discharging the functions, which were being discharged by Sh. Om Prakash after his retirement. There is no substance in the stand taken by the respondents in the reply that petitioner was not entitled to officiating allowance on 7 the basis of FR 9 (17). Respondents have misconstrued FR 9 (17). In the instant case, petitioner has been ordered earlier to look after the work of higher post and thereafter he started discharging the duties of higher post with effect from 31.8.1985. The fact that the case of the petitioner has been recommended by the Executive Engineer on 23.8.1997, pre- supposes that the petitioner was discharging the duties of higher post. Similarly situate employee, i.e. Harish Chander was allowed officiating allowance by the respondents as per Annexure A-12 dated 19/20.1.1993. Accordingly, in view of the discussion made hereinabove, the petition is allowed. Respondents are directed to release and pay the officiating allowance to the petitioner for discharging the duties of higher post of Senior Assistant/Inspector (Sales) with effect from 31.8.1985 except for the period September/October, 1995 to October, 1996. This amount shall carry interest @ 6% per annum. Respondents are directed to do the needful within a period of four weeks from today. No costs. (Rajiv Sharma), Judge 15.6. 2010 *awasthi*