IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 95 of 2011 (S/B) Tripureshar Prasad Kala ….…… Petitioner. Versus State of Uttarakhand and another ………. Respondents Mr. M.C. Pant, Advocate for the petitioner. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State / respondents. Date of Judgment: 25.11.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (ORAL) Chapter VI of Financial Hand Book Volume II (Parts 2 to 4) deals with combination of appointments. Sub- Clause (iv) of Clause 49, contained in the said Chapter, provides that no additional pay shall be admissible to a government servant who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge. At the same time, sub-Clause (i) of Clause 49 provides that where a government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre / line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he were appointed to officiate in the higher post, unless his officiating pay is reduced under Rule 35 but no additional pay shall be allowed for performing the duties of a lower post. Therefore, if a government servant is asked to discharge routine duties of another post, he is not entitled to any additional pay, but if a government servant is appointed to hold full charge of the duties of a higher post, he is entitled to the salaries payable in respect of the higher post, while he shall not be paid the salaries for the post which he is otherwise entitled to hold. 2. In the instant case, writ petitioner was an Executive Engineer posted in Public Works Department. On 5th March, 2005, while he was transferred from one place to the other, he was also asked to discharge the duties of the Superintending Engineer, in addition to his own duties. It was, at the same 2 time, held out that he shall not be paid anything more than what he is otherwise entitled to be paid as an Executive Engineer. 3. Though the petitioner had opted for the State of Uttarakhand and though he was working as an Executive Engineer in the State of Uttarakhand and started discharging additional duties of Superintending Engineer at Uttarakhand since 5th March, 2005, he was formally allocated to the State of Uttarakhand much later. After he was allocated to the State of Uttarakhand, his seniority as Executive Engineer was fixed against serial No. 13-A. At the same time, it was found that there are two people who are at serial Nos. 14 and 15 in the said seniority list, and that, they have been regularly promoted to the post of Superintending Engineers prior to the petitioner being allocated to the State of Uttarakhand. 4. In as much as the State of Uttarakhand has propounded a policy to the effect that if a junior is promoted, ignoring the seniority of the senior, then, if the senior is subsequently promoted, he shall be entitled to notional promotion from the date his juniors were promoted. 5. Having noticed that juniors to the petitioner have been promoted, petitioner made a representation for being promoted to the post of Superintending Engineer notionally from the date his juniors were promoted. By the order dated 19th July, 2010, this prayer of the petitioner has been accepted. 6. While seeking notional promotion, petitioner had also prayed for payment of salaries to which his juniors became entitled upon being promoted to the post of Superintending Engineer from the date they started receiving such salaries. This has not been accorded and hence the present writ petition. 7. It goes without saying, as is the case of the State Government in its counter affidavit that unless a person has discharged the duties of a particular post, salaries payable in respect of such post cannot be claimed. 3 Here, however, the fact remains that the petitioner was discharging the duties of his promoted post by holding full charge of the duties thereof, not only from the date juniors to the petitioner were promoted, but since 5th March, 2005 and, accordingly, in terms of sub-Clause (i) of Clause 49 of Chapter VI of Financial Hand Book Volume II (Parts 2 to 4), he became entitled to the salaries payable in respect of the post of Superintending Engineer from 5th March, 2005. It was, therefore, unjust on the part of the respondents in not allowing the said salary, at least, from the date his juniors were made entitled to receive the same. The claim for the period anterior thereto is not being pressed, nor can be pressed, in as much as the petitioner accepted the condition contained in the order dated 5th March, 2005 that he shall not be entitled to any additional salary. 8. We, accordingly, dispose of this writ petition by directing the respondents to ensure that the petitioner receives salaries payable for the post of Superintending Engineer since when his juniors started receiving the same. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 25.11.2011 25.11.2011 Amit