Supreme Court Dismisses Appellant in Service Pay Scale Dispute Due to Own Request Transfer Not Conferring Higher Post Salary. Claim for Higher Scale Under Class I Superintendent Post Fails as Transfer Was an Accommodation, Not Officiating or Promotion, and No Equivalent Class II Post Was Available.

Case Note & Summary

This was an appeal by special leave preferred by a retired jail superintendent against two orders of the Orissa Administrative Tribunal, Bhubaneswar, dated April 26, 1988. The appellant had been working as Superintendent of Jail in leave reserve in the office of Inspector General (Prisons), a Class II post. He made a representation dated February 5, 1978 to the Chief Minister stating that he had no house of his own, had recently secured a site at Behrampur, had served the department for more than 37 years, and his children were prosecuting studies near Behrampur. He requested transfer to Behrampur or nearby to enable him to construct a house and settle down after retirement. Taking that representation into consideration, the Government sanctioned two posts of Superintendent of Jail at Circle Jail, Behrampur, in the pay scale of Rs.850-1450 with dearness allowance and issued orders dated January 27, 1978 transferring and posting the appellant to that post. By proceedings dated March 28, 1978, he was adjusted in one of the sanctioned posts. It was undisputed that he worked in that post from April 1, 1978 until October 31, 1978, the date on which he attained superannuation and retired. The appellant filed a writ petition in the High Court which was later transferred to the Administrative Tribunal, Bhubaneswar, as T.A. No.29 of 1987 (originating from OJC No.2540 of 1984), along with M.P. No.281 of 1988. The Tribunal passed the impugned orders on April 26, 1988. The core controversy was whether the appellant was entitled to the salary attached to the Class I post of Superintendent of Circle Jail for the period he actually worked there, even though he had been transferred at his own request. The appellant contended that because he discharged the duties of that post, he was entitled to its salary. The State argued that the Superintendent leave reserve post was Class II whereas the Superintendent of Circle Jail was Class I; since the appellant had requested adjustment at Behrampur and no equivalent Class II post was available, he was adjusted in the Class I post only as an accommodation, not on officiating or promotion, hence not eligible for the higher scale. The Supreme Court accepted the settled legal position that if the Government, for want of a candidate, directs an officer in a lower cadre to perform the duties of a higher post, then during that period the incumbent is entitled to the salary attached to the higher post if he actually performed those duties. Similarly, where an officer is promoted from a lower cadre to a higher cadre even on ad hoc or temporary basis, he is entitled to the higher scale for the period of discharging those duties. However, the Court found neither situation applicable. The transfer order was passed pursuant to the appellant's representation to the Chief Minister, evidently to accommodate him before retirement at Behrampur where he proposed to construct a house. Since there was no equivalent Grade II post available, he was necessarily accommodated in the Class I post. Therefore, the appellant was not entitled to the higher scale of pay but only to the pay of the substantive post of Superintendent Leave Reserve on which he would otherwise have retired. Accordingly, the appeal was dismissed but without costs.

Headnote

Issue of Consideration

Final Decision

The Supreme Court dismissed the appeal, holding that the appellant was not entitled to the higher scale of pay for the Class I post but only to the pay of his substantive post of Superintendent Leave Reserve. No costs were awarded.

Law Points