Irfan Ali Khan vs Indian Council Of Agricultural Research & Ors.

The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-

The brief facts of the case are as follows:-

The applicant was working under the respondents’ department on the post of Assistant Administrative Officer since 31.08.2012. Shri Panchoo Lal, Administrative Officer, was due to retire. Since no promotion to the aforesaid post had been made and no other employee had been appointed, the applicant took charge of the aforesaid post immediately after the retirement of Shri Panchoo Lal and continued to discharge the duties of the said post till 31.07.2021, as would be evident from Annexures A-1, A-2, A-3 and A-4 to the OA. It is the case of the applicant that, during his service period itself, he had made several requests for payment of salary attached to the higher post, the duties of which were being performed by him, but no order was passed in that regard. After his retirement, the applicant also submitted an application in this regard. Vide the impugned order dated 01/02/08.02.2023, the claim of the applicant for payment of salary of the post of Administrative Officer was rejected. It further appears that, before filing the present OA, the applicant had filed another OA No. 775 of 2022, which was dismissed as not pressed. Thereafter, the applicant filed a review application, which was also rejected. The applicant then approached the Hon’ble Allahabad High Court challenging the orders passed in the OA and the review application by filing Writ-A No. 15543 of 2023. The said writ petition was decided on 18.09.2023 (Annexure A-10), whereby the same was disposed of with a direction to the applicant to file a fresh OA. It is also pleaded by the applicant that a similar issue had been decided in favour of the employee by the Court of Munsif, Third, Bareilly, allowing payment of the higher salary attached to the post which the plaintiff in Suit No. 2909/84/82 was holding additionally. The judgment and order passed in the aforesaid suit, filed by Shri R.K. Sachdeva (Annexure A-11), was challenged before the District Judge in Civil Appeal No. 37 of 1985, which was dismissed on 21.03.2007 (Annexure A-12). The applicant’s case is stated to be identical to the matter already decided vide Annexures A-11 and A-

Per contra, the respondents have filed their counter affidavit contending that the OA is barred by limitation. It has been stated that, during his service period, the applicant did not claim the salary attached to the higher post, i.e. Administrative Officer, and, therefore, he has relinquished his right in this regard. It is also pleaded that the applicant was never promoted or appointed to the post of Administrative Officer by any higher authority, nor was any direction ever issued to the Institute to entrust him with the charge of the post of Administrative Officer. Thus, the applicant cannot be allowed the difference in pay. It is further pleaded that the case of the applicant is covered under Rule 49(ii) of the Fundamental Rules. The applicant had simply taken over the charge of a different post in the same establishment and, therefore, there is no illegality in the impugned order. Accordingly, a prayer has been made to dismiss the OA.

A rejoinder affidavit has also been filed by the applicant, in which the facts stated in the Original Application have been reiterated and the contents of the counter affidavit have been denied. Nothing new has been stated in the rejoinder affidavit.

I have heard Sri S.K. Kushwaha, learned counsel for the applicant, and Sri Narendra Pratap Singh, learned counsel for the respondents, and have perused the record.

The submission of learned counsel for the applicant is that the applicant took the additional charge of the post of Administrative Officer upon the retirement of Shri Panchoo Lal and continued to discharge the duties of the said post till 31.07.2021. He made requests on several occasions for payment of salary commensurate with the post which he was additionally holding. Although the applicant’s earlier OA was dismissed as not pressed. When the applicant approached the Hon’ble High Court by filing the writ petition mentioned hereinabove, the same was disposed of with a specific direction to the applicant to file a fresh OA before the Tribunal. It is also argued that a similar issue had already been decided in favour of the employee of the same department in Suit No. 209/84/82 (Annexure A-11). Thus, the applicant is also entitled to the difference of pay. The findings recorded by the authority concerned in the impugned order are illegal and perverse. Learned counsel for the applicant, therefore, argued that the OA may be allowed, the impugned order may be set aside, and a direction may be issued to the respondents to pay the difference of pay as claimed in the OA. Learned counsel for the applicant has placed reliance upon the following case laws:

In rebuttal, learned counsel for the respondents submitted that the O.A. is barred by limitation. It was further submitted that the applicant had not claimed the difference in pay during the period of his service, which clearly indicates that he had relinquished his right to claim such difference. It was also submitted that no formal appointment order appointing the applicant to the post of Administrative Officer was ever issued by the Institute and the applicant was merely performing the duties of Administrative Officer in the same office. Therefore, the applicant is not entitled to claim any salary of difference in pay for the post of Administrative Officer. In support of his submissions, learned counsel for the respondents referred to Rule 49 of the Fundamental Rules and prayed for dismissal of the O.A.

I have considered the rival submissions of the parties and have gone through the record.

Before discussing the submissions raised across the bar, it will be useful to quote the order passed in Writ ‘A’ No. 15543/2023:-

Annexure A-11 is the judgment and order passed in Suit No. 209/84/82 by the Court of Munsif-III, Bareilly. In the said suit, Shri R.K. Sachdeva, an employee of the respondents’ department, was granted a decree in his favour for payment of salary for the post of Senior Accounts Officer in terms of Rule 49 of the Fundamental Rules. The judgment and order passed in the said suit was affirmed in Civil Appeal No. 38 of 1985 (Annexure A-12) by the Court of the 1^st Additional District Judge, Bareilly. The applicant’s case is that he took charge of the post of Administrative Officer on 01.09.2018, after the retirement of Shri Panchoo Lal, the then Administrative Officer, in compliance with the order dated 30.08.2018 (Annexure A-1). He continued to discharge the duties of the said post till 01.08.2021. It further appears that the applicant’s representation seeking salary for the aforesaid post was rejected by the impugned order.

The stand of the respondents is that the O.A. is barred by limitation and the applicant has relinquished his right to claim the benefit. It is further submitted that the applicant was merely working in the same office and, therefore, he is not entitled to the benefit claimed in the O.A.

Before discussing the submissions raised across the bar, it will also be useful to quote the ratio laid down in the case laws relied upon by the applicant.

It will also be useful to quote the provision of Rule 49 of Fundamental Rule:-

In the present matter, as has been pleaded and elicited hereinabove, the applicant took charge of the post of Administrative Officer upon the retirement of the then Administrative Officer, Shri Panchoo Lal, on 01.09.2018 and continuously discharged the functions and duties of the said post till 01.09.2021.

The respondents’ plea that the applicant’s case is covered by the provisions of Rule 49(ii) of the Fundamental Rules cannot be accepted. The fact that the applicant held the post of Administrative Officer after the retirement of the then Administrative Officer for a considerable period itself and it indicates that he was additionally performing the duties and functions of the higher post which he was actually holding. Although the case of Tripurari Dubey (supra) relates to a different department yet, the case of Uma Kant Pandey (supra) relates to the Railway Department itself. Thus, in view of the ratio laid down in Uma Kant Pandey (supra), I am of the view that the submissions advanced on behalf of the respondents and the observations recorded in the impugned order by the authority concerned are not sustainable. Accordingly, the impugned order is liable to be set aside. It is also evident that the applicant had been claiming the salary for the higher post during the period of his service itself. The delay in filing the O.A. has already been condoned by the Hon’ble High Court in Writ-A No. 15543 of 2023. Therefore, the O.A. is liable to be allowed.

In view of the above discussion, the Original Application is allowed and the impugned order dated 01/02/08.02.2023 is hereby set aside. The respondents are directed to examine the claim of the applicant on the basis of the official records, including the relevant duty records, registers, orders and other records available with the Department, and to determine the period during which the applicant actually discharged the duties and responsibilities of the corresponding higher post, namely, Administrative Officer. If, upon such verification, it is found that the applicant had actually discharged substantially the same duties and responsibilities of the corresponding higher post, the respondents shall calculate and pay to the applicant the difference between the pay actually drawn by him and the minimum of the pay scale applicable to the corresponding higher post for the verified period, together with such allowances as may be admissible under the applicable rules. The aforesaid exercise shall be completed and the requisite orders shall be passed within three months from the date of receipt of a certified copy of this order. The applicant shall also be entitled to interest at the rate applicable to GPF deposits per annum on the amount found payable, calculated from the date of filing of the Original Application till the date of actual payment. No order as to costs. All associated MAs are disposed of.