Malik Javed Iqbal vs Ellaqai Dehati Bank and Ors.

This Letters Patent Appeal has arisen out of judgement and order dated 31.12.1997 whereby the cause of the appellant, seeking direction for

regularization of his services against the post of Manager, Planning and Development, from August, 1994 the date he has been adjusted against the

said post, and also payment of charge allowance, has been dismissed by the learned Single Judge.

The appellant substantively holding the post of Branch Manager, Ellaqai Dehati Bank, was adjusted against the post of Manager, Planning and

Development vice order dated 09.09.1994. On the strength on his adjustment against the post, he seeks the relief of regularizations of his services

against the said post and also the payment of charge allowance.

Respondents before the learned Single Judge in their reply affidavit have submitted that the post of Manager, Planning and Development has

been reduced to the status and pay scale of a Branch Manager vide Board of Directors Resolution dated 17.02.1993 and that the appellant is not

discharging the duties of the higher post, thus not entitled to the payment of charge allowance. He has also been transferred from the office of

Manager, Planning and Development.

Learned Single Judge, after appreciating the rival contentions and examining the record and the pleadings, dismissed the writ petition, holding

that the post of manager, Planning and Development has been reduced to the status of Branch Manager in the same pay scale and the appellant,

being not discharging the duties of the higher post, is not entitled to the payment of charge allowance. It has also been observed by the Learned

Single Judge that the appellant is not the senior most Manager who could be promoted by regularizing his services, and the rules governing the

service framed by the employer envisage that the promotion to the post could be made only after examining the suitability on the basis of security

cummerit.

Aggrieved by the order of learned Single Judge, appellant has filed this Let ters Patent Appeal challenging the legal ity and correctness of the

order on the ground that the appellant has been ad justed against the higher pay scale and he is entitled to seek regularization and also being

discharging the duties of the higher post, is entitled to the payment of charge allowance.

Heard the learned counsel for the parties and perused the record.

To substantiate the plea that the appellant has been adjusted against the higher post, the learned counsel has re lied upon the written statement

filed be fore the learned Chief Judicial Magistrate in a suit titled Malik Javed Iqbal vs. Ellaqai Dehati Bank, Srinagar. wherein the appellant has

challenged his transfer. Attention of the court has been drawn to para 1 of the written statement wherein it has been stated by the respondents that:

It is respectfully submitted that plaintiff has been working since 1994 in the bank in officiating capacity or on an adhoc arrangement when after the

beginning of disturbed law and order conditions in the valley, higher substantive positions which earlier were held by the senior staff, were

delegated to Junior as a stop gap/temporary arrangement in a usual manner prevailing in the whole banking industry in the valley.

Learned counsel for the appellant has also submitted that this reply be read with stipulation contained in Note No. 23/1999 dated 08.06.1999

forming annexure at Page 21, relevant portion of which reads as :

As P&D Section has to be headed by Scale II Officer, we may post Shri. Hakak as Manager P&D (in officiating capacity).

Perusal of these pleadings do not make out that the appellant has been placed or adjusted in a higher pay scale or post, in the pleadings, it is

also not made clear by the appellant either before the learned Single Judge or before us that the appellant is holding the post of Branch Manager on

substantive basis in a particular pay scale and has been adjusted in a particular higher pay scale. It is settled proposition of law that if a public

servant is asked to discharge the duties of a higher post, he is entitled either to the salary at the minimum of the pay scale of the higher post or the

officiating allowance. It is not made out from the pleadings of the parties that the appellant has been asked to discharge the duties against a

particular pay scale which is higher to that of the pay scale which the appellant was holding as Branch Manager. It is also not made clear in the

pleadings that the Grade II Officer Post carrier higher pay scale to that of the pay scale of the post of Branch Manager. Taking into consideration

the pleadings, it can safely be said that it is a case not only of short pleadings but of evasive pleadings. Unless the pleadings are clear and cogent

making out a clear case for grant of relief, it neither can be granted nor status or entitlement of the claimant can be decided. The appellant could not

make before us that he has been adjusted against a higher pay scale. Unless it is made out, he is not entitled to the relief of charge allowance also.

The learned Single Judge, therefore, has rightly decided the case of the appellant on the basis of the pleadings. We do not find any reason to

interfere with the judgement under appeal.

Accordingly, the appeal fails and is dismissed.