Employee Performing Duties Of Higher Post Is Entitled To Promotion From Date Of Formal Assignment Of Charge: Jammu & Kashmir High Court

Background Facts

The employee was a daily wager in the Municipal Committee. He was later regularized as a Safai Karamchari in 1988. His counterpart was promoted in 1994 as Jamadar/Sanitary Supervisor. However, the claim of the employee for promotion was ignored despite being similarly situated.

The employee approached the High Court. It was directed by the Court to the appellants to consider the employee's claim for the post of Jamadar/Sanitary Supervisor from the date Khazir Mohammad Shah was promoted. However, the Executive Officer did not comply with the directions. He allowed the employee to work as Assistant Sanitary Jamadar in his own pay and grade without any financial benefits in the year 2000.

The employee again approached the High Court seeking pay and grade to the post of Sanitary Supervisor. The Executive Officer passed an order allowing the employee to work as Sanitary Supervisor instead of Incharge Sanitary Superviso. The employee was allowed a charge allowance. Further the Executive Officer recommended his case for up-gradation to the Director, Urban Local Bodies.

However, the Director declined approval on the ground that the employee was not eligible under the J&K Urban Local Body Institutions (Management) Service Recruitment Rules, 2008. The employee challenged the rejection before the writ Court.

It was held by the Court that the employee shall be deemed to have been appointed and promoted as Sanitary Supervisor in substantive capacity w.e.f. 28.04.2005 with all consequential benefits. It was further directed to the appellants to either create a post retrospectively or find a vacant/equivalent post to adjust the employee.

Aggrieved by the same, the appellants (Union Territory of Jammu & Kashmir) filed the Letters Patent Appeal before the Division Bench of the Jammu & Kashmir and Ladakh High Court.

It was argued by the appellants that the employee was never given independent charge of Sanitary Supervisor but was only asked to assist the Jamadar of the area. It did not amount to promotion or a right to claim the grade attached to the post of Sanitary Supervisor. It was further contended that the employee's inclusion in the list of Incharge Sanitary Supervisors of the Establishment budget does not automatically entitle him to be considered as a Sanitary Supervisor.

On the other hand, it was contended by the employee that he had been performing the duties of Jamadar/Sanitary Supervisor right from 08.06.2000, first in his own pay and grade and later w.e.f. 28.04.2005 subject to payment of charge allowance.

Findings and observations of the Court

It was observed by the Division Bench that the employee was regularized as Safai Karmacharis in the year 1988, and his counter part was promoted in the year 1994 as Jamadar/Sanitary Supervisor. However, the claim of the employee was ignored by the appellants.

It was observed that ordinarily a person is entitled only to the pay of the post to which he is appointed. It was noted that there is no principle of service law which entitles a person substantively appointed to a particular post to the pay scale of a higher post only on the ground that he performed the duties attached to the post.

It was further observed by the Bench that there is one exception to the general rule, that when a person is formally ordered to hold the charge of the duties of a higher post, he is entitled to the pay scale attached to the higher post.

It was held by the Bench that the Rules of 2008 had been introduced when the case of the employee was put up before appellant. However, before 2008 there were no rules for recruitment of officers and officials in the Urban Local Bodies, therefore, recruitments and promotions were regulated by choice of the person who was head of the department.

It was further observed that the right to promotion accrued to the employee much prior to the Rules of 2008. It was first accrued in 1994 when his counterpart was promoted and then in 2000 when he was allowed to discharge the duties of Sanitary Supervisor, whereafter he had been regularly performing his duties as Jamadar/Sanitary Supervisor.

It was held by the Bench that making an employee perform higher level responsibilities while paying him lower salary amounts to work place exploitation.

It was held by the Division Bench that appellant should have considered the claim of the employee in accordance with the rule applicable on 28.04.2005, and not in accordance with the Rules of 2008, which became applicable much later and were prospective in nature.

With the aforesaid observations, the order passed by the writ Court was upheld by the Division Bench. Consequently, the Letters Patent Appeal filed by the Union Territory of J&K was dismissed by the Division Bench.

Counsel for the Appellants : Ilyas Nazir Laway, GA

Counsel for the Respondent : B. A. Zargar, Advocate