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PETITIONER: JUDHISTIR MOHANTY

       Vs.

RESPONDENT: STATE OF ORISSA & ORS.

DATE OF JUDGMENT:       13/09/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Leave granted.      We have heard learned counsel on both sides.      This appeal by special leave arises from the two orders dated April  26, 1988  of  the  Administrative  Tribunal  at Bhubaneswar  made   in  T.A.   No.   29/87(OJC   No.2540/84) traneferred from the High Court and M.P. No. 281/88.      The admitted  position is  that  the  appellant,  while working as  Superintendent of  Jail in  leave reserve in the head Office  of l.G.  (Prisons)  made  a  representation  on February 5,  1978 to the Chief Minister stating that he had, no house  of his  own and  had recently  secured a  site  at Behrampur. He  wanted to  settle down  at Behrampur.  He had served the  Department for  more than 37 years. His children were  prosecuting   studies  near   Behrampur.  If   he   is transferred to  Behrampur or  near about Behrampur, he would be able  to construct  the house  and settle  him down after retirement at  Behrampur. Taking  that  representation  into consideration, the  Government granted  sanction on  January 27, 1978  directing that  he was  transferred and  posted as Superintendent of  Jail at  Circle  Jail  at  Behrampur.  By proceedings dated  January 27,  1978,  the  Government  have sanctioned two  posts of  Superintendent of  Jail for Circle Jail at Behrampur in the pay scale of Rs.850-1450/ with D.A. In one  of the above sanctioned posts, the appellant came to be adjusted  by proceedings  dated March  28, 1978 and it is dispute that  he worked during the period from April 1, 1978 to  October   31,  1978  the  date  on,  which  he  attained superannuation and  retired from  service. The writ petition filed in  the High Court was subsequently transferred to the Tribunal.  Though   there  is  no  mention  as  regards  his entitlement to  the payment  of the  salary in  the post  of Superintendent referred  to hereinbefore,  the same  was not paid to  him for  the reason  that he  was  transferred  and posted to the said post at his request. It is the contention of  Shri   Y.  Prabhakara   Rao,  learned  counsel  for  the appellant, that  since he  was asked  to discharge that duty for the  said period,  he is  entitled to the payment of the salary Prima facie, we are impressed with the arguments

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addressed by Shri Y.P. Rao, but it is pointed by Shri Misra, learned  counsel   appearing  for   the  State,   that   the Superintendent leave  reserve is  only Class II post whereas the Superintendent  of the Circle is Class I post. Since the appellant made  a request for adjustment of him at Behrampur and since  there was  no other  post equivalent  to Class II available, he  came to  he adjusted in that post at request. Therefore, he  was not eligible to the scale of pay attached to the  post. We  are in  agreement with Shri Misra, learned counsel for the State. It is a settled position that if the Government, for want of candidate, directs an officer in the lower cadre  to perform the duties of the post in the higher cadre, during  that period, necessarily, the incumbent would be entitled  to the  payment of  the salary  attached to the post if the incumbent had performed the duties in that post. Similarly where concerned officer is on promotion from lower cadre to  the  higher  cadre,  though  on  ad  hoc  or  even temporary basis,  the incumbent  would be  entitled  to  the payment of the salary attached to the post for the period of his discharging the duty in that post. In this case, neither would be  is applicable.  At request, he was transferred and though order  does not speak of, but the fact remains and is not disputed  that the order came to be passed pursuant to a representation made  by the appellant to the Chief Minister. It was  obviously on that basis that direction was issued by the Chief  Minister’s Office  and the transfer order came to be made  to  accommodate  him,  before  his  retirement,  at Behrampur where  he had  proposed to  construct  the  house. Since there  was no  equivalent post  of Grade  II category, necessarily he  was accommodated  in that post. Consequently he is  not entitled to the higher scale or pay than to which he was  entitled as  Superintendent Leave  Reserve on  which post he would otherwise have retired.      The  appeal   is  accordingly  dismissed,  but  in  the circumstances, without costs.