Officiating employee not entitled to grade pay of post: CAT

Srinagar: The Central Administrative Tribunal (CAT) Wednesday held that an employee placed on the higher post in his or her pay grade on the in-charge basis has no right to seek release of grade pay before he is appointed to the position by the rules.

“As long as Article 87(b) of the CSR exists, any person, placed on the higher post in his or her pay grade on the in-charge basis, has no right to seek release of grade pay before he is appointed to the said position by the rules,” a bench of M S Latif, Member (J), and Prasant Kumar, Member (A), said in its order.

As many as 27 applicants had approached the tribunal in 2021 with the contention that they were holding the posts of Headmasters on a substantive basis and vide various orders passed from 2002 to 2007 were placed as in-charge Zonal Education Officers (ZEOs).

Their further contention was that they were entitled to get a salary commensurate to the posts on which they were working as stop-gap arrangement till the dates of their superannuation.

The court observed that the applicants were made to function as in-charge ZEOs, admittedly, in their pay and grade with charge allowance as admissible under rules for six months or till clearance by the DPC and PSC whichever was earlier.

It said that one of the applicants had retired way back in 2002 and the last amongst them superannuated in 2009.

 “The instant O A has been instituted in the year 2021, admittedly, after a lapse of 11 years as far as the applicant No.26 is concerned and after a gap of 19 years insofar as Applicant No 16 goes,” the tribunal said.

“This tribunal while exercising its jurisdiction is governed by Section 21 of the Administrative Tribunal Act, 1985, which envisages that a grievance has to be brought before the tribunal within one year from the date of issuance of the order,” the tribunal said.

However, it said, there was no bar to even entertain a petition beyond the limitation period as contained in the statute.

The counsel for the applicants drew the attention of the court to the legal notice dated November 8, 2021, served upon Commissioner Secretary to Government, School Education Department (SED) and contended that the “cause of the applicants being continuing, as such, the law of limitation would not apply in their case”.

“Law is beaten that delay cannot be condoned unless a sufficient ground is projected. Shorn of the sufficient ground in the petition, same is barred by Limitation in terms of the Administrative Tribunal Act of 1985,” the tribunal said.

In response to the submission that in the celebrated judgment titled Silavery versus LG of the Island of Portblair and others, the Supreme Court has held that if an employee is ordered to look upon the duties of higher post and has worked on that post, though temporarily in an officiating position, is entitled to salary attached to that higher post, the tribunal said: “ Their Lordships have, however, held in the said judgment itself that payment of higher salary shall not amount to promotion.”

In response to the submission by the senior counsel for the applicants that he has served legal notice upon the Principal Secretary to Government, SED and the same has not been disposed of, the court said:

“Although limitation is a rider, at the same time it was equally the duty of the competent authority to have, at least, replied to the notice served upon it by the learned counsel representing the applicants”. Expressing anguish, the tribunal said the notice served upon the authority ought to have been replied, either way.”

While disposing of the petition, the court directed the authorities to treat the legal notice dated November 8, 2021, as representation on behalf of the applicants and accordingly, decide the matter by the rules within eight weeks from the date a copy of the order was served upon them.

Moreover, the tribunal directed them to keep it aware of the decision.