Entitlement to officiating pay for discharging duties in higher posts as per the executive instruction dated 31.10.2007 and Board’s letter dated 12.12.1991.

JUDGMENT :

S.N. Prasad, J.

This writ petition is under Articles 226 and 227 of the Constitution of India filed by the Union of India and its functionaries assailing the order dated 18.8.2016 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.457 of 2015 whereby and where under the Tribunal while quashing the decision of the authorities dated 24.3.2015 denying the remuneration of higher post, has remitted the matter before the authorities to pass fresh order after taking into consideration the observation made therein.

2. Brief facts of the case of the opposite party/applicant is that he was promoted to the post of Junior Clerk in the scale of Rs.3050-4590 vide order dated 28.11.2000, while he was working as Junior Clerk, was posted as Head Clerk in the scale of pay of Rs.5000-8000vide order dated 20.2.2001, he has further been posted as Office Superintendent Grade-II, vide order dated 12.2.2009. The opposite party/applicant made representation on 10.8.2014 before the authorities regarding his grievance for payment of higher arrears for the responsibilities shouldered by him as Head Clerk and Office Superintendent Grade-II, his representation was dismissed vide order dated 24.3.2015, which was challenged in O.A.No.457 of 2015 wherein the order rejecting his claim was quashed with a direction to the authorities to pass fresh order after taking into consideration the observations made above.

3. The Union of India and its functionaries, being aggrieved with the order passed by the Central Administrative Tribunal, is before this Court on the ground that the opposite party/applicant’s main grievance is to regularize his service for the period he has rendered his duty in higher post of Head Clerk upon which he was posted against retired vacancy from 23.2.2001 to 14.7.2007, which the authorities have rejected vide order dated 24.3.2015 on the ground that since he has never been promoted to the higher post rather was allowed to officiate on the higher post, he cannot be regularized in the said higher post. According to the learned representing the Union of India and its functionaries the authorities have passed order after taking into consideration the entire aspects of the matter mainly the fact that he has never been granted regular promotion to the higher post rather he was only allowed to discharge duty in the higher post, hence mainly on the ground of discharging duty in higher post, he cannot claim regularization for the period, as such the authorities have rightly rejected the claim. He further submits that the Tribunal assuming officiating post as regular promotion has quashed the order dated 24.3.2015.

4. Learned counsel for the opposite party/applicant has submitted that it is evident from the representation, one of the prayer was to regularize his officiating post but other prayer is difference of arrear of officiating post on the substantive post which he is entitled to get as per the Railway Board Executive Instruction issued on 31.10.2007 which speaks regarding eligibility of officiating pay in case a staff worked under lower post who shoulder higher responsibilities to work higher grade of sanctioned post, but the Tribunal has not taken into consideration this aspect of the matter.

He further submits that the authorities while rejecting his application has also denied the benefit of officiating allowance as is admissible in view of the executive instruction dated 31.10.2007 by saying that he has never been given any officiating allowance of any higher post at any point of time, refuting other stand, by placing reliance upon the order dated 20.2.2001 by which he has been posted in place of one K. Mutyala Rao, Head Clerk in the scale of Rs.5000-8000 who is going to be retired on his superannuation w.e.f. 31.3.2001 till further orders.

5. Learned counsel representing the Union of India and its functionaries has argued by submitting that the opposite party/applicant on earlier occasion approached Hydera