By the Court.—Heard learned counsel for the petitioner and learned Standing Counsel. Since affidavits have been exchanged, with the consent of the parties’ counsel, the writ petition is being finally disposed of at admission stage.

2. The petitioner has approached this Court under Article 226 of the Constitution of India claiming salary of the higher post of A.R.T.O on the ground that he has officiated on the said post for about five years. The petitioner has staked his claim in view of the provisions contained in Financial Hand Book.

3. The petitioner has joined on the post of Passenger Tax Superintendent on 27.3.1985. He is a permanent employee duly selected in accordance with rules for the post of Passenger Tax Superintendent. On 13.6.2003, the petitioner was directed to discharge duty of the post of A.R.T.O. by office memorandum of the said date, a copy of which has been filed as Annexure 3 to the writ petition. While permitting the petitioner to discharge duty on the post of A.R.T.O., it was provided that the petitioner shall not claim any financial gain as well as seniority of the said post. The petitioner continued on the post of A.R.T.O. Upto 31.12.2008.

4. According to the petitioner’s counsel, since the petitioner has continuously discharged duty on the post of A.R.T.O from 13.6.2003 to 31.12.2008, he is entitled for payment of salary of the said post. It is submitted that though the officiating promotion was done on 13.6.2003 for a short period but since, in exigency of service, he had continued for about five years, the respondents should have paid salary of the post of A.R.T.O..

5. Earlier, the petitioner had filed a writ petition No. 1828(S/B) of 2011 which was decided by judgment and order dated 18.10.2011. While deciding the writ petition, this Court directed the Transport Commissioner, U.P and the Finance Controller, U.P., Lucknow to look into the matter with regard to payment of arrears of salary in the revised pay-scale in accordance with law, by passing a speaking and reasoned order within three months and refer the matter to the State Government, if necessary. In pursuance to the order of this Court, by the impugned order, the petitioner’s representation has been rejected on the ground that the petitioner shall not be entitled for payment of salary of the higher post. While passing the impugned order, the Principal Secretary of the Government has relied upon a Division Bench judgment of this Court dated 24.3.2011, passed in writ petition No. 63740 of 2006 Subhash Chandra Kushwaha and others v. State of U.P. and others. Relevant portion from the judgment has been reproduced in the impugned order.

6. A plain reading of the relevant portion of the judgment, reproduced in the impugned order reveals that it does not relate to payment of salary with regard to officiating post.

7. Learned counsel for the petitioner has invited attention of this Court another Division Bench judgment, of which one of us (Hon’ble Devi Prasad Singh, J) was a member, in Subhash Chandra Kushwaha v. The State of U.P and others, 2009(27) LCD 1013, (Writ Petition No. 1448(S/B) of 2012 decided on 20.10.2008), which relates to payment of salary during the period when the incumbent officiates on higher post. In the case of Subhash Chandra Kushwaha, relied upon by the petitioner’s counsel, the incumbent discharged duty on the post of A.R.T.O and after considering the provisions contained in para 49 of the Financial Hand Book, it has been held that the incumbent shall be entitled for payment of salary of the higher post. Relevant portion from the judgment of Subhash Chandra Kushwaha (supra) is reproduced as under :

“4. From the plain reading of the provisions contained in Para 49 of Chapter VI of Financial Hand Bood. Vol. II (Parts II to IV), it is evident that a Government servant who is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addit