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Thursday, August 14, 2014

Service Matter - Higher post salary when entitled for - whether the appellant is entitled to salary of high post where in he had worked for few years as in charge with specific terms - Apex court held that The order dated 28th February, 2001, by which the appellant was allowed to discharge duties in the post of Assistant Manager had made it clear that the appellant would not be entitled to claim any benefit therefrom including higher salary and further that he would continue to draw his salary in the post of Assistant Labour Welfare Officer. If the above was an express term of the order allowing him to discharge duties in the higher post, it is difficult to see as to how the said condition can be overlooked or ignored and dismissed the appeal =CIVIL APPEAL NO.7692 OF 2014 (Arising out of SLP (C) No. 5396 OF 2013) A. FRANCIS ... APPELLANT (S) VERSUS THE MANAGEMENT OF METROPOLITAN ... RESPONDENT (S) TRANSPORT CORPORATION LTD., TAMIL NADU = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41827

  Service Matter - Higher post salary when entitled for - whether the appellant is entitled to salary of high post where in he had worked for few years as in charge with specific terms - Apex court held that The order dated 28th  February,  2001,  by  which  the  appellant  was allowed to discharge duties in the post of Assistant  Manager  had  made  it clear that the  appellant  would  not  be  entitled  to  claim  any  benefit therefrom including higher salary and further  that  he  would  continue  to draw his salary in the post of Assistant Labour  Welfare  Officer.   If  the
above was an express term of the order allowing him to discharge  duties  in the higher post, it is difficult to see as to how the said condition can  be overlooked or ignored and dismissed the appeal =

in  the  present
appeal is the entitlement of the   appellant – A.   Francis  to
salary in the higher post of Assistant Manager wherein he  had  worked  from
28th February, 2001 till 31st May, 2005.=
   

 The order dated 28th  February,  2001,  by  which  the  appellant  was
allowed to discharge duties in the post of Assistant  Manager  had  made  it
clear that the  appellant  would  not  be  entitled  to  claim  any  benefit
therefrom including higher salary and further  that  he  would  continue  to
draw his salary in the post of Assistant Labour  Welfare  Officer.   If  the
above was an express term of the order allowing him to discharge  duties  in
the higher post, it is difficult to see as to how the said condition can  be
overlooked or ignored.  The decision of this  Court  in  Secretary-cum-Chief
Engineer,  Chandigarh   (supra)  was  rendered  in  a  situation  where  the
incumbent was promoted on ad hoc basis to the higher  post.   The  aforesaid
decision  is  also  distinguishable  inasmuch  as  there  was  no   specific
condition in the promotion order  which  debarred  the  incumbent  from  the
salary of the  higher  post.   Such  a  condition  was  incorporated  in  an
undertaking taken from the employee which was  held  by  this  Court  to  be
contrary to public policy.

9.    For the aforesaid reasons, we do not find any merit  in  this  appeal.
Consequently, the same is dismissed and  the  order  dated  29th  September,
2011 passed in Writ Appeal No.1181 of 2010 by the High Court  of  Judicature
at Madras is affirmed.            

2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41827

RANJAN GOGOI, M.Y. EQBAL
         NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL  NO.7692 OF 2014
                  (Arising out of SLP (C) No. 5396 OF 2013)


A. FRANCIS                                   ...    APPELLANT (S)

                                   VERSUS

THE MANAGEMENT OF METROPOLITAN          ...  RESPONDENT (S)
TRANSPORT CORPORATION LTD.,
TAMIL NADU



                               J U D G M E N T

RANJAN GOGOI, J.

1.    Delay condoned.

2.     Leave granted.

3.    In view of the limited  notice  issued  by  this  Court  on       24th
January, 2013, the only issue that has to be decided        in  the  present
appeal is the entitlement of the                appellant – A.   Francis  to
salary in the higher post of Assistant Manager wherein he  had  worked  from
28th February, 2001 till 31st May, 2005.

4.    The appellant was initially appointed as a clerk  in  the  Tamil  Nadu
State Transport Department whereafter he was  transferred  and  absorbed  in
the  newly  formed  Pallavan  Transport   Corporation,   which   Corporation
subsequently came to be known  as  the  Metropolitan  Transport  Corporation
Ltd., Chennai.  He was promoted to the post  of  ‘Section  Officer’  in  the
year 1991.  As a large number of  posts  of  Assistant  Manager  were  lying
vacant in the Corporation, by Order dated 28th February, 2001 the  appellant
was  posted  as  Assistant  Manager  In-charge  (Public   Relations).    The
aforesaid  order  made  it  clear  that  the  same  will  not   confer   any
preferential right  for  regular  promotion  and  that  the  appellant  will
continue to draw his grade pay in his present cadre  i.e.  Assistant  Labour
Welfare Officer.  Well after he had retired from service  with  effect  from
31st May, 2005, the appellant moved a Writ Petition before  the  High  Court
of Judicature at Madras claiming, inter alia, the relief  of  higher  salary
of the post of Assistant Manager.  The aforesaid Writ Petition  was  allowed
by order dated 4th December,  2009.   Aggrieved,  the  Corporation  filed  a
Letters Patent Appeal before the High Court.  The direction of  the  learned
Single Judge for payment of salary of the higher  post  for  the  period  in
question having been reversed in the Letters Patent  Appeal,  the  appellant
is before this Court.

5.    We have heard Ms. C.K. Sucharita, learned counsel  appearing  for  the
appellant and  Mr.  Subramonium  Prasad,  learned  AAG,  appearing  for  the
respondent.  We have carefully considered the orders passed by  the  learned
Single Judge as well as the appellate Bench of the High Court.

6.    Ms. C.K. Sucharita, learned counsel for the appellant  has  vehemently
contended that having discharged duties in the post  of  Assistant  Manager,
the appellant is entitled to the pay and emoluments  of  that  office  which
had been granted to him by the learned Single Judge.  Relying on a  decision
of this Court  in  Secretary-cum-Chief  Engineer,  Chandigarh  vs.  Hari  Om
Sharma & Ors.[1], learned counsel has contended that the Division  Bench  of
the High Court was plainly wrong in reversing the direction of  the  learned
Single Judge.  In fact, learned counsel would urge that  the  ratio  of  the
decision of this Court in Secretary-cum-Chief Engineer,  Chandigarh  (supra)
is a complete answer to the issues arising in the present proceeding.

7.    On the other hand, Mr. Subramonium Prasad, learned AAG, appearing  for
the respondent has placed before the Court the  terms  of  the  order  dated
28th February 2001 by which the appellant was allowed  to  discharge  duties
in the post of Assistant Manager.  It  is  pointed  out  that  there  was  a
specific condition stipulated in the order dated 28th  February,  2001  with
regard to salary and emoluments, namely, that the appellant  would  continue
to draw the  salary  in  the  lower  cadre  i.e.  Assistant  Labour  Welfare
Officer.  The claim made with regard  to  salary  of  the  higher  post  is,
therefore, not tenable in law.  Learned counsel  has  tried  to  distinguish
the decision of  this  Court  in  Secretary-cum-Chief  Engineer,  Chandigarh
(supra) by contending that the same must be understood  in  the  context  of
the facts of the case.

8.    The order dated 28th  February,  2001,  by  which  the  appellant  was
allowed to discharge duties in the post of Assistant  Manager  had  made  it
clear that the  appellant  would  not  be  entitled  to  claim  any  benefit
therefrom including higher salary and further  that  he  would  continue  to
draw his salary in the post of Assistant Labour  Welfare  Officer.   If  the
above was an express term of the order allowing him to discharge  duties  in
the higher post, it is difficult to see as to how the said condition can  be
overlooked or ignored.  The decision of this  Court  in  Secretary-cum-Chief
Engineer,  Chandigarh   (supra)  was  rendered  in  a  situation  where  the
incumbent was promoted on ad hoc basis to the higher  post.   The  aforesaid
decision  is  also  distinguishable  inasmuch  as  there  was  no   specific
condition in the promotion order  which  debarred  the  incumbent  from  the
salary of the  higher  post.   Such  a  condition  was  incorporated  in  an
undertaking taken from the employee which was  held  by  this  Court  to  be
contrary to public policy.

9.    For the aforesaid reasons, we do not find any merit  in  this  appeal.
Consequently, the same is dismissed and  the  order  dated  29th  September,
2011 passed in Writ Appeal No.1181 of 2010 by the High Court  of  Judicature
at Madras is affirmed.


                        …....…………………………J.
                                                  [RANJAN GOGOI]




                                                          .……....………………………J.
                                                   [M. Y. EQBAL]


NEW DELHI,
AUGUST 13, 2014.

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[1]    (1998) 5 SCC 87

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