Employee gets salary of higher post if he retires as Incharge basis on higher post: DB

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In a major relief from the High Court to those employees who posted on Incharge Basis and retired on that post, the salary payable to the higher post against which he was put incharge has to be paid and retiral benefits shall be fixed on the basis of the pay available to the promotion post was hold by the Division Bench of the State High Court.

This significant judgment has been passed by the Division Bench comprising Chief Justice N Paul Vasanthakumar and Justice Ali Mohammad Magrey in a LPA appellant seeking promotion in the cadre of Project Executive Officer with all consequential benefits.

According to the appellant Mohd Ishaaq Bhat he was appointed as Entomologist on the basis of the recommendations of the J&K Public Service Commission on 07.03.1981 in the pay scale of Rs.540-950 (unrevised). The said post was initially borne on Class VI Category-C whereas the post of Deputy Director was in Class-VII of the service constituted under the Jammu & Kashmir Sericulture Development Recruitment Rules, 1979. The Sericulture Department initially comprised of Research Wing and Development Wing. In the year 1983, Research Wing was transferred along with posts to Agricultural University and became integral part of the Sheri Kashmir University of Agricultural Sciences and Technology. Consequent to transfer along with posts, the Research Wing ceased to be part of the Sericulture Development Department. As the Research Wing was merged with Agricultural University along with posts, the posts of Entomologists/ Pathologists were altered. The petitioner was placed as Incharge Development Officer in the year 2002 vide order No.198-Agri of 2002 dated 20.06.2002. The petitioner was not given regular promotion even though there were vacancies available. Thus, the contention of learned senior counsel appearing for the appellant is that the right of the appellant to be considered for promotion at appropriate time as per the right guaranteed under the Constitution, was denied. The learned senior counsel also submitted that Government Agriculture Department by letter dated 29.07.2008, along with other persons, forwarded name of the appellant for regular promotion as Development Officer and still the Public Service Commission delayed the matter and the appellant retired from service in the year 2009 due to which his regular promotion in the cadre of Development Officer was not considered. Learned senior counsel argued that the writ court without appreciating the said facts dismissed the writ petitions as if the appellant had no right to demand promotion as a matter of right.

Division Bench after hearing both the sides observed that the appellant discharged his duties against the higher post for over seven years and also retired from service while performing his duties as Incharge Development Officer and held that if an officer or a person is put as incharge for a long number of years and he was allowed to continue on the said post as Incharge till retirement, the salary payable to the higher post against which he was put incharge has to be paid and retiral benefits shall be fixed on the basis of the pay available to the promotion post.

Division Bench further observed that having regard to the undisputed fact that the appellant served as Incharge Development Officer from 20.06.2002 to 30.11.2009, he is entitled to get salary for the post after adjusting the salary already received and his retiral benefits re-fixed in terms of salary which he receives for the higher post on the date of retirement. Necessary order to that effect shall be issued within a period of six weeks and the benefits arising out of the same shall be calculated and paid to the appellant within a period of four weeks thereafter. JNF

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