JUDHISTIR MOHANTYversusSTATE OF ORISSA AND ORS.

A                            JUDHISTIR MOHANTY
                                      v.
                           STATE OF ORISSA AND ORS.

                              SEPTEMBER 13, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

            Service Law:

            Scale ofpa)~Entitlement of higher scale of pay-Employee working as
C jail Supe1intendent in leave rese1ve-Making representation for transfer to a
    patticular place-Grant of the request-Though he was holding a Class II post
    he was adjusted against a Class-/ post-Claim for higher scale of pay-Held
    not justified since it was· a request trans[er and he was accommodated in a
    higher post, he is not entitled to higher scale of pay than the scale of pay
    attached to his post.
D
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12858 of
    1996.

          From. the Judgment and Order dated 26.4.88 of the Orissa Ad-
E   ministrative Tribunal in M.P. No. 281/1988 in T.A. No. 29/87 (OJC No.
    2540 of 1984.

            Mr. Y.P. Rao for the Appellant.

            Mr. P.N. Misra for the Respondents.
F
            The following Order of the Court was delivered :

            Delay condoned.

            Leave granted.
G
            We have heard learned counsel on both sides.

          This appeal by special leave arises from the two orders dated April
    26, 1988 of the Administrative Tribunal at Bhubaneswar made in T.A. No.
    29/87 (OJC No .. 2540/84) transferred from the High Court and M.P. No.
H   281/88.
                                        336
                          J. MOHANTY v. STATE                             337

       The admitted position is that the appellant, while working as Super-      A
intendent of Jail in leave reserve in the Head Officer of LG. (prisons) made
a representation on February 5, 1978 to the Chief Minister stating that he
had no house of his own and had recently secured a site at Behrampur. He
wanted to settle down at Behrampur. He had served the Department for
more than 37 years. His children were prosecuting studies hear Behrampur.        B
if he is transferred to Behrampur Of near about Behrampur, he would be
able to construct the house and settle him down after retirement at
Behrampur. Taking that representation into consideration, the Govern-
ment granted sanction on January 27, 1978 directing that he was trans-
ferred and posted as Superintendent of Jail at Circle Jail at Behrampur.
By proceedings dated January 27, 1978, the Government have sanctioned            c
two posts of Superintendent of Jail for Circle Jail at Behrampur in the pay
scale of Rs; 850-1450 with D.A. In one of the above sanctioned posted, the
appellant came to be adjusted by proceedings dated March 28, 1978 and
it is not in dispute that he worked during the period from April 1, 1978 to
 October 31, 1978 the date on which he attained superannuation and retired       D
from service. The writ petition filed in the High Court was subsequently
transferred to the Tribunal. Though there is no mention as regards his
entitlement to the payment of the salary in the post of Superintendent
referred to hereinbefore, the same was not paid to him for the reason that
 he was transferred and posted to the said post at his request. It is the        E
 contention of Shri Y. Prabhakara.Rao, learned counsel for the appellant,
 that since he was asked to discharge that duty for the said period, he is
 entitled to the payment of the salary. Plima facie, we are impressed with
 the arguments addressed by Shri Y.P. Rao, but it is pointed by Shri Misra,
 learned counsel appearing for the State, that the Superintendent leave
                                                                                 F
 reserve is only Class II post whereas the Superintendent of the Circle is
 Class I post. Since the appellant made a request for adjustment of him at
 Behrampur and since there was no other post equivalent to Class II
 available, he came to be adjusted in that post at request. Therefore, he was
 not eligible to the scale of pay attached to the post. We are in agreement
 with Shri Misra, learned counsel for the State. It is a settled position that   G
 if the Government, for want of candidate, directs an officer in the lower
 cadre to perform the duties of the post in the higher cadre, during that
 period, necessary incumbent would be entitled to the payment of salary
 attached to the post if the incumbent performed the duties in that post.
 Similarly where concerned officer is on promotion from lower cadre to the       H
    338                  SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.

A higher cadre, though on ad hoc or even temporary basis, the incumbent
    would be entitled to the payment of the salary attached to the post for the
    period of his discharging the duty in that post. In this case, neither would
    be is applicable. At request, he was transferred and thought orc~er dos not
    speak of, but the fact remains and is not disputed that the order came to
B   be passed pursuant to a representation made by the appellant to the Chief
    Minister. It was obviously on that basis that direction was issued by the
    Chief Minister's Office and the transfer order came to be made to accom-
    modate him, before his retirement, at Behrampur where he had proposed
    to construct the house. Since there was no equivalent post of Grade II
    category, necessarily he was accommodated in that post. Consequently he
C   is not entitled to the higher scale of pay than to which he was entitled as
    Superintendent Leave Reserve on which post he would otherwise have
    retired.

         The appeal 1s accordingly dismissed, but m the circumstances,
    without costs.
D
    G.N.                                                     Appeal dismissed.