Decided on February 23,1999

STATE OF JANDK Respondents


R.C.GANDHI, J. - (1.) THIS Letters Patent Appeal is directed against the order dated October 12, 1998 passed by the learned Single Judge in SWP No: 1596/95 whereby writ petition of the appellant has been dismissed.
(2.) APPELLANT while holding Class IV post on substantive basis, was adjusted against the post of Basic Health Worker (BMW) at Kaka Dabuj, vide order No: 233 -34 dated July 29, 1980, issued by the Block Medical Officer, Health and Family Welfare, Primary Health centre, Ramgarh. He asserted his claim that the adjustment ordered vide the aforesaid order is a promotion and he is entitled to the benefit or regular grade of the post of BMW and accordingly he should be reflected in the seniority list. The respondents stand before the writ court was that the appellant has not been promoted and, therefore, is not entitled to the release of grade of the post of BMW. The appellant, in order to seek identical relief earlier filed S. W. P. No: 515/ 89 which was dismissed as withdrawn vide order dated July 08, 1997. The court while dismissing the writ petition recorded: "Mr. Bhardwaj does not want to prosecute the petition which is accordingly dismissed as withdrawn. Interim direction, if any, operative shall stand vacated."
(3.) WE have learned counsel for the appellant, perused the memorandum of appeal and the order under appeal alongwith other evidence on record. The appellant has not been promoted which is evident from the order dated July 29, 1980, issued by the Block Medical Officer. It reads: "In pursuance to Dy. Director, Health and FW Territorial, Jammus letter No. 2187 -88 dated 12.6.1980 and Chief Medical Officer, Jammus endorsement No. Maint/913 -15 dated 18.7.1980 regarding the complete integration of Multipurpose Scheme, Shri Bhagwan Dass, Field Worker, who is Matriculate and Multipurpose trained is hereby adjusted against the post of Basic Health Worker lying vacant Section at Kaka Dabuj, in his own pay and grade. He will report to Headquarter Supervisor, Alopethetic Dispensary, Vijaypur, for further duty." The promotion under the service rules is to be made by the competent authority on the basis of recommendation of the Departmental Promotion Committee. The appellant was adjusted against the post of BMW in his own pay and grade and has been getting the charge allowance to which he is entitled under rules. The respondents keeping in view the exigency of the service have to make such arrangements but such arrangement does not give an upper edge or right to the appellant to seek promotion. The appellant has also not annexed either with the petition or appeal the seniority list showing his position as to whether he is the senior -most person in the que for being promoted to the post of BMW. Appellants simpliciter grievance is that his adjustment against the post is a promotion and the respondents should accordingly release the grade and assign seniority position to him. Such an arrangement does not amount to promotion of the appellant to the post of BMW. The Supreme Court in similar situation has, in case Ramakant Shripad Sinai Advalpalkar vs. Union of India and others (AIR 1991 S. C. 1145), held as under: "The arrangements contemplated by this order plainly does not amount to a promotion of the appellant to the post of Treasurer. The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but bets only that in service parlance is called "Charge allowance." Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continue to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop -gap arrangement." ;

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