- (1.) HEARD Sri R.U.Pandey, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.
(2.) ADMITTEDLY , petitioner has never been recruited on the post of Clerk, no process of recruitment in accordance with rules has undergone. In these circumstances none of the relief sought by the petitioner can be granted.
(3.) LEARNED counsel for the petitioner placed reliance on a judgment of Apex Count in Selvaraj Vs. Lt. Governor of Island, Port Blair and Ors., 1998 4 SCC 291 and a Single Judge decision of this Court in Writ Petition No.64399 of 2009 (Bhagwat Prasad Pandey Vs. State of U.P. and Ors.) decided on 27.11.2009 and said that if the petitioner is working on higher post he must be paid salary. However, the said judgment will render no help to the petitioner. It is not the case of the petitioner that he has been ever appointed on the post of Clerk. Even if he is discharging duties, which are amount to be discharged by a Clerk, that itself would not entitle him to claim salary payable to a person, who has been appointed as Clerk, and, thereafter, entitle for payment of salary accordingly. No letter of appointment of the petitioner appointing him even as Clerk has been placed on record. Learned counsel for the petitioner, even otherwise, could not show any provision under which the respondents could have appointed the petitioner Clerk. Whether a person, who is allowed to look after the duties of the higher post can be treated to be a person appointed on the post in order to claim salary is a question considered by a Division Bench of this Court in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools Region -I, Meerut and others, 2007 2 ESC 987 and this Court observed as under : "The aforesaid documents cemented the conclusion that the Petitioner -Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. In other words, it can be said that the Petitioner -Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed over. In State of Haryana Vs. S.M. Sharma, 1993 AIR(SC) 2273 the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer. A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supp2 SCC 733and the Apex Court observed as under: - "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." It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot -gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in -charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it. In this view of the matter, the Petitioner -Appellant has miserably failed to show that the management ever appointed her as officiating Principal of the College and, therefore, we hold that she was only allowed to discharge duties of the office of officiating Principal, but was never appointed/promoted by the management as officiating Principal of the College. The question no. 1 is answered and decided accordingly.";