Nishita Mhatre, J. - (1.) Anil Kumar Das, the respondent No. 1 (hereinafter referred to as 'the respondent') was employed with the Farakka Barrage Project as an Assistant Executive Engineer from 1995. He was transferred and posted to the post of Executive Engineer, Anti -Erosion Division, Farakka Barrage on 22nd December, 1995. This duty was in addition to his work as an Assistant Executive Engineer. He assumed charge of the post of Executive Engineer on 28th December, 1995. Since the respondent was discharging the duties of an Executive Engineer, he claimed the salary of an Executive Engineer. His representation however went unheeded. The respondent filed OA 870 of 1998 before the Administrative Tribunal seeking the benefit of pay and allowances for holding the additional charge of the post of Executive Engineer. That application was disposed of on 4th August, 1999 and the petitioner was directed to reconsider the case of the respondent, A speaking order was passed on 8th December, 1999 rejecting the respondent's claim. After retiring on attaining the age of superannuation on 31st August, 2000 the respondent filed another application before the Tribunal being OA 581 of 2001 challenging the speaking order and claimed the benefit payable for the additional charge held by him of the post of Executive Engineer. The petitioner filed a reply and contested the application filed by the respondent on the ground that the respondent had merely been asked to look after the work of the Executive Engineer but had not formally been appointed as an Executive Engineer. It was therefore contended that in view of the provisions of Fundamental Rules 49 and several Government orders issued in that regard, the respondent was not entitled to any benefit attached to the post of Executive Engineer.
(2.) The Tribunal, after considering the observations made while deciding OA 870 of 1998 and the provisions of F.R. 49, held that the respondent could not be deprived of the benefit of pay in the higher scale only because no formal order appointing him as an Executive Engineer had been issued. The Tribunal directed the petitioner to re -fix the pay and pension of the respondent. Arrears were directed to be paid within three months of the order. This Court had by its order dated 5th March, 2003 stayed the operation of the impugned order.
(3.) Mr. Ranjan Kumar Roy, the learned Counsel appearing for the petitioner, has relied on the provisions of F.R. 49 in support of his contention that since the petitioner was not appointed in an officiating capacity, he was not entitled to the salary of the promotional post. The learned Counsel urged that in view of F.R. 35, the maximum that an employee who was asked to officiate in the post would be entitled to is Rs. 1000/ -. Therefore, according to him the respondent has erroneously been granted all the benefits of the Executive Engineer by the Administrative Tribunal.;