1996 INSC 1292
                                                 Yudhistir Mohanty

                                                           Vs

                                             State of Orissa and Others

                                         Civil Appeal No. 12858 of 1996

                                      (K. Ramaswamy, G. B. Pattanaik JJ)

                                                      13.09.1996

                                                        ORDER

1. Delay condoned.

2. Leave granted.

3. We have heard learned counsel on both sides.

4. This appeal by special leave arises from the two orders dated 26-4-1988 of the Administrative
Tribunal at Bhubaneswar made in TA No. 29 of 1987 (OJC No. 2540 of 1984) transferred from the
High Court and MP No. 281 of 1988.

5. The admitted position is that the appellant, while working as Superintendent of Jail in leave
reserve in the Head Office of I.G. (Prisons) made a representation on 5-2-1978 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 near Behrampur. If he is transferred to Behrampur or near about Behrampur, he
would be able to construct the house and settle down after retirement at Behrampur. Taking that
representation into consideration, the Government granted sanction on 27-1-1978 directing that he
was transferred and posted as Superintendent of Jail at Circle Jail at Behrampur. By proceedings
dated 27-1-1978, the Government have sanctioned two posts of Superintendent of Jail for Circle Jail
at Behrampur in the pay scale of Rs 850-1450 with DA. In one of the above sanctioned posts, the
appellant came to be adjusted by proceedings dated 28-3-1978 and it is not in dispute that he worked
during the period from 1-4-1978 to 31-10-1978, the date on which he attained superannuation and
retired 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 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. Prima 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 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 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, necessarily, the incumbent would be entitled to the payment of the
salary attached to the post if the incumbent had performed the duties in that post. Similarly where
the officer concerned is on promotion from lower cadre to the 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 the post. In this case, neither would be applicable.
At request, he was transferred and though order does not speak of, but the fact remains and is not
disputed that the order came to 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 accommodate 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 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.

6. The appeal is accordingly dismissed, but in the circumstances, without costs.