Justice Ali Mohammad Magrey in significant judgment holds that incharge arrangement of the petitioner can, in no circumstances, be treated as a promotion and it does not give the petitioner any right over the said post.
This order has been passed in a petition filed by Charanjit Kour Sudan seeking direction to regularize/ confirm/ promote the petitioner to the post of Administrative Officer, on which post the petitioner was made incharge vide order No. 188 of 2018 dated 28th of May, 2018 read with corrigendum issued by the Corporation vide No.194 of 2018 dated 29th of May, 2018 and to give the effect of such confirmation/ regularization/ promotion retrospectively, i.e., the date from which the petitioner assumed the said charge.
Justice Ali Mohammad Magrey after hearing both the sides observed that merely asking an officer/ official, who substantively holds a lower post, to discharge the duties of a higher post cannot be treated as a promotion. In such a case, the said officer/ official does not get the salary of the higher post, but only gets that in-service parlance known as the ‘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 concerned officer/ official continues to hold her substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement.
Justice Ali Mohammad Magrey while dismissing the petition observed that an incharge arrangement is not a recognition of or is necessarily based on seniority and that, therefore, no rights, equities, or expectations could be built upon it asking an officer/ official, who substantively holds a lower post, merely to discharge the functions of a higher post cannot be treated as promotion. It is also well settled that when incharge arrangement is made, it has to be, as far as possible, for a short duration; not exceeding six months and such an arrangement does not confer any right whatsoever on the officer/ official holding the post on incharge basis, except entitling him/ her to the charge allowance. The basic idea of making incharge arrangement emanates from administrative reasons, however, ordinarily, any order governing such incharge position contains a stipulation that it shall be for a period of six months purely on temporary basis against available vacancies or till the posts are filled up under rules on regular basis by the DPC/PSC, whichever is earlier. This stipulation has never been respected; instead position of inchargeship has been continued at all levels. It is not forthcoming as to why promotions on regular basis at every level are not referred to the DPC/PSC nor it is understandable as to why inchargeship is continued which, more often than not, appears to be with some design. In the case on hand, admittedly, the petitioner is substantively holding the post of Assistant Administrative Officer in the respondents Corporation and merely because the petitioner has been placed as incharge on the post of Administrative Officer, the petitioner cannot, as a matter of right, claim that she had been regularly promoted on the said post or that on the basis of said services rendered by her, she deserves to be regularized/ confirmed/ promoted against the said post. This incharge arrangement of the petitioner can, in no circumstances, be treated as a promotion and it does not give the petitioner any right over the said post. The said post has to be filled up by the respondent Corporation in accordance with the relevant recruitment rules governing the subject as well as the seniority position in vogue and, in the said process, the petitioner, if eligible, has a right of consideration alongwith all other eligible officers working in the Corporation.
Before parting with the file, Justice Ali Mohammad Magrey observe dthat it, needs, must be said that notwithstanding the dismissal of this petition, one contention of the learned senior counsel representing the petitioner deserves utmost consideration. It has been contended by the senior counsel that despite vacancies, the respondent Corporation is not filling up the post of Administrative Officer on regular basis for a long time now and are, instead, resorting to incharge arrangement. The Apex Court of the country has been repeatedly declaring that incharge arrangements on higher posts shall only be resorted to in order to meet exigency of public service and that such arrangements must be followed, thereafter, by regular promotions in accordance with the relevant recruitment rules governing the field and the seniority position in vogue. If the incharge arrangements are allowed to continue indefinitely, it may inbreed back door entry into the service of promotion posts and, thus, such incharge arrangements have to be discouraged in normal circumstances and, even if any such arrangement is necessitated in view of exigency of service, it should not be allowed to continue indefinitely. It should be for a specific purpose and for a short period because in the guise of exigency of service, the recruitment rules; regulating the procedure for appointment and promotion, cannot be circumvented.
With these observations, High Court directed the competent authorities in the respondent Corporation to fill up the vacancies of Administrative Officer on regular basis in accordance with the relevant recruitment rules and the seniority position in vogue. JNF