1. By this petition under Article 226 of the Constitution of India, the petitioner seeks for a direction for allowing/giving him the pay and allowances meant for the post of Housing Commissioner, (equivalent to the post of Chief Engineer with effect from 31.12.1997), the date when the petitioner assumed the duties of Housing Commissioner and also seeks for a writ of mandamus directing the authorities to appoint him to the post of Chief Engineer, PWD with retrospective effect from the date of his assumption of the office as Housing Commissioner.
2. The gist of the petitioner's case is that the petitioner being a graduate in Civil Engineering joined service as Junior Engineer in Public Works Department. Government of Tripura, in 1966 and, thereafter, gradually phase by phase he got promotion and ultimately he was appointed by way of promotion to the post of Superintendent Engineer on 22.6.1987. In the same manner the private respondent No. 6 was also appointed on promotion to the post of Superintendent Engineer on 24.11.1987.
3. While the petitioner was so serving as Superintendent Engineer (Shortly "S.E.) he was transferred and posted in Tripura Housing Board "to act" as "Housing Commissioner" but he has not been allowed the higher pay scale attached/meant for the Housing Commissioner. Having exhausted the alternative remedy by way of representation to the authority concerned seeking the higher pay scale but getting no response the petitioner served a demand notice dated 7.11.2000 (Annexure-12) and then filed this case.
4. The State Government and Public Service Commissioner field separate counters resisting the claim of the petitioner. Private respondent No. 6 also filed counter. But from the pleadings of the parties it appears that the counter filed by the Public Service Commission and also one of respondent No. 6 are not of much important.
5. The State Government averred that the petitioner was never appointed as Housing Commissioner but while he held the substantive post of Superintendent Engineer in the cadre was asked "to act" as Housing Commissioner his service having been placed under the disposal of Tripura Housing Board he was allowed honorarium @ Rs. 300 per month and, as such, the petitioner is not entitled to be paid the higher pay scale benefit equivalent to the pay scale of Housing Commissioner nor is he entitled to be absorbed to the post of Housing Commissioner.
6. From the petition, counters and appended annexure it appears that the petitioner is senior Superintendent Engineer to private respondent No. 6 as available from Annexure-2A (final seniority list of Superintendent Engineers dated 16.7.1999). It is also admitted in the pleadings of the parties that pay scale and status of the Housing Commissioner had been made equivalent to the status and pay scale of Chief Engineer vide memorandum dated. 27.4.1992 the post of Housing Commissioner carries pay scale of Rs. 4000-5000 vide memorandum dated 27.4.1992 (pre revised scale) and that scale is equivalent to the scale of the Chief Engineer PWD.
7. Learned Advocate General appearing for the State respondents submits that though under Section 12(1) of the Tripura Housing Board Act, 1979, Housing Commissioner is declared to be the Chief Executive Officer of the Housing Board and it is also prescribed under Section 12(2) that the Housing Commissioner shall be appointed by the State Government but till date no recruitment rule has been framed prescribing eligible criteria required for the said post and, as such, the Government at its discretion and in the exigency of public service used to make temporary arrangement by placing the service of one or other Superintendent Engineer under the disposal of the Tripura Housing Board "to act" as "Housing Commissioner" and, as such incumbent including the petitioner so posted there "to act" as Housing Commissioner acquired/acquires no right to seek for the pay scale attached to the said post though equivalent to the pay scale of Chief Engineer, PWD.
8. Mr. A. Chakraborty, learned senior counsel for the petitioner submits that since the post of housing Commissioner is a statutory post and since the said post carries the pay scale of Rs. 4000-5900 vide Memorandum dated 27.4.1992 the petitioner is entitled to be paid the aforesaid pay scale benefit. Learned counsel for the petitioner further submits that the Government has no authority to ask any person to man the post without allowing him all amenities attached to that post, Since the petitioner is senior most Superintendent Engineer he should have been appointed substantively against the said post with pay scale benefit.
9. From the related provision of the aforesaid Act, 1979, it reveals that the Housing Board is a body corporate having perpetual succession and a common seal and may sue and be sued in its corporate name and, as such, the status of the Housing Board is of an autonomous body having its independent function/obligation and liabilities, of course, subject to over all control of the State Government. But strange enough, till date the authority has not framed the recruitment rules for the aforesaid post prescribing eligibility criteria but has been placing the service of one or other Superintendent Engineer therewith "to act" as "Housing Commissioner" though it is a statutory posts.
10. From the aforesaid rival contentions the only question centered round the case is to decide whether the placement of any Superintendent Engineer under the Housing Board "to act" and/ or "to perform" and/or "to look after" and/or "to officiate" and/or "to hold the charge" of the post of Housing Commissioner as a temporary arrangement/stop gap arrangement entitles the incumbent to get the pay scale meant for the said post and also as to the entitlement to be absorbed against the post of Housing Commissioner. Since the provision of Section 12 of the Act remains silent as to the mood and manner of filling up the said post, the State Government used to choose to place the service of any Superintendent Engineer against the vacancy occurred n the said post of Housing Commissioner. In absence of any statutory rules prescribing criteria for the said post, in my opinion, the State Government has the discretion to place the service of the Superintendent Engineer to man the post of Housing Commissioner as it thinks fit and but in exercising the discretion the State Government is supposed to act in rational manner without doing any discrimination among the officers concerned.
10.A. The placement of service of the petitioner "to act" as "Housing Commissioner" which is a substantive post created by statute could be termed as appointment to the said post for the purpose of allowing the pay scale attached to that post.
11. It is correct that the Government has right to place the service of the petitioner against any substantive post as temporary measures asking the incumbent "to act", "to hold the charge", "to officiate in the substantive post" but that should be a stop gap arrangement for temporary duration. The petitioner was admittedly asked "to act" as Housing Commissioner vide order dated 31.12.1997 and he acted as such till his retirement during the pendency of this case.
12. It is established proposition of law so far service jurisprudence is concerned that any sorts of stop gap arrangement by way of placing any incumbent against a substantive post "to act as such" or "to officiate as such" or "to hold current charge" of the said post must be for shortest duration among others on the following contingencies:
(i) non-availability of suitable candidates in the eeder post due to lack of qualifying service;
(ii) non-finalisation of recruitment rules of the post concerned;
(iii) sudden arisen of vacancy due to unforeseen reason like death, voluntary retirement, deputation in foreign service non-constitution of departmental promotion committee and the like;
But for considerable longer period no appointment is permissible as stop gap arrangement against any substantively created permanent post particularly against a statutory post. This sort of practice of officiating appointment or appointment "to act" or "to hold current charge" is/are highly condemnable.
13. In any event, if one is asked "to act" and/or "to perform" and/ or "to discharge the higher responsibility in a higher post for a period exceeding 39 days he is entitled to be paid the higher pay scale provided to that higher post in view of F.R. 49. This legal position has been further fortified by the Hon'ble Apex Court in the case of Selva Raj, appellant v. Lt. Governor of Island, Portblair' and others, respondents, reported in AIR 1999 SC 838. In the aforesaid case, the Hon'ble Supreme Court unambiguously held that while one is holding the higher post temporarily and/or on officiating basis is entitled to be paid the scale meant for that higher post so long he officiated and or held this post.
14. Learned Advocate General submits that since the petitioner was allowed an honorarium of Rs. 300 per month in addition to his pay and allowances provided to the substantive post of Superintendent Engineer, the petitioner is stopped to claim any higher pay scale.
15. I am not in a position to share with the aforesaid view simply on the principle that no estoppel can stand against the statutory provision. Since the provision of FR 49 as mentioned above, coupled with the decision of the Hon'ble Supreme Court in Selva Raj (supra) the submission of the learned Advocate General cannot be sustained.
16. Under the aforesaid circumstances and legal position discussed above, I am of the considered opinion that the petitioner is entitled to be paid the higher pay scale attached to the post of Housing Commissioner which is equivalent to the post of Chief Engineer. P.W.D. for the period the petitioner "acted" or "officiated" as Housing Commissioner.
17. Since the petitioner already retired on attaining the age of superannuation the relief sought for by the petitioner for absorbing him in the said post of Housing Commissioner substantively cannot be granted. Though the petitioner "acted" as or "officiated" in the post of Housing Commissioner for more than 3 years till his retirement.
18. In the result, the writ petition succeeds. The petitioner is entitled to be paid the higher pay scale as provided and attached to the post of Housing Commissioner (equivalent to the pay scale of Chief Engineer PWD) from the date of his assumption of his charge as Housing Commissioner till the date of retirement with all retrial benefit.
19. No order as to costs.