Charanjit Kour Sudan Vs. Union Territory of JK and Ors. - (High Court of Jammu and Kashmir) (20 Jul 2020)

Merely asking an official, who substantively holds a lower post, to discharge the duties of a higher post cannot be treated as a promotion

MANU/JK/0210/2020

Service

In present case, the Petitioner is seeking a 'Writ of Mandamus' upon the Respondents directing them 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. The Petitioner is also seeking a 'Writ of Certiorari' for quashing the order, to the extent it mentions the designation of the Petitioner as Assistant Administrative Officer instead of Incharge Administrative Officer.

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.

Law on this point is now well-settled. Incharge arrangement is not a recognition of right to a higher post. 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.

In the present case, 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. Petition dismissed.

Tags : PROMOTION RIGHT ENTITLEMENT