# Paresh Yadav & Ors v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-08
- **Case number:** Civil Misc. Writ Petition No. 23055 of 2013
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta, B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paresh-yadav-ors-v-state-of-u-p-ors-43098
- **Pages:** 17

## Headnote

Constitution of India, Art.-226-read with
Financial Hand Book Chapter VI Para 49
(i)-entitlement
of
salary-working
on
higher
post-unless
appointed
by
competent authority-either temporary or
officiating
capacity-not
entitled
for
salary of higher post.

Held: Para-20
The referring order makes a reference to
the proviso to Para 49 (iii) and one of the
issues which was raised by the referring
Bench was whether this would qualify
only clause (iii). Prima facie, it is evident
that several of the sub-clauses of Para
49 have separate provisos. But that, in
our view, does not carry the case of the
petitioners any further for the simple
reason that for a claim to fall within the
purview of Para 49 (i), as suggested by
the petitioners, there has to be a formal
appointment of a government servant
for holding full charge of the duties of a
higher post. In the present case, as we
have indicated, there was no such
appointment by the appointing authority
as contemplated in Rule 19 (4) of the
1990 Rules. A mere endorsement by the
Transport Commissioner who, it must be
emphasized at the cost of repetition, was
not the appointing authority, would not
entitle the petitioners to the higher
salary attached to the substantive post
of ARTO merely because the petitioners
discharged the duties of that post.

(B)
Doctrine
of
'merger'
explained-
3 All]. Paresh Yadav & Ors. Vs. State of U.P. & Ors.
1127
The answer to this issue would have to be
closely analysed, based on the doctrine of
merger. The doctrine of merger postulates
that when a decree or order of an inferior
court or tribunal is subject to a remedy
before a superior forum, the disposal of the
lis by the superior forum - whether the
decree or order in appeal is set aside,
modified or confirmed - renders the decree
or order of the superior court final and
binding. The decree or order which was
passed by the original court, tribunal or
authority merges in the final and binding
decree and order of the superior forum.
This is, indeed, a well settled principle of
law. Once a decision of the High Court is set
aside by the Supreme Court, the decision of
the High Court ceases to exist and it is not
open to urge that a particular submission
was not considered by the Supreme Court.
The issue in this case is, however, distinct.
The issue in the present case is, whether on
a plain reading of the judgment of the
Supreme Court dated 4 September 2013,
can it be held that the statement of law or
the reasons which were contained in the
judgment of the Division Bench of this
Court in Subhash Chandra Kushwaha had
merged in the decision of the Supreme
Court. For the reasons which we have
indicated, the answer is in the negative.

Case Law discussed:
Writ-A No. 51469 of 2012 and Writ-A No.
55030 of 2012; W.P. No. 1448(S/B) of 2002;
S.B. No. 563 of 2012; Petition for special leave
to Appeal (Civil) No. 25574 of 2013; 1991
Supp. (2) SCC 733; AIR 1993 SC 2273; 2007
(4) AWC 3636; AIR 5000 SC 2587; (2002) 8
SCC 361; 85 LW 760; AIR 1958 SC 86; AIR
1967 SC 681; (2010) 13 SCC 158.

## Text

_Characters 0–39,744 of 56,219. This is a partial read: ask again with offset=39744 for what follows._

1126 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In view of the above, it is not
possible to accept the contention of the
learned counsel for the petitioner that
services rendered from 30.10.1996 to
31.07.2004
should
be
counted
for
determining
his
eligibility
for
the
promotion in question. The petitioner not
having been appointed nor in service as
per the Act of 1982, as on the date of
occurrence of vacancy, i.e. 30.06.2003, he
was not eligible for consideration. It being
so, I do not find any error in the impugned
order dated 04.02.2011. The claim of the
petitioner
is
misconceived.
The
respondents have rightly judged the
eligibility of the petitioner with effect
from
the
date
of
his
substantive
appointment under the Act of 1982 and
the Rules made thereunder, i.e. w.e.f.
23.11.2004 and not from a prior date.

22. The judgments relied upon by
the petitioner, copies of which are
annexed with the writ petition, relate to
direct recruitment and are not based on
the provisions of Rule 14 read with Rule
2(c) of the Rules of 1998 , therefore, the
same have no application in the facts and
circumstances
of
the
case
as
the
entitlement/ eligibility of the petitioner for
promotion has to be considered, in this
case, in the light of the aforesaid
provisions and not independent of them.

23. The writ petition is accordingly
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE B. AMIT STHALEKAR, J.
Civil Misc. Writ Petition No. 23055 of 2013

Paresh Yadav & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Bhagwati Prasad Singh, Sri Vivek
Srivastava
Sri Vivek Kumar Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-read with
Financial Hand Book Chapter VI Para 49
(i)-entitlement
of
salary-working
on
higher
post-unless
appointed
by
competent authority-either temporary or
officiating
capacity-not
entitled
for
salary of higher post.

Held: Para-20
The referring order makes a reference to
the proviso to Para 49 (iii) and one of the
issues which was raised by the referring
Bench was whether this would qualify
only clause (iii). Prima facie, it is evident
that several of the sub-clauses of Para
49 have separate provisos. But that, in
our view, does not carry the case of the
petitioners any further for the simple
reason that for a claim to fall within the
purview of Para 49 (i), as suggested by
the petitioners, there has to be a formal
appointment of a government servant
for holding full charge of the duties of a
higher post. In the present case, as we
have indicated, there was no such
appointment by the appointing authority
as contemplated in Rule 19 (4) of the
1990 Rules. A mere endorsement by the
Transport Commissioner who, it must be
emphasized at the cost of repetition, was
not the appointing authority, would not
entitle the petitioners to the higher
salary attached to the substantive post
of ARTO merely because the petitioners
discharged the duties of that post.

(B)
Doctrine
of
'merger'
explained-
3 All]. Paresh Yadav & Ors. Vs. State of U.P. & Ors.
1127
The answer to this issue would have to be
closely analysed, based on the doctrine of
merger. The doctrine of merger postulates
that when a decree or order of an inferior
court or tribunal is subject to a remedy
before a superior forum, the disposal of the
lis by the superior forum - whether the
decree or order in appeal is set aside,
modified or confirmed - renders the decree
or order of the superior court final and
binding. The decree or order which was
passed by the original court, tribunal or
authority merges in the final and binding
decree and order of the superior forum.
This is, indeed, a well settled principle of
law. Once a decision of the High Court is set
aside by the Supreme Court, the decision of
the High Court ceases to exist and it is not
open to urge that a particular submission
was not considered by the Supreme Court.
The issue in this case is, however, distinct.
The issue in the present case is, whether on
a plain reading of the judgment of the
Supreme Court dated 4 September 2013,
can it be held that the statement of law or
the reasons which were contained in the
judgment of the Division Bench of this
Court in Subhash Chandra Kushwaha had
merged in the decision of the Supreme
Court. For the reasons which we have
indicated, the answer is in the negative.

Case Law discussed:
Writ-A No. 51469 of 2012 and Writ-A No.
55030 of 2012; W.P. No. 1448(S/B) of 2002;
S.B. No. 563 of 2012; Petition for special leave
to Appeal (Civil) No. 25574 of 2013; 1991
Supp. (2) SCC 733; AIR 1993 SC 2273; 2007
(4) AWC 3636; AIR 5000 SC 2587; (2002) 8
SCC 361; 85 LW 760; AIR 1958 SC 86; AIR
1967 SC 681; (2010) 13 SCC 158.

(Delivered by Hon'ble D.Y. Chandrachud,
C.J.)

1. In the writ proceedings out of
which this reference to the Full Bench
arises, the seven petitioners seek a
mandamus directing the State and its
officers to allow to them the scale of pay
admissible
to
Assistant
Regional
Transport Officers for the period during
which they discharged the duties of
Assistant Regional Transport Officers,
prior to their substantive appointment to
the post.

2. The case of the petitioners is that
they were regularly promoted on the post
of Assistant Regional Transport Officer1
in 2003 from the lower post. On 18 July
2003, an order was issued by the Principal
Secretary in the Transport Department in
the name of the Governor, promoting the
petitioners on the post of ARTO. They
claim that between 1996 to 2003, they
were required to discharge the duties of
the post of ARTO. Hence, for instance, by
an order dated 13 June 1997, a direction
was issued by the Commissioner of
Transport,
requiring
some
of
the
petitioners,
who
were
working
as
Regional
Inspectors
(Technical)
to
discharge the duties of ARTO, though in
the substantive post of Regional Inspector
(Technical). Relying on the provisions of
Para 49(i) of Chapter VI of the Financial
Handbook, Volume II (Parts II to IV), the
petitioners claim to be entitled to the
payment of salary of the higher post,
while holding a dual charge. Two earlier
writ petitions2 were filed under Article
226 of the Constitution, on the ground
that the request of the petitioners for the
grant of salary in the higher post of
ARTO for the period during which they
were holding two posts has not been
considered. By orders dated 4 October
2012 and 17 October, 2012, the State
Government was directed to examine the
grievance of the petitioners individually
on the basis of a decision rendered by this
Court at Lucknow in Subhash Chandra
Kushwaha Vs. The State of U.P. & Ors.3.
The State Government, by an order dated
16 January 2013, rejected the request of
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioners. The State Government held
that the claim of the petitioners for the
payment of salary in the higher post, for
having discharged the duties of two posts is
not covered by Para 49 of Chapter VI of the
Financial Handbook, Volume II (Parts II to
IV), on the ground that they had not initially
been appointed to a higher post but were
only called upon to look after the work of a
higher post. The State was of the view that
the petitioners did not raise any grievance in
regard to the payment of their salary during
the relevant period and, hence, it was too
late in the day to accept their requests for
the payment of salary of the post of ARTO
for the period from 1996 to 2003, when
they held charge of the post.

3. The foundation of the case of the
petitioners is two decisions of the
Division Benches of the Court at
Lucknow in Prem Chandra Srivastava Vs.
State of U.P. & Ors.4 which relied upon
an earlier decision in Subhash Chandra
Kushwaha (supra). The decision in Prem
Chand Srivastava was carried in appeal to
the Supreme Court and resulted in an
order dated 4 September 2013 to which,
we will shortly advert.

4. In Subhash Chandra Kushwaha, this
Court dealt with the grievance of a person
who was working as a Passenger Tax Officer
in the Transport Department and was
directed to officiate on the post of ARTO
since 1996 until 1999 when he was
substantively promoted to the post. The
claim was for the payment of salary for the
period 1996 to 1999 in the higher post of
ARTO. The Division Bench after adverting
to Para 49 of Chapter VI of the Financial
Handbook, Volume II (Parts II to IV) held:

"From the plain reading of the
provisions contained in Para 49 of
Chapter VI of Financial Handbook Vol. II
(Parts II to IV), it is evident that a
government servant who is formally
appointed to hold full charge of the duties
of a higher post in the same office as his
own and in the same cadre/line of
promotion, in addition to his ordinary
duties, shall be paid the pay admissible to
him, if he was appointed to officiate in the
higher post, unless his officiating pay is
reduced under Rule 35 but no additional
pay shall be allowed for performing the
duties of a lower post. The provisions
contained in Rule 49 of the Financial
Handbook seem to provide that a
government servant who officiates on the
higher post shall be entitled for payment
of pay-scale admissible to such higher
post. ..."

5. Thereupon, the conclusion which
was arrived at, was as follows:

"Right to livelihood is fundamental
right, protected by Article 21 of the
Constitution of India, vide 1991 Suppl.
(1) SCC 600, Delhi Transport Corporation
versus D.T.C. Mazdoor Congress. Once
the petitioner was permitted to discharge
duty on the post of A.R.T.O. for
reasonably long period of time, the
respondents were not justified in not
making payment of pay-scale admissible
to the said cadre. Admittedly, there is a
difference between the pay-scale of the
Passenger Tax Officer and the Assistant
Regional Transport Officer. In view of the
above, we are of the opinion that the
petitioner is entitled to claim higher payscale of the post of A.R.T.O. for the
period he had discharged duty of the said
post."

6. A similar issue was considered by
a Division Bench of this Court at
3 All]. Paresh Yadav & Ors. Vs. State of U.P. & Ors.
1129
Lucknow in the case of Prem Chandra
Srivastava (supra), where a person who
was employed on the post of Passenger
Tax Superintendent claimed the salary of
the post of ARTO for the period between
2003 and 2008 when he was called upon
to discharge the duties of the post of
ARTO. The Division Bench followed the
earlier decision in Subhash Chandra
Kushwaha (supra) and held that:

"The
provision
contained
in
Financial Handbook has got statutory
force. Any condition contained in the
officiating
order
contrary
to
the
provisions contained in the Financial
Handbook which confers statutory right
on the employees shall not be sustainable
and suffers from vice of arbitrariness."

7. In addition, the Division Bench
held that since eight persons who were
working on the post of Passenger Tax
Officers and who had officiated as
ARTOs had been given the salary of the
post of ARTO for the period of
officiation, it was not open to the State to
discriminate against the petitioner. A
mandamus was issued to the State
directing it to pay the difference of salary
and arrears for the period when the
petitioner discharged the duties and
officiated on the post of ARTO together
with costs which were quantified at Rs. 2
lac, of which an amount of Rs. 1 lac was
to be withdrawn by the petitioner and the
balance was to be paid over to the
Mediation Centre of the High Court at
Lucknow.

8. The decision of the Division
Bench in Prem Chandra Srivastava was
challenged by the State of Uttar Pradesh
by filing a Special Leave Petition5 before
the Supreme Court. On 4 September
2013, the Supreme Court disposed of the
proceedings with the following order:

"Taken on Board.

Leave granted.

Upon hearing the learned counsel for
the appellants and looking to the facts of
the case, in our opinion, the cost awarded
by the High Court is quite excessive. We
reduce the amount of Rs. 2 lacs to Rs.
10,000/-, which shall be paid to the
present respondent within two months
from today.

Subject to above modification, the
appeal is dismissed with no order as to
costs."

9. When the writ proceedings in the
present case, came up for hearing before
the Division Bench, the learned Judges
found themselves unable to agree with the
principle enunciated in both the decisions
in Subhash Chandra Kushwaha and Prem
Chandra Srivastava. The Division Bench
was of the view that the earlier decisions
of the Court have failed to correctly
interpret the provisions of Para 49 of
Chapter VI of the Financial Handbook,
Volume II (Parts II to IV). Accordingly,
the following questions of law have been
referred for decision6:

(a) Whether the law laid down by the
Division Bench of the High Court in the
case of Prem Chandra Srivastava which
directs that merely on holding additional
charge
of
an
additional
post,
the
incumbent would become entitled to
salary of higher post even in absence of
sanction from the finance department,
lays down the correct law or not;

(b) What is the effect of the order of
the Supreme Court dated 4 September
2013 dismissing the appeal filed by the
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
State of U.P. against the judgment of the
Division Bench of this Court at Lucknow
in the case of Prem Chandra Srivastava
(supra); and

(c) Whether proviso to Para 49 of
Chapter VI of Financial Handbook, Vol.
II (Parts II to IV) which requires the
concurrence of the finance department, if
officiating appointment is to be continued
beyond 90 days would be applicable in
respect of appointments covered by
Clauses (i) & (ii) of Para 49 or the said
proviso
would
be
applicable
to
appointments under Clause (iii) only.

10. On behalf of the petitioners, the
following submissions have been urged:

(1) The post of Passenger Tax
Officer/Goods
Tax
Officer
and
of
Regional Inspector is in the same cadre in
the Transport Department of the State of
U.P. The next promotional post is that of
ARTO. The petitioners were holding the
permanent post of Regional Inspectors at
different places and were directed to hold
charge of the post of ARTO in addition to
their original post on the place of posting
as Regional Inspector. The first petitioner
officiated on the post of ARTO from 31
July 1996 to 17 July 2003, petitioner no. 2
from 14 May 1998 to 17 July 2003,
petitioner no.3 from 31 July 1996 to 17
July 2003, petitioner no. 4 from 14 May
1998 to 27 May 1999, and petitioner nos.
5 to 7 from 16 June 1997 to 17 July 2003
and thereafter all the petitioners were
regularized/appointed substantively on the
post of ARTO without any break with the
approval of the Uttar Pradesh Public
Service Commission7;

(2) Five other officers who were
officiating on the post of ARTO withdrew
the salary of the higher post on their own
signatures being Drawing and Disbursing
Officers. The government issued recovery
notices and thereafter they had filed a
contempt petition following which the
government
cancelled
the
recovery
notices and accepted their claim;

(3) The decisions of two Division
Benches of this Court at Lucknow in the
case of Subhash Chandra Kushwaha and
Prem Chandra Srivastava allowed the
claim of salary in the higher post of
ARTO for the period during which the
employees in a lower substantive post had
discharged the duties of the post of
ARTO. The Supreme Court in a special
leave petition which arose from the
decision in Prem Chandra Srivastava
granted leave and dismissed the appeal,
save and except for a modification of the
quantum of costs from Rs. 2 lac to Rs.
10,000/-;

(4) The petitioners would be entitled
to the benefit of the decisions in Subhash
Chandra Kushwaha and Prem Chandra
Srivastava. The reference has been made
in the present case by the Division Bench
only because the Court was in doubt
whether the proviso to Para 49 (iii) of
Chapter VI of the Financial Handbook,
Volume II (Parts II to IV) is applicable to
Para 49(i). However, according to the
petitioners, government servants covered
by Para 49 (i) are entitled to the salary of
the higher post on which they are
officiating without the concurrence of the
Finance Department.

(5) Once the Supreme Court had
granted leave to appeal and dismissed the
appeal filed by the State against the
decision of the Division Bench in Prem
Chandra Srivastava, the judgment of the
3 All]. Paresh Yadav & Ors. Vs. State of U.P. & Ors.
1131
Division Bench has merged in the order
of the Supreme Court. Consequently, it
would
not
be
open to
the
State
Government to contend that the decision
of the Division Bench at Lucknow Bench
did not consider any aspect of the matter
since the decision of the Supreme Court
would bind the State; and

(6)
The
petitioners
would
be
governed by Para 49(i) of Chapter VI of
the Financial Handbook and not by Para
49 (iii). Moreover, it is not open to the
State
to
discriminate
against
the
petitioners.

11. On the other hand, the following
submissions have been made on behalf of
the State:

(A) The doctrine of merger has a
limited application. It is not a doctrine of
rigid and universal application. The
application of the doctrine depends on the
nature of the appellate or revisional order
in each case and the scope of the statutory
provisions conferring the appellate or
revisional jurisdiction;

(B) Even if the doctrine of merger is
applied, the order of the Supreme Court
dated 4 September 2013 granting leave
and dismissing the appeal subject to a
reduction of the costs awarded by the
High Court from Rs. 2 lac to Rs. 10,000/-,
does not make any declaration of law
within the meaning of Article 141 of the
Constitution either expressly or by
necessary implication. It cannot be said
that the same is binding as a precedent
and is not open to reconsideration by a
larger Bench of the High Court; and

(C)
A decision
which
is
not
expressed and is not founded on reasons
nor proceeds on a consideration of the
issue cannot be deemed to be law
declared to have a binding effect as is
contemplated by Article 141 of the
Constitution. Uniformity and consistency
are core of judicial discipline. But that
which escapes in the judgment without
any occasion is not the ratio decidendi.

12. The rival submissions now fall
for consideration.

13. At the outset, it would be
necessary to note the existence of two
separate sets of rules framed under Article
309 of the Constitution:

(i) The Uttar Pradesh Transport
(Subordinate) Technical Service Rules,
19808 govern the services of persons
appointed as Technical Inspector/Regional
Inspector (Technical) and Assistant Regional
Inspector
(Technical).
The
appointing
authority as defined in Rule 3(a) is the
Transport Commissioner.; and

(ii) The Uttar Pradesh Transport
Service Rules, 19909 govern the services of
persons appointed as Assistant Regional
Transport
Officer,
Regional
Transport
Officer, Deputy Transport Officer and
Additional Transport Commissioner. The
salient features of the 1990 Rules are that:

(a) The appointing authority is the
Governor [Rule 3(a)];

(b) The procedure for appointment is
provided in Rules 15 and 16;

(c)
Academic
qualifications
are
provided in Rule 8;

(d) Sources of recruitment are
provided in Rule 5;
1132 INDIAN LAW REPORTS ALLAHABAD SERIES

(e) Appointment is provided in Rule
19.

14. The source of recruitment to the
post of ARTO is under Rule 5(1) which
provides for 50 percent by promotion and
50 percent by direct recruitment by the
Commission on the basis of a combined
State
Services'
Examination.
The
promotional avenue to 50 percent of the
posts is through the Commission from
amongst permanent Passenger/Goods Tax
Officers
and
Technical
Inspectors/Regional
Inspectors
(Technical) who have put in at least five
years'
continuous
service.
Rule
15
provides for the procedure which is to be
followed by the Commission in carrying
out direct recruitment to the post of
ARTO. Rule 16 lays down the procedure
for making recruitment by promotion to
the post of ARTO and stipulates as
follows:

"16. Procedure for recruitment by
promotion to the post of Assistant
Regional Transport Officer.- Recruitment
by promotion shall be made on the basis
of merit in accordance with the Uttar
Pradesh
Promotion
by
selection
in
consultation
with
Public
Service
Commission (Procedure) Rules , 1970 as
amended from time to time."

15. Rules 17 deals with the
procedure for recruitment by promotion to
the posts other than ARTOs. Rule 19
states that the appointing authority shall
make appointments by taking the names
of candidates in the order in which they
stand in the lists prepared under Rules 15,
16 or 17, as the case may be.

16. Significantly, under Rule 19, it
has
been
stipulated
that
even
appointments in a temporary or officiating
capacity have to be made from the lists
mentioned in Rule 19(1). If no candidate
borne on these lists is available, the
appointing
authority
may
make
appointments in such vacancy from
amongst persons eligible for appointment.
Such an appointment shall not last for a
period exceeding one year or beyond the
next selection under the rules, whichever
is earlier. Rule 19 (4) reads as follows:

"(4) The appointing authority may
make appointments in temporary or
officiating capacity also from the list
mentioned in sub-rule (1). If no candidate
borne on these lists is available, he may
make appointments in such vacancy from
amongst persons eligible for appointment
under these rules. Such appointments
shall not last for a period exceeding one
year or beyond the next selection under
these rules, whichever be earlier, and
where the post is within the purview of
the
Commission,
the
provisions
of
Regulation 5(a) of the U.P. Public Service
Commission (Limitation of Function)
Regulations 1954 shall apply."

Rule 23 deals with scales of pay.

17. The petitioners were appointed
as Regional Inspectors (Technical). The
substantive post which they held at the
material time was admittedly not that of
an ARTO. They were transferred as
Regional Inspector (Technical) by the
Transport Commissioner. But in the copy
which was endorsed to the petitioners, the
Transport Commissioner mentioned that
they shall discharge the duties of ARTOs.
The Transport Commissioner, it must be
noted, was not the appointing authority to
the post of ARTO. The services of
Regional Inspectors (Technical) on one
hand and of ARTOs on the other are
3 All]. Paresh Yadav & Ors. Vs. State of U.P. & Ors.
1133
governed by different set of rules. ARTOs
are governed by the 1990 Rules and their
appointing authority is the Governor. Under
Rule 19 of the 1990 Rules, it is only the
appointing authority which can make even a
temporary or officiating appointment. The
petitioners were not substantively appointed
to the post of ARTO for the period during
which they claim their salary. They were not
appointed even in an officiating or temporary
capacity by the appointing authority to the
post of ARTO in accordance with the
provisions of Rule 19.

18. Now, it is in this background
that it would be necessary to advert to the
provisions of Para 49 of Chapter VI of the
Financial Handbook, Volume II (Parts II
to IV). Para 49 reads as follows:

"49. The Government may appoint a
Government servant already holding a
post in a substantive or officiating
capacity to officiate, as a temporary
measure, in one or more of other
independent posts at one time under the
State Government. In such cases, his pay
is regulated as follows:

(i) Where a Government servant is
formally appointed to hold full charge of the
duties of a higher post in the same office as
his own and in the same cadre/line of
promotion, in addition to his ordinary
duties, he shall be allowed the pay
admissible to him, if he were appointed to
officiate in the higher post, unless his
officiating pay is reduced under Rule 35 but
no additional pay shall be allowed for
performing the duties of a lower post.

(ii) Where a Government servant is
formally appointed to hold dual charge of
two posts in the same cadre in the same
office carrying identical scales of pay, no
additional
pay
shall
be
admissible
irrespective of the period of dual charge;

Provided that if the Government
servant is appointed to an additional post
which carries a special pay, he shall be
allowed such special pay.

(iii) Where a Government servant is
formally appointed to hold charge of
another post or posts which is or are not
in the same office, or which, though in the
same office, is or are not in the same
cadre/line of promotion, he shall be
allowed the pay of the higher post, or the
highest post if he holds charge of more
than two posts, in addition to ten percent
of the presumptive pay of the additional
post or posts, if the additional charge is
held for a period exceeding thirty days but
not exceeding ninety days:

Provided that if in any particular
case, it is considered necessary that the
Government servant should hold charge
of another post or posts for a period
exceeding ninety days, the concurrence of
the State Government in the Finance
Department shall be obtained for the
payment of the additional pay beyond the
period of ninety days.

(iv) No additional pay shall be
admissible to a Government servant who
is appointed to hold current charge of the
routine duties of another post or posts
irrespective of the duration of the
additional charge.

(v) If compensatory or sumptuary
allowances are attached to one or more of
the posts, the Government servant shall
draw such compensatory or sumptuary
allowances as the State Government may
fix:
1134 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that such allowances shall
not exceed the total of the compensatory
and sumptuary allowances attached to all
the posts." (Emphasis supplied)

19. Para 49 provides that the
Government may appoint a government
servant already holding a post in a
substantive or officiating capacity to
officiate, as a temporary measure, in one
or more of other independent posts at one
time. Para 49 (i) deals with a situation
where a government servant is formally
appointed to hold full charge of the duties
of a higher post in the same office as his
own and in the same cadre or line of
promotion, in addition to his ordinary
duties. The important aspect to be
emphasised in Para 49 (i) is the
expression 'formally appointed'. In other
words, there has to be a formal
appointment of the government servant to
hold full charge of the duties of a higher
post.
The
formal
appointment
as
contemplated by Para 49 (i) is obviously
an
appointment
by
the
appointing
authority which alone can issue an order
of formal appointment to hold full charge
of the duties of a higher post. In the
present case, as the facts before the Court
would disclose, the appointing authority
under the 1990 Rules is the Governor.
Rule 19 (4) contemplates expressly that it
is the appointing authority who may make
appointments in a temporary or officiating
capacity. Even these appointments have to
be from the lists mentioned in Rule 19 (1)
and if no such person borne on those lists
is
available,
appointments
in
such
vacancies have to be made from amongst
the persons eligible for appointment under
the rules. The appointment cannot exceed
a period of one year or till the next
selection, whichever is earlier. In the
present case, there was no appointment by
the appointing authority as required by
Rule 19 (4) in a temporary or officiating
capacity. Para 49 (i) has clearly no
application. As a matter of fact, Para 49
(iv) provides that no additional pay would
be admissible to a government servant
who is appointed to hold current charge of
the routine duties of another post or posts
irrespective of the duration of additional
charge.

20. The referring order makes a
reference to the proviso to Para 49 (iii)
and one of the issues which was raised by
the referring Bench was whether this
would qualify only clause (iii). Prima
facie, it is evident that several of the subclauses of Para 49 have separate provisos.
But that, in our view, does not carry the
case of the petitioners any further for the
simple reason that for a claim to fall
within the purview of Para 49 (i), as
suggested by the petitioners, there has to
be a formal appointment of a government
servant for holding full charge of the
duties of a higher post. In the present
case, as we have indicated, there was no
such appointment by the appointing
authority as contemplated in Rule 19 (4)
of the 1990 Rules. A mere endorsement
by the Transport Commissioner who, it
must be emphasized at the cost of
repetition,
was
not
the
appointing
authority, would not entitle the petitioners
to the higher salary attached to the
substantive post of ARTO merely because
the petitioners discharged the duties of
that post.

21. The view which we have taken
is consistent with a body of precedent of
the Supreme Court on the subject. In
Ramakant Shripad Sinai Advalpalkar Vs.
Union of India & Ors.10, the Supreme
Court drew a distinction between a
3 All]. Paresh Yadav & Ors. Vs. State of U.P. & Ors.
1135
substantive promotion to higher post of a
government servant, and a situation where
a person is merely required to discharge
the duties of a higher post. The Supreme
Court held as follows:

"...The
distinction
between
a
situation where a government servant is
promoted to a higher post and one where
he is merely asked to discharge the duties
of the higher post is too clear to require
any reiteration. Asking an officer who
substantively holds a lower post merely to
discharge the duties of a higher post
cannot be treated as a promotion."

22. In a subsequent decision of the
Supreme Court in State of Haryana Vs.
S.M. Sharma & Ors.11, an employee was
entrusted with the current duty charge of
the post of Executive Engineer which was
subsequently withdrawn. The employee
challenged the withdrawal of charge on
the ground that it amounted to reversion.
The Supreme Court held that the
employee was only given a current duty
charge on the higher post of Executive
Engineer and was neither promoted nor
appointed to the post. The withdrawal of
the charge was, therefore, held not to
amount to a reversion.

23. These decisions were followed
in a judgment of a Division Bench of this
Court in Sheo Shanker Tripathi Vs.
Director of Education (Sanskrit) U.P.,
Allahabad & Ors.12. The Division Bench
held as follows:

"... Appointment to a post on ad hoc
or officiating basis is different than mere
discharge of duties of a higher post. In
other word, the petitioner was only given
current duty charge in addition to the
substantive post he held. In our view, this
arrangement did not result in promotion to
the post of which the current duty charge
was handed over to the petitioner unless
an order of promotion is issued by the
management in favour of the petitioner."

24. Consequently, the view of the
Division Bench was that the petitioner
was neither appointed on the post of
Principal nor was his appointment an ad
hoc appointment made in accordance with
the U.P. Higher Education Services
Commission Act, 1980 or the U.P. Higher
Education
Services
Commission
(Removal of Difficulties) Order, 1983
and, hence, he would not be entitled to a
mandamus for the payment of salary on
the post of Principal. The Division Bench
held as follows:

"Since
the
petitioner
was
never
appointed on the post of Principal, therefore,
the question of payment of salary of the said
post would not arise. Even otherwise, as we
have already noticed, the management did
not make any ad-hoc appointment in
accordance with the procedure prescribed,
i.e. 1980 Act read with 1983 Order and
therefore, also, a mandamus for payment of
salary to the petitioner for the post of
Principal cannot be issued. Even if it is
assumed that the petitioner was appointed by
the management on officiating basis, the said
appointment being inconsistent to the
procedure prescribed, it would not result in
conferring any right upon him to claim salary
on the basis of such illegal appointment, if
any."

25. The decision of the Division
Bench of this Court at Lucknow in
Subhash Chandra Kushwaha was rendered
without the attention of the Court being
drawn to the governing provisions of the
1990 Rules. The Division Bench was not
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
apprised of the position under the Rules
framed under Article 309 that the appointing
authority to the post of ARTO is the
Governor, and to the relevant provisions of
the rules including Rules 15 and 16 which
provide for the procedure for recruitment and
Rule 19 which deals with the power of
appointment. The provisions of Rule 19 (4)
which confer upon the appointing authority,
namely the Governor, the power to make
even temporary or officiating appointments
have not been noticed in the judgment of the
Division Bench. The decision in Subhash
Chandra Kushwaha does not consider the
governing rules framed under Article 309 of
the Constitution and is hence, with respect,
rendered without taking into account these
rules. That apart and for the reasons which
we have indicated, it is not possible to agree
with the view taken by the Division Bench
on the construction of Para 49 of Chapter VI
of the Financial Handbook, Volume II (Parts
II to IV). The view of the Division Bench is
inconsistent with the principles enunciated in
the judgments of the Supreme Court noted
above. The petitioners cannot raise a plea of
discrimination in the face of the Rules
framed under Article 309 of the Constitution.
Once there is no valid appointment by the
appointing authority under the 1990 Rules
during the period when the petitioners held
charge of the duties of the post of ARTO,
they would not be entitled to the salary of the
post of ARTO prior to their substantive
appointment. An illegality cannot give rise to
an expectation of similar treatment under
Article 14. The petitioners were not
appointed even in an officiating capacity
under Rule 19(4) by the Governor who is the
appointing authority.

26. The issue, however, which falls
for consideration is whether the Full
Bench is precluded from taking this view
on the ground that the decision in
Subhash
Chandra
Kushwaha
was
followed in a subsequent decision of the
Division
Bench
in
Prem
Chandra
Srivastava against which a Special Leave
Petition was filed before the Supreme
Court where leave was granted and an
order was passed by the Supreme Court
dismissing the appeal subject to a
reduction in the costs awarded.

27. The answer to this issue would
have to be closely analysed, based on the
doctrine of merger. The doctrine of
merger postulates that when a decree or
order of an inferior court or tribunal is
subject to a remedy before a superior
forum, the disposal of the lis by the
superior forum - whether the decree or
order in appeal is set aside, modified or
confirmed - renders the decree or order of
the superior court final and binding. The
decree or order which was passed by the
original court, tribunal or authority
merges in the final and binding decree
and order of the superior forum.

28. In Kunhayammed & Ors. State
of Kerala & Anr.13 a Bench of three
learned Judges of the Supreme Court,
after adverting to the body of the
precedent on the subject, held as follows:

"...In State of Madras Vs. Madurai
Mills Co. Ltd., AIR 1967 SC 681 this
Court held that the doctrine of merger is
not a doctrine of rigid and universal
application and it cannot be said that
wherever there are two orders, one by the
inferior authority and the other by a
superior authority, passed in an appeal or
revision there is a fusion or merger of two
orders irrespective of the subject-matter
of the appellate or revisional order and the
scope
of
the
appeal
or
revision
contemplated by the particular statute.
3 All]. Paresh Yadav & Ors. Vs. State of U.P. & Ors.
1137
The application of the doctrine depends
on the nature of the appellate or revisional
order in each case and the scope of the
statutory
provisions
conferring
the
appellate or revisional jurisdiction."

While summing up its conclusion,
the Supreme Court held thus:

"Doctrine of merger is not a doctrine
of universal or unlimited application. It
will depend on the nature of jurisdiction
exercised by the superior forum and the
content or subject-matter of challenge laid
or capable of being laid shall be
determinative of the applicability of
merger..."

29. The decision in Kunhayammed's
case was considered in a subsequent
judgment of a Bench of two learned
Judges in S. Shanmugavel Nadar Vs.
State of T.N. & Anr.14. In that case, the
State Legislature had enacted the Madras
City Tenants' Protection (Amendment)
Act, 1960 to amend certain provisions of
the Madras City Tenants' Protection Act,
1921. The constitutional validity of the
Amending Act was challenged in writ
petitions which were disposed of by the
High Court in the case of M. Varadaraja
Pillai Vs. Salem Municipal Council15.
Against this decision of a Division Bench
of the Madras High Court, appeals by
special leave were filed before the
Supreme Court. The Supreme Court by its
order dated 10 September 1986 dismissed
the
appeals
with
the
following
observations:

"The constitutional validity of Act 13
of 1960 amending the Madras City
Tenants' Protection Act, 1921 is under
challenge in these appeals. The State of
Tamil Nadu was not made a party before
the Trial Court. However, the State was
impleaded as a supplemental respondent
in appeal as per orders of the High Court.
When the appellants lost the appeal, they
sought leave to appeal to this Court. The
State of Tamil Nadu was not made a party
in the said leave petition. In the SLP
before this Court also the State of Tamil
Nadu was not made a party. A challenge
to the constitutional validity of the Act
cannot be considered or determined, in
the absence of the State concerned. The
learned counsel now prays for time to
implead the State of Tamil Nadu. This
appeal is of the year 1973. In our view it
is neither necessary nor proper to allow
this prayer at this distance of time. No
other point survives in these appeals.
Therefore, we dismiss these appeals, but
without any order as to costs."

30. Subsequently, the Madras City
Tenants' Protection (Amendment) Act,
1994 (Tamil Nadu Act 2 of 1996) was
enacted by the State Legislature. The
constitutional validity was challenged
before the Madras High Court in several
writ petitions where reliance was placed
on behalf of the State on the earlier
decision
in
Varadaraja
Pillai.
The
Division Bench, while entertaining a
doubt about the correctness of the law laid
down by the earlier Division Bench in
Varadaraja Pillai, referred the matter to a
Full Bench of three learned Judges.
However, the Full Bench formed an
opinion that since the appeals against the
judgment of the Division Bench of the
High Court in Varadaraja Pillai had been
dismissed by the Supreme Court, the
judgment of the Division Bench merged
with the decision of the Supreme Court
and, therefore, it was not open to the Full
Bench to examine the correctness of the
law laid down by the earlier Division
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
Bench in Varadaraja Pillai. In this
background, while dealing with the
doctrine of merger, the Supreme Court
observed as follows:

"Firstly, the doctrine of merger.