CWP No. 6944 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 06, 2009 1. CWP No. 6944 of 1994 Madan Mohan and another vs. State of Haryana and another 2. CWP No. 6785 of 1994 Deepak Kumar and others vs. State of Haryana and others 3. CWP No. 7278 of 1994 Rajpati Devi vs. State of Haryana and another 4. CWP No. 6981 of 1994 Ishwar Singh Nain and others vs. State of Haryana and others 5. CWP No. 13422 of 1994 Om Pal Singh and another vs. State of Haryana and another 6. CWP No. 9418 of 1994 Padma Rohilla vs. State of Haryana and another 7. CWP No. 13336 of 2000 Dr.Om Parkash Sharma vs. State of Haryana and others Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.J.S. Maanipur, Advocate for the petitioners. Mr. Harish Rathee, Senior DAG, Haryana for the respondents. **** CWP No. 6944 of 1994 2 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This order shall dispose of seven writ petitions bearing CWP Nos. 6944 of 1994, 6785 of 1994, 7282 of 1994, 6981 of 1994, 13422 of 1994, 9418 of 1994, 6785 of 1994 and 1336 of 2000. The facts are being taken from CWP No. 6944 of 1994. The petitioners were working as Masters in the Education Department. Advertisement Annexure P-3 was issued to the following effect:- “Advertisement (9th June,1992...The Tribune) District Institute of Education and Training are being established in each District of the State of Haryana. Some of the posts in DIET are to be filled from suitable working staff in Govt. Institutions of the State through deputation. Such posts are mentioned below:- III. Name of the Post: Lecturer (Different subjects). Grade: 2000-3500 Qualifications Master's Degree in Humanities/Social Sciences/Sciences M.Ed. Preferably with specialisation Elementary Education/Adult Education/NFE/Educational Planning and Administration etc. Experience : Years Applications must reach by 20.5.1992” By order Annexure P-5 the petitioners were transferred/posted to the District Institute of Educational Training with the following conditions:- CWP No. 6944 of 1994 3 “1. The above posting shall not bestow any benefit of seniority, pay etc. to the above mentioned officials. As such they will continue to enjoy seniority in their original cadre. The officials who have been posted against post of higher scale then the scale of pay of their post, shall continue to draw pay in the grade as sanctioned for their original posts. 2. This order shall not confer any right to the above mentioned officials to claim promotion selection against the post to which they have been adjusted by this order. The incumbents are liable to be reverted to their original post as and when the Officers/Officials for these posts i.e. Senior Lecturers/Lecturers become available through regular selection. Thus the present postings are purely on provisional basis.” Immediately after being posted the petitioners represented that they should be granted the higher pay scale of Lecturer against which they had been posted. However, nothing was done in that regard and subsequently by order Annexure P-9 the petitioners were transferred back to the school cadre to be adjusted by the District Education Officer, Ambala. The petitioners challenged this order by way of the present writ petition claiming that they had a right to continue as well as with all consequential benefits of the posting against the post of Lecturer. By way of interim order dated 26.5.1994 the operation of the transfer order was stayed. Consequently the petitioners have continued to work in the District Institute of Educational Training, Ambala. In the written statement the plea taken was that the petitioners were never selected by any process of selection but were merely deputed provisionally against the post and were thus liable to be retransferred back to their cadre. Their entitlement for the higher pay grade has also been CWP No. 6944 of 1994 4 disputed on this ground. Learned counsel for the petitioner did not argue regarding the entitlement of the petitioners to continue against the post of Lecturer. However, he has vehemently urged that the petitioners are in any case entitled to get the pay scale of the higher post against which they have worked. He has relied upon a Division Bench Judgment of this Court in Pritam Singh Dhaliwal V. State of Punjab and another reported as 2004 (4) RSJ 599 wherein this Court held as follows:- “ In the case at hand, the plea of the Government is that the seniority of District Development and Panchayat Officers and the Deputy Directors etc. has been challenged before the Supreme Court and, therefore, making regular appointments was not possible. This would not come in the way of the government to deny the right of the employee, who has been asked to officiate in the post or hold the post as a temporary measure or on current duty charge. It is the admitted case that the petitioner had been asked to officiate as Deputy Director with effect from 14.3.1996 and he has been continuously posted to equivalent posts such as Addl. Deputy Commissioner (D) and that till his superannuation the officiating charge was never withdrawn. In view of the law laid down by the Hon'ble Supreme Court of India and so also the view expressed by the two Division Bench judgments of this court, with which we are in respectful agreement, we hold that the petitioner si entitled to claim the higher pay scale in the post in which he had been asked to officiate and perform his duties till his superannuation. The respondents are directed to carry out the mathematical exercise accordingly and grant the relief (including fiscal benefits) to the petitioner in the right and correct perspective within a period of three months from the date of receipt of certified copy of this order. It shall be apposite to mention that the case of the respondents is that the seniority of the Deputy CWP No. 6944 of 1994 5 Directors and District Development and Panchayat Officers is under challenge before the Supreme Court, as and when the said matter is determined by the Supreme Court, the petitioner shall be well within his right to stake his claim accordingly. The petition is disposed of in the above terms.” Learned counsel has further relied on another Single Bench decision of this Court in Anand Parkash v. State of Punjab reported as 2005(3) RSJ 749 where S.S.Nijjar, J. (as his Lordship then was) held as follows:- “Even otherwise, I am of the considered opinion that the petitioner is clearly entitled to be promoted on the post of Chief Engineer from 17.7.1991, the day he was given the Current Duty Charge. There was a clear vacancy available against which the petitioner could have been promoted. He was denied the promotion without any justification. The petitioner would also be entitled to the salary of the post of Chief Engineer, in view of the law laid down by the Supreme Court in a number of cases. In the case of Smt.P.Grover (supra), it has been categorically laid down that if a Government employee is asked to perform the duties of a higher post, the incumbent would be entitled to the salary of the higher post also. In the aforesaid case, the Supreme Court has observed as follows:- “Our attention was not invited to any rule which provides that promotion on an acting basis would not entitle the officer promoted to the pay of the post. In the absence of any rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post (the validity of such a rule would be doubtful if it existed), we must hold that Smt.Grover is entitled to be paid the salary of a District Education Officer from the date she was promoted to the post, that is, July 19, 1976 until she retired from service on August 31, 1980.” CWP No. 6944 of 1994 6 These observations are fully applicable to the facts and circumstances of the present case. The petitioner had worked on the post of Chief Engineer since 18.7.1991. He cannot, therefore, be denied the benefit of pay-fixation as Chief Engineer from the aforesaid date. Mrs.Charu Tuli, however, submits that the judgment in the case of Smt.P.Grover is distinguishable as the petitioner had not actually been promoted on the post of Chief Engineer and he had only been given Current Duty Charge. In support of the submission,she relies on a judgment of the Supreme Court in the case of State of Haryana vs. R.K. Aggarwal, 1987(4) RSJ 49. I am of the considered opinion that the aforesaid judgment would not be applicable in the facts and circumstances of the present case. In that case, the Supreme Court was dealing with a situation where the position of seniority of the employee was subject-matter of litigation. It was not a case of an employee who had been given Current Duty Charge in spite of the fact that there was a clear vacancy in existence. In the present case, the petitioner has categorically averred that a clear vacancy was available against which the petitioner could have been promoted. He was not promoted, but given Current Duty Charge for the reasons best known to the respondent. No reasons have been spelt out as to why it was absolutely essential to give only Current Duty Charge to the petitioner rather than the promotion to which he was entitled.” Learned counsel for the petitioner has also relied upon a judgment of the Hon'ble Supreme Court in Selva Raj V. Lt. Governor of Island, Port Blair reported as 1999(2) SCT 286 where also the Hon'ble Supreme Court held as follows:- “It is not in dispute that the appellant looked after the duties of Secretary (Scouts) from the date of the order an his salary was to be drawn against the post of secretary (Scouts) under GFR 77. Still he was not paid the said CWP No. 6944 of 1994 7 salary for the work done by him as Secretary (Scouts). It is of course true that the appellant was not regularly promoted to the said post. It is also true as stated in the counter affidavit of Deputy Resident Commissioner, Andaman and Nicobar Administration that the appellant was regularly posted in the pay scale of 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter. However, in our view, these averments in the counter will not change the real position. Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts) was in the pay scale of 1640- 2900. Consequently, on the principle of quantum merit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.” He has further relied on another decision of the Hon'ble Supreme Court in Secretary-cum-Chief Engineer, Chandgiarh V. Hari Om Sharma reported as 1998(3) SCT 90 wherein it was held as follows:- “Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right CWP No. 6944 of 1994 8 nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non- diploma holders available for promotion to the post of Junior Engineer-I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act.” The doctrine of law stated in these judgments is unexceptional and, needless to say, binding on this Court. In all the cases cited above the situation was that the employees were working on the higher post as per the desire of the employers. The significant departure in this case is that by order Annexure P-9 the petitioners were sought to be transferred back to their cadre and thereafter they continued there under the orders of this Court on the basis of their claim that they were entitled for being permanently placed against those posts. This claim has been rejected above and the position that has emerged is that the petitioners have been working on certain posts against the express desire of the employer on an unjustified claim that they have a right to work on those posts. Thus the judgments cited above would be distinguishable. In my considered opinion for this period the State cannot be burdened with higher pay for the petitioners. CWP No. 6944 of 1994 9 In the result the petitioners would be entitled to the higher scale of pay of lecturers only from the date of original placement i.e. 2.4.1993 till the date of the transfer order i.e. 12.5.1994. In these circumstances these writ petitions are dismissed, however, with the clarification that the petitioners will get the salary of the higher post from the date of their appointment till the date of their transfer. It is also clarified that in case any person junior to the petitioners in their cadre has been granted promotion the petitioners will be entitled for consideration for the same from the date such juniors were promoted, with all consequential benefits. (AJAY TEWARI) JUDGE February 06, 2009 sunita