CWP No.20467 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. :20467 of 2011 (O&M) Date of decision: 04.11.2011 Union of India & others ... Petitioners Versus Central Administrative Tribunal, Chandigarh & another … Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA Present: Mr. Vikram Bajaj, Advocate for the petitioners. **** Tejinder Singh Dhindsa, J. The present writ petition is directed against the order dated 22.9.2011 passed by the Central Administrative Tribunal (hereinafter be referred as ‘CAT’) Chandigarh Bench, Chandigarh in OA No.12-PB of 2011. The undisputed facts that emanate from the pleadings are that respondent no.2 was promoted to P.S. Group – B in the pay scale of Rs.7500-12000/- on purely temporary and ad hoc basis w.e.f. 01.07.2004 vide promotion order dated 22.06.2004. Such promotion order categorically stipulated that the promotion of respondent no.2 was for a period not exceeding one year or till the regularly approved officer is posted against the said post, whichever is earlier. It is also the admitted position between the parties that respondent no.2 continued to work on the higher post beyond the stipulated sanctioned period of CWP No.20467 of 2011 (O&M) -2- one year till he retired from the said post upon attaining the age of superannuation on 31.07.2008. Respondent no.2 was aggrieved by the action of the department as he was not being paid arrears of the difference of salary for the period he had worked on the promoted post even though on ad hoc basis. Under such circumstances, he filed OA No.12-PB of 2011 in the CAT praying inter alia for the grant of pay in the scale of Rs.7500-12000/- on account of performance of duties of the higher post w.e.f. 12.07.2004 to 31.07.2008 along with arrears and for revision and fixation of his retiral dues accordingly. CAT has allowed the prayer of respondent no.2 vide impugned order dated 22.09.2011. Learned counsel for the petitioners has been heard at length. He has vehemently argued that in terms of the instructions of the Department of Personnel and Training (hereinafter be referred as ‘DoPT’) approval of DoPT was required for the continuance of the ad hoc promotion of respondent no.2 beyond one year and since the same was not received such ad hoc promotion would cease on the expiry of one year of promotion. He accordingly contends that the continuance of respondent no.2 on the promoted post on ad hoc basis beyond the initial stipulated period of one year was totally unauthorized and even though the employee may have worked on such promoted post till 31.07.2008 no benefit for such period could have been granted. We are unable to accept the contentions raised on behalf of the Union of India - writ petitioner. It is by now well settled that a welfare state has to pay to its employee the pay and wages for the post against which such employee has been asked to work. The courts over a period of time have even held that an employee would be entitled to the pay and wages for such higher post against which he has CWP No.20467 of 2011 (O&M) -3- discharged the functions, howsoever, fortuitous such appointment/ promotion may have been. The Hon’ble Supreme Court in AIR 1998, Supreme Court 2909 in the matter of Secretary-cum-Chief Engineer, Chandigarh versus Hari Om Sharma & others held as under:- “7. Learned counsel for the appellant has placed reliance on Shreedaran Chandra Ghosh vs. State of Assam & Ors. (1996) 10 SCC 567, as also on State of Haryana vs. S.M. Sharma & Ors., JT 1993 (3) SC 740, to contend that since the respondent was promoted on the basis of stop-gap arrangement, he could not claim promotion as a matter of right nor could be claim salary for the post of Junior Engineer-I as he was given only current duty charge of the post. Both the contentions cannot be accepted. The Tribunal has already held that the respondent having been promoted as Junior Engineer-I, though in stop-gap arrangement, was continued on that post, and therefore, he has a right to be considered for regular promotion. Having regard to the facts of this case, there is no reason to differ with the Tribunal. 8. 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 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 CWP No.20467 of 2011 (O&M) -4- 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 put to officiate on that post or, as in 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.” Even this court in the recent judgment titled as M.C.Chhabra & others vs. Bhakra Beas Management Board reported as 2011 (1)SCT page 636 has observed in the following terms:- “All the petitioners claimed entitlement to arrears of pay on the basis of increased scales that have been applied during the time when they officiated in higher posts on ad hoc basis and that they shall also be entitled to reckoning of terminal benefits on the scales of pay for such higher posts. The entitlement of the petitioners to higher scales applicable to higher posts cannot be denied for it is stating too obvious a principle that even an ad hoc employee shall be paid the scales applicable to the posts which they held, however, fortuitous the postings had been. The entitlement of the petitioners, however, shall be restricted only to consideration of such increased scales of pay and the arrears that have to be calculated to be restricted to a period of 38 months prior to the date of the filing of the writ petition. Having regard to the fact that all the petitioners have now retired, the 38 months is reckoned as 3 years which is normally a period of limitation for recovery of money and two months notice period.” The admitted position of fact is that respondent no.2, who was initially promoted on 01.07.2004 to the higher post of P.S. Group – CWP No.20467 of 2011 (O&M) -5- B in the pay scale Rs.7500-12000/- for a period of one year on purely temporary and ad hoc basis has actually worked against such post till 31.07.2008 i.e. his age of superannuation. He is clearly entitled to the pay for such post against which he has worked and discharged his responsibilities. The mere fact that an approval of DoPT in regard to his continuance on such promoted post beyond the stipulated period of one year was not forthcoming can not visit respondent no.2 with any adverse civil consequences. For the reasons recorded above, we can not take any exception to the directions contained in the impugned order dated 22.9.2011 passed by the CAT. The writ petition is without merit. The writ petition stands dismissed. (Permod Kohli) (Tejinder Singh Dhindsa) Judge Judge November 04, 2011 sonia