CWP no. 6815 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP no. 6815 of 2010(O&M) Decided on : 11-05-2011 R.A.S.Tyagi ....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr.Gurpreet Singh and Mr.Susheel Gautam, Advocates for the petitioner Mr. Harish Rathee, Sr. DAG, Haryana MAHESH GROVER, J The only claim which has been raised in this writ petition is that the petitioner who is working as Deputy Director, Horticulture was posted as Joint Director, Horticulture by virtue of the order dated 20.12.2002 (Annexure P-3), the relevant portion of which is extracted herebelow:- “The Governor of Haryana is further pleased to post Shri R.A.S Tyagi, Class I, Deputy Director, Horticulture against the vacant post of Joint Director, Horticulture (in his own pay scale) at headquarter, Panchkula without any extra remuneration, in public interest.” Subsequently, the petitioner was promoted in his own right as a Joint Director, Horticulture in the year 2004 and retired from this post in July, 2006. The limited grievance which he raised before this Court is that since he was posted as Joint Director by virtue of Annexure P-3 on CWP no. 6815 of 2010(O&M) 2 20.12.2002, he was entitled to pay scale which is admissible to a Joint Director from 2002 till 2004 when he was actually promoted. Reliance has been placed on the judgment of this Court rendered in CWP no. 2343 of 1996 titled as P.C.Gupta vs. The State of Haryana and another decided on 3.5.2006 in which this Court after placing reliance upon numerous judgments of the Supreme Court held that since a person has performed the duties of a higher post, he was logically entitled to the pay which is admissible to such a higher post. A serious objection has been raised by the learned counsel for the State that the claim is highly belated. The cause of action accrued to the petitioner in the year 2002 and at best in 2004 but the writ petition has been filed in the year 2010. Learned counsel for the petitioner then would say that its a recurring loss and therefore the petitioner could not be debarred from raising the claim and his prayer cannot be negated solely on this ground. He further states that in any eventuality, he has instructions to say that the petitioner will forego the arrears of pay if the said period is considered and notional benefit granted to him for the purposes of considering his pensionary benefits. On due consideration of the matter, I am of the considered opinion that the stand taken up by the learned counsel for the petitioner is fair. There is no denial to the fact that the petitioner has worked as Joint Director, Horticulture from the period 2002 to 2004 when at that time he was regularly promoted. As per the observations made by this Court in the judgment relied upon by the petitioner which observations are further based on the numerous judgments of the Hon'ble Supreme Court, I am of the considered opinion that the petitioner was clearly entitled to pay of a Joint CWP no. 6815 of 2010(O&M) 3 Director as well but because of the delay benefit of the arrears cannot be given at this belated stage specially when he being a employee was conscious of his rights. However, the stand of the petitioner that notional benefits be granted to him so as to be considered for the grant of pensionary benefits, the same merits acceptance. Accordingly, the writ petition is accepted to the limited extent that the petitioner is held entitled to the pay scale of Joint Director w.e.f 2002 when he was asked to perform the duties by virtue of order dated 20.12.2002 (Annexure P-3) but such benefits shall accrue to him only notionally and the same shall be construed while conferring pensionary benefits upon him. Respondents are directed to re- calculate the pension of the petitioner by keeping in view the observations made above. Let needful be done as expeditiously as possible preferably within a period of six months. May 11 , 2011 (Mahesh Grover) rekha Judge