Civil Writ Petition No. 13583 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 13583 of 2009 Date of decision:-20.07.2011 Balbir Kaur ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Amit Sharma, Advocate for the petitioner. Mr. Gazi Mohd. Umair, DAG Punjab. RITU BAHRI J. This writ petition is under Article 226/227 of the Constitution of India seeking writ of mandamus directing the respondents to pay the salary of Block Primary Education Officer to the petitioner when he had worked on temporary basis/officiating capacity w.e.f. 02.7.2004 till 20.1.2009 when she was regularly promoted as BPEO w.e.f. 24.7.2008. The petitioner was appointed as JBT Teacher on 10.8.1972 with the Education Department, Punjab. She was promoted as Head Teacher as per seniority on 24.12.1987. She was awarded with a State Award for exemplary service by the Education Minister, Punjab in the year 1995. She was awarded National Award by the President of India for her services in the year 1999. On 1.6.2002 she was promoted as Central Head Teacher as per her seniority. The case of the petitioner is that she was appointed as Block Primary Education Officer on temporary basis as a vacant post at Ropar-II. She was given DDO powers vide Annexure P-1 dated 2.7.2004. She was paid the salary in the scale Civil Writ Petition No. 13583 of 2009 -2- of Central Head Teacher i.e. Rs.5480-9925. The post of BPEO was lying vacant since the year 2000 and the petitioner was made to work on temporary basis. She was to retire on 31.7.2006. Vide order dated 23.6.2006 (Annexure P-2) she was given extension of service from 31.7.2006 to 31.7.2008 being a National Awardee for two years. After extension of service she kept working on temporary basis on the post of BPEO. She made representations for appointment of higher salary. She approached this Court by filing writ petitions Nos.10186 of 2008 and 14684 of 2008 seeking direction that the respondent should promote her on the vacant post of BPEO. A direction was given to the Secretary, School Education, Punjab vide order dated 21.8.2008 to pass an order with regard to promotion of the petitioner against the post of BPEO. Eventually, vide order dated 16.1.2009 the petitioner was promoted to the post of BPEO w.e.f.24.7.2008, the date on which her juniors joined as BPEO on promotion. The precise grievance of the petitioner is that she is entitled to the salary of higher post on which she has worked on temporary basis since 2004. In the written statement it is denied that she was ever appointed on the post of BPEO on temporary basis. On her request (Annexure R-1) she being the senior most and only a charge of exercising DDO powers were given to her vide order dated 1.7.2004 (Annexure R-2). In this order, it was mentioned that no extra honorarium will be given to her and the powers are temporary and are liable to be withdrawn without any notice. It is admitted that post of BPEO was lying vacant on that date. She was given the power of DDO and was never appointed as BPEO, therefore, she was not entitled to claim the salary of the above post. She cannot claim the salary of the post of BPEO as her case is not covered under Rule 4.22 and 4.13 of the Punjab Civil Services, Vol.-I Part-I, since she was never appointed on higher post. I have heard learned counsel for the parties and have gone through Civil Writ Petition No. 13583 of 2009 -3- the case file carefully. The precise case of the respondents is that on an application made by the petitioner (Annexure R-1) she being the senior most was given temporary powers of DDO vide order dated 1.7.2004 (Annexure R-2) by the District Education Officer. No extra honorarium was to be paid while exercising the powers of DDO. One glance at Annexure P-6 whereby the petitioner had attended the meeting under the Presidentship of Shri Pardeep Singh Kaleka, Additional Deputy Commissioner (Development), Roop Nagar, which shows that she has attended the meeting as BPEO Roon Nagar-II. She has been conducting the affairs of the school as BPEO that is evident from letter, which was issued by her (Annexure P-7). In her confidential report for the year 2007-08 (Annexure P-8) her designation has been shown as BPEO Roop Nagar-II (provisional). The ACR was recorded by superior officers. She has recorded the ACR of her junior officer as per rules being BPEO, as is evident from Annexures P-9 and P-10. One important fact, which is evident from Annexure P-1 is that while giving her the powers of DDO she was relieved on 2.7.2004 from the post of Central Head Teacher. Once she has been relieved from the post of Central Head Teacher, there is no order on the file by the respondent to show that she ever rejoined on the post of Central Head Teacher. After going through Annexures P-6, P-7, P-8 and P-10 it goes to prove that she has been working on the post of BPEO for all intents and purposes. She had to approach this Court on two occasions to get the Department to decide her representation for regular promotion. While granting her regular promotion vide order dated 16.1.2009 (Annexure R-4) it is w.e.f. 24.7.2008, the date on which her juniors were promoted as BPEO. The petitioner was due to retire on 31.7.2008. She was given extension being a National Awardee for two years by the Punjab Government vide order dated 20.6.2006 (Annexure R-3) w.e.f. 1.8.2006 to 31.7.2008 for two years. All the Civil Writ Petition No. 13583 of 2009 -4- above facts goes to show that the petitioner was deliberately not promoted on the vacant post, which was available while she was given the DDO powers on 2.7.2004. It is not disputed by the respondents that the petitioner was high up in the seniority and i.e. why she has been given the powers of DDO, which are otherwise exercised by the BPEO. As per Rule 4.22 and 4.13 of the Punjab Civil Services, Vol.-I Part-I, reads as under :- “4.22 A competent authority may appoint one Government employee to hold substantively, as a temporary measure, or to officiate in, two or more independent posts at one time. In such cases, his pay is regulated as follows :- (a) the highest pay, to which he would be entitled if his appointment to once of the posts stood alone, may be drawn on account of his tenure of that post. (b) For each other post he draws such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the competent authority may fix; and (c) If compensatory allowances are attached to one or more of the posts he draws such compensatory allowances as the competent authority may fix; Provided that such allowances shall not exceed the total of the compensatory allowances attached to all the posts. 4.13 (1) Subject to the provisions of rules 4.22 to 4.24 a Government employee who is appointed to officiate in a post shall not draw a higher than his substantive pay in respect of a permanent post, other than a tenure post, unless the post in which he is appointed to officiate is one enumerated in the schedule to this rule or unless the officiating the appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post on which he holds a lien or would hold a lien has his lien not been suspended : Civil Writ Petition No. 13583 of 2009 -5- Provided that the competent authority may exempt from the operation of this rule, any service which is not organized on a time scale basis and in which a system of acting promotions from grade to grade is in force at the time of the coming into force of these rule; Provided further that the competent authority may specify posts outside the ordinary line of a service the hold4ers of which may, notwithstanding the provisions of this rule and subject to such conditions as the competent authority may prescribe, be given any officiating promotion in the cadre of the service which the authority competent to order promotion may decide and may thereupon be granted the same pay (whether with or without any special pay, if any attached to such posts) as they would have received it still in the ordinary line. (2) For the purpose of this rule, the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance in the post to which it is made on the same scale of pay as the permanent post, other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended, or on a scale of pay identical therewith.” A glance of Rules has been goes to show that for all intents and purposes the petitioner was officiating a higher post of BPEO since 2004. She had been attending official meetings as BPEO. Her ACRs for the year 2007-2008 (Annexure P-8) have been recorded as BPEO Ropar-II (provisional) by her Civil Writ Petition No. 13583 of 2009 -6- superior officers. In a recent judgment of Avtar Singh versus Union of India, Chandigarh, a Division Bench of this Court has allowed one Avtar Singh, the salary of the post of BDPO on which he was officiating since 3.5.2002 till the date of his retirement. The Supreme Court in Smt. P. Grover versus State of Haryana and another 1983(3) SLR 475, Gurmej Singh versus State of Punjab and another 1995(2) AIJ, 563 and Balbir Singh Dalal and others versus State of Haryana and another 2002(3) RSJ 530 has held that once a Government official is working on a high post then he is entitled to salary/pay of that post In the facts of the present case the petitioner for all intents and purposes performing the duties of BPEO after being relieved from the post of Central Head Teacher since 02.7.2004. till she was regularly promoted w.e.f. 24.7.2008 vide order dated 16.1.2009 (Annexure R-4). The writ petition is allowed and the petitioner is entitled to the benefit of higher pay admissible to the post of BPEO from 2.7.2004 till 20.1.2009 with all consequential benefits including pension and the same would be given to the petitioner within three months by the respondents from the date of receipt of certified copy of this order. July 20, 2011 ( RITU BAHRI ) Vijay Asija JUDGE