IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 7099 of 2008. Reserved on: 14.05.2010. Decided on 20.05.2010. _____________________________________________________ Shiv Dayal Kataria. …Petitioner. -Versus- Himachal Pradesh University, Summer Hill, Shimla-5 through Registrar. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1.Yes. __________________________________________________________ For the petitioner. : Mr. Dilip Sharma, Advocate. For the respondent. : Mr. Vinod Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner was appointed as Junior Engineer in Punjab Agriculture University. He joined his duties on 01.12.1967 at Palampur Wing of Punjab University. Palampur Wing of Punjab Agriculture University became part of respondent-University on 22.07.1970. The services of petitioner were taken over by the respondent-University. He worked as Assistant Engineer in the respondent-University w.e.f. 11.05.1971 on ad hoc basis and w.e.f. 17.06.1971 on regular basis. He was promoted to the post of Executive Engineer on ad hoc basis w.e.f. 13.12.1978. He was reverted to his substantive post of Assistant Engineer w.e.f. 13.03.1981 vide office order dated 20.03.1981. He challenged his 1 Whether the reporters of the local papers may be allowed to see the judgment?.Yes. reversion order dated 20.03.1981 by way of C.W.P. No. 133 of 1981 before this Court. He was promoted to the post of Executive Engineer (Construction) on ad hoc basis till further orders on 16.11.1981. He joined as Executive Engineer on 17.11.1981. The counsel for the respondent-University made a statement on 01.12.1981 before this Court that the petitioner could not be appointed as Executive Engineer on regular basis because of his disputed seniority and his representation was also pending. In view of this fact, the writ petition was dismissed as withdrawn vide order dated 01.12.1981. In the meantime, he was also granted the selection grade of Rs.1700-2000 on his substantive post of Assistant Engineer w.e.f. 12.05.1981 vide order dated 24.04.1985. His pay was fixed in the selection grade of Rs.1700-2000 vide order dated 12.06.1985. He approached this Court by way of C.W.P. No. 232 of 1983 seeking promotion as Executive Engineer from due date. The writ petition was allowed by this Court on 07.04.1993. Respondent-University was directed to consider the case of the petitioner for promotion as Executive Engineer w.e.f. 03.06.1979. He was promoted w.e.f. 03.06.1979 vide order dated 30.06.1993. He was assigned the duties/powers of Superintending Engineer without financial benefits w.e.f. 03.03.1994. He made representation to the Vice-Chancellor of the respondent-University on 09.09.1997, requesting to give him the monetary benefits for discharging the duties of Superintending Engineer for more than three years. The Vice-Chancellor made the following endorsement on his representation on 11.09.1997: “Allowed if it is on record that Sh. S.D. Kataria has performed the duties of S.E. for more than 3 years.” 2. The pay of petitioner was re-fixed w.e.f. 03.06.1979 consequent upon his regular promotion as Executive Engineer as per the judgment of this court dated 07.04.1993. He sought voluntary retirement on 30.09.1997. He made a representation on 05.10.1997, seeking re-fixation/revision of his pay w.e.f. 13.05.1985 to 13.05.1997 by allowing him to retain the benefit of pay fixation as a result of allowing him selection grade as Assistant Engineer. He made another representation on 27.06.1998 and requested to regularize him as Executive Engineer w.e.f. 17.11.1981, i.e., after the date of grant of selection grade as Assistant Engineer. The Executive Council of the respondent- University accepted the request of the petitioner for deferment of his date of promotion as Executive Engineer from 30.06.1979 to 17.11.1981 in supersession of order dated 30.06.1993. The pay of the petitioner vide Annexure A-13, dated 27.09.1997 on 1.12.1994 was Rs. 4650/-, however, vide Annexure A-17, dated 27.11.1998, his pay on 01.12.1994 was brought down to Rs.4625/-. 3. The case of the petitioner, in a nut-shell, is that once the Executive Council of the respondent-University has taken a conscious decision to defer his promotion as Executive Engineer from 30.06.1979 to 17.11.1981, he may be given the benefit of selection grade which was granted to him w.e.f. 12.05.1981. He also contended that since he has worked against the higher post of Superintending Engineer for more three years, he should be paid monetary benefits for the same. He has relied upon endorsement made by the Vice-Chancellor to this effect on 11.9.1997. 4. The case of the respondent-University, precisely is that the petitioner cannot be granted double benefit. It is also pointed out by the respondent-University that the decision to grant the monetary benefits of the post of Superintending Engineer could only be taken by the Executive Council and not by the Vice-Chancellor of the respondent-University as per First Ordinances of Himachal Pradesh University, 1973. 5. Mr. Dilip Sharma, learned counsel for the petitioner has strenuously argued that once a conscious decision has been taken by the Executive Council of the respondent-University to defer the promotion of petitioner as Executive Engineer from 30.06.1979 to 17.11.1981, his client was entitled to be given the benefit of selection grade which already stood granted to him on 12.05.1981. He further contended that his client is ready and willing to surrender the benefit of pay fixation from 13.12.1978 to 17.11.1981 on account of his ad hoc promotion as Executive Engineer. In other words, the monetary/financial benefits given to him on promotion on adhoc basis for the said period, i.e., w.e.f. 13.12.1978 to 17.11.1981 may be withdrawn and he may be given the benefit of selection grade, which was already granted to him with effect from 12.05.1981. He also contended that his client is entitled to the pay scale of Superintending Engineer on the principle of “equal pay for equal work”. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. What emerges from the facts enumerated hereinabove, is that the petitioner started discharging the duties of Assistant Engineer on ad hoc basis in the respondent- University w.e.f. 11.05.1971 and on regular basis w.e.f. 17.06.1971. He was promoted to the post of Executive Engineer on 13.12.1978 on ad hoc basis. He was reverted to his substantive post of Assistant Engineer (Civil) from 13.3.1981 vide order dated 20.03.1981. He assailed this order by approaching this Court. In the meantime, he was granted promotion on adhoc basis as Executive Engineer (Construction) on 16.11.1981. The writ petition was withdrawn by him on 01.12.1981. He approached this Court, as noticed hereinabove, seeking his promotion w.e.f. 03.06.1979 by way of C.W.P. No. 232 of 1983. This petition was allowed by this Court on 07.04.1993. He was promoted as Executive Engineer w.e.f. 03.06.1979 on regular basis. He made a representation to the competent authority on 27.06.1998 to regularize him as Executive Engineer w.e.f. 17.11.1981, i.e., after the grant of selection grade as Assistant Engineer. The representation made by the petitioner was duly considered by the Executive Council and his request was accepted for deferment of his date of promotion as Executive Engineer from 30.06.1979 to 17.11.1981, in supersession of order dated 30.06.1993. It has also come on the record that the Executive Council has allowed the prayer of the petitioner to confirm him w.e.f. 13.05.1981 instead of 03.06.1980. This decision was taken by the Executive Council vide its Resolution No. 15 of its meeting held on 21.12.1996. It is true that the petitioner has approached this Court seeking promotion to the post of Executive Engineer w.e.f. 03.06.1979. He, in fact, was promoted w.e.f. 03.06.1979 vide order dated 30.06.1993. However, since the petitioner had already been granted selection grade on 12.05.1981, a request was made for the deferment of his promotion from 30.06.1979 to 17.11.1981. The selection grade was to be given to the incumbent, who had worked for ten years. Petitioner has started working as Assistant Engineer on adhoc basis w.e.f. 11.05.1971 and on regular basis w.e.f. 17.06.1971. Since he had completed ten years of service, he was granted selection grade in the year, 1981. In other words, petitioner’s pay was fixed after he was granted the selection grade after putting in ten years’ service, however, his pay was bound to be reduced even if promoted to the post of Executive Engineer w.e.f. 1979 since he was not granted the benefit of selection grade. The respondent- University was conscious of this fact. It is in these circumstances, request of the petitioner was acceded to by deferring his promotion from 30.06.1979 to 17.11.1981. Petitioner earned his selection grade after working for long ten years. He has also worked intermittently as Executive Engineer on adhoc basis. It was only on the basis of the judgment of this Court rendered in C.W.P. No. 232 of 1983 that he was directed to be considered for promotion w.e.f. 03.06.1979. Once a decision has been taken by the competent authority, the same should be taken to its logical end. In case the prayer of the petitioner had not been accepted for deferment of his date of promotion as Executive Engineer from 30.06.1979 to 17.11.1981, petitioner could not get the benefit of selection grade, granted to him on the post of Assistant Engineer. In the present case, petitioner after the decision taken by the respondent-University, will be deemed to have worked for all intents and purposes w.e.f. 1971 till 1981 as Assistant Engineer. He became Executive Engineer for all intents and purposes after the deferment of his promotion from 30.06.1979 to 17.11.1981. The prayer of the petitioner for deferment of confirmation was also acceded to, as noticed above, by the respondent-University from 03.06.1980 to 13.05.1981. In totality, the confirmation of the promotion of petitioner has been deferred on his request to receive the benefit of selection grade, which was paid to him after completion of ten years of service. The action of the respondent- University not to grant the benefit of selection grade has resulted in reduction of his salary. The selection grade which was given to him w.e.f. 12.05.1981, was withdrawn in 1997 by refixing his pay. The only reasons assigned for doing this was that the petitioner cannot be granted double benefit. In other words, the petitioner cannot be given the monetary benefit of ad hoc services as Executive Engineer w.e.f. 13.12.1978 to 17.11.1981. Petitioner has undertaken during the course of arguments that he is ready and willing to surrender the benefit of pay fixation from 13.12.1978 to 17.11.1981 in case the benefit of selection grade, which was granted to him w.e.f. 12.05.1981 is restored. This is a fair offer made by the petitioner. The Court is inclined to accept this prayer. By doing so, it will settle the equities between the petitioner and the respondent-University. The petitioner will have to surrender the financial benefits which he has enjoyed w.e.f. 13.12.1978 to 17.11.1981 on account of adhoc promotion as Executive Engineer. However, the respondent-University has to restore the selection grade which was granted to him w.e.f. 12.05.1981 and to fix his pay on the post of Executive Engineer. 8. Now, the Court has to advert to the second limb of argument of Mr. Dilip Sharma. According to him, his client was permitted to discharge the duties of Superintending Engineer. This order was passed by the Registrar of the respondent- University on 03.03.1994, whereby the petitioner was invested with the powers of Superintending Engineer and was to function as overall Incharge of the three engineering wings (Construction, Design & Architectural) of the respondent-University. He made representation seeking benefit of the services, he had rendered as Superintending Engineer on 09.09.1997. The Vice-Chancellor on 11.09.1997 as per his endorsement stated as follows: “Allowed if it is on record that Sh. S.D. Kataria has performed the duties of S.E. for more than 3 years.” 9. It is not denied by the respondents in the reply that the petitioner has not worked as Superintending Engineer. The objection raised by the respondent-University is that firstly it was made clear to the petitioner that he will not get any financial benefits as per office order dated 03.03.1994 and secondly, the Vice-Chancellor had no jurisdiction/authority under the Himachal Pradesh University Ordinances to pass orders on 11.09.1997. According to the respondent-University, the competent authority in the case of category-B is the Executive Council of the University and not the Vice-Chancellor. It is true that to take a decision with regard to appointment, suspension, removal from office, fixing of salary, control or any other kind of matter, as far as employees of categories ‘A’ and ‘B” are concerned, the competent authority was the Executive Council. The petitioner was also informed on 03.03.1994 that he will not be entitled to any financial benefits. However, fact of the matter is that petitioner has worked for more than three years as Superintending Engineer and an endorsement was also made by the Vice- Chancellor on 11.09.1997 in favour of the petitioner. An employee cannot be deprived of his right to get higher salary if he discharges the duties of higher office. In this case, the petitioner was permitted to work as Superintending Engineer. Superintending Engineer is a higher post and the post of Executive Engineer is in feeder category. A person, who performs the duties of higher office, must get the salary of the same post. He cannot waive of his fundamental/legal right to get the higher salary, even if an endorsement was made in the office order that the petitioner will not get the monetary benefits. Petitioner is also entitled to get the salary of the post of Superintending Engineer on the well recognized principle of “equal pay for equal work”. The Executive Council no doubt is the competent authority to take decisions with regard to ‘A’ and ‘B’ categories of employees, governing their conditions of service, but once the endorsement has been made by the Vice-Chancellor, the matter was required to be taken before the Executive Council. The respondent-University in its own wisdom has not taken up the matter with the Executive Council. The petitioner was permitted to discharge the duties of the post of Superintending Engineer. The Court has also taken note of the fact that even though the post of Superintending Engineer was not available, however, the petitioner was still invested with the powers as were exercised by the Superintending Engineer of H.P.P.W.D. In view of this, the petitioner cannot be denied the salary of the post of Superintending Engineer for working more than three years as Superintending Engineer. 10. Mr. Vinod Thakur has also drawn the attention of the Court to Annexure R-4, whereby the Executive Council has rejected the case of the petitioner for grant of selection grade. In view of the discussion made hereinabove, the decision of Executive Council Annexure R-4 was bad in law. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure R-4 is quashed and set aside. Respondent-University is directed to grant the petitioner the benefit of selection grade w.e.f. 12.05.1981. Respondent- University is further directed to make adjustments as per undertaking given by the petitioner hereinabove for the period w.e.f. 13.12.1978 to 17.11.1981 and to release the pay and allowances to the petitioner for discharging the duties of Superintending Engineer from 03.03.1994 to 30.09.1997. Needful be done within a period of eight weeks from today. No costs. (Rajiv Sharma) Judge May 20, 2010. (bhupender)