CWP No. 12486-CAT of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 12486-CAT of 2007 Date of Decision 23.02.2011 Mrs. Avtansh Singh ---Petitioner Versus Union of India and others ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. N.P. Mittal, Advocate for the petitioner. Ms. Jai Shree Thakur, Advocate for respondent Nos. 1 to 5. 1. To be referred to the Reporters or not? yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant petition filed under Article 226 of the Constitution is directed against order dated 10.01.2007 passed by Chandigarh Bench of Central Administrative Tribunal (for brevity 'the Tribunal'), holding that the petitioner was not entitled to grant of pay scale of the post of Head of Department (for short 'HOD'), as she was never appointed on that post. Accordingly, she has been regarded as Lecturer in Communication & Engineering and pension and other retiral benefits have been paid to her on that basis. 2. The short issue raised by the petitioner is whether she is entitled to grant of pay scale of HOD (Electronics & Communication Engineering) of Polytechnic or not. CWP No. 12486-CAT of 2007 -2- 3. The brief facts of the case necessary for disposal of the controversy raised in the instant petition are that the petitioner was a Lecturer in Government Polytechnic for Women, Sector 10, Chandigarh, and on her request, she was given voluntary retirement on 28.02.1999. She had claimed salary of the higher post of HOD (Electronics & Communication Engineering), for the period from 11.08.1989 to 28.02.1999, for which she performed duties and functions of the said post. On the aforesaid basis, she has prayed for refixation of pension and grant of other retiral benefits like DCRG, commutated value of pension, leave encashment by taking into account the pay and allowances of HOD and release of arrears of difference of salary and that of retiral benefits together with interest @ 12% per annum. 4. It has remained undisputed that the petitioner was initially appointed as a Lecturer in Communication and Engineering on ad hoc basis on 01.04.1978. Her appointment became substantive after her selection through UPSC on 05.07.1978 (A-7). She had claimed that she was adjusted as HOD (ECE) but later on her senior Shri Balbir Singh, was adjusted against that post. The petitioner has asserted that on 11.08.1989, Shri Balbir Singh, HOD (ECC), Government Polytechnic for Women Sector 19, Chandigarh was relieved and was posted at the Central Polytechnic, Sector 26. According to the petitioner, she took over the charge of HOD from Shri Balbir Singh and started discharging duties and functions of that post from 11.08.1989 till 28.02.1999. During the period of her CWP No. 12486-CAT of 2007 -3- services from 11.08.1989 to 28.02.1999, she was paid salary of a Lecturer whereas she claims entitlement to the pay and allowances of the post of HOD in the scale of ` 12000-16350. In order to prove the fact that she was working as HOD, she has placed reliance on (A- 13 and A-14). It has also come on record that her representation made in August 1996 for her appointment and promotion as HOD was rejected on 01.07.1990 (A-3). The respondent infact has claimed that she was never asked to discharge duties as HOD and in various communications with the respondent, she has described herself as a Lecturer (R-5/1 to R5/5). 5. The Tribunal rejected the claim made by the petitioner. The view of the Tribunal is evident from the concluding para of its order which reads as under: “From the perusal of documents and evidence produced by both sides, it is apparent that the request of the applicant for her appointment as HOD was rejected in 1990 itself. One thing is apparent there is no order of formal appointment of the applicant and there is only mention in the inter- correspondence of the college in a routine manner. That does not show that she was ever appointed or working as HOD. Moreover, Annexure A-28 & A-29 are communications which have been issued by Shri Balbir Singh, Principal, himself in which the applicant has been shown as O/I ECE and HOD (ECE). When CWP No. 12486-CAT of 2007 -4- Shri Balbir Singh himself was working as HOD, why he should address applicant applicant as HOD (ECE). In any case addressing the applicant by mention of such designation in inter-departmental correspondence is of no avail unless there is a formal appointment order in favour of the applicant. Thus, we have no hesitation in holding that the applicant did not perform her duties as HOD since 01.09.89 till her retirement and she is not entitled to the pay and allowances of the post of HOD. The decisions relied upon by the applicant are distinguishable and do not apply to the facts of these case.” 6. Having heard learned counsel for the parties, we are of the considered view that this petition is devoid of merit and thus, is liable to be dismissed. The Fundamental Rule 49(i) of the Fundamental Rules and Supplementary Rules (for brevity 'FRSR'), which is applicable to the facts of the present case does not admit of grant of any additional pay in the absence of any order directing her to take charge of the duties of a higher post of HOD. The said Rule is extracted below for ready reference: F.R.49 xx xx xx xx “Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/ CWP No. 12486-CAT of 2007 -5- line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the competent authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post.” 7. A perusal of the aforesaid would show that an express order is required to be issued by the Government to hold full charge of the higher post in the same office as her own and in the same cadre/ line of promotion, in addition to her ordinary duty. It is only in that situation that the pay of a higher post may be admissible to her. On perusal of the record, it appears that the petitioner has failed to produce any document on the records that she has ever been formally appointed to hold full charge of a higher post in addition to her own duties. Even the circumstances do not indicate that she was ever asked to work as HOD. On the part of the respondent, there is a categorical denial of the aforesaid fact. On a representation made by the petitioner to appoint her as HOD on regular basis, the respondent passed an order on 01.07.1990 declining the aforesaid request and in fact she has acquiesced by accepting her as Lecturer because she submitted her pension paper with her status as Lecturer (R-3). The judgment of Hon'ble the Supreme Court rendered in the case of Smt. P. Grover v. State of Haryana and others 1983(3) SLR 473, would not come to rescue of the petitioner because firstly Rule 49(1) of FRSR categorically CWP No. 12486-CAT of 2007 -6- requires issuance of a formal letter asking incumbent of a post to assume charge of the higher post. Secondly, in Smt. P.Grover' case (supra), there was express promotion order asking her to act on the higher post of District Education Officer. Therefore, we find that the ratio of the judgment in Smt. P. Grover's case (supra) would not have any application in the facts and circumstances of this case. 6. For the reasons aforementioned , this petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (T.P.S. MANN) JUDGE February 23, 2011 Atul