C.W.P. No.5498 of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.5498 of 1998 Date of Decision: 28.09.2011 Sat Pal Singh ....Petitioner Versus State of Haryana and others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Ajay Chauhan, Advocate for the petitioner. Mr. Anjum Ahmed, Addl. A.G., Haryana for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. The petitioner, herein, is seeking direction to the respondents to promote him as Street Light Inspector in Municipal Committee, Sonepat, being the only eligible candidate in District Sonepat with effect from the date he is actually working on this post i.e. from 13.07.1983 vide Resolution no.669 of Municipal Committee, Sonepat with all consequential benefits. It is contended that the petitioner was appointed as Electrician in Municipal Committee, Sonepat on 01.12.1976 through one of the approved source of recruitment by the competent authority, being fully eligible and qualified for the post of Electrician. Since, no other suitable official of the technical line was available with the respondent Municipal C.W.P. No.5498 of 1998 2 Committee, the petitioner was posted as Street Light Inspector on officiating basis vide Resolution dated 13.07.1983. Vide Resolution No.730 dated 07.11.1984, the respondent Municipal Committee recommended the case of the petitioner to the Deputy Commissioner, Sonepat for regularisation of his service on the post of Street Light Inspector vide Annexure P-1. Since no eligible person was available senior than the petitioner, he continued as Street Light Inspector for all these years rendering satisfactory service. The then Administrators repeatedly recommended the case of the petitioner for regularization of his service as Street Light Inspector to respondents No.1 to 3. During the period when respondent No.4 posted one Satbir Singh in place of the petitioner as Street Light Inspector vide order dated 05.06.1986, the petitioner challenged the same in Civil Suit before the Civil Court at Sonepat on the ground of ineligibility of the above said Satbir Singh, he being not qualified and also far junior to the petitioner. The suit was decreed in favour of the petitioner. Thereafter, the respondent Municipal Committee filed an appeal No.37/2 before the learned Additional District Judge, Sonepat which was also dismissed vide judgment dated 14.12.1992 which has become final as no further appeal was filed by the respondent Municipal Committee, Sonepat. Reply on behalf of the respondents has been filed. The above facts have not been disputed. In fact, learned counsel for the respondents has placed on record the order dated 01.04.2008 passed by the Deputy Commissioner, Sonepat, vide which, Satpal Singh Dahiya, petitioner stand promoted to the post of Street Light Inspector in the pay scale of Rs.5000-150-7100-EB-150-7850 on the basis of seniority of Electrician of Municipal Council/Municipal Committees of the District with immediate effect. Thus, the dispute qua promotion on the said post stand settled. However, the only dispute survives is as to whether the petitioner is entitled C.W.P. No.5498 of 1998 3 to be promoted w.e.f. 13.07.1983 or not. From the facts mentioned in the petition, as well as, in the reply filed, it appears that there is no dispute that the petitioner was the only available eligible candidate in the year 1983 when he was posted as Street Light Inspector on officiating basis. It is also admitted that the petitioner continued to officiate as Street Light Inspector till he was promoted on the said post w.e.f. 01.04.2008. It is also admitted that one Satbir Singh was appointed on the said post but the petitioner had challenged the same before the Civil Court and the suit was decreed in his favour meaning thereby that there was no other eligible candidate except the petitioner. It is admitted that the petitioner was continuing on the said post. This Court in the case of Anand Parkash vs. State of Punjab reported as 2005(2) ILR(Punjab) 368 after discussing the entire law on the subject and various judgments rendered by Hon'ble the Apex Court held in para 12 as under :- “12. Even otherwise, I am of the considered opinion that the petitioner is clearly entitled to be promoted on the post of Chief Engineer from 17.7.1991, the day he was given the Current Duty Charge. There was a clear vacancy available against which the petitioner could have been promoted. He was denied the promotion without any justification. The petitioner would also be entitled to the salary of the post of Chief Engineer, in view of the law laid down by the Supreme Court in a number of cases. In the case of Smt. P. Grover (supra), it has been categorically laid down that if a Government employee is asked to perform the duties of a higher post, the incumbent would be entitled to the salary of the higher post also. In the aforesaid case, the Supreme Court has observed as follows :- “Our attention was not invited to any rule which provides that promotion on an acting basis C.W.P. No.5498 of 1998 4 would not entitle the officer promoted to the pay of the post. In the absence of any rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post (the validity of such a rule would be doubtful if it existed), we must hold that Smt. Grover is entitled to be paid the salary of a District Education Officer from the date she was promoted to the post, that is, July 19, 1976 until she retired from service on August 31, 1980.” These observations are fully applicable to the facts and circumstances of the present case. The petitioner had worked on the post of Chief Engineer since 18.07.1991. He cannot, therefore, be denied the benefit of pay-fixation as Chief Engineer from the aforesaid date. Mrs. Charu Tuli, however, submits that the judgment in the case of Smt. P. Grover is distinguishable as the petitioner had not actually been promoted on the post of Chief Engineer and he had only been given Current Duty Charge. In support of the submission, she relies on a judgment of the Supreme Court in the case of State of Haryana v. R.K. Aggarwal, 1997(3) SCT 638 (SC) : 1997(4) RSJ 49. I am of the considered opinion that the aforesaid judgment would not be applicable in the facts and circumstances of the present case. In that case, the Supreme Court was dealing with a situation where the position of seniority of the employee was subject- matter of litigation. It was not a case of an employee who had been given Current Duty Charge in spite of the fact that there was a clear vacancy in existence. In the present case, the petitioner has categorically averred that a clear vacancy was available against which the petitioner could have been promoted. He was not promoted, but given Current Duty Charge for the reasons best known to the respondent. No reasons have been spelt out as to why it was absolutely essential to give only Current Duty Charge C.W.P. No.5498 of 1998 5 to the petitioner rather than the promotion to which he was entitled.” Coming back to the present case, it is not denied that the vacancy was existing at the time when the petitioner was posted on the said post. The petitioner continued to officiate on the said post. Ultimately, he was also promoted on the same post vide order dated 01.04.2008. Thus, there is no reason as to why he should not be promoted w.e.f. 13.07.1983, the day he was posted on the said post of Street Light Inspector which he continued to hold till he was promoted on the same. Accordingly, the present petition is allowed and the promotion granted vide order dated 01.04.2008 shall be deemed to be with effect from 13.07.1983 on the date the petitioner was posted as Street Light Inspector on officiating basis on the said post with all consequential benefits. (NIRMALJIT KAUR) 28.09.2011 JUDGE gurpreet