IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.4864 of 2011 Date of decision: 20.11.2013 Hans Raj and others ..... Petitioner(s) Versus State of Haryana and another ..... Respondent(s) CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA Present: Mr.Sanjiv Gupta, Advocate, for the petitioner. Mr.Sunil Nehra, Sr. DAG, Haryana ***** 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes RAJIV NARAIN RAINA, J. The petitioners are Junior Engineers working in Public Health Engineering Department, Haryana. They had served for about 20 years on the post. They were given the current duty charge of the post of Sub Divisional Engineer on different dates ranging from 20.4.2000 to 25.2.2005. The current duty charge continued till they were substantively promoted as Sub Divisional Engineers on different dates between 17.9.2010 and 22.12.2010. The services rendered on CDC is unbroken and continuous. In the order granting the current duty charge, there was a condition that they would perform the duties of the higher post but in their own pay scales. The current duty charge normally does not confer right to hold the post. Kumar Paritosh 2013.12.03 10:22 I attest to the accuracy and integrity of this document CWP No.4864 of 2011 However, if the arrangement is continued for a number of years on a post to which they are subsequently promoted without break, then the question arises whether the above stated limiting condition stipulated in the order conferring CDC would they be entitled to pay of the higher post and consequently to the arrears of difference of salary. It is not disputed by the learned counsel for the respondents that the petitioners did perform the full duties and responsibilities of the post of Sub Divisional Engineers although in their own pay scales. 2. The petitioners have approached this Court through the present petition under Article 226 of the Constitution claiming mandamus to the respondents commanding them to give them various service benefits based on the length of service spent by the petitioners on current duty charge for the purposes of seniority and all other benefits, i.e., higher pay scales, increments and other monetary benefits including the ACP pay scales and CDC period towards pension and pensionary benefits etc. When this Court issued notice of motion on 17.3.2011, it passed the following order : - “ Contends that the pecuniary benefits on account of current duty charge which the petitioners are holding have not been given to them. The claim regarding seniority which the petitioners have agitated in the instant petition is justified in view of the settled law that the current duty charge cannot be construed for the purposes of reckoning the seniority. Notice of motion to the aforesaid limited extent for 10.8.2011.” 3. There is obviously a typographical mistake in not mentioning the word “not” in the 4th line of the aforesaid order between the words “is” 2 Kumar Paritosh 2013.12.03 10:22 I attest to the accuracy and integrity of this document CWP No.4864 of 2011 and “justified”. Therefore, it becomes manifest that the word “not” in line 4 between “is” and “justified” has to be read in since it would take out the intended meaning. In view of the interim order, the issue of seniority is foreclosed against the petitioners and is not pressed. 4. The case has thus been examined from the stand point of the other fiscal benefits claimed. 5. In the written statement filed by the State, it is admitted that the petitioners have performed the duties and responsibilities of the higher post though on current duty charge. One such order giving CDC to one Hans Raj Gupta petitioner No.1 is appended as Annexure R-1. It reads as follows : - “ ORDER OF THE GOVERNOR OF HARYANA Shri Hans Raj Gupta, Junior Engineer, possessing the AMIE qualification, is hereby given the current duty charge of the post of Sub Divisional Engineer of the Public Health Sub Division No.2, Ambala, against a vacant post, in his own rank and pay scale subject to the condition that he will not claim any seniority on the basis of these orders. These orders are subject to the final out-come of the matter pending before the Hon’ble Punjab and Haryana High Court. N. BALA BASKAR Dated Chandigarh Financial Commissioner and Principal The 27th August, 2003 Secretary to Government, Hrayana PWD Public Health Deptt.” 6. It is the stand of the State that the petitioners once having accepted the orders are estopped from claiming further benefits including seniority. The order is, however, silent as to its effect on other service benefits. On matters other than seniority the order is silent. The administrative reasons for taking work on CDC has been explained in the petition which are however not relevant for the purpose of answering the 3 Kumar Paritosh 2013.12.03 10:22 I attest to the accuracy and integrity of this document CWP No.4864 of 2011 other prayers made in this writ petition. Once it is not disputed that the petitioners have performed the full duties and responsibilities of the post on acquisition of essential qualifications like AMIE etc., then they would in the opinion of this Court be entitled to difference of arrears of salary on the principle of quantum meruit. The condition that the petitioners would hold the current duty charge of the post of Sub Divisional Engineer but in their own rank and pay scale as a valid reason for denial of the claim has not met with judicial approval in several precedents. 7. The Division Bench of this Court in Pritam Singh Dhaliwal v. State of Punjab and another; 2004 (4) SCT 403 : 2004 (6) SLR 758 have held after noticing earlier precedents that a Government servant put on officiating current duty of a higher post carrying higher responsibilities is entitled to the higher emoluments applicable to any one of the posts till such time duties subsist. The benefit cannot be denied merely for want of regular promotion or finalization of seniority etc. The court applied the principle of quantum meruit to justify the result favourable to public servant. The court applied the law laid down in Smt. P. Grover v. State of Haryana, AIR 1983 SC 1060 and Selvaraj v. Lt. Governor of Island, Port Blair, 1999 (2) SCT 286 (SC) which accepted and applied the principle of quantum meruit and State's obligation to pay emoluments in the higher pay scale for actually work performed on the superior post though in officiating capacity. 8. In Balbir Singh Dalal v. State of Haryana, 2002 (4) SCT 422; the Division Bench of this Court reiterated the principle that a person appointed to hold the full charge of the duties on and of a higher post even in addition to the duties of his own post, he deserves to be allowed the pay 4 Kumar Paritosh 2013.12.03 10:22 I attest to the accuracy and integrity of this document CWP No.4864 of 2011 admissible to him as if he were appointed to officiate in the higher post. In P. Murugesan v. State of Tamil Nadu, 1993 (2) SCC 340, the Supreme Court held : - “Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is pre-posterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer-I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post, or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of section 23 of the Contract Act.” 9. In Chandigarh Administration v. Vipin Gupta and another; 2011 (2) SCT 560, M.M.Kumar, J. as His Lordship then was while speaking 5 Kumar Paritosh 2013.12.03 10:22 I attest to the accuracy and integrity of this document CWP No.4864 of 2011 for the Bench, held that the period spent on current duty charge can be treated as experience in determining eligibility for promotion whether a person works on a post in his capacity as ad hoc/current duty charge/temporarily etc. as his nature of duties continues to be the same which any regularly promoted person would require to discharge. Therefore, it was held that a person is entitled to count his experience on current duty charge in determining eligibility for promotion where rule prescribes experience as essential for holding higher post. The expression “working experience” used in Punjab Service of Engineering (Civil Wing), Department of Public Works (B & R Branch) Group ‘A’ Service Rules, 2005 more specifically in rule 6(3) thereof cannot be construed to mean that it must have been gained while working on a permanent substantive post without regular promotion. The above view of the Division Bench of this Court has been applied and followed in a subsequent Division Bench judgment in the case of Chief Engineer, Union Territory, Chandigarh v. Ram Sarup Walia and others; 2012 (3) SCT 157 : 2012 (3) SLR 357. 10. There is therefore sufficient weight in this petition which attracts issuance of a declaratory direction to the respondents that the petitioners would have a right to arrears of difference of pay of the two posts for the period served holding the current duty charge. They would therefore be entitled to pay parity, and to have their annual increments calculated on the pay scale of the higher post of Sub Divisional Engineers. They would also be entitled to claim pension on the basis of revision of pay scales brought about in terms of this order. However, If the service rules lay down regular satisfactory service as a condition precedent for award of any financial benefit such as Assured Career Progression pay scales then the 6 Kumar Paritosh 2013.12.03 10:22 I attest to the accuracy and integrity of this document CWP No.4864 of 2011 period spent on current duty charge would not be reckonable towards such period since it cannot be at the same time equated with such regular service. The ACP pay scales issue, if arises would be examined in terms of the Scheme. The grantable benefits as above be computed and made over to the petitioners within three months from the date of receipt of a certified copy of this order. 11. The writ petition stands allowed to the extent indicated above. It is dismissed qua seniority. The issue of ACP stands relegated for fresh decision in accordance with law. Pension and pensionary benefits would obviously stand on hold but would operate from the date of retirement on reaching the age of superannuation in terms of this order. (RAJIV NARAIN RAINA) November 20, 2013 JUDGE Paritosh Kumar 7 Kumar Paritosh 2013.12.03 10:22 I attest to the accuracy and integrity of this document