CWP No. 21358 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 21358 of 2008 Date of decision 20.12.2011 Subhash Chander ...Petitioner Versus State of Haryana and others .. Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Raman Sharma,Advocate for the petitioner Mr.Kamal Sehgal, Addl. AG Hy. 1. To be referred to the Reporter or not ? 2. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. 1. A pivotal question of law has been referred to the instant Full Bench by the learned Single Judge vide order dated 20.9.2010. The aforesaid question is frequently raised in service matters and it affects a large number of employees. The question framed by the learned Single Judge reads as under: “ Whether an employee who is given independent charge and responsibility of a higher post alone is entitled to regular pay scale without being substantively appointed to such post “. 2. Brief facts of the case may first be noticed in order to put the controversy in its proper prospective. The petitioner Subhash Chander was working as Accountant in the Municipal Committee, Ratia. He alongwith others was given the charge of post of Secretary of the Municipal CWP No. 21358 of 2008 2 Committee, Ratia against a vacant post on 2.11.1996 (P.1). It is pertinent to mention that his senior Ramesh Dayal, Superintendent and Vijay Kumar, Accountant were promoted as Secretaries w.e.f. the date they took over the charge vide order dated 22.5.1997. Thereafter S/Shri Mahipal Singh, Gurcharan Dass and Satish Kumar, Accountants, who were given the charge of the post of Secretaries in pursuance of order dated 2.11.1996 (P.1) were also promoted as Secretaries of Municipal Committees w.e.f. 22.5.1997 (P.2). It is also pertinent to mention that in accordance with the seniority list dated 3.12.1993 (P.4) Satish Kumar, Accountant, is immediate senior to the petitioner. However, Shri Satish Kumar refused promotion and never joined on the post of Secretary. Consequently, the petitioner made a request for his promotion. The President, Municipal Committee also issued a letter dated 26.5.1997 (P.3) requesting the State Government- respondent no.1 to order regular and long term promotion of the petitioner. The work and conduct of the petitioner was found to be praise worthy. It was also recorded that the petitioner was drawing higher standard scale of Rs. 1640-2900 as against Rs. 1400-2600. The petitioner has also asserted that no promotion was ordered after 1988 till 1.6.2006. 3. The petitioner was charge-sheeted on 3.5.2006 and was placed under suspension. Eventually he was exonerated in the regular enquiry conducted by the Deputy Director vide order dated 22.2.2007 (P.5). The suspension period of the petitioner was treated as duty period for all intents and purposes. However, during the course of enquiry persons junior to the petitioner were given regular promotion as is evident from the order dated 1.6.2006 (P.6). The petitioner made a representation for unfair treatment meted out to him asserting that he being senior most Accountant was CWP No. 21358 of 2008 3 holding the charge of Secretary since 11.12.1996. The request made by him did not evoke any response. The respondents, however, again issued another frivolous charge sheet on 4.5.2007 which was dropped by respondent no.2 vide order dated 11.1.2008 (P.7). The case of the petitioner was also recommended by the President of the Municipal Committee, Bhawani Khera vide letter dated 16.4.2007 for long term and regular promotion w.e.f. 11.12.1996. Again, the petitioner made a representation on 8.10.2007 (P.8). He moved another representation on 3.3.2008 asserting that besides promotion on long term basis he deserved consequential benefit of higher pay scale of Rs. 6500-10500 on completion of ten years service while working as Secretary because one Vijay Kumar had also been paid proficiency step up in the aforesaid pay scale when he had completed ten years of service as such. The petitioner filed CWP No. 5957 of 2008 in which the respondents filed reply acknowledging the facts that record of the petitioner was good and that he stood exonerated in the departmental enquiry held against him. It was further stated before this Court that in the written statement filed by the respondents (P.9), the case of the petitioner for regular promotion was under consideration. On 11.8.2008, the Division Bench of this Court had passed the following order which reads thus: “ Learned counsel for the State says that claim of the petitioner is being considered and final decision will be taken within three months. In view of the above statement, this petition is not pressed at this stage. Dismissed as not pressed.” 4. It is pertinent to notice that the petitioner was due to CWP No. 21358 of 2008 4 superannuate on 31.10.2008 and the petitioner filed CM No. 19916 of 2008 after the decision of CWP No. 5957 of 2008. It was only on 30.10.2008 that the respondents placed on record a copy of the decision dated 27.10.2008(P.10) which was few days before his retirement. According to the aforesaid order, the petitioner has been given promotion on regular basis on the post of Secretary w.e.f. 2.6.2006 when person junior to him were given promotion whereas the petitioner has claimed that he deserved to be considered and promoted w.e.f. 11.12.1996 when Shri Satish Kumar his immediate senior was promoted and he had declined to join on the promoted post. 5. Mr. Raman Sharma, learned counsel for the petitioner has argued that by virtue of Rule 4.13 of the Punjab Civil Service Rules Vol 1, Part I (for brevity 'the Rules') the pay of an officiating government employee has to be fixed on the post on which he was working. According to the learned counsel Rule 4.13 of the Rules in categorically terms contemplates that a government employee who is appointed to officiate in a post may draw pay higher than his substantive pay in respect of permanent post if his officiating appointment involves assumption of duties and responsibility of greater importance than those attaching to the post on which he holds a lien or would hold a lien had his lien not been suspended. In other words the argument is that if officiating appointment is on a higher post which carry higher pay scale than there is a presumption that it carries the higher responsibility. In support of his submission, learned counsel has placed reliance on a Division Bench judgement of this Court where the rules have been considered, applied and followed namely Balbir Singh Dalal and others v. State of Haryana and another 2002 (4) CWP No. 21358 of 2008 5 SCT 422. 6. Mr. Sharma then explained provisions of Rules 4.22 and 4.23 of the Rules to which reference has been made in Rule 4.13 of the Rules. According to learned counsel, no material difference would result because Rules 4.22 and 4.23 of the rules postulate additional charge of some higher post and not an independent and full fledged charge by relinquishing the charge of the substantive post. Therefore, he has argued that provisions of Rules 4.22 and 4.23 of the rules would not be attracted to the facts of the present case and his case would be covered by the exception carved out by Rule 4.13 itself. 7. Learned counsel has also submitted that if Rule 4.13 of the Rules is read with Rule 4.16 then it becomes evident that a competent authority may fix the pay of officiating government employee at an amount less than that admissible under the rules. Learned counsel has also made an attempt to point out that long officiating against a substantive post would result into permanent appointment because officiation as per Note 4 ( (i) 5 (iv)) of Rule 4.13 clearly points out that where officiating promotion exceeds a period of three months then the incumbent may have to be granted pay of a higher post for the period in excess in three months. 8. Mr. Kamal Sehgal, learned Addl. Advocate General, Haryana, however, has argued that on account of pendency of charge sheet under Rule 7, the petitioner could not be given promotion on the post of Secretary and therefore he cannot claim as of right that his pay should be fixed in the higher post of Secretary w.e.f. the date of his officiation i.e. 2.11.1996. In support of his submission, learned counsel has placed reliance on judgement of Hon'ble the Supreme Court rendered in the case CWP No. 21358 of 2008 6 of State of Haryana v. R.K.Aggarwal 1997(4) SLR 733. According to the learned counsel the judgement of Hon'ble the Supreme Court rendered in the case of Smt. P.Grover v. The State of Haryana 1983(2) SLR 734 (SC) has been distinguished in paras 5 and 6 of the judgement because in R.K.Aggarwal's case (supra) long term regular promotion was declined to the employee on the ground that his seniority dispute was pending and it was not clear to the authorities who would be senior enough to be promoted on the post of Secretary. The learned Addl. Advocate General has maintained that if a dispute concerning seniority was pending then the same consequences must follow if promotion has not been ordered on account of a charge sheet would also have the same effect and the judgement in R.K.Aggarwal's case (supra) would be applicable to the facts of the present case. 9. Having heard learned counsel for the parties at a considerable length, we feel the necessity of first referring to the Rules which govern the conditions of service of the petitioner, namely, Haryana Municipal Service (Integration, Recruitment and Conditions of Service) Rules, 1982 (for brevity '1982 Rules'). These Rules regulate the conditions of service of the post of Accountant Secretary. A perusal of 1982 Rules would show that the subject of payment of salary to an employee who has been given the charge of a higher post, has not been dealt with by 1982 Rules. However, Rule 2.2 of 1982 Rules indicates that if words and expressions used but are not defined in those Rules, then such words and expressions would have the meaning assigned to them in the Punjab Civil Service Rules, Voll. I and II (as applicable to Haryana). Taking clue from the aforesaid Rule 2.2 of the 1982 Rules, it may not be possible for us to conclude that CSR would CWP No. 21358 of 2008 7 ipso facto apply yet its broad principles would be attracted as it is basic legislation governing the conditions of service of government employees. Therefore, we proceed to consider the provisions of Rule 4.13 of the Rules and the relevant parts of the rules for deciding the controversy read as under: “4.13 (1) Subject to the provisions of rules 4.22 and 4.23, a Government employee who is appointed to officiate in a post shall not draw pay higher that 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 of those enumerated in the schedule to this rule or unless the officiating appointment involves the assumption of duties and responsibility 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 had his lien not been suspended. xx xx xx xx xx xx xx xx (2) For the purpose of this rule, the officiating appointment shall not be deemed to involve the assumption of duties or responsibility of greater importance if the post to which it is made is 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 CWP No. 21358 of 2008 8 identical therewith. xx xx xx xx xx xx xx xx xx xx xx xx Note 4. (i) Punjab Government have sanctioned the adoption of the following guiding principles for purpose of clarifying the position and for the working of the convention usually known as the “next below rule”:- xx xx xx xx (2) the fortuitous officiating promotion of some one junior to a Government employee who is out of the regular line does not in itself give rise to a claim under the next below rule. xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (iv) In cases where the period for which officiating promotion is lost exceeds three months the officer concerned may be granted the pay of the higher paid post for the excess period but arrangements should be made wherever possible to avoid depriving officers of lengthy period of officiating promotions.” 10. A perusal of the Rule 4.13 of the Rules would show that if officiating appointment involves the assumption of duties and CWP No. 21358 of 2008 9 responsibilities of greater importance than those attaching to the post on which an employee holds a lien or would have held a lien had his lien has not been suspended then he would draw pay higher than his substantive post in respect of a permanent post. Sub-Rule 2 of Rule 4.13 of the Rules makes it abundantly clear that the officiating appointment on a post is not to be regarded assumption of duties and responsibilities of greater importance if the post to which it is made is on the same scale of pay as the permanent post on which he holds lien. In other words, if the officiation is on a post carrying the same pay scale then it would not be considered to have duties and responsibilities of greater importance than attaching to the post, an employee is holding on a substantive basis. A perusal of the clause 2 of Note 4 makes it further clear that a fortuitous officiating promotion of some one junior in a cadre to a Government employee who is out of the regular line would not earn him the right to draw pay higher than his substantive pay. This provision takes care of an eventuality when on account of administrative exigency, the higher post falls vacant and the employee available in the feeder cadre at station may not be the senior most but he is asked to officiate on the vacancy caused on account of administrative exigency like retirement, death or promotion it would not then enure the benefit of such a junior employee. However, if the officiating promotion exceeds three months then the officer concerned may be granted the pay of higher post, which is further mandated by clause 5 (iv) of Note 4. 11. Reference has been made in Rules 4.22 and 4.23 in the provisions of Rule 4.13 of the Rules which deals with the cases of fixation of pay where appointment has been made on two or more posts on CWP No. 21358 of 2008 10 officiating and substantive or on officiating basis alone. The question does not arise before us, therefore, we are not dealing in detail with the Rule 4.22 and Rule 4.23 of the Rules because in the present case, it is conceded position on facts that the petitioner was substantive holder of a post of Accountant and he was given independent charge of the post of Secretary after having relinquished the charge on the post of Accountant. Therefore, no determination on the basis of Rules 4.22 and 4.23 of the Rules would be necessary in this case. 12. A close examination of Rule 4.13 of the Rules would show that once a person like the petitioner has been given independent charge of a post, which involves assumption of duties and responsibilities of greater importance than the one attaching to the post held by such an employee on which he holds a lien or would have held his lien had it not been suspended, then he is entitled to pay of the higher post. A post is regarded to involve assumption of duties and responsibilities of greater importance if it carries higher pay scale than the one on which he holds the lien. In the present case, the pay scale of the post of Accountant is lower than that of the post of the Secretary. 13. It has come on record that the petitioner-Subhash Chander was given the charge of the post of Secretary of Municipal Committee, Ratia on 02.11.1996/11.12.1996 (P-1). The aforesaid charge was given to him against a vacant post without requiring him to work as Accountant in addition. In other words, it was not additional charge but was an independent charge of the post of Secretary. Therefore, it is evident that within the principle emerging from Rule 4.13 of the Rules, he would be entitled to higher pay scale of the post of Secretary because the post of CWP No. 21358 of 2008 11 Secretary has to be considered involving assumption of duties and responsibilities of greater importance than those attaching to the post of Accountant on which the petitioner had held the lien. The petitioner also fulfilled the conditions being in the line of promotion because he was senior most Accountant and would have been promoted on the basis of his seniority. Merely because he has been given officiating charge of the higher post without regular promotion, would not result into deprivation of higher salary from the date he has assumed the charge. 14. We wish to make it clear that the Rules laid down by us would not cover a case where a fortuitous officiating promotion is given to an employee working in the lower cadre on account of administrative exigency resulting in vacancy of a higher post. For illustration, if the post of Sub Division Officer is a feeder cadre for promotion to the post of Assistant Executive Engineer then on vacancy caused by retirement, death or promotion etc., the promotion of the Sub Division Officer available at the station on the post of Assistant Executive Engineer would not earn him higher pay scale because it is a fortuitous circumstance unless he is senior enough to stake his claim for regular promotion. The aforesaid principle has been laid down by their Lordships' of Hon'ble the Supreme Court in the case of Ramakant Shripad Sinai Advalpalkar v. Union of India 1991 (Suppl. 2) SCC 733. 15. We are further of the view that Rule 4.13 of the Rules would virtually sound like the principle laid down in the judgment of Hon'ble the Supreme Court in Smt. P.Grover v. State of Haryana, AIR 1983 SC 1060. In that case, an employee in the State of Haryana was given promotion as acting District Education Officer about two years before her CWP No. 21358 of 2008 12 superannuation. The order giving her promotion as an acting District Education Officer recited a condition that she was to draw salary in her own pay scale which meant that her scale would continue to be that of the post of Principal, Higher Secondary School. Accordingly, their Lordships' of Hon'ble the Supreme Court accepted the claim of Smt. P. Grover as if the principles laid down in Rule 4.13 of the Rules have been applied. The concluding para of the judgment reads as under: “3. We mentioned that she was promoted as an acting District Education Officer with effect from July 19, 1976. The order of promotion contained a superadded condition that she would draw her own pay scale which apparently meant that she would continue to draw her salary on her pay scale prior to promotion. The initial order was extending her services recited that she was an acting District Education Officer, but contained a superadded condition that her pay would not be more than the maximum of the principal's grade. Smt. Grover claims that having been promoted as District Education Officer and there was no justification for denying the same to her. A writ petition filed by her was dismissed by the High Court of Punjab and Haryana and she is before us by way of special leave under Article 136 of the Constitution. The counter-affidavit filed on behalf of the Government of Haryana offers no rational explanation for denying the pay of District Education Officer to Smt. P. Grover after she was promoted to act as District Education Officer. All that was said in the counter-affidavit was that there was no Class-I posts available and therefore she was not CWP No. 21358 of 2008 13 entitled to be paid the salary of District Education Officer. We, are unable to understand the reason given in the counter- affidavit. She was promoted to the post of District Education Officer a Class-I post, on an acting basis. Our, attention was not invited to any Rule which provides that promotion on an Acting basis 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 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. The appeal is accordingly, allowed with costs.” 16. The argument of learned State counsel based on the judgment rendered in R.K. Aggarwal's case (supra) would not require any detail consideration because there was serious dispute concerning seniority of the officers in the cases where disputes concerning seniority are involved. The officiating charge may not earn the fixation of higher pay scale for the post on which the officer is officiating. However, in the present case, there is no dispute of such nature. We are also not impressed with the argument that somewhere in 2006, the petitioner was charge-sheeted and, therefore, regular promotion has to be taken into account only from 27.10.2008 (P- 10) and the salary is also required to be fixed in the higher grade from that date alone. The aforesaid argument is liable to be rejected for more than one reason. Firstly, the petitioner has been discharging the duties on a higher post of Secretary w.e.f. 2.11.1996/ 11.12.1996 (P-1). If any, charge- CWP No. 21358 of 2008 14 sheet in 2006 was issued then it was at a stage when the petitioner was discharging his duties as Secretary, therefore, the argument would have no effect insofar as the present case is concerned and the judgment in R.K. Aggarwal's case (supra) would have no application. 17. In view of the above, the question posed in para no. 1 is answered in affirmative and it is held that if an employee is appointed to officiate on a post involving assumption of duties and responsibility of greater importance than those attaching to the substantive post then he would be entitled to the salary of his officiating post in higher grade. Accordingly, the petitioner is held entitled to the higher pay scale from the date he has assumed the charge of the post of Secretary with all consequential benefits including promotion. His pay may be re-fixed and the arrears of his pay shall be calculated from the date when he has been officiating on the post of Secretary, Municipal Committee. The payment of arrears shall be made within three months from the date of receipt of a certified copy of his order with all consequential benefits. 18. Accordingly, the writ petition is disposed of in the above terms. (M.M.Kumar) Judge (Gurdev Singh) Judge (Ritu Bahri ) 20.12.2011 Judge okg/atul