IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 2126/2008 Decided on:23.4.2010 _____________________________________________ R.G. Sood. …Petitioner. Versus Himachal Pradesh State Electricity Board. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Dilip Sharma, Advocate For the Respondent : Mrs. Anjula Khajuria, Advocate. _____________________________________________________ Rajiv Sharma, Judge (oral). Material facts necessary for the adjudication of this petition are that the petitioner joined as SDO (E) in Survey Sub Division, Jutogh under Survey and Investigation Division, Bilaspur on 2.5.1986 in sequel to office order dated 30.4.1986. The administrative control of the sub-division was transferred to T&C Circle, Shimla vide office order dated 25.7.1986. The Superintending Engineer, T&C Circle, HPSEB, Shimla vide office order dated 29.7.1986 transferred the staff detailed therein working 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 in Survey Sub-Division to T&C Circle Shimla with effect from 1.8.1986. The petitioner was getting transmission allowance. However, the same was withdrawn vide office order dated 11.8.1988. The respondent-Board issued office order dated 30.4.1988 granting special pay to the Assistant Executive Engineer and Assistant Engineer (Works) respectively, posted in the Field Circles with immediate effect. The text of letter dated 30.4.1988 reads thus: “The Himachal Pradesh State Electricity Board is pleased to grant Special pay @ Rs. 200/- P.M. and Rs. 150/- P.M. to the Assistant Executive Engineer and Assistant Engineer (Works) respectively, posted in the Field Circles, with immediate effect.” The petitioner made representation to the respondent- Board for the release of special pay after the issuance of Annexure A-6 dated 30.4.1988 on 20.8.1988. Case of the petitioner was recommended by the Superintending Engineer, T&C Circle Tutu to the Chief Engineer (G&T). Petitioner made another representation on 11.11.1988 for the redressal of his grievance. Case of the petitioner was rejected vide Annexure A-10 dated 13.3.1989. He made another representation on 4.8.1989 reiterating his earlier prayer. The Superintending Engineer T&C Circle Tutu again favourably recommended the case of the petitioner to the Chief Engineer (G&T) on 21.8.1989 stating therein that the petitioner was performing the duties of Assistant Executive Engineer/Assistant Engineer (Works) and was entitled to special pay as admissible to other Assistant Engineers (Works). The Chief Engineer (G&T), 3 HPSEB also recommended the case of the petitioner for consideration to the Secretary of the respondent-Board on 8.9.1989. The petitioner’s case was rejected on 21.10.1989 vide Annexure A-14 on the ground that since the petitioner was posted against the post of Assistant Executive Engineer, Survey Sub Division, Jutogh, under Survey and Investigation Division, Bilaspur, he was not entitled to special pay on the basis of office order dated 30.4.1988 (Annexure A-6). The petitioner made another representation on 21.12.1989 (Annexure A-15). He filed original application bearing OA No. 1217/1992 for the redressal of his grievance. The same was directed to be treated as representation to the Secretary of the respondent-Board on 26.10.1992. The Secretary, HPSEB rejected the representation on 29.1.1993 (Annexure A-2). The petitioner filed fresh original application bearing OA No. 650/1993 assailing the office order dated 29.1.1993, which was assigned CWP (T) No. 2126/2008 after its transfer from the learned Himachal Pradesh Administrative Tribunal to this Court. The Court directed the respondent-Board to reconsider the matter afresh on 6.3.2009. The matter was decided by the Board on 18.4.2009 (Annexure A-16). The grievance of the petitioner was not redressed. He again made representation vide Annexure A-17 dated 25.4.2009. The same was also considered and fresh decision was taken by the Board on 30.5.2009. The main ground taken by the respondent-Board for rejecting the claim of the petitioner for grant of special pay is that the special pay is payable to only Assistant Engineer (W) and not to any Assistant 4 Executive Engineer working in the Field Circle and also as per staffing pattern dated 31.12.1979. Mr. Dilip Sharma has vehemently argued that his client was performing/sharing the duties of Assistant Executive Engineer/Assistant Engineer (W). He has relied upon the recommendations made by the Superintending Engineer T&C and Chief Engineer (G&T) to the Secretary of the Board. He lastly contended that his client was entitled to special pay as per Annexure A-6 dated 30.4.1988. Mrs. Anjula khajuria has strenuously argued that since the petitioner was appointed as Assistant Executive Engineer (E), he is not entitled to special pay on the basis of office order dated 30.4.1988. She has also argued that in fact one Sh. H.K. Sood was working as Assistant Executive Engineer (W) and moreover, the petitioner as per charge report dated 12.12.1991 was working as Assistant Executive Engineer/Assistant Engineer and not Assistant Executive Engineer (W). I have heard the learned counsel for the parties and have perused the record carefully. The petitioner was working as SDO (E) in Survey Sub Division Jutogh under Survey and Investigation Division Bilaspur and vide office order dated 25.7.1986, the administrative control of this Sub Division was transferred to T&C Circle Shimla. The staff working in the Survey Sub Division, Jutogh under Survey and Investigation Division, Bilaspur was transferred to T&C Circle Shimla vide office order dated 29.7.1986. A conscious decision 5 had been taken, reproduced hereinabove, by the respondent-Board to grant special pay to the Assistant Executive Engineer and Assistant Engineer (Works), respectively posted in the Field Circles with immediate effect. The petitioner made representation vide Annexure A-7 dated 20.8.1988. His case was strongly recommended by the Superintending Engineer as per Annexure A-8 dated 1.9.1988. A specific observation has been made by the Superintending Engineer, under whose supervision the petitioner was working that he was sharing the work of Assistant Engineer (Works). The claim of the petitioner was rejected and conveyed to him on 13.3.1989. His case was again recommended by the Chief Engineer (G&T) to the Secretary of the respondent-Board on 8.9.1989. The recommendation made by the Chief Engineer (G&T) were favourably considered and the case of the petitioner stood rejected on 8.9.1989. The learned Himachal Pradesh Administrative Tribunal treated the original application preferred by the petitioner as representation to the Secretary of the respondent- Board. The Secretary rejected the case of the petitioner vide Annexure A-2 dated 29.1.1993. The ground taken by the respondent-Board for rejecting the claim of the petitioner was that he was not posted against the post of Assistant Engineer (Works) and he was posted against the post of Assistant Engineer in Survey Sub-Division, Jutogh with effect from 3.4.1988 to 2.12.1991. Since the decision was not taken in letter and spirit of the order dated 26.10.1992 by the respondent-Board, the Court directed the Board to re-look into the matter vide office order dated 6 6.3.2009. The case was considered and it was reiterated that since the petitioner was not appointed as Assistant Engineer (Works), he was not entitled to special pay. There is fallacy in the arguments advanced by the learned Advocate appearing on behalf of the respondent-Board. It is true that as per Annexure A-6 only Assistant Engineers (Works) were entitled to special pay, however, in the present case, the petitioner had been sharing/performing the duties of Assistant Engineer (Works). He was working under the supervision of Superintending Engineer T&C. He recommended the case of the petitioner favourably after taking into consideration the duties and functions discharged by the petitioner on 1.9.1988 and 21.8.1989 (Annexures A-8 and A-12, respectively). The Superintending Engineer T&C was the most competent person to verify whether the petitioner was sharing/performing the work of Assistant Engineer (Works) or not. The recommendations made by the Superintending Engineer, being the high functionary of the respondent-Board, ought to have been given due weightage. The case of the petitioner was also recommended by the Chief Engineer of the respondent-Board on 8.9.1989 (Annexure A-13). The recommendation made by him has not been duly considered by the respondent-Board and the case of the petitioner has been rejected repeatedly in most illegal and arbitrary manner. The sum and substance of the stance of the respondent-Board is that since the petitioner had not been appointed against the post of Assistant Engineer (W), he cannot be given the special pay. The respondent-Board has failed to take into consideration that the 7 petitioner has worked and discharged the duties of Assistant Executive Engineer/Assistant Engineer (W) and he was also entitled to get special pay as per Annexure A-6 dated 30.4.1988. It is not one of those cases where an employee has not placed any tangible evidence on record to substantiate that he was discharging additional duties. In the present case, the petitioner had been making representations and his case stood favourably recommended by the Superintending Engineer and Chief Engineer repeatedly with the observation that the petitioner had been sharing/performing the duties of Assistant Executive Engineer/ Assistant Egnineer (W). Ms. Anjula Khajuria has also argued that the charge report dated 12.12.1991 also reveals that the petitioner was working as Assistant Executive Engineer (E) and not Assistant Engineer (works). This plea has been raised merely to be rejected. Case of the petitioner is that he had been sharing/performing the duties of Assistant Engineer (Works) and the charge report cannot in any manner dilute his claim seeking special pay. Ms. Khajuria has also argued that the petitioner has to discharge the duties as per staffing pattern notified on 31.12.1979. It is for the employer what work has to be extracted from a particular employer, however, it is equally true that in case a particular work is extracted from a person over and above his normal duties, he is required to be compensated by the employer. In view of the observations made hereinabove, it is evident that the petitioner had been performing/sharing the duties of 8 Assistant Executive Engineer/Assistant Engineer (Works) with effect from 1.1.1986 to 2.12.1991. The case of the petitioner has been rejected arbitrarily without due application of mind. It is a fit case where the petitioner is entitled to get special pay on the basis of Annexure A-6 dated 30.4.1988 by invoking the principles of “equal pay for equal work”. Since the petitioner had been discharging the same and similar duties, being discharged by the Assistant Engineer (Works), he is entitled to special pay payable to Assistant Executive Engineer/Assistant Engineer (Works) as per Annexure A-6 dated 30.4.1988. The decisions taken by the respondent-Board, as noticed above, from time to time had over looked the recommendations made by the Superintending Engineer and Chief Engineer under whose supervision/jurisdiction the petitioner had been performing the duties of Assistant Executive Engineer/Assistant Engineer (W). Accordingly, the petition is allowed. Annexures A-16 dated 18.4.2009 and order dated 30.5.2009 (Annexure R-8) are quashed and set aside. Respondent-Board is directed to release and pay the petitioner special pay as per office order dated 30.4.1988 (Annexure A-6) within a period of ten weeks from today. No costs. (Rajiv Sharma), Judge 23.4.2010*awasthi*