CWP No.8257 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.8257 of 2010 (O&M) Decided on : 10-03-2011 Som Nath ....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr.K.L.Dhingra, Advocate for the petitioner Mr. Sunil Nehra, Sr. DAG, Haryana MAHESH GROVER, J The petitioner was working as a Deputy Superintendent when the order (Annexure P-1) was passed on 29.9.2006 whereby several Deputy Superintendents were promoted as Superintendents. According to the stipulation 5 of the order (Annexure P-1) the name of the petitioner alongwith others was indicated to say that they are being posted as Superintendents incharge in their own pay scales. The petitioner continued to work as Superintendent and retired in October, 2008. He now prays that he be granted the pay equivalent to that which was given to the Superintendents for the reason that he had worked as Superintendent. The respondents have denied his claim and have stated that the petitioner was merely given a current duty charge which cannot be considered to be a regular promotion. The reason for not giving him the promotion was that he was not eligible at the time when the order (Annexure P-1) was passed as the petitioner did not complete three years of CWP No.8257 of 2010 (O&M) 2 service as a Deputy Superintendent. Upon due consideration of the matter, this Court is of the opinion that the plea of the petitioner merits acceptance. The petitioner was put in the category of Superintendent in his own pay scale for the ostensible reason which has now been given in the reply to the petition that he has not completed three years of service as a Deputy Superintendent. Eventually after he being placed as Superintendent he completed the period of three years in April, 2008 and was permitted to continue till the time he superannuated in October, 2008. The plea of the respondents is that he was merely working as current duty charge and even if accepted will only entitle the petitioner to the pay for the simple ground that he was working as Superintendent and was discharging the functions of Superintendent till the time of his superannuation. Division Bench of this Court in case titled as Pritam Singh Dhaliwal vs. State of Punjab and another reported as 2004 (4) RSJ 599 held as under:- “In the case at hand, the plea of the Government is that the seniority of District Development and Panchayat Officers and the Deputy Directors etc. has been challenged before the Supreme Court and,therefore, making regular appointments was not possible. This would not come in the way of the government to deny the right of the employee, who has been asked to officiate in the post or hold the post as a temporary measure or on current duty charge. It is admitted case that the petitioner had been asked to officiate as Deputy Director with effect from 14.3.1996 and he has been continuously posted to equivalent posts such as Addl. Deputy CWP No.8257 of 2010 (O&M) 3 Commissioner (D) and that till his superannuation the officiating charge was never withdrawn. In view of the law laid down by the Hon'ble Supreme Court of India and so also the view expressed by the two Division Bench judgments of this court, with which we are in respectful agreement, we hold that the petitioner is entitled to claim the higher pay scale in the post in which he had been asked to officiate and perform his duties till his superannuation. The respondents are directed to carry out the mathematical exercise accordingly and grant the relief (including fiscal benefits) to the petitioner in the right and correct perspective within a period of three months from the date of receipt of certified copy of this order. It shall be apposite to mention that the case of the respondents is that the seniority of the Deputy Directors and District Development and Panchayat Officers is under challenge before the Supreme Court, as and when the said matter is determined by the Supreme Court, the petitioner shall be well within this rights to stake his claim accordingly. The petition is disposed of in the above terms.” The aforesaid observations were made by the Division Bench of this Court by placing reliance on following judgments:- 1) Smt. P.Grover Vs. State of Haryana and another, AIR 1983 Supreme Court 1060. In this case the petitioner was working as a Teacher and due to her extraordinary accomplishments, she was promoted as an acting District Education Officer only two years prior to her superannuation. However, the Government of Haryana had CWP No.8257 of 2010 (O&M) 4 taken a policy decision in 1965 that the services of the Teachers who had received the National or State Awards should be given on year to year basis. The petitioner was given the benefit and she worked as a Principal of a school and finally retired from service on August 31, 1990. There is no rule which was referred to for providing restriction that upon granting promotion on acting basis would not entitle the officer to the pay of the post. Resultantly, the petitioner had been granted the pay of the post from the date when she had been promoted accordingly. (ii) Selvaraj vs. Lt. Governor of Island, Port Blair and others, 1998(4) RSJ 22. In this case, the appellant was working as a primary school teacher who was ordered to look after the duties of Secretary (Scouts). The salary was to be drawn against the aforestated post which was admittedly in the higher pay scale than the one given to the appellant on the basis of primary school teacher. The Hon'ble Supreme Court enunciated the principle of “quantum meruit” and directed the respondent- authorities that the appellant should be paid as per the emoluments available in the higher pay scale during the time the appellant actually worked on the said higher post though in officiating capacity and not as a regular promotee. Reference has been made to the two Division Bench judgements of this Court which are noticed as under:- (a) Gurmej Singh vs. State of Punjab and another, 1995(3) RSJ 491 CWP No.8257 of 2010 (O&M) 5 In this case, the petitioner was working as a Social Education and Panchayat Officer and he had been given current duty charge of the post of Block Development and Panchayat Office with effect from December 20, 1988 and he continued to hold such charge till superannuation i.e. November 30, 1989. Thus, having discharged the duties on a higher post to which he was otherwise entitled to be considered for promotion, the petitioner was entitled to the emoluments of the said post with all consequential benefits. Reliance has been placed upon the judgment of the apex Court in Smt. P.Grover's case (supra) and CWP no. 13465 of 1991 decided on January 16, 1992. (b) Balbir Singh Dalal and others vs. State of Haryana and another 2002 (3) RSJ 530 In this case, the petitioners were working as regular Junior Engineers and they were given current duty charge in performing the work and duties of the post of Sub- Divisional Officers, which is admittedly a promotional post and is a feeding cadre for the Junior Engineers. Subsequently, they were promoted as regular basis to that post. They claimed that they are entitled to the pay scale of the higher post upon which they have rendered their services as a whole time incumbent, which is also the promotional post. Reference and reliance has been made to Punjab Civil Services Rules 4.4, 4.13, 4.16 and 4.22 (i) for the purpose of pay fixation. It has been enunciated that once a person is appointed to hold the full charage of the duties on a higher post even in addition to the duties of his own post, he has to be allowed the pay, admissible to him as if he CWP No.8257 of 2010 (O&M) 6 was appointed to officiate in the higher post.” Having regard to the aforesaid, the petition is allowed and the petitioner shall only be entitled to the benefit of pay for the period that he has worked as Superintendent without enuring any benefit towards pension as he was not regularly promoted as such. March 10 , 2011 (Mahesh Grover) rekha Judge