CWP No.18369 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP NO.18369 OF 2006 DATE OF DECISION: 15-02-2008 Rajinder Singh and others .....PETITIONERS VERSUS Bhakra Beas Management Board .....RESPONDENT CORAM:- HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE MOHINDER PAL PRESENT: Mr. Raman Sharma, Advocate for the petitioners. Mr.D.S.Nehra, Senior Advocate with Mr.Munish Bhardwaj, Advocate for the respondent. HEMANT GUPTA, J. The petitioners have invoked the writ jurisdiction of this Court for the issue of writ of mandamus directing the respondents to pay the salary of the post of Sub Divisional Officer for the period the petitioners have discharged duties of such higher post. It is the case of the petitioners that while working as Junior Engineers in the Irrigation Wing of the Bhakra Beas Management Board-the respondent herein, they are given the duties and responsibilities of the higher post of Sub Divisional Officer in their own pay scale from the year 2001. A copy of the said order has been attached as Annexure P1. The CWP No.18369 of 2006 2 said order of Annexure P1 has been amended on 30-08-2001 vide order Annexure R1 wherein the petitioners were directed to see the work of higher post in addition to their own duties without any extra remuneration. It is the case of the petitioners that for the period, the petitioners discharged the duties of higher post, they are entitled to pay attached with the said post. Reliance is placed upon two Division Bench judgments of this Court titled as Balbir Singh Dalal and others Vs. State of Haryana and another, 2002(4) SCT 422 and Pritam Singh Dhaliwal Vs. State of Punjab and another, 2004(4) RSJ 599. Controverting the said stand, the learned counsel for the respondent has raised two-fold arguments. Firstly, the writ petition suffers from gross delay and laches. It is contended that the petitioners were assigned the duties of the higher post in the year 2001 but they have approached this Court in the year 2006. Still further, petitioners No.1 to 5 have approached this Court after attaining the age of superannuation. It is also contended that the petitioners were not promoted but assigned the duties of the higher post in their own pay scale. Therefore, in view of the judgment of the Supreme Court in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others AIR 1991 SC 1145, the petitioners are not entitled to the pay scale attached with the higher post. In any case, it is contended that the petitioners were already drawing the pay scale, which is admissible to the Sub Divisional Officer under the benefit of time bound promotional scale, therefore, the petitioners claim is untenable. Having heard the learned counsel for the parties, we do not find any merit in the stand of the learned counsel for the respondent. The fact remains that as per the order Annexure P1 as amended vide order CWP No.18369 of 2006 3 Annexure R1, the petitioners have been asked to discharge the duties of the higher post. Once the petitioners have been discharged the duties of the higher post, they are entitled to the pay scale of the higher post. Such is the view taken by this Court in the aforesaid judgments relying upon the earlier Hon'ble Supreme Court judgment in Smt. P.Grover Vs. State of Haryana, AIR 1983 SC 1060. In fact, the judgment relied upon by the respondent has also been considered in Balbir Singh Dalal's case (supra) but after considering the said judgment, it was held that the petitioners are entitled to the pay scale for the period they discharged the duties of such higher post. In Ramakant's case (supra), the judgment referred by the learned counsel for the respondent, the claim of pay for higher post was declined for the reason that “In-charge arrangement is not a recognition of or is necessarily based on seniority and, therefore, no rights, equities or expectations could be built upon it.” However, it is not the case of the respondents that the petitioners were given the duties of the higher post without examining the seniority but only on the basis of stop gap arrangement to meet out the exigencies in service. In view of the said fact, we are of the opinion that the petitioners are entitled to the pay scale of the higher post for the period they have discharged the duties of such post. The arguments that the writ petition suffers from delay and laches is again not tenable. Only one of the petitioners retired in the year 2001 whereas petitioner No.6 was in service on the date of the filing of the petition. The other petitioners have attained the age of superannuation either in the year 2004 or in the year 2005. The revision in the pay scale has effected the payment of retiral benefits as the retiral benefits are payable on CWP No.18369 of 2006 4 the basis of last pay drawn. Therefore, the claim of the petitioners for grant of higher pay cannot be said to be grossly delayed, which may dis-entitled them in invoking the jurisdiction of this Court. However, to settle the equities, it would be fair and reasonable to restrict the benefit of arrears of salary or of retiral benefits for a period of 38 months prior to the date of filing of the petition. Another argument raised by the learned counsel for the respondent is that the petitioners are already receiving higher salary is again not tenable. If the petitioners were getting the higher salary, which is equivalent or more than the salary of the higher post, obviously they shall not be entitled to avail any of the benefit. It is only in the absence of salary less than that of the higher post, the petitioners shall be entitled to the pay of the higher post. The writ petition stands disposed of with the aforesaid directions. (HEMANT GUPTA) JUDGE ( MOHINDER PAL ) February 15, 2008 JUDGE jt