A person, who performs the duties of higher office, must get the salary of the same post: High Court of Himachal Pradesh

 Hig h C o urt of H.P on 06 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No.53719 Reserved on: 29th April 2021 Decided on: 5th May 2021 Bishan Singh Chandel …..Petitioner Versus Himachal Pradesh University and another …..Respondents Coram Ms. Jyotsna Rewal Dua Judge Whether approved for reporting 1 Yes. For the Petitioner: Mr. Sanjeev Bhushan Senior Advocate with Mr. C.D. Negi Advocate. For the Respondents: Mr. Surender Verma Advocate. Jyotsna Rewal Dua Judge The petitioner claims his promotion to the post of Planning & Development Officer alongwith the pay scale attached to it from a retrospective date. This claim stands on two planks. Firstly that the respondent University in an arbitrary and discriminatory manner did not exercise the discretionary power to relax the applicable rules in favour of the petitioner for his promotion to the post of Planning & 1 Whether reporters of print and electronic media may be allowed to see the order Hig h C o urt of H.P on 06 05 HCHP 2 Development Officer while at the same time in exercise of this very power similarly situated employees were promoted by the respondent to the post of Deputy Registrar etc. and secondly notwithstanding above the respondents had given additional charge of the post of Planning & Development Officer to the petitioner w.e.f 12.11.2014. The petitioner superannuated on 31.03.2015 while discharging the duties of Planning & Development Officer therefore the pay scale attached to this post is required to be released in his favour. 2. Facts: 2(i). On 29.11.2011 the Executive Council of the respondent University had before it an Agenda No.17 regarding providing relaxation in the Recruitment & Promotion Ruleswhile effecting promotions to the vacant posts of Deputy Registrar and Special Secretary. The Executive Council resolved and authorized the Vice Chancellor of the respondent University to take appropriate decision on matters pertaining to relaxation of R&P Rules in favour of the incumbents keeping in view their seniority as well as justification for relaxation in their favour. Hig h C o urt of H.P on 06 05 HCHP 3 2(ii). The petitioner had joined the respondent University in the year 1974. He was promoted as Deputy Registrar on ad hoc basis vide office order dated 21.01.2014 by granting him relaxation of one and a half months’ service period as Assistant Registrar. His ad hoc promotion was regularized w.e.f. 10.03.2014 vide office order dated 21.10.2014. The petitioner was senior most serving Deputy Registrar at that time. 2(iii). In terms of the Himachal Pradesh University Ministerial and Administrative ServiceRules framed by the Executive Council of the respondent University as notified on 06.01.1973 further promotion from the post of Deputy Registrar could either be to the post of Additional Controller of Examinations or to the post of Planning & Development Officer. The post of Additional Controller of Examinations and Planning & Development Officer are to be filled up 100% by promotion from the feeder channel of Deputy Registrars. The relevant rules providing the required length of service as Deputy Registrar for promotion to these two avenues read as under: Hig h C o urt of H.P on 06 05 HCHP 4 “14.18: Additional Controller of Examinations: i) Minimum length of approved service. Three years as Deputy Registrar. OR Two years as Deputy Registrar and with at least two years as Assistant Registrar. Desirable: Experience of having worked in Examination Branches of the University. 14.19: Planning & Development Officer: i) Minimum length of approved service. Three years as Deputy Registrar. OR Two years as Deputy Registrar and with at least two years as Assistant Registrar.” 2(iv). One post of Planning & Development Officer became available in the respondent University on 31.07.2014. Petitioner was serving as senior most Deputy Registrar at the time. His case for promotion to this post was processed by granting him relaxation in the requisite length of service. Though the Vice Chancellor of the respondent University on 12.11.2014 did not exercise the power to grant relaxation in favour of the petitioner for facilitating his promotion to the post of Planning & Development Officer however noticing that work against the post of Planning & Development Officer was of urgent nature and somebody needed to be posted there ordered to give additional charge of the post to the petitioner without any financial benefits. 2(v). Aggrieved againstrespondent’s refusal to relax the condition of length of service required for Hig h C o urt of H.P on 06 05 HCHP 5 petitioner’s promotion to the post of Planning & Development Officer andalso aggrieved against non grant of the pay scaleattached to the post of Planning & Development Officer i.e. the work which the petitioner was discharging w.e.f. 12.11.2014 till his superannuation on 31.03.2015 the petitioner has preferred the instant petition for the following substantive reliefs: “I) That the respondents may kindly be directed to promote the applicant as Planning and Development Officer either w.e.f. 1st September 2014 or in the alternative w.e.f. 12.11.2014 from which date the applicant has been performing the work of Planning and Development Officer with all consequential benefits of pay arrears etc. II) That the respondents may kindly be directed to pay the arrears to the applicant with interest @ 9% per annum in the interest of law and justice.” 3. Contentions: Heard learned counsel for the parties and gone through the record. 3(i). Learned Senior Counsel for the petitioner submitted that in the circumstances similar to that of petitioner the respondent University had relaxed the length of service required under the R&P Rules for promotion to the post of Deputy Registrar. S Sh. Waryam Singh Bains and Nitya Nand Sharma were promoted as Assistant Registrars w.e.f. 01.02.2014 and 10.03.2014 respectively Hig h C o urt of H.P on 06 05 HCHP 6 vide office order dated 21.10.2014. Their names figured at Sr. Nos.3 and 4 in order of seniority. One Sh. Mohinder Kumar Gupta was promoted as Assistant Registrar vide same order of 21.10.2014 w.e.f. 27.01.2014. He was senior to Sh. Waryam Singh Bains and Nitya Nand Sharma and was accordingly reflected above them at Sr. No.2. Under the Rules an Assistant Registrar with two years of service as such is eligible for further promotion to the post of Deputy Registrar. Ignoring the claim of senior incumbent Sh. Mohinder Kumar Gupta the respondent University on 12.11.2014 promoted S Sh. Waryam Singh Bains and Nitya Nand Sharma as Deputy Registrars by granting them relaxation of one year and three months’ in the service required as Assistant Registrar. Learned Senior Counsel argued that the case of the petitioner was at much better footing as compared to S Sh. Waryam Singh Bains and Nitya Nand Sharma for grant of relaxation as petitioner was the senior most Deputy Registrar serving with the respondent University when the post of Planning & Development Officer became available. No one would have been superseded had he been promoted to the said post by way of relaxation of R&P Rules. Whereas S Sh. Waryam Hig h C o urt of H.P on 06 05 HCHP 7 Singh Bains and Nitya Nand Sharma were promoted to the post of Deputy Registrar in relaxation of length of service required under the R&P Rules superseding their senior Sh. Mohinder Kumar Gupta. Length of service required to be relaxed in case of the petitioner’s promotion was almost the same as relaxed in case of S Sh. Waryam Singh Bains and Nitya Nand Sharma. Therefore learned Senior Counsel contended that the respondent University has discriminated against the petitioner in refusing to relax the length of service required under the R&P Rules for his promotion to the post of Planning & Development Officer. Petitioner therefore is required to be promoted as Planning & Development Officer w.e.f. 01.09.2014. It is also contended by learned Senior Counsel for the petitioner that in any case the respondent had taken the work of Planning & Development Officer from the petitioner w.e.f. 12.11.2014. The petitioner superannuated on 31.03.2015 while discharging the duties of the said post. The action of the respondents in not giving the financial benefits attached with the post of Planning & Development Officer while extracting this work from him was absolutely illegal. Therefore learned Senior Counsel prayed that the Hig h C o urt of H.P on 06 05 HCHP 8 petitioner deserves to be granted the monetary benefits attached to the post of Planning & Development Officer w.e.f. 12.11.2014. 3(ii). Learned Standing Counsel for the respondent University produced the relevant record during hearing of the case. While admitting the main factual aspects of the matter learned counsel submitted that an amendment had been carried out in the Himachal Pradesh University Act 1970 w.e.f. 16.03.2015 whereby following Sub Sectionwas substituted for Section 28(1) of the Principal Act: “(a) for sub section(1) the following sub section shall be substituted namely: “(1) There shall be a Finance Committee and its constitution the term of office of its members other than ex officio members shall be as laid down in the Statutes. All financial matters and service matters relating to service conditions of the employees of the University including creation up gradation or filling of the posts framing of Recruitment and Promotion Rules revision of pay and allowances shall first be placed before the Finance Committee and thereafter such matters shall be placed before the Executive Council with its recommendations.” Learned counsel for the respondent University submitted that in accordance with the above amendment carried out in the Himachal Pradesh University Act 1970 the matters regarding service of employees of the respondent University are now required to be considered first by the Finance Committee and thereafter the matters are to be placed before the Executive Council with its Hig h C o urt of H.P on 06 05 HCHP 9 recommendations. After coming into force of the amendment on 16.03.2015 the respondent University has not relaxed the conditions prescribed in the applicable rules for promotion of its employees. It is for this reason that the case of ad hoc promotion of the petitioner to the post of Planning & Development Officer could not be favourably considered even during the month in which he was to retire i.e. March 2015. 4. Observations: 4(i). Claim of retrospective promotion: Petitioner in essence claims that respondent University be directed to exercise discretionary power of relaxation of the Recruitment & Promotion Rules in his favour for his retrospective promotion to the post of Planning & Development Officer. This claim is based upon analogy of relaxation power exercised by the respondent University while promoting some other incumbents. 4(i)(a). The Executive Council on 29.11.2011 had authorized the Vice Chancellor to decide all those cases which required relaxation in the R&P Rules keeping in view the seniority and justification for such relaxation. Hig h C o urt of H.P on 06 05 HCHP 10 4(i)(b). The record shows that the cases of the petitioner Sh. Waryam Singh Bains and Sh. Nitya Nand Sharma for granting them relaxation in the length of service required under the rules for their promotion to the next higher post were considered by the Vice Chancellor of the respondent University simultaneously on 12.11.2014. Following was observed while refusing to exercise the power of relaxation in favour of the petitioner and for exercising this power in favour of other two employees: “1. There is no justification to promote Sh. Bishan Singh Chandel Deputy Registrarto the post of Planning & Development Officer. However keeping in view the requirement of work he is given the additional charge of the said post without any financial benefits till further orders. 2. Sh. Waryam Singh Bains and Sh. Nitya Nand Sharma would be superannuating this month therefore there is justification to give them relaxation in the service period and they may be promoted to the post of Deputy Registrar during their service tenure by giving them relaxation.” Respondent did not find any justification to relax the length of service required under the Rules in favour of the petitioner for his promotion to the post of Planning & Development Officer. However only on the ground that S Sh. Waryam Singh Bains and Nitya Nand Sharma serving as Assistant Registrars were due for superannuation in the ongoing month they were promoted to the next higher post of Deputy Registrar in relaxation of Hig h C o urt of H.P on 06 05 HCHP 11 length of service required under the R&P Rules. While exercising power of relaxation in favour of these two incumbents for purposes of their promotion to the post of Deputy Registrar the respondent University also overlooked the claim of their senior Sh. Mohinder Kumar Gupta. During hearing of the case learned Standing Counsel for the respondent University informed that subsequent to the promotions of his juniors Sh. Mohinder Kumar Gupta approached the erstwhile learned H.P. Administrative Tribunal by way of Original Application No.4715 which was decided on 27.04.2015. On the directions issued by the learned Tribunal the respondent University on 29.04.2015 promoted said Sh. Mohinder Kumar Gupta to the post of Deputy Registrar. The reasoning advanced by the respondent University for granting relaxation in required length of service to S Sh. Waryam Singh Bains and Nitya Nand Sharma is at sharp variance to the one given while refusing to exercise relaxation power in favour of the petitioner despite the fact that attending circumstances in all the three cases were almost similar. It is an admitted position that the petitioner was the senior most Deputy Registrar. Hig h C o urt of H.P on 06 05 HCHP 12 He also needed relaxation in length of service of around a year and three months for promotion to the post of Planning & Development Officer. This period almost equals the period relaxed in favour of S Sh. Waryam Singh Bains and Nitya Nand Sharma. Considering the necessity of work to be discharged against the promotional post of Planning & Development Officer the respondent though gave additional charge of the said post to the petitioner but refused to relax length of service required under the R&P Rules for his promotion to this post. Whereas requisite length of service was relaxed in favour of S Sh. Waryam Singh Bains and Nitya Nand Sharma in view of their impending retirement within next few days and that too by ignoring the claim of their senior. These facts leave no manner of doubt that the discretionary power to relax the rules had been indiscriminately exercised by the respondent University. 4(i)(c). In Amrik Singh and others Versus Union of India and others 3 SCC 393 power to relax rules and regulations in certain cases conferred under Rule 3 of the All India ServicesRules 1960 was being considered. It was held “that Government must be satisfied not subjectively but Hig h C o urt of H.P on 06 05 HCHP 13 objectively that any rule or regulation affecting the conditions of service of a member of the All India Services causes undue hardship then the iniquitous consequence thereof may be relieved against by relaxation of the concerned Rule or Regulation. There must be undue hardship and further the relaxation must promote the dealing with the case “in a just and equitable manner”. These are perfectly sensible guide lines. What is more there is implicit in the Rule the compliance with natural justice so that nobody may be adversely affected even by administrative action without a hearing.” In Syed Khalid Rizvi and others Versus Union of India and others 1993 SuppSCC 575 while considering All India ServicesRules 1960 it was held that no employee has a right to promotion but he has only the right to be considered for promotion as per Rules. Conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to rules. The former cannot be relaxed. Relevant paras are as under: “31. No employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are Hig h C o urt of H.P on 06 05 HCHP 14 defeasible … Accordingly we hold that seniority though normally an incidence of service Seniority Rules Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable. 33. Rule 3 of the Residuary Rules provides the power to relax rules and regulations in certain cases where the Central Government is satisfied that the operation of any rule made or deemed to have been made under the Act orany regulation made under any such rule regulating the conditions of service of persons appointed to an All India Service “causes undue hardship in any particular case” it may by order dispense with or relax the requirements of that rule or regulation as the case may be to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a “just and equitable manner”. Rule 3 empowers the Central Government to relief undue hardship caused due to unforeseen or unmerited circumstances. The Central Government must be satisfied that the operation of the rule or regulation brought about undue hardship to an officer. The condition precedent therefore is that there should be an appointment to the service in accordance with rules and by operation of the rule undue hardship has been caused that too in an individual case. The Central Government on its satisfaction of those conditions have been empowered to relieve such undue hardship by exercising the power to relax the condition. It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed. The latter too must be in writing that too with the consultation of UPSC …..” Hon’ble Apex Court in Suraj Parkash Gupta and others Versus State of J&K and others 7 SCC 561 after taking note of various pronouncements on the subject observed that relevant Recruitment Rule for promotion cannot itself be treated as one producing hardship. Relevant para in this regard reads as under: Hig h C o urt of H.P on 06 05 HCHP 15 “32. On facts the reasons given in the Cabinet note for granting relaxation are hopelessly insufficient. In fact the letter of the Commission dated 25 11 1997 shows that the Commission was prepared to give its opinion in regard to regularisation of each promotee but the Government backed out when the Commission called for the records relevant for considering suitability for regular promotion. In our view there can be no hardship for a person seeking appointment or promotion to go by the procedure prescribed therefor. The relevant Recruitment Rule for promotion cannot itself be treated as one producing hardship. Narender Chadha case must be treated as an exception and not as a rule. In fact if such relaxation is permitted in favour of the promotees then the same yardstick may have to be applied for direct recruits. In fact the J&K Government has already started to do so and this has not been accepted by this Court in Narinder Mohan case and Dr. Surinder Singh Jamwal case referred to above. If it is to be held that direct recruitment can also be permitted without consulting the Service Commissionto the post of Planning & Development Officer. However keeping in view the requirement of work he is given the additional charge of the said post without any financial benefits till further orders.” Hig h C o urt of H.P on 06 05 HCHP 18 This was followed by an order dated 12.11.2014 whereunder petitioner was to look after the work of Planning & Development Officer in addition to his own duties without any financial benefits till further orders: “Shri Bishan Singh Chandel Deputy Registrar Estate Office will look after the work of Planning & Development Officer with immediate effect in addition to his own duties without any financial benefits till further orders.” It is an admitted fact that the petitioner worked as Planning & Development Officer w.e.f. 12.11.2014 till his superannuation on 31.03.2015. In support of petitioner’s claim of pay of this post reliance has been placed upon a decision rendered in CWP(T) No.70908. 4(ii)(b). In CWP(T) No.70908 titled Shiv Dayal Kataria Versus Himachal Pradesh University a Co ordinate Bench of this Court while taking note of the fact that the petitioner therein had worked as Superintending Engineer in the respondent University held him entitled for financial benefits attached to the post. Paras 8 and 9 of the judgment read as under: “8. Now the Court has to advert to the second limb of argument of Mr. Dilip Sharma. According to him his client was permitted to discharge the duties of Superintending Engineer. This order was passed by the Registrar of the respondent University on 03.03.1994 whereby the petitioner was invested with the powers of Superintending Engineer and was to function as overall Incharge of the three engineering wingsof the respondent University. He made representation seeking benefit of the services he had Hig h C o urt of H.P on 06 05 HCHP 19 rendered as Superintending Engineer on 09.09.1997. The Vice Chancellor on 11.09.1997 as per his endorsement stated as follows: “Allowed if it is on record that Sh. S.D. Kataria has performed the duties of S.E. for more than 3 years.” 9. It is not denied by the respondents in the reply that the petitioner has not worked as Superintending Engineer. The objection raised by the respondent University is that firstly it was made clear to the petitioner that he will not get any financial benefits as per office order dated 03.03.1994 and secondly the Vice Chancellor had no jurisdiction authority under the Himachal Pradesh University Ordinances to pass orders on 11.09.1997. According to the respondent University the competent authority in the case of category B is the Executive Council of the University and not the Vice Chancellor. It is true that to take a decision with regard to appointment suspension removal from office fixing of salary control or any other kind of matter as far as employees of categories ‘A’ and ‘B” are concerned the competent authority was the Executive Council. The petitioner was also informed on 03.03.1994 that he will not be entitled to any financial benefits. However fact of the matter is that petitioner has worked for more than three years as Superintending Engineer and an endorsement was also made by the Vice Chancellor on 11.09.1997 in favour of the petitioner. An employee cannot be deprived of his right to get higher salary if he discharges the duties of higher office. In this case the petitioner was permitted to work as Superintending Engineer. Superintending Engineer is a higher post and the post of Executive Engineer is in feeder category. A person who performs the duties of higher office must get the salary of the same post. He cannot waive of his fundamental legal right to get the higher salary even if an endorsement was made in the office order that the petitioner will not get the monetary benefits. Petitioner is also entitled to get the salary of the post of Superintending Engineer on the well recognized principle of “equal pay for equal work”. The Executive Council no doubt is the competent authority to take decisions with regard to ‘A’ and ‘B’ categories of employees governing their conditions of service but once the endorsement has been made by the Vice Chancellor the matter was required to be taken before the Executive Council. The respondent University in its own wisdom has not taken up the matter with the Executive Council. The petitioner was permitted to discharge the duties of the post of Superintending Engineer. The Court has also taken note of the fact that even though the post of Superintending Engineer was not available however the petitioner was still invested with the powers as were exercised by the Superintending Engineer of H.P.P.W.D. In view of this Hig h C o urt of H.P on 06 05 HCHP 20 the petitioner cannot be denied the salary of the post of Superintending Engineer for working more than three years as Superintending Engineer.” LPA No.1010 preferred by the respondent University against the above judgment was dismissed vide judgment dated 27.10.2015. Learned Standing Counsel for the respondent has not disputed the fact that the above judgment has since attained finality and stands implemented. The ratio of the above judgment applies to the facts of the instant case as well. Here also the petitioner had admittedly discharged the duties of the higher post of Planning & Development Officer w.e.f. 12.11.2014 till his superannuation on 31.03.2015. This was pursuant to an order passed by the respondent in terms of the decision taken by the Competent Authority. The post of Planning & Development Officer lying vacant w.e.f. 21.07.2014 was a higher post in line of promotion from the post of Deputy Registrar substantively held by the petitioner. Therefore following the dictum of Shiv Dayal Kataria’s case supra in the facts and attending circumstances of the case petitioner deserves to be granted the pay scale attached to the said post. No other point was urged by either of the parties. Hig h C o urt of H.P on 06 05 HCHP 21 In view of above discussion petitioner’s claim for retrospective promotion to the post of Planning & Development Officer w.e.f. 01.09.2014 is held to be not tenable. However respondent University is directed to release the pay and allowances alongwith consequential benefits to the petitioner for discharging the duties of Planning & Development Officer w.e.f. 12.11.2014 to 31.03.2015 within a period of six weeks from today. The writ petition is disposed of in the above terms. Pending miscellaneous application(s) if any also stand disposed of. Jyotsna Rewal Dua Judge May 05 2021 Mukesh 

Summary: The post of Planning &amp; Development Officer lying vacant w.e.f. 21.07.2014, was a higher post in the line of promotion from the post of Deputy Registrar substantively held by the petitioner. Therefore, following the dictum of Shiv Dayal Kataria’s case, supra, in the facts and attending circumstances of the case, the petitioner deserves to be granted the pay scale attached to the said post. This was held in  Bishan Singh Chandel V. Himachal Pradesh University and another[CWPOA No.5378 of 2019] in the High Court of Himachal Pradesh by the single bench consisting of Justice Jyotsna Rewal Dua. Facts are that the petitioner was the senior-most Deputy Registrar. The petitioner had been ordered to give an additional charge to the post of Planning &amp; Development Officer but he had not been given the pay scale (financial benefits) attached to the post. Thus the petitioner has preferred the writ petition. The counsel for the petitioner contended that in any case, the respondent had taken the work of Planning &amp; Development Officer from the petitioner w.e.f. 12.11.2014 and superannuated while discharging the duties of the said post. Thus the financial benefits attached with the post are deserved and need to be granted. The Court made reference to the judgment of Co-ordinate Bench of Himachal  High court in Shiv Dayal Kataria Versus Himachal Pradesh University, wherein the following observation had been made,“ A person, who performs the duties of higher office, must get the salary of the same post. He cannot waive of his fundamental/legal right to get a higher salary, even if an endorsement was made in the office order that the petitioner will not get the monetary benefits. Petitioner is also entitled to get the salary of the post of Superintending Engineer on the well-recognized principle of “equal pay for equal work”