Bharat Sanchar Nigam Ltd. vs Shri S.N. Paracer And Ors.
2013 Latest Caselaw 4222 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Date of decision: 17.09.2013
+                         W.P.(C) 8122/2011
       BHARAT SANCHAR NIGAM LTD
                                                                ..... Petitioner
                          Through : Sh. Sameer Agrawal, Advocate.

                          versus

       SHRI S.N.PARACER AND ORS
                                                             ..... Respondents

Through : Sh. Naresh Kaushik, Advocate, for Resp. No.1.

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. Bharat Sanchar Nigam Limited (BSNL) claims to be aggrieved by an order of the Central Administrative Tribunal (CAT) dated 05.04.2011 where the respondent's application was allowed.

2. The brief facts are that the respondent, an employee of BSNL, at the relevant time was working as Superintending Engineer (Electrical) [hereafter referred to as SE (E)]; by the order dated 30.04.2003, he was asked to "look-after" the post of Chief Engineer (Electrical) [hereafter referred to as CE(E)] and functioned as such. It is not in dispute that eventually the respondent retired from the service without being regularly promoted as CE(E). Claiming that he had been arbitrarily denied the pay prescribed for the higher post of

W.P.(C)8122/2011 Page 1 CE(E), and also claiming entitlement to pensionary benefits on the basis of such fixation, the respondent approached the Court by filing a Writ Petition which was later transferred to the CAT. By the impugned order, relying upon certain rulings of the Supreme Court, the CAT allowed the respondent's claim, to the extent of the respondent's entitlement to the differential salary, for the period he functioned as CE(E).

3. BSNL argues in these proceedings that the CAT's findings are untenable and relies upon the judgments reported as State of Haryana v. R.K. Aggarwal 1997 (6) SCC 509. It was argued that the CAT wrongly held that the respondent had discharged statutory functions for the duration he held the higher post. Learned counsel emphasized the fact that the respondent never really discharged any statutory functions as an "appointing authority" or "disciplinary authority", designated under the rules. In these circumstances, his tenure being tenuous, the claim for salary could not have been entertained, especially in view of express terms of the orders which conferred "looking-after" responsibility. Learned counsel stressed upon the fact that in terms of the order, the respondent was not entitled to higher salary attached to the post.

4. This Court has carefully considered the submissions as well as the records. The CAT was considerably influenced by the rulings of the Supreme Court in three judgments, i.e. Selvaraj v. Lt. Governor, Port Blair and Ors. 1998 (4) SCC 291; Judhistir Mohanty v. State of Orissa and Ors. 1996 (VIII) AD (SC) 733 and a decision of the Division Bench judgment of this Court in Govt. of NCT of Delhi and

W.P.(C)8122/2011 Page 2 Ors. v. Shri S.C. Gupta and Ors. [W.P.(C) 724/2010 (decided on 06.09.2010)]. In the latter decision, the Court took note of other decisions of the Supreme Court and also took note of Fundamental Rule 49 which regulates the pay of an individual asked to officiate on a temporary basis on independent basis or of higher responsibility. The rule clearly mandates that in addition to ordinary pay, he shall be allowed the pay admissible to him if he is appointed to officiate in the higher post. In S.C. Gupta (supra), the Court relied upon the decision in Balbir Singh Dalal and Ors. v. State of Haryana and Anr. 2002 (4) SCT 422. In all these cases, relied upon by the CAT - Selvaraj (supra); Judhistir Mohanty (supra) and S.C. Gupta (supra), the official was held entitled on the ground that he discharged duties, functions and responsibilities attached to a higher post. The Court was in no way concerned with whether such official did or did not discharge statutory functions - a point of distinction which is sought to be urged by the BSNL. Even otherwise, the discharge of a particular kind of statutory function, upon which much emphasis is laid, cannot be decisive of the person's entitlement under FR 49 because the principle behind it is that as long as the individual is discharging or asked to discharge functions or powers attached to higher post, he should be paid the salary prescribed for such post. The CAT noted, in our view rightly, that the facts in R.K. Aggarwal (supra) were somewhat different; the vacancy was on account of pending litigation and the petitioner there had demanded that he be given pay scale which was denied by the State. Such is not the case in the present instance. The respondent and the others were in fact

W.P.(C)8122/2011 Page 3 appointed on "look-after" arrangement. He would be entitled to the pay prescribed for the post in which he officiated and eventually superannuated while so officiating. In the light of the above discussion, the Court finds no infirmity with the reasoning or finding of the CAT. The writ petition is accordingly dismissed.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) SEPTEMBER 17, 2013

W.P.(C)8122/2011 Page 4