Gheem Chand vs State Of Himachal Pradesh And ...
2021 Latest Caselaw 3339 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No.1749 of 2019.

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Reserved on : 30.07.2021.

Date of decision: 02.08.2021.

    Gheem Chand                                                .....Petitioner.

                                   Versus





    State of Himachal Pradesh and others
                                      .....Respondents.


    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Dalip K. Sharma, Advocate.

For the Respondents: Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Additional Advocate Generals with Mr. Bhupinder

Thakur, Deputy Advocate General.

(Through Video Conferencing)

Tarlok Singh Chauhan, Judge

The instant petition has been filed for grant of the

following substantive reliefs:-

"a) That Writ of Mandamus may be issued directing the respondents to grant the pay scale of tailor since the

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

date of appointment to the petitioner, with further revised pay scale from time to time along with interest.

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b) That the petitioner may be held entitled to arrears

of pay and all consequential benefits with further revised pay scale from time to time along with interest."

2. It is averred that the petitioner was appointed as a

Class-IV employee vide order dated 19.08.1985 and was asked

to perform the duties of a tailor. Thereafter vide Office Order

dated 03.05.1989, the petitioner was ordered to be transferred

to CHC, Kotkhai where he joined on 03.05.1989. But, shortly

thereafter the petitioner was relieved from Kotkhai and directed

to report for duty at Ripon Hospital vide order dated

18.07.1989.

3. All throughout this period, the petitioner discharged

his duties as a tailor and acknowledging the performance of

duties as tailor by the petitioner, the CMO issued a certificate on

18.04.1990. The petitioner has thereafter annexed certain

documents collectively as Annexure P-3 to support his

contention that he has been continuously working as a tailor.

4. It is further averred that on 29.08.2005, the

petitioner requested respondent No.2 to promote him to the

post of tailor against vacant post as he was discharging the

duties of a higher post eversince his appointment. However,

the request of the petitioner was not acceded to constraining

him to file the instant petition.

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5. The respondents have contested the petition by

filing reply wherein it is averred that the petitioner was

appointed as a Class-IV and continued as such till his

superannuation on 30.04.2012. The petitioner was neither a

trained tailor nor he was ever appointed as tailor which is a

skillful job in a different cadre. It is claimed that the post of tailor

is Class-III post in different cadre which post was/is required to

be filled up in accordance with the provisions of the existing

and prevailing Recruitment and Promotion Rules and since the

petitioner was not possessed any certificate/diploma of tailoring

from a recognized training institute, therefore, the petition

deserves to be dismissed.

6. I have heard the learned counsel for the parties and

gone through the records of the case which was ordered to be

summoned vide order dated 23.07.2021.

7. At the outset, it needs to be noticed that in the

documents annexed by the petitioner from Annexures P-1 to

P-3, the petitioner all throughout has been shown to be a tailor.

These communications range from the year 1989 to 2009.

8. That apart, the records though show the appointment

of the petitioner to be that of Class-IV, however, there is an

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overwhelming records to establish that the petitioner had in fact

been working as a tailor.

9. What would be the right of an employee working on

a higher post has been dealt with by a Full Bench of the

Madhya Pradesh High Court in M.P. SRTC and another vs.

Narain Singh Rathore, 1994 MP Law Journal 959 (FB)

wherein it was observed as under:-

"17...... To say that an employee who was asked to work on a higher post for a period on account of exigencies of situation is not asking for promotion and he is asking only

for appropriate classification on the post on which he is working is to ignore both the scheme underlying the rules

relating to classification and the promotion rules. An employee may be asked to work in a higher post for some

time on account of administrative exigencies. He does not thereby acquire a right to the higher post, as long as he

has not been promoted by the Competent Authority in accordance with the regulations or rules and on a consideration of all employees in the feeder categories who are in the field of choice. An employee who is not entitled to be considered for promotion or who is yet to be considered for promotion and therefore, cannot be deemed to have been promoted, cannot secure the same end by stating that what he is seeking is classification and not promotion. What cannot be achieved directly cannot

be permitted to be achieved in an indirect manner. It is one thing to say that an employee who has been asked to

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work in a higher post temporarily must get the

emoluments attached to the higher post; it is quite a different thing to say that he must be regarded as a

permanent incumbent of the higher past by being classified as such. The question of exploitation and unfair labour practice does not arise since it will be the duty of the employer to pay him the emoluments attached to the

higher post as long as he discharges the duties attached to the higher post and on the failure of the employer, it will be open to the employee to enforce his claim......"

10. Notably, the aforesaid judgment has been upheld by

the Hon'ble Supreme Court in Dwarika Prasad Tiwari vs.

M.P. State Road Transport Corporation and another

(2001) 8 SCC 322 (Infra).

11. Whether the persons, who are given higher

responsibility and allowed to work continuously over a long

period of time can claim salary for the higher post was

considered by the Hon'ble Supreme Court in the following

decisions.

12. In Selvaraj vs. Lt. Governor of Island, Port Blair

and others AIR 1999 SC 838, the Hon'ble Supreme Court

considered the very issued and held as under:-

"3. It is not in dispute that the appellant looked after the duties of Secretary (Scouts) from the date of the order

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and his salary was to be drawn against the post of

Secretary (Scouts) under GFR 77. Still he was not paid the said salary for the work done by him as Secretary

(Scouts). It is of course true that the appellant was not regularly promoted to the said post. It is also true as stated in the counter-affidavit of Deputy Resident Commissioner, Andaman & Nicobar Administration that

the appellant was regularly posted in the pay scale of Rs 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also

true that had this arrangement not been done, he would

have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter. However,

in our view, these averments in the counter will not change the real position. Fact remains that the appellant

has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and

his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the

salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum meruit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground."

13. In Dwarika Prasad Tiwari vs. M.P. State Road

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Transport Corporation and another AIR 2001 SC 2871, the

Hon'ble Supreme Court held that period for which the

appellants discharged the duties or discharging the duties

attached to a higher post, they should be paid emoluments as

attached to that post.

14. In Jaswant Singh vs. Punjab Poultry Field Staf

Association and others AIR 2002 SC 231, the Hon'ble

Supreme Court held as under:-

"11. The High Courts decision in Gobind Singh's case

did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of chick sexer since Gobind

Singh had been discharging the duties of that post.

Therefore, while the appellants promotion to the post of chick sexer cannot be upheld, given the fact that

the appellant had discharged the duties of a chick sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties.

12.We accordingly allow the appeal in part. While up- holding the order of the High Court, setting aside the order of the appellants promotion, we direct the re- spondent authorities to pay the appellant for the pe- riod he rendered service as a chick sexer at the

scales of pay together with all allowances to which chick sexers were entitled at the relevant time."

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15. In State of Punjab and others etc. vs. Rafiq

Masih AIR 2015 SC 696, the Hon'ble Supreme Court stayed

the recovery by applying the principle that the person having

been allowed to serve on a higher post is entitled to get salary

for the post and in paragraph-11, it was held as under:-

r to "11......that the employees were entitled to wages, fort the post against which they had discharged their duties. In the above view of the matter, we are

of the opinion, that it would be iniquitous and arbi- trary for an employer to require an employee to re- fund the wages of a higher post, against which he

had wrongfully been permitted to work, though he should have rightfully been required to work

against an inferior post."

16. In view of the aforesaid discussion, the writ petition is

allowed and the respondents are directed to grant the pay-scale

of tailor to the petitioner since the date of his appointment

along with revisions that have been carried out from time to

time along with consequential benefits.

17. However, the actual monetary benefits shall be

limited to a period of three years prior to the date of filing of

the Original Application i.e. since 1 st March, 2010, as the same

came to be filed on 27th February, 2013.

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18. These directions be complied with within 90 days,

failing which, the petitioner shall be entitled to interest at the

rate of 6% per annum.

19. For compliance, to come up on 12.11.2021.

2nd August, 2021.

    (krt)
                   r         to       (Tarlok Singh Chauhan)
                                               Judge