Himachal Pradesh High Court
Union Of India vs Hari Om Sharma And Others on 21 September, 2021
Bench: Ravi Malimath, Justice, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 21st DAY OF SEPTEMBER 2021
BEFORE
.
HON'BLE MR. JUSTICE RAVI MALIMATH,
ACTING CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 553 of 2016
Between:-
1. UNION OF INDIA,
THROUGH SECRETARY,
MINISTRY OF HUMAN RESOURCE
DEVELOPMENT, GOVT. OF INDIA,
NEW DELHI
2. INDIAN INSTITUTE OF ADVANCE STUDY,
RASHTRPATI NIWAS, SHIMLA-171005,
THROUGH ITS SECRETARY
3. THE DIRECTOR,
INDIAN INSTITUTE OF ADVANCED STUDY,
RASHTRAPATI NIWAS, SHIMLA-171005,
THROUGH ITS SECRETARY
......PETITIONERS
(BY SH. BALRAM SHARMA, ASSISTANT
SOLICITOR GENERAL OF INDIA)
AND
S.M. MASKE
S/O SHRI MADHAV RAO MASKE,
R/O VILLAGE AND POST OFFICE
LAMAJANA, VIA-KILLARI,
TEHSIL AUSA, DISTRICT LATUR
(MAHARASHTRA)-413516,
::: Downloaded on - 31/01/2022 23:06:13 :::CIS
-2-
RETIRED AS ASSISTANT LIBRARIAN,
INDIAN INSTITUTE OF ADVANCE STUDY,
SHIMLA W.E.F. 31.7.2014
......RESPONDENT
(BY SH. KARAN SINGH PARMAR,
.
ADVOCATE)
This petition coming on for hearing this day, Hon'ble
Ms. Justice Jyotsna Rewal Dua, passed the following:
ORDER
The Central Administrative Tribunal, vide impugned
order, has allowed the original application filed by the respondent.
Petitioners were directed to release the pay and allowances of the
higher post of Librarian w.e.f. 22.01.2007 to 30.03.2009, in favour of
the respondent, who discharged duties of this higher post for the
period in question.
2. Facts:-
2(i). The respondent was appointed as Library Assistant on
05.12.1975. He was promoted as Assistant Librarian in the year
2006.
2(ii). On 22.01.2007, respondent was ordered to look after
the charge of the post of Librarian in addition to his own duties of
Assistant Librarian, until further orders. In compliance to this order,
the respondent performed duties of higher post of Librarian w.e.f.
22.01.2007 to 30.03.2009. While performing the duties of the higher
post, the respondent requested the present petitioners for the
financial benefits attached to the post of Librarian.
2(iii). On 16.03.2012, the petitioners sanctioned payment of
.
Rs.21,291/- in favour of the respondent for additional work done by
him on the post of Librarian from 22.01.2007 to 30.03.2009 in
addition to his own duties @ Rs.1000/- per month. The amount was
payable as honorarium. The respondent accepted the honorarium
under protest.
2(iv). The respondent continued to request the petitioners to
release him the financial benefits as per Fundamental Rule 49(i).
The request was rejected by the petitioners on 13.12.2013. On
08.04.2014, the petitioners sanctioned additional honorarium of
Rs.26,291/- in favour of the respondent towards his holding the
additional charge of the post of Librarian for the period in question in
addition to his own duties. On rejection of respondent's case for
granting him emoluments admissible to the post of Librarian for the
period in question, he filed original application before the learned
Central Administrative Tribunal, Chandigarh (in short 'Tribunal') for
the following substantive relief:-
"(i) That the impugned order, dated 13.12.2013;
order, dated 8.4.2014 and order, dated 10.3.2014
may very kindly be quashed and set aside and the
respondents be directed to grant all accrued benefits
to the applicant under Fundamental Rule 49(i) and
after granting the benefit to the applicant under FR
49(i), the applicant may be released all the due and
.
admissible monetary benefits, with interest @ 24%
per annum."
2(v). The petitioners contested the original application as
respondents before the learned Tribunal. In nutshell, their stand
before the learned Tribunal was that an amount of Rs.52,582/- @
Rs.2000/- per month under F.R. 35 for the period 22.01.2007 to
30.03.2009 had been rightly sanctioned and paid to the present
respondent (original applicant before the Tribunal) for holding
additional charge of the post of Librarian.
2(vi). Learned Tribunal vide order dated 07.10.2015, allowed
the original application. The impugned orders were quashed and set
aside. The petitioners were directed to release the difference of pay
and allowances of the higher post to the respondent for the period in
question. Aggrieved against the order of the learned Tribunal, the
employer has preferred the present writ petition.
3. We have heard learned counsel for the parties and
gone through the record.
Learned Assistant Solicitor General of India for the
petitioners submitted that vide order dated 22.01.2007, the
respondent was only asked to look after the charge of the post of
Librarian in addition to his own duties as Assistant Librarian until
further orders. It was submitted that a total amount of Rs.52,582/-
.
(5000+21291+26291) was sanctioned in favour of the respondent
for holding the additional charge of the post of Librarian w.e.f.
22.01.2007 to 30.03.2009. This sanction was @ Rs.2000/- per
month and in terms of F.R. 35. The case of the respondent was
dealt with strictly in accordance with F.R. 35 and in consonance with
the office memorandums of the petitioners. The impugned judgment,
allowing the respondent benefit of pay and allowances of the post of
Librarian, is not sustainable.
Learned counsel for the respondent defended and
supported the impugned order.
4. Observations:-
4(i). The facts are not in dispute. The respondent was
serving as Assistant Librarian on 22.01.2007, when he was formally
ordered to hold the additional charge of the post of Librarian in
addition to his own duties. The order was passed with the approval
of the competent authority. The respondent continued to hold
additional charge of the post of Librarian till 30.09.2009. The post of
Librarian is higher in rank to the post of Assistant Librarian. Its duties
and responsibilities are also higher. The office order dated
22.01.2007 was not restricted only to discharge of formal duties by
the respondent. The fact that the respondent had performed all the
duties of the higher post of Librarian for the period in question, is not
.
even in dispute.
4(ii). The argument advanced by learned Assistant Solicitor
General of India that case of respondent was dealt with in
accordance with F.R. 35, is misplaced. F.R. 35 will not come to the
rescue of the petitioners in the facts of the instant case. F.R. 35
reads as under:-
"F.R. 35. The Central Government may fix the pay of
an officiating Government servant at an amount less
than that admissible under these rules."
Office memorandums issued by the Government of
India have clarified that restrictions of officiating pay under F.R. 35
should not be invoked in respect of regular cadre promotions. It has
also been clarified that F.R. 35 operates only in respect of
appointments by transfer on deputation. The respondent was neither
appointed by transfer nor by deputation against the higher post of
Librarian, therefore, F.R. 35 cannot be invoked by the petitioners for
denying his claim of higher pay for discharging the higher duties and
responsibilities attached to the higher post of Librarian w.e.f.
22.01.2007 to 30.03.2009.
4(iii). In the above factual background, it will be apposite to
refer to F.R. 49, which reads as under:-
"F.R. 49. The Central Government may appoint a
.
Government servant already holding a post in a
substantive or officiating capacity to officiate, as a
temporary measure, in one or more of other
independent posts at one time under the
Government. In such cases, his pay is regulated as
follows:-
(i) where a Government servant is formally
appointed to hold full charge of the duties of a
higher post in the same office as his own and in
the same cadre/line of promotion, in addition to
his ordinary duties, he shall be allowed the pay
admissible to him, if he is appointed to officiate in
the higher post, unless the Competent Authority
reduces his officiating pay under Rule 35; but no
additional pay shall, however, be allowed for
performing the duties of a lower post;
(ii) where a Government servant is formally
appointed to hold dual charges of two posts in the
same cadre in the same office carrying identical
scales of pay, no additional pay shall be
admissible irrespective of the period of dual
charge:
Provided that, if the Government servant is
appointed to an additional post which carries a
special pay, he shall be allowed such special pay;
(iii) where a Government servant is formally
appointed to hold charge of another post or posts
which is or are not in the same office, or which,
though in the same office, is or are not in the
.
same cadre/line of promotion, he shall be allowed
the pay of the higher post, or of the highest post,
if he holds charge of more than two posts, in
addition to ten per cent of the presumptive pay of
the additional post or posts, if the additional
charge is held for a period exceeding 45 days but
not exceeding 3 months:
Provided that if in any particular case, it is
concerned necessary that the Government
servant should hold charge of another post or
posts for a period exceeding 3 months, the
concurrence of the Department of Personnel and
Training] shall be obtained for the payment of the
additional pay beyond the period of 3 months;
(iv) where an officer is formally appointed to
hold full additional charge of another post, the
aggregate of pay and additional pay shall in no
case exceed Rs.26,000;
(v) no additional pay shall be admissible to a
Government servant who is appointed to hold
current charge of the routine duties of another
post or posts irrespective of the duration of the
additional charge;
(vi) If compensatory or sumptuary
allowances are attached to one or more of the
posts, the Government servant shall draw such
compensatory or sumptuary allowances as the
Central Government may fix:
Provided that such allowances shall not exceed
.
the total of the compensatory and sumptuary
allowances attached to all the posts."
In terms of F.R. 49(i), if an officer is ordered to
discharge all the duties of higher post under a formal order, then, he
is to be granted additional remuneration. The respondent was
formally appointed to hold additional charge of the post of Librarian,
in addition to his own duties as Assistant Librarian. He discharged
all the duties attached to the post of Librarian for the period in
question.
4(iv). In (1998) 5 SCC 87, titled Secretary-cum-Chief
Engineer, Chandigarh Versus Hari Om Sharma and others, the
respondent therein was promoted on stop-gap arrangement. An
undertaking was obtained from him that he would not claim the
salary of higher post or any other benefit. Holding such undertaking
to be illegal, it was held that pay of higher post cannot be denied,
even if the respondent was working on the higher post on officiating
basis or stop-gap arrangement. Relevant paragraphs of the
judgment are as under:-
- 10 -
"6. ........................ It is true that the respondent,
to begin with, was promoted in stop-gap arrangement
as Junior Engineer I but that by itself would make no
difference to his claim of salary for that post. If a
.
person is put to officiate on a higher post with greater
responsibilities, he is normally entitled to salary of
that post..................................
7. .....................................
8. Learned counsel for the appellant attempted to
contend that when the respondent was promoted in
stop-gap arrangement as Junior Engineer I, he had
given an undertaking to the appellant that on the
basis of stop-gap arrangement, he would not claim
promotion as of right nor would he claim any benefit
pertaining to that post. The argument, to say the
least, is preposterous. Apart from the fact that the
Government in its capacity as a model employer
cannot be permitted to raise such an argument, the
undertaking which is said to constitute an agreement
between the parties cannot be enforced at law. The
respondent being an employee of the appellant had
to break his period of stagnation although, as we
have found earlier, he was the only person amongst
the non-diploma-holders available for promotion to
the post of Junior Engineer I and was, therefore, likely
to be considered for promotion in his own right. An
agreement that if a person is promoted to the higher
post or put to officiate on that post or, as in instant
case, a stop-gap arrangement is made to place him
- 11 -
on the higher post, he would not claim higher salary
or other attendant benefits would be contrary to law
and also against public policy. It would, therefore, be
unenforceable in view of Section 23 of the Contract
.
Act, 1872."
In (2017) 9 SCC 395, titled State of Punjab and
another Versus Dharam Pal, the appellant-State of Punjab had
challenged the judgment passed by the Division Bench of the High
Court, whereby the prayer of the respondent for getting the benefit
of the pay scale of the post he was holding on officiating basis was
accepted. Various precedents on the point were noticed by the
Hon'ble Apex Court. The law laid down in P. Grover Versus State
of Haryana, (1983) 4 SCC 291 and in Hari Om Sharma's case,
supra, was relied upon and followed for dismissing the appeal filed
by the State of Punjab. Relevant paragraph of the judgment reads
as under:-
"22. In the instant case, the Rules do not prohibit
grant of pay scale. The decision of the High Court
granting the benefit gets support from the principles
laid down in P. Grover and Hari Om Sharma. As far
as the authority in A. Francis is concerned, we would
like to observe that the said case has to rest on its
own facts. We may clearly state that by an
incorporation in the order or merely by giving an
- 12 -
undertaking in all circumstances would not debar an
employee to claim the benefits of the officiating
position. We are disposed to think that the
controversy is covered by the ratio laid down in Hari
.
Om Sharma and resultantly we hold that the view
expressed by the High Court is absolutely
impeccable."
It will also be apposite to refer to (2013) 4 SCC 152,
titled Arindam Chattopadhyay and others Versus State of West
Bengal and others. The case pertained to the claim for equal pay
for equal work and parity in pay scale. The petitioners therein by
virtue of stop-gap arrangements, had been given the additional
charge of higher post for years together. Hon'ble Apex Court held
that there was no justification for denying them salary and
allowances of the higher post. Relevant paragraph of the judgment
is as under:-
"13. Reverting to the facts of this case, we find that
although the appellants were recruited as ACDPOs,
the State Government transferred and posted them to
work as CDPOs in ICDS projects. If this would have
been a stop gap arrangement for few months or the
appellants had been given additional charge of the
posts of CDPO for a fixed period, they could not have
legitimately claimed salary in the scale of the higher
post, i.e. CDPO. However, the fact of the matter is
- 13 -
that as on the date of filing of the Original Application
before the Tribunal, the appellants had continuously
worked as CDPOs for almost 4 years and as on the
date of filing of the writ petition, they had worked on
.
the higher post for about 6 years. By now, they have
worked as CDPOs for almost 14 years and
discharged the duties of the higher post. It is neither
the pleaded case of the respondents nor any material
has been produced before this Court to show that the
appellants have not been discharging the duties of
the post of CDPO or the degree of their responsibility
is different from other CDPOs. Rather, they have
tacitly admitted that the appellants are working as full-
fledged CDPOs since July, 1999. Therefore, there is
no legal or other justification for denying them salary
and allowances of the post of CDPO on the pretext
that they have not been promoted in accordance with
the Rules. The convening of the Promotion
Committee or taking other steps for filling up the post
of CDPO by promotion is not in the control of the
appellants. Therefore, they cannot be penalised for
the Government's failure to undertake the exercise of
making regular promotions."
In the instant case, under a formal order dated
22.01.2007, the petitioners handed over the additional charge of
higher post of Librarian to the respondent in addition to his own
duties as Assistant Librarian until further orders. Respondent
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continued to discharge all the higher duties and responsibilities
attached to the higher post of Librarian from 22.01.2007 till
30.03.2009. Respondent was certainly entitled to the emoluments
.
attached to the post for the period in question. Learned Tribunal
committed no error in allowing the original application filed by the
respondent. We, therefore, find no merit in the instant writ petition
and the same is accordingly dismissed. Pending miscellaneous
application is also disposed off.
( Ravi Malimath )
Acting Chief Justice
( Jyotsna Rewal Dua )
Judge
September 21, 2021
Mukesh
