Himachal Pradesh High Court

Decided On: 12.09.2024 vs State Of Himachal Pradesh And Another on 12 September, 2024

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

                                                                                         2024:HHC:8835
           IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                                .
                                                          CWP No.           5845 of 2024





                                                          Decided on: 12.09.2024
    (Dr.) Rajesh Kaushik                                                  ... Petitioner





                                Versus

    State of Himachal Pradesh and another                                           ... Respondents
    Coram
    Hon'ble Mr. Justice Ajay Mohan Goel, Judge.





    Whether approved for reporting?1 Yes
    ___________________________________________________________________
    For the petitioner      :     Mr. Dilip Sharma, Senior Advocate
                                  with Mr. Manish Sharma, Advocate.


    For the respondents                  :        Mr. Anup Rattan, Advocate General
                                                  with Mr. Rahul Thakur, Deputy
                                                  Advocate General.
    Ajay Mohan Goel, Judge                        (Oral)

Learned Senior Counsel appearing for the petitioner

submits that as the facts narrated in the writ petition have not been

disputed in the reply and as there is a purely legal issue involved in

the writ petition, more so, with regard to the interpretation of FR

17(1), the petitioner does not intend to file any rejoinder to the reply

of the respondents. His statement is taken on record.

2. Heard.

3. Brief facts necessary for the adjudication of the present

petition are that the petitioner joined the Department of Agriculture

as an Assistant Development Officer on 27.04.1989. He gained

promotions in the Department and as on 25.11.2021, he was

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

2024:HHC:8835 promoted against the post of Joint Director of Agriculture.

4. The post of Director of Agriculture, Himachal Pradesh,

fell vacant w.e.f. 01.03.2023, after the superannuation of the

incumbent holding the same on 28.02.2023.

5. In terms of Annexure P-1, the petitioner was assigned

the charge of the post of Director of Agriculture and he assumed the

charge of the said post w.e.f. 02.03.2023 in terms of Annexure P-2.

6. In the interregnum, the petitioner vide Annexure P-3

dated 17.04.2023 was promoted against the post of Additional

Director of Agriculture on regular basis with the stipulation that he

shall continue to hold the charge of post of Director of Agriculture.

7. To cut the controversy short, on 31.07.2023, on the

basis of recommendations of the Departmental Promotion

Committee (minutes whereof are appended with the petition as

Annexure P-5) which recommended the petitioner for promotion to

the post of Director of Agriculture, Himachal Pradesh, in the Level-

31 of pay matrix (Rs.1,48,800-Rs.2,18,600) on regular basis with

immediate effect, the petitioner in terms of Annexure P-7, formally

assumed the regular charge of the post as Director of Agriculture.

He superannuated on the same day.

8. The grievance of the petitioner is that in terms of

Annexure P-11, order dated 01.04.2024, the benefit of pay fixation

on account of promotion conferred upon him against the post of

2024:HHC:8835 Director of Agriculture has been withdrawn on the ground that the

benefit of such pay fixation and pensionary benefits of the post of

Director of Agriculture were to become effective from the next date,

on which the petitioner was promoted. As the petitioner joined the

post after his promotion in the afternoon on 31.07.2023 and as the

promoted officer was no longer in government service on the next

date because he retired on same day, i.e. 31.07.2023. (A.N.),

therefore, office order dated 10.08.2023 qua fixation of pay issued in

respect of the petitioner w.e.f. 31.07.2023 forenoon was bad.

9. Learned Senior Counsel appearing for the petitioner has

submitted that here is a case where the petitioner was performing

the duties of the post of Director of Agriculture, Himachal Pradesh,

w.e.f. 02.03.2023. He continued to do so till he superannuated. On

31.07.2023, on the basis of recommendations of the Departmental

Promotion Committee, which was held on 31.07.2023 itself, he was

recommended for promotion on regular basis against the post of

Director of Agriculture and after the issuance of his promotion order,

he formally took the charge as a regular Director of Agriculture,

Himachal Pradesh on the said date itself.

10. Learned Senior Counsel further submitted that taking

over of the regular charge of the post of Director of Agriculture was

just a formality for the reason that for all intents and purposes, the

petitioner was performing the duties of the post of Director of

2024:HHC:8835 Agriculture since 02.03.2023 and in these peculiar circumstances,

office order dated 01.04.2024 (Annexure P-11) is not sustainable

and the same be quashed and set aside and Annexure P-9, order

dated 10.08.2023, in terms whereof the pay of the petitioner was

fixed and his pensionary benefits were determined, be upheld for all

intents and purposes.

11. On the other hand, learned Advocate General by

referring to the reply of the respondents has submitted that there is

no infirmity or illegality in Annexure P-11. Learned Advocate General

has referred to the reply of the respondents in general and para-8

thereof in particular and submitted that Annexure P-11 was issued

in view of the audit instructions appended with FR-17(2), which

stipulate that a government servant will begin to draw the pay and

allowances attached to his tenure of a post with effect from the date

on which he assumes the duties of that post if the charge is

transferred before noon on that date and if the charge is transferred

in the afternoon, he will commence to draw them from the following

day. Accordingly, he submitted that as in the present case, the

petitioner assumed the regular duties of the post of Director of

Agriculture in the afternoon on 31.07.2023, therefore, Annexure P-

11 was rightly passed as the benefit of pay fixation was accrued on

the next day, i.e. w.e.f. 01.08.2023, but incidentally, on the said

date, the petitioner was not in service. Accordingly, learned Advocate

2024:HHC:8835 General submitted that as there is no merit in the present petition,

the same deserves to be dismissed.

12. Learned Senior Counsel for the petitioner in rebuttal

referred to FR-17(1) and submitted that there is no rider contained

in the Fundamental Rules itself that an incumbent who on his

promotion joins his post in the afternoon is to get pension etc. from

the next date and he further submitted that also as in the present

case, the petitioner was otherwise performing the job of the Director

of Agriculture since 02.03.2023 and his joining as Director of

Agriculture on regular basis was mere a paper formality, therefore

also, the traps of instructions cannot be invoked to deny the benefit

as is being claimed by the petitioner.

13. I have heard learned Senior Counsel appearing for the

petitioner and learned Advocate General and carefully gone through

the pleadings as well as documents appended therewith.

14. The facts are not much in dispute. It is not in dispute

that after the superannuation of the incumbent who was holding the

post of Director of Agriculture on 28.02.2023, the petitioner in terms

of Annexure P-1, dated 02.03.2023 was assigned the charge of the

post of Director of Agriculture. It is also not in dispute that while

discharging the functions of the post of Director of Agriculture, the

petitioner was promoted to the post of Additional Director of

Agriculture on 07.04.2023 vide Annexure P-3 and it was mentioned

2024:HHC:8835 in the said promotion order also that the petitioner will continue to

hold the charge of the post of Director of Agriculture.

15. It is also not in dispute that in terms of the

recommendation of the Departmental Promotion Committee

(Annexure P-5), dated 31.07.2023, the petitioner was recommended

for promotion to the post of Director of Agriculture of Himachal

Pradesh in the pay matrix of Rs.148800-218600 with immediate

effect and on the basis of these recommendations, the Department

issued notification dated 31.07.2023 (Annexure P-6) ordering the

promotion of the petitioner as Director of Agriculture, Himachal

Pradesh, on regular basis in the pay matrix of Rs.1,48,800-2,18,600.

16. In the backdrop of these peculiar facts, but obvious, the

joining of the petitioner on regular basis as Director of Agriculture

was nothing more than a paper formality as the petitioner indeed

was performing the duties of Director of Agriculture for all intents

and purposes since 02.03.2023.

17. It is not as if the petitioner was performing some other

duties till he joined the post of Director of Agriculture after the

issuance of notification Annexure P-6. In this backdrop if one

peruses the instructions being relied upon by the State, the only

inference that can be drawn is that these instructions have no

applicability in the peculiar facts of this case.

18. The instructions would have come into force in case the

2024:HHC:8835 charge of the post had been handed over to the petitioner in the

afternoon. As in the present case, the petitioner was already

performing the duties of Director of Agriculture since 02.03.2023

and there was no incumbent other than the petitioner who was

holding this particular post even on 31.07.2023, there was no

question of the charge being handed over from anyone to the

petitioner.

19. In other words, it was the petitioner, who earlier was

officiating as Director of Agriculture and was posted on regular basis

against the said post by virtue of notification dated 31.07.2023

(Annexure P-6).

20. Therefore, the revocation of Annexure P-9 vide Annexure

P-11 on the basis of instructions referred to in the reply by the

respondents in the considered view of this Court is not sustainable

in law.

21. Otherwise also, a perusal of FR-17(1) demonstrates that

this fundamental rule does not contain any such bar that an

incumbent who was promoted if joins in the afternoon, cannot be

given the benefit of pay fixation from the date of joining. For ready

reference, FR-17(1) is quoted herein below:-

"F.R. 17. (1) Subject to any exceptions specifically made in

these rules and to the provision of sub-rule (2), an officer

shall begin to draw the pay and allowances attached to his

tenure of a post with effect from the date when he assumes

2024:HHC:8835 the duties of that post, and shall cease to draw them as

.

soon as he ceases to discharge those duties:

Provided that an officer who is absent from duty without

any authority shall not be entitled to any pay and

allowances during the period of such absence."

22. Be that as it may, in the present case, as the factual

matrix cannot be ignored while applying either the provisions of FR-

17(1) or the instructions being relied upon by the respondents, this

Court has no hesitation in holding that the office order dated

01.04.2024 (Annexure P-11) passed by the Principal Secretary

(Personnel) to the Government of Himachal Pradesh is perverse and

not sustainable in law.

23. This office order has been passed by the Authority in a

mechanical manner without appreciating the facts of the present

case. The Authority has not taken into consideration that it is not as

if the petitioner was performing some other duties before he was

promoted as Director of Agriculture on 31.07.2023 and it is not as if