Punjab-Haryana High Court
Varinder Singh vs State Of Punjab And Ors on 18 March, 2024
Neutral Citation No:=2024:PHHC:038726
CWP-28462-2018 2024:PHHC:038726
1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
229 CWP-28462-2018
Date of decision: 18.03.2024
Varinder Singh
....Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
*****
Present : Mr. Vikas Kuthiala, Advocate for the petitioner
Mr. Arun Gupta, DAG, Punjab
* ****
AMAN CHAUDHARY. J. (ORAL)
1. The prayer in the present Civil Writ Petition filed under Article
226oftheConstitutionofIndia,istoissueawritinthenatureofmandamus,to
paythearrearsofpayarisingduetothehigherpayadmissibletothepostofthe
District Town Planner along with interest.
2. Learned counsel would submit that the petitioner, who was
working as Assistant Town Planner, being senior most andeligiblewasgiven
current duty charge for the post of District Town Planner vide order
27.08.2010, Annexure P-4, in addition to his original duties, which he
continued to perform for 4 years and 6 months, till his regular promotion on
11.02.2015,AnnexureP-5.However,aconditionwasincorporatedthereinthat
he shall not be entitled to financial benefits, for which he relied on State of
Punjabvs.B.K.Dhir,(2017)9SCC337whereinHon'bletheSupremeCourt
dealt with a similar issue, which was followed by the Division Bench of this
CourtinLPA-1629-2023,titledasStateofHaryanaandanothervs.Pardeep
Narayan, decided on 06.11.2023 andalsoonajudgmentofFullBenchinthe
case of Subhash Chander vs. State of Haryana and others, 2012(1) PLR
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778.
3. The relevant paras ofBK Dhir(supra), read thus:
" 5. This Court today inthecaseof"TheStateofPunjab&
Another v. Dharam Pal", Civil Appeal No. 1549 of 2011,
afterreferringtotheauthoritiesinSmt.P.Groverv.Stateof
Haryana and another, AIR 1983 Supreme Court 1060 and
Secretary-cum-Chief Engineer, Chandigarh v. Hari Om
Sharma and others, 1998(3) S.C.T. 90 : (1998) 5 SCC 87
and appreciating the similar factual matrix has held thus:
"Intheinstantcase,theRulesdonotprohibitgrantof
pay scale. The decision of the High Court granting
thebenefitgetssupportfromtheprincipleslaiddown
in Smt. P. Grover (supra) and Hari Om Sharma
(supra).AsfarastheauthorityinA.Francis(supra)is
concerned, we would like to observe that the said
casehastorestonitsownfacts.Wemayclearlystate
that by an incorporation in the order or merely by
giving anundertakinginallcircumstanceswouldnot
debar an employee to claim the benefits of the
officiating position.Wearedisposedtothinkthatthe
controversy iscoveredbytheratiolaiddowninHari
Om Sharma (supra) and resultantly we hold that the
view expressed by the High Court is absolute
impeccable."
6. The learned counsel for the State of Punjab referring to
the Punjab Civil Services Rules (for short, "Rules"), urged
that the respondent was not eligible to hold the post. Be it
noted, the said stand was not taken before the High Court
and, in any case, we are disposed to think that when the
respondent had workedintheofficiatingpostandhadbeen
granted the benefits by the High Court, he should be
extended the said benefits. Had there beenacontestonthe
score of eligibility of the respondent, possibly the matter
wouldhavebeendifferent.Thatnotbeingthefactsituation,
wearenotinclinedtointerferewiththeorderpassedbythe
High Court."
4. The Division Bench of this Court in Pardeep Narayan (supra)
wherein, as the present case, there was a stipulation in order directing himto
dischargethedutiesofahigherpostthatheshallnotbeentitledtoanyfinancial
benefit on account of the same, observed thus:
" 4.Asisevidentthattherespondentwasassigneddutiesof
ahigherpostbytheDepartmentagainstavacantpostonits
own volition, he having no role to play whatsoever in the
same, which was for a period of three years onthepostof
District Commander, till he retired on attaining the age of
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s uperannuation, albeit with a caveat that he shall not be
entitled to the pay-scale or seniority of the said post.
5. The respondent, who is said to have received
commendation certificatesinrecognitionofmaintenanceof
law and order displaying address acuteness, industry and
devotion to duty and his active cooperation with Home
Guards, Haryana and given cash reward on a number of
occasion, Annexures A-1 (colly) appended with the writ
petition, vacancy forthehigherpostbeingavailableandhe
being the senior most in the feeder cadre but ironically
instead of considering him for grant of regular promotion,
he was made to perform duties of the higher post without
any financial benefit thereof. It is a clear case of the
Department being in the wrong.
6.It is trite that there is no estoppel against law.
7. An endeavour to canvass non-entitlement to the pay of
thehigherpostonaccountofthecondition,isrequiredtobe
deprecated, it being exploitary and incorporated by the
State, which is inadominantposition.Needlesstosaythat
the aforesaid decision was unilateral and therefore not
enforceable.
8. Gainful it would be to refer to the dictum in State of
Punjab vs. B.K. Dhir, (2017) 9 SCC 337, which is
intrinsically applicabletothepresentfactsinasmuchas,the
respondent therein was not paid the salary while having
made to officiate on a higher post, wherein Hon'ble the
Supreme Court while affirming the order of the Division
Bench of the High Court observed that it was incumbent
upontheDepartmenttopayhimthesalaryfortheperiodhe
had worked onthesaidpost,despitetheconditionimposed
in the order that he would do so without any extra
emoluments.
9.Asafalloutandconsequenceoftheafore-discussion,we
find that the respondent was rightly allowed the benefit of
salaryfortheperiodheperformeddutiesonthehigherpost,
regardless of any condition incorporated as an impediment
to his cause."
5. The operativeportionofSubhashChander(supra),whereinalso
aconditionhadbeenimposedofinsteadofdrawingsalaryofhigherpostinher
own salary scale, it was observed and held thus:
" 15. We are further oftheviewthatRule4.13oftheRules
would virtually sound like the principle laid down in the
judgmentofHon'bletheSupremeCourtinSmt.P.Groverv.
State of Haryana, AIR 1983 Supreme Court 1060. In that
case, an employee in the State of Haryana was given
promotion as acting District Education Officer about two
years before her superannuation. The order giving her
promotion as an acting District Education Officer reciteda
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c ondition that she was to draw salary inherownpayscale
which meantthatherscalewouldcontinuetobethatofthe
post of Principal, Higher Secondary School. Accordingly,
their Lordships' ofHon'bletheSupremeCourtacceptedthe
claim of Smt. P. Grover as if the principles laid down in
Rule 4.13 of the Rules have been applied. The concluding
para of the judgment reads as under :
"3.Wementionedthatshewaspromotedasanacting
District Education Officer with effect from July 19,
1976.Theorderofpromotioncontainedasuperadded
condition that she would draw her own pay scale
which apparently meant that she would continue to
draw her salary on her pay scale prior topromotion.
The initial order was extending her services recited
that shewasanactingDistrictEducationOfficer,but
containedasuperaddedconditionthatherpaywould
not be more than the maximum of the principal's
grade.Smt.Groverclaimsthathavingbeenpromoted
as District Education Officer and there was no
justification for denying the same to her. A writ
petitionfiledbyherwasdismissedbytheHighCourt
ofPunjabandHaryanaandsheisbeforeusbywayof
special leave under Article 136 of the Constitution.
The counter-affidavit filed on behalf of the
Government of Haryana offers no rational
explanationfordenyingthepayofDistrictEducation
Officer to Smt. P. Grover after she was promoted to
act as DistrictEducationOfficer.Allthatwassaidin
the counter-affidavit was that there was no Class-I
posts available and therefore she was not entitled to
be paid the salary of District Education Officer. We,
are unable to understand the reason given in the
counter-affidavit. She was promoted to the post of
DistrictEducationOfficeraClass-Ipost,onanacting
basis. Our, attention was not invited to any Rule
which provides that promotion on an Acting basis
would not entitle the officer promoted to the pay of
the post. In the absence of any rule justifying such
refusal topaytoanofficerpromotedtoahigherpost
the salary of such higher post (the validity ofsucha
rule would be doubtful if it existed), we must hold
that Smt. Grover is entitled be paid the salary of a
District Education Officer from the date she was
promoted to the post,thatis,July19,1976,untilshe
retired from service on August 31, 1980.Theappeal
is accordingly, allowed with costs."
17. In view of the above, the question posed inpara
No. 1 is answered inaffirmativeanditisheldthatif
an employee is appointed to officiate on a post
involving assumption of duties and responsibility of
greater importance than those attaching to the
substantive post then he would be entitled to the
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s alary of his officiating post in higher grade.
Accordingly, the petitioner is held entitled to the
higher pay scale from the date he has assumed the
chargeofthepostofSecretarywithallconsequential
benefits including promotion. His pay may be
re-fixed andthearrearsofhispayshallbecalculated
fromthedatewhenhehasbeenofficiatingonthepost
of Secretary, Municipal Committee. The payment of
arrears shall be made within three months from the
dateofreceiptofacertifiedcopyofhisorderwithall
consequential benefits.
18.Accordingly,thewritpetitionisdisposedofinthe
above terms."
6. LearnedStatecounselwasunabletocontrovertthefactualposition
and draw out any distinctive aspects in the aforementioned judgments or cite
any contrary law.
7. In view of the aforesaid, the present petition is disposed of in
terms of the judgments passed in BK Dhir, Pardeep Narayan and Subhash
Chander(supra).
(AMAN CHAUDHARY)
JUDGE
1 8.03.2024
Hemant
hether speaking/reasoned
W : es / No
Y
Whether reportable : Yes / No
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