Petitioner challenged rejection of her salary claim for officiating as Librarian. Ruling declares payments due to officiating employees despite lack of substantive appointment unless governed by specific rules denying it.
Salary for post of Librarian ordered to be ensured w.e.f. 01.05.1999 within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2024:AHC-LKO:53993
Court No. - 18
Case :- WRIT - A No. - 2000788 of 2005 Petitioner :- Dr.Amita Singh Respondent :- Director Higher Education And 5 Ors Counsel for Petitioner :- Akhilesh Kalra,D.N.Upadhyay,Ram Lagan Mishra,Shireesh Kumar
Counsel for Respondent :- C.S.C,Karuna Shanker Mishra,P L Mishra,S K Upta,V C Mishra
Hon'ble Manish Mathur,J.
and others reported in (2013) 4 SCC 152 , Smt. P. Grover versus State of Haryana and another reported in (1983) 4 SCC 291 , Dr. Jai Prakash Narayan Singh versus State of U.P. and others reported in (2014) 4 UPLBEC 2642 and Jaswant Singh versus Punjab Poultry Field Staff Association and others reported in (2002) 1 SCC 261 .
"7. Learned counsel for the appellant has placed reliance on Sreedam Chandra Ghosh v. State of Assam, (1996) 10 SCC 567 as also on State of Haryana v. S.M. Sharma, 1993 Supp (3) SCC 252 to contend that since the respondent was promoted on the basis of stop-gap arrangement, he could not claim promotion as a matter of right nor could he claim salary for the post of Junior Engineer I as he was given only current duty charge of that post. Both the contentions cannot be accepted. The Tribunal has already held that the respondent having been promoted as Junior Engineer I, though in stop-gap arrangement, was continued on that post and, therefore, he has a right to be considered for regular promotion. Having regard to the facts of this case, there is no reason to differ with the Tribunal.
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 the instant case, a stop-gap arrangement is made to place him 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."
"60. Having noticed the aforesaid decisions, it would be pertinent to refer to the decision of the Supreme Court in P Grover v. State of Haryana, (1983) 4 SCC 291. The appellant therein was promoted as an Acting District Education Officer with effect from 19.7.1976 and even though the order of promotion contained a super added condition that she would
draw her own pay scale, the Supreme Court observed that there was no reason why the appellant would not be entitled to the pay of the post on which she was acting, particularly in the absence of a rule justifying refusal to pay a person promoted to a higher post, the salary of such higher post. In State of Haryana v. R K Aggarwal, (1997) 6 SCC 509, the Supreme Court distinguished that judgment because a rational explanation had been given for not giving promotion to the respondent as there was a litigation pending.
61. The matter can also be examined from another aspect. Though the petitioners are not Government servants but an analogy can be drawn from the Financial Hand Book Vol II, Part II to IV. Chapter IV deals with pay.
Rule 30 deals with pay of officiating government servants and it provides as follows:-
"30. Pay of officiating Government servants. -(1) Subject to the provisions of Chapter VI, a Government servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post, unless the post in which the appointment is made in an officiating capacity belongs to a Selection Grade of a service, or, unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, on which he holds a lien or would hold a lien had his lien not been suspended:"
(emphasis supplied)
62. It cannot be doubted, in the present case, that the officiating appointment of a teacher as an officiating principal involves assumption of duties and responsibilities of greater importance than those attaching to the post of a teacher. This is evident from the provisions of the Universities Act, referred to earlier in this judgment. It is the State Government which is primarily liable to pay salary to the employees and teachers under the provisions of the Universities Act."
Order Date :- 6.8.2024 Satish
Digitally signed by :- SATISH KUMAR BHARATI High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether petitioner is entitled to salary for the post of Librarian while officiating on such post even without substantive appointment.
Whether an undertaking given to forego salary benefits on the basis of officiating duty is enforceable against the Government.
Colour shows how this judgement treated each authority
Secretary-cum-Chief Engineer, Chandigarh versus Hari Om Sharma and othersFollowed¶12
Secretary-cum-Chief Engineer, Chandigarh versus hari Om Sharma and others (1998) 5 SCC 87 · Who else cites this
Arindam Chattopaddhyay and others versus State of West Bengal and othersReferred¶12
Arindam Chattopaddhyay and others versus State of West Bengal and others (2013) 4 SCC 152 · Who else cites this
Smt. P. Grover versus State of Haryana and anotherReferred¶1218
Smt. P. Grover versus State of Haryana and another (1983) 4 SCC 291 · Who else cites this
Dr. Jai Prakash Narayan Singh versus State of U.P. and othersReferred¶1217
Dr. Jai Prakash Narayan Singh versus State of U.P. and others (2014) 4 UPLBEC 2642
Jaswant Singh versus Punjab Poultry Field Staff Association and othersReferred¶12
Jaswant Singh versus Punjab Poultry Field Staff Association and others (2002) 1 SCC 261 · Who else cites this
State of Haryana v. S.M. SharmaReferred¶15
State of Haryana v. S.M. Sharma, 1993 Supp (3) SCC 252 · Who else cites this
State of Haryana v. R K AggarwalDistinguished¶19
State of Haryana v. R K Aggarwal, (1997) 6 SCC 509 · Who else cites this
Dr. Amita Singh
Director Higher Education
Respondent No. 5
Respondent No. 6
Manish Mathur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
