The Court allowed a petition seeking arrears of salary and allowances for the period 2002 to 2010, when the petitioner discharged duties of higher posts due to staff shortage, relying on Supreme Court precedent.
Respondents directed to pay salary and allowance of the post of Sr. Assistant/Inspector (Hotels) (whichever is higher) for the period 2002 to 2010.
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.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 726 of 2020 Decided on October 1, 2020 Pratap Singh Kanwar ….Petitioner Versus State of Himachal Pradesh and another …..Respondents
Coram:
The Hon’ble Mr. Justice Sandeep Sharma , Judge. Whether approved for reporting? Yes.
| _______________________ For the petitioner |
______________________ : Mr. Pankaj Sha |
_________ rma, Advocat |
e. |
|---|---|---|---|
| For the respondents | : Mr. Sudhir |
Bhatnagar | and |
| Arvind Shar |
ma, Addit |
ional | |
| Advocates Ge | neral with | Mr. | |
| Kunal Thakur, General. |
Deputy Adv | ocate |
Justice Sandeep Sharma, (Oral)
(Through Video Conferencing)
Petitioner was initially appointed as a Clerk in the year 1998 in the office of District Tourism Development Officer, Chamba He was promoted to the post of Jr. Assistant on 15.09.2003, as per Recruitment and Promotion Rules, 1998.
2. Precisely, the claim of the petitioner is that, during his posting as a Clerk in the Office of District Tourism Development Office, Chamba, Himachal Pradesh, he was assigned duties and responsibilities of the posts of Sr. Assistant, Steno and Inspector (Hotels) in the year 2002 to 2008 and after 2008 to 2010 he discharged duties of Hotel Inspector, since post of Hotel Inspector was filled in the year 2008.
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Petitioner has averred in the petition that since posts of Sr. Assistant and Inspector (Hotels) were lying vacant in the office of District Tourism Development Office, Chamba, H.P, he performed his duties against the aforesaid posts diligently without there being any complaint, but till date he has not given salary and allowance of the posts of Inspector (Hotels). Since, despite repeated representations, claim of the petitioner never came to be considered by the authorities concerned, he was compelled to approach the erstwhile H.P. State Administrative Tribunal by filing O.A. No. 6255 of 2016, which on transfer to this Court, now stands re-registered as CWPOA No. 726 of 2020, praying therein for following substantive reliefs:-
“1. Promote/appoint/recruit the applicant as Inspector (Hotels) by granting one time relaxation in the existing R & P Rules, 2012 (for the post of Inspector (Hotels), Non-Gazetted Class-III) being fit case in view of the facts and circumstances of the matter, applicant being the only and most eligible and experienced person in the department to be appointed as such and/or the provisions of the existing R & P Rules, 2012, for the post of Inspector (Hotels), Non-Gazette Class-III be also quashed and set aside to the extent they are repugnant or bad and illegal in the eyes of law and the respondents be directed to make/incorporate suitable amendments in the present R & P Rules keeping n view the earlier R & P Rules of 1978 for promotion to the post of Inspector (Hotel) from the posts of Sr. Assistants/Jr. Assistants.
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3. Before the matter could be heard on merits, learned counsel representing the petitioner stated before this Court that since during the pendency of the present petition, the petitioner stands promoted to the post of Inspector (Hotels) on his turn, in terms of Recruitment and Promotion Rules, 2012, first relief, as prayed for, has been rendered infructuous and as such, he does not press the same.
4. Mr. Pankaj Sharma, learned counsel, while referring to the reply filed by respondents No.1 & 2 as well as information received by the petitioner under Right to Information Act (Annexure A-1 colly) contends that it stands duly admitted on behalf of the respondents that the petitioner while his posting as a Clerk in the Office of District Tourism Development Office, Chamba, H.P, was assigned the duties and responsibilities of higher posts of Sr. Assistant and Inspector (Hotels) and as such, he is entitled for salary and allowance of the higher posts, i.e. Sr. Assistant and Inspector (Hotels) for the period he worked against the aforesaid posts.
5. Mr. Kunal Thakur, learned Deputy Advocate General, while refuting the aforesaid claim, contends that since at no point of time, order if any, ever came to be issued,
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authorizing the petitioner to work against the higher posts during his posting in District Tourism Development Office, Chamba, H.P,, no benefit, as has been claimed in the instant petition, can be extended to the petitioner. While referring to the reply filed on behalf of respondents No.1 & 2, Mr. Kunal, further contends that otherwise also, he has not performed regular duties of higher posts of Sr. Assistant and Inspector (Hotels), but on few occasions, he has conducted inspection of hotels, due to shortage of staff and as such, prayer made on his behalf for grant of salary and allowance of the higher posts, deserves outright rejection.
6. Having heard the learned counsel for the parties and perused the material available on record, especially, reply filed on behalf of respondents No. 1 & 2, this Court is not in agreement with the contention of learned Deputy Advocate General that petitioner never performed duties of higher posts. It would be apt to reproduce Para-4 of the reply, which is as
under:-
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deployment of applicant for performing the duties of Inspector Hotels or Senior Assistant though some inspections of hotels were carried out by him during this period. It is pertinent to mention here that similar inspections were carried out by the then District Tourism Development Officer, Assistant tourism Development Officer and Tourist Information Officer, Dalhousie also. The Assistant Tourism Development Officer remained posted in the District upto May 2004 and Tourist Information Officer Dalhousie upto 18.7.2008. It is further submitted that sometimes even if due to staff shortage or any other reasons an official has to discharge some additional work/responsibility, it does not confer upon him any right for promotion to the related post. Promotion is always governed under the Recruitment & Promotion Rules of the related post and in the present case applicant does not fulfill the eligibility conditions as per Recruitment & Promotions Rules for the post o Inspector (Hotels).”
7. It is quite apparent from the aforesaid para of the reply filed by the respondents that on account of shortage of staff, petitioner performed duties of higher post in the Office of District Tourism Development Office, Chamba, H.P. during November, 2002 to 2008. Though, reply reveals that no specific orders were issued for deployment of the petitioner for performing the duties of the Sr. Assistant and Inspector (Hotels), but it stands duly admitted in the reply that some inspections of hotels were carried out by the petitioner during this period. It has been further admitted in the reply that some
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time on account of shortage of staff or any other reason, petitioner discharged duties of higher post.
8. Careful perusal of the information received by the petitioner under Right to Information Act (Annexure A-1 colly), clearly reveals that the petitioner discharged his duties against higher post of Sr. Assistant and Inspector (Hotels) during the years 2002 to 2010.
9. True it is, there is no material wroth credence led on record by the petitioner that order, if any, ever came to be passed, authorizing him to work against the higher post of Sr. Assistant and Inspector (Hotels), but once it stands duly proved and established on record that during the years 2002 to 2010, petitioner on account of shortage of staff, was compelled to discharge the duties of higher posts of Sr. Assistant and Inspector (Hotels), prayer made in this behalf for grant of salary and allowances of the aforesaid posts, deserves to be considered. It is neither pleaded case of the respondents nor any material has been produced before this Court to demonstrate the fact that the petitioner has not been discharging the duties of higher posts of Sr. Assistant and Inspector (Hotels), rather, in their reply, respondents have admitted that due to shortage of staff, petitioner had to
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discharge some additional duties of higher posts and as such, they have admitted the claim of the petitioner.
10. At this stage, it would be apt to take note of
judgment passed by Hon’ble Apex Court in Arindam Chattopadhyay v. State of W.B. , (2013) 4 SCC 152, wherein, Hon'ble Apex Court has held 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 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
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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.”
11. In the aforesaid case, Hon'ble Apex Court, in similar circumstances, held the petitioner in that case, entitled for salary and allowances of higher post, against which he was found to be working, without there being any specific order issued by the authorities. In the judgment as referred to above, Hon’ble Apex Court has categorically held that there is no legal or other justification for denying salary and allowances of higher post on the pretext that the person concerned has not been promoted in accordance with the Rules.
12. In the case at hand, it is not in dispute that now petitioner stands promoted to the post of Inspector (Hotels), meaning thereby that while discharging additional duties against the post of Clerk in the Office District Tourism Development Office, Chamba, H.P., he was eligible to be promoted against the higher post, i.e. Sr. Assistant/Inspector (Hotels).
13. Consequently, in view of the above, present petition is allowed and respondents are directed to pay salary and
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allowance of the post of Sr. Assistant/Inspector (Hotels) (whichever is higher) to the petitioner for the period with effect from 2002 to 2010, during which period, petitioner worked against aforesaid higher posts, within a period of eight weeks from the date of production of a certified copy of instant judgment.
14. In the aforesaid terms, present petition stands disposed of, so also pending applications, if any.
1st October, 2020 (Sandeep Sharma) (reena) Judge
3 issues framed by the court
Whether an employee entitled to salary and allowances of a higher post against which they discharged duties without specific appointment orders.
Whether denial of salary and allowances due to lack of formal promotion order is justified when duties were performed.
What salary and allowances are payable to a petitioner who worked against higher posts from 2002 to 2010.
Colour shows how this judgement treated each authority
Arindam Chattopadhyay v. State of W.B.Applied¶34
Arindam Chattopadhyay v. State of W.B., (2013) 4 SCC 152 · Who else cites this
Pratap Singh Kanwar
State of Himachal Pradesh
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
