State appeal against a writ court order directing payment of arrears of the difference in salary for periods the respondent worked as Superintending Engineer and Chief Engineer on current charge basis, and fixation of pension on the last pay drawn of Chief Engineer. The appeal was dismissed.
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 JHARKHAND AT RANCHI L.P.A. No.735 of 2019
… … Appellants
Versus
Baneshwar Rabidas, aged about 65 years, Son of Late Binod Rabidas, Resident of Village Kasam Burudih (Murpa), P.O. & P.S. Tamar & Dist Ranchi.
… … Respondent
CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
For the Appellants : Mr. Rajiv Ranjan, Advocate General Mr. Piyush Chitresh, A.C. to A.G. For the Respondent : Mr. Manoj Tandon, Advocate Mr. Siddharth Ranjan, Advocate
ORAL JUDGMENT Order No. 15 : Dated 7th September, 2021
With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and/or video quality.
2. The instant appeal preferred by the State of Jharkhand under Clause 10 of the Letters Patent is directed against the order/judgment dated 07.08.2019 passed by learned Single Judge of this Court in W.P.(S) No. 5196 of 2018 whereby and whereunder the writ petition has been allowed with a direction upon the respondent-Principal Secretary, Department of Water Resources, Government of Jharkhand
to consider the case of the writ petitioner as there is no dispute that the petitioner has discharged his duties holding the aforesaid posts till the date of his superannuation as also with a further direction upon the respondents to assess the difference of salary and to fix pension by way of last pay drawn holding the post of Chief Engineer and not the post of Executive Engineer. The aforesaid exercise was directed to be completed within a period of eight weeks from the date of receipt/ production of a copy of the order.
3. The brief facts of the case as per the pleadings made by the learned counsel for the parties which require to be enumerated herein, read as under :-
The writ petitioner was appointed to the post of Junior Engineer on 04.11.1976 vide Government of Bihar Irrigation Department Notification No. 18076 and was promoted to the post of Assistant Engineer on 04.11.1984 vide Government of Bihar Irrigation Department Notification No. 4304. The petitioner, thereafter, was promoted to the post of Executive Engineer with effect from 04.11.1992 and continued to work as such even after bifurcation of the State. It is the case of the petitioner that since regular promotion of Executive Engineers to the post of Superintending Engineers could not be done and as such the Water Resources Department posted them on working arrangements basis in their own pay scale to the post of Superintending Engineer. However, the case of
the writ petitioner was considered by the Establishment Committee and thereafter he was posted as Superintending Engineer (current charge) by way of work arrangement basis in the pay scale of Executive Engineer, as would be evident from Notification No.2834, dated 19.07.2007.
The grievance of the writ petitioner before the writ court was that though he had discharged his duties and rendered his services to the post of Superintending Engineer but no monetary benefits was given to him. Further, by virtue of notification of the Departmental Establishment Committee his name had also been recommended along with the names of Superintending Engineers (current charge) to be posted as Chief Engineers (current charge) on work arrangement basis in their own pay scale i.e., pay scale attached to the post of Superintending Engineer and accordingly Notification No. 3430, dated 09.07.2011 was issued by the Water Resources Department but the pay scale attached to the post of Chief Engineer was not extended in his favour and finally he superannuated from service on 30.04.2013 from the post of Chief Engineer but having pay scale of Executive Engineer. Thus, the writ petitioner claims his entitlement for the arrears of difference of salary for the duty and function discharged by him to the post of Superintending Engineer from 26.07.2007 till 25.07.2011 and to the post of Chief
Engineer from 26.07.2011 till his superannuation on 30.04.2013 as also he is entitled to get the pensionary benefit on the basis of the pay scale attached to the post of Chief Engineer since he has superannuated on 30.04.2013 while working as Chief Engineer (Current Charge) but the aforesaid grievance having not been redressed, he approached this Court by filing writ petition being W.P.(S) No.5196 of 2018.
The respondent State (appellant herein) filed counter affidavit and opposed the relief sought for by the writ petitioner inter alia on the ground that he is not entitled to get the pay scale attached to the higher post of Superintending Engineer and Chief Engineer since he was allowed to continue on current charge in these two higher posts on the pay scale attached to the post of Executive Engineer, the post which the writ petitioner substantively was holding during the relevant time.
The State of Jharkhand strengthened the submission based upon the provision of Rule 103 of the Jharkhand Service Code, 2001.
The writ court, after considering the rival submissions advanced on behalf of the parties, has allowed the writ petition with a direction upon the respondent State of Jharkhand to disburse the arrears of difference of salary for the period from 26.07.2007 till 25.07.2011 when the writ petitioner worked as Superintending Engineer (Current
Charge) and from 26.07.2011 till his superannuation on 30.04.2013 when he discharged his duty to the post of Chief Engineer (Current Charge) as also directed to fix pension by way of last pay drawn holding the post of Chief Engineer and not the post of Executive Engineer, which is the subject matter of the present intra court appeal.
4. The State of Jharkhand has been represented by learned Advocate General and who has submitted that the writ petitioner is not entitled to get the pay scale attached to the post of Superintending Engineer and Chief Engineer since he was only asked to discharged his duty by way of current charge having not been granted regular/substantive promotion but without appreciating this aspect of the matter, the writ court has passed the order in favour of the writ petitioner directing to pay the arrears of the difference of salary of the pay scale attached to the post of Superintending Engineer and Chief Engineer and as such, the order passed by the learned Single Judge is not sustainable in the eye of law.
He has relied upon the judgment rendered by Hon'ble Apex Court in A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu [(2014) 13 SCC 283] , more particularly paragraph 6 thereof as also the judgment in State of Punjab v. B. K. Dhir [(2017) 9 SCC 337] .
5. Per contra , Mr. Manoj Tandon, learned counsel
appearing for the writ petitioner-respondent, assisted by Mr. Siddharth Ranjan, has defended the order passed by the learned Single Judge inter alia on the ground that the writ petitioner was asked to discharge his duty to the post of Superintending Engineer independent to the post of Executive Engineer, therefore, the writ petitioner since has performed his duty to the higher post, he became entitled for the arrears of difference of salary.
He has further submitted that even as per the provision as contained in Rule 89 and 103 of the Jharkhand Service Code, 2001, the writ petitioner is entitled to get the benefit of salary attached to the higher post since the writ petitioner has performed his duty to the higher post in the officiating capacity.
Relying upon the judgment rendered by the Hon'ble Apex Court in State of Punjab and Another v. Dharam Pal [(2017) 9 SCC 395] , he submitted that the order passed by the learned Single Judge may not be interfered with. 6. We have heard the learned counsel for the parties, perused the documents available on record as also finding recorded by the learned Single Judge in the impugned judgment.
7. This Court, before proceeding further to scrutinize the propriety and legality of the impugned judgment, requires to refer certain admitted facts in this case as per the pleading
made in the writ petition and the documents appended thereto, which read as hereunder :-
It is evident from Annexure-1 appended to the writ petition i.e., notification No.4764 dated 25.11.1995, that the writ petitioner was granted substantive promotion to the post of Executive Engineer in the pay scale of Rs.3700 – 5000/-. After having found to be eligible by the Establishment Committee, he was decided to be posted as Superintending Engineer (Current Charge), and accordingly, a notification was issued on 19.07.2007 as contained in Notification No.2834, whereby and whereunder the writ petitioner was posted as Superintending Engineer (Current Charge) by way of ad hoc arrangement in the same pay scale i.e., the pay scale of the post of Executive Engineer, however, with the condition that no financial benefit will be accrued on the basis of the pay scale attached to the higher post of Superintending Engineer and the moment regular promotion would be made to the post of Superintending Engineer, he will be reverted to his substantive post.
The writ petitioner started discharging the duty of the post of Superintending Engineer (Current Charge) from 26.07.2007 and subsequently by virtue of notification No.3430 dated 09.07.2011, his case was recommended by the Departmental Establishment Committee in its meeting held on 25.05.2011 considering him fit to hold the post of
Chief Engineer (Current Charge) and accordingly, he was posted to the aforesaid post on the same pay scale i.e., the pay scale attached to the post of Executive Engineer with a condition that he will not be entitled for any monetary benefit attached to the post of Chief Engineer and the moment regular promotion would be made to the post of Chief Engineer, he will be reverted to his substantive post. He started discharging his duty to the post of Chief Engineer (Current Charge) and superannuated from service while discharging the duty as Chief Engineer (Current Charge) on 30.04.2013. He claims arrears of difference of salary which he was getting by virtue of holding the substantive post of Executive Engineer based upon the pay scale attached to the post of Superintending Engineer for the period from 26.07.2007 to 25.07.2011 and subsequently the pay scale attached to the post of Chief Engineer for the period from 26.07.2011 to 30.04.2013.
When the grievance of the writ petitioner has not been redressed, he approached this Court by filing writ petition being W.P.(S) No. 5196 of 2018. The aforesaid writ petition has been allowed directing the respondent State of Jharkhand to disburse the arrears of difference of salary attached to the post of Superintending Engineer and Chief Engineer for the period from 26.07.2007 to 25.07.2011 and from 26.07.2011 to 30.04.2013 respectively and also directed
to fix the pension on basis of last pay drawn attached to the post of Chief Engineer, the post from which he has superannuated from service as on 30.04.2013.
8. The State has preferred the instant appeal mainly on the ground by referring to the order of posting to the post of Superintending Engineer and the Chief Engineer. According to appellant-State, the writ petitioner was never granted regular promotion to the post of Superintending Engineer and Chief Engineer rather he was only allowed to discharge his duty of the higher posts (Current Charge) on the same pay scale attached to the post of Executive Engineer, the post which the writ petitioner was substantively holding. According to the State the writ petitioner accepted the aforesaid decision as also condition stipulated therein to the effect that the writ petitioner will not be entitled to get any monetary benefit attached to the higher post of either the Superintending Engineer or the Chief Engineer. In support of his submission, the judgments of the Hon'ble Apex Court in A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu (Supra) and State of Punjab v. B. K. Dhir (Supra) have been relied upon.
9. Since the provisions of Rule 89 and 103 of the Jharkhand Service Code, 2001 have been relied upon by the State as also on behalf of the learned counsel appearing on behalf of the writ petitioner, therefore, we thought it proper to
refer the provision of Rule 89 and 103 of Jharkhand Service Code, 2001.
Rule 89 speaks about officiating pay scale which reads as hereunder :-
“ 89 . (1) Subject to the provisions of Rule 103 and to any orders regulating acting promotion from grade to grade at the time when these rules came into force, 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 officiating appointment involves the assumption of duties or responsibilities of greater importance than those attaching to the permanent post (other than a tenure post) on which he holds a lien or would hold a lien had his lien not been suspended.
(2) For the purpose of this rule the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the aforesaid permanent post, or, on a scale of pay identical therewith.
It is evident from the provision as contained in Rule 89 which is subject to the provisions of Rule 103 and to any orders regulating acting promotion from grade to grade at the time when these rules came into force, 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 officiating appointment involves the assumption of duties or responsibilities of greater importance than those attaching to
the permanent post (other than a tenure post) on which he holds a lien or would hold a lien had his lien not been suspended. Further, for the purpose of this rule, the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the aforesaid permanent post, or, on a scale of pay identical therewith.
The provision of Rule 89 is subject to the provision of Rule 103, therefore, we have also thought it proper to discuss about the provision of Rule 103 which reads as hereunder :-
“ 103. The pay of a Government servant appointed by the State Government to hold substantively, as a temporary measure, or to officiate in, two or more independent post at one time shall be regulated as follows:-
(a) the highest pay to which he would be entitled if his appointment to one of the posts stood alone, may be drawn on account of his tenure of that post;
(b) for each other post he may draw such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the State Government may fix; and
(c) if a compensatory allowance is attached to one or more of the posts he may draw such compensatory allowance as the State Government may fix provided that such allowance shall not exceed the total of the compensatory allowance attached to all the posts.”
It is evident from the provision as contained under Rule 103 wherein it has been stipulated that the pay of a Government servant appointed by the State Government to hold substantively, as a temporary measure, or to officiate in, two or more independent post at one time shall be regulated as follows:-
(a) the highest pay to which he would be entitled if his appointment to one of the posts stood alone, may be drawn on account of his tenure of that post;
(b) for each other post he may draw such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the State Government may fix; and
(c) if a compensatory allowance is attached to one or more of the posts he may draw such compensatory allowance as the State Government may fix provided that such allowance shall not exceed the total of the compensatory allowance attached to all the posts.
Thus, it is evident that the provision of Rule 103 stipulates about a condition when a Government servant appointed by the State Government to hold substantively, as a temporary measure, or to officiate in, two or more independent post then the condition stipulated under the provision of Rule 103 would be applicable as also the provision contained under Rule 89 as because the
applicability of the condition stipulated under Rule 89 depends upon the fulfilment of the condition as contained under Rule 103 of the Jharkhand Service Code, 2001.
10. We, in order to examine the applicability of the provision of Rule 103 in the given facts of the case, have considered the notification issued by the appellant State of Jharkhand of the post of Superintending Engineer (Current Charge) and the Chief Engineer (Current Charge) issued vide notification dated 19.07.2007 and 09.07.2011 respectively to examine as to whether the writ petitioner was assigned to discharge duties in two or more independent post but on close scrutiny of notification dated 19.07.2007, we have found that although the writ petitioner was posted on substantive basis to the post of Executive Engineer and while working as such, the writ petitioner, by way of ad hoc arrangement, was posted as Superintending Engineer (Current Charge) so is the condition in the notification by which the writ petitioner was posted as Chief Engineer vide notification dated 09.07.2011. Therefore, these notifications clarify that the writ petitioner was never assigned to discharge duty in two or more independent post. Even though the writ petitioner was holding the post of Executive Engineer on substantive capacity, but he was asked to discharge the duty attached to the higher post of Superintending Engineer (Current Charge) and Chief Engineer (Current Charge)
independent to the duty attached to the post of Executive Engineer, the substantive post of writ petitioner and, therefore, the provision of Rule 103 of Jharkhand Service Code will not be applicable in the facts of this case but the question is that as to whether the appellant State of Jharkhand once taken work from the writ petitioner of the higher post can he be denied the monetary benefit attached to the higher post of Superintending Engineer and Chief Engineer?
Reliance has been placed by the appellant State of Jharkhand on the judgment rendered by the Hon'ble Apex Court in A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu (Supra) primarily at paragraph 6.
We have gone through the aforesaid judgment and found from the factual aspect that the appellant in the said case was appointed as a Clerk in the Tamil Nadu State Transport Department, subsequently promoted to the post of Section Officer in the year 1991. Thereafter, he was posted as Assistant Manager In-charge (Public Relations) with specific condition that the same will not confer any preferential right for regular promotion and that the appellant will continue to draw his grade pay in his present cadre i.e. Assistant Labour Welfare Officer and superannuated from service on 31.05.2005 as Assistant Labour Welfare Officer and as such
he sought for the salary attached to the higher post and in that pretext the Hon'ble Apex Court has been pleased to hold at paragraph 6 that since the appellant in the said case vide order dated 28.02.2001, was allowed to discharge duties in the post of Assistant Manager making it clear that the appellant would not be entitled to claim any benefit therefrom including higher salary and further that he would continue to draw his salary in the post of Assistant Labour Welfare Officer. If the above was an express term of the order allowing him to discharge duties in the higher post, it is difficult to see as to how the said condition can be overlooked or ignored. The decision of this Court in Secretary-cum-Chief Engineer,
Chandigarh v. Hari Om Sharma and Others [(1998) 5
SCC 87] was rendered in a situation where the incumbent was promoted on ad hoc basis to the higher post. The aforesaid decision is also distinguishable inasmuch as there was no specific condition in the promotion order which debarred the incumbent from the salary of the higher post. Such a condition was incorporated in an undertaking taken from the employee which was held by this Court to be contrary to policy decision.
Thereafter almost similar issue has again been decided
by the Hon'ble Apex Court in S tate of Punjab v. B. K. Dhir (Supra) wherein the judgment rendered by the Division Bench of Punjab and Haryana High Court rendered in LPA No. 198
of 2003 [ B.K. Dhir v. State of Punjab] has passed an order as has been quoted in the aforesaid judgment which reads as hereunder :-
“Having thoughtfully considered the rival contentions, we find merit in the prayer of the appellant and are of the view that his case is squarely covered by the ratio of the judgment in Pritam Singh Dhaliwal case [ Pritam Singh Dhaliwal v. State of Punjab , 2004 SCC OnLine P&H 1428] . It was not a case where the appellant had laid a claim to promotion on the basis of the officiating status conferred on him, but had prayed only for the pay which was admissible to incumbents working on the said posts and performing similar duties. Resultantly, therefore, if the respondents had extracted work from him as Joint Director and Additional Director, he would certainly be entitled to pay as is admissible to the regular incumbents working on the said posts, regardless of any condition that may have been sought to be imposed upon him.”
The Hon'ble Apex Court, in the said judgment, however, has considered the fact about adjudication of the issue by the Punjab and Haryana High Court wherein the concerned employee has been held entitled to salary of the post of Joint Director and Additional Director, Panchayats for the period he worked as such.
The aforesaid order has been challenged before the Division Bench of the Punjab and Haryana High Court. The stand of the State before the Division Bench of the Punjab and Haryana High Court was that the view of the learned Single Judge was correct inasmuch as the orders passed posting the appellant on officiating posts incorporated a
condition that he would continue to draw his pay in the pay scale of Deputy Director, Panchayat and no extra financial benefit would be given to him for the officiating charge. Additionally, it was asserted that the officer concerned had submitted to the said terms and conditions and not raised any protest.
“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 [(1983) 4 SCC 291] and Hari Om Sharma [(1998) 5 SCC 87] . As far as the authority in A. Francis [(2014) 13 SCC 283] 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 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 [(1998) 5 SCC 87] and resultantly we hold that the view expressed by the High Court is absolutely impeccable.”
The Hon'ble Apex Court, in view of the decision rendered
in P.Grover (Smt) v. State of Haryana and Another [(1983)
4 SCC 291], Secretary-cum-Chief Engineer, Chandigarh v.
Hari Om Sharma and Others (Supra) and A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu (Supra) has been pleased to hold that the issue of eligibility to hold the post was not taken before the High Court and the appeal was disposed of taking into consideration the fact that when the respondent had worked in the officiating post and has been granted the benefits by the High Court, he should be extended the said benefit by making an observation that had there been a contest on the eligibility of the respondent, possibly the matter would have been different and taking note of the situation, the order passed by the Punjab and Haryana High Court has been declined to be interfered with.
12. We have also gone across the judgment rendered in yet another case by the Hon'ble Apex Court on the issue i.e., State of Punjab and Another v. Dharam Pal (Supra) wherein controversy involved was regarding disbursement of salary in course of discharging duty in the officiating capacity. The provision of Rule 4.13 and 4.22 of Punjab Civil Services Rules has been considered by the Hon'ble Apex Court.
We, after close scrutiny of the provisions as contained in Rule 4.13 and 4.22 (Pay of Officiating Government Employees) prevalent in the State of Punjab, have found therefrom that the provisions as contained under Rule 89 and 103 of the Jharkhand Service Code, 2001 are pari
materia . For ready reference both the provisions are being referred hereunder :-
“ 4.13. (1) Subject to the provisions of Rules 4.22 to 4.24, a government employee 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 he is appointed to officiate is one enumerated in the Schedule to this Rule or unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post on which he holds a lien:
Provided that the competent authority may exempt from the operation of this Rule, any service which is not organised on a time-scale basis and in which a system of acting promotions from grade to grade is in force at the time of the coming into force of these Rules:
Provided further that the competent authority may specify posts outside the ordinary line of a service the holders of which may, notwithstanding the provisions of this Rule and subject to such conditions as the competent authority may prescribe, be given any officiating promotion in the cadre of the service which the authority competent to order promotion may decide and may thereupon be granted the same pay (whether with or without any special pay, if any, attached to such posts) as they would have received if still in the ordinary line.
(2) For the purpose of this Rule, the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the permanent post, other than a tenure post, on which he holds a lien, or on a scale of pay identical therewith.”
4.22. The competent authority may appoint one government employee to hold substantively, as a
temporary measure or to officiate in, two or more independent posts at one time. In such cases, the government employee shall draw the highest pay to which he would be entitled if his appointment to one of the posts stood alone:
Provided that the employee must fulfil the requisite qualifications and conditions for services for both the posts.”
The Hon'ble Apex Court, after considering the aforesaid provisions of law, has been pleased to hold at paragraph 13 to the effect that as the respondent herein was holding higher posts and further he was performing the duties of higher responsibility attached to the posts, the conclusion has been arrived at that the Rules do not bolster the proposition advanced by the learned counsel for the State. Paragraph 13 reads as hereunder :-
“ 13. On a careful scrutiny of the aforesaid prescription, it is perceptible that the said Rule envisages a different situation altogether. The present factual matrix is quite different. We are inclined to so hold as the respondent herein was holding higher posts and further he was performing the duties of higher responsibility attached to the posts. Thus analysed, we arrive at the conclusion that the Rules do not bolster the proposition advanced by the learned counsel for the State.”
13. So far as the argument advanced by learned Advocate General by putting reliance upon the judgment rendered by
Hon'ble Apex Court in A. Francis v. Management of
Metropolitan Transport Corporation Limited, Tamil
Nadu (Supra) is concerned, the aforesaid aspect of the matter
has also been considered as also consideration has been made about the acceptance of the condition to get the pay scale attached to the substantive post and thereafter the Hon'ble Apex Court has come to the conclusion about applicability of the judgment rendered in A. Francis (Supra) by observing at paragraph 22 that the fact in the Francis case has to rest on its own facts and thereafter it has been clarified that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position and further holding therein that the controversy is covered by the ratio laid down in Secretary-cum-Chief Engineer v. Hari Om Sharma, [(1998) 5 SCC 87] and it has been held that the view expressed by the High Court is absolutely impeccable.
The factual aspect involved in the said case was that the respondent of the said case, namely, Dharam Pal, was promoted as Superintendent Grade-II (in officiating capacity) with a condition stipulated in the order that the official work in the own pay scale and above promotion shall be subject to the recommendation of the Departmental Promotion Committee as would appear from paragraph – 7 and 8 of the aforesaid judgment, which read as hereunder :-
“7. In the beginning, it is seemly to state that there is no factual dispute with regard to the appointments or the posts. That being the position, we think it appropriate to refer to the orders of appointment as Ms Babbar, learned counsel for the appellant State of Punjab, would harp on the same. The order dated 9-12-2004 reads as follows:
“O RDER
On the retirement of Smt Chand Prabha, Superintendent Grade I on 31-7-2004 the post of Superintendent Grade I had become vacant. On that vacant post Shri Kewal Singh, Superintendent Grade II is promoted as Superintendent Grade I in his own scale.
On account of promotion of Shri Kewal Singh, Superintendent Grade II as Superintendent Grade I and on account of proceeding on earned leave of Shri Bhinder Singh, Superintendent Grade II w.e.f. 7- 9-2004 Shri Ashwani Kumar Senior Assistant (Officiating Superintendent Grade II) and Shri Dharam Pal (Officiating Superintendent Grade II) are promoted as Superintendent Grade II.
The officials will work in their own pay scale and above promotions will be subject to the recommendations of the Departmental Promotion Committee. On the approval of the above committee they will be given financial benefits. On the basis of these orders the officials will not claim any seniority, etc.”
On the basis of the aforesaid order, the respondent functioned as the officiating Superintendent Grade II.
8. As stated earlier, while he was officiating on the said post, he was promoted on officiating basis to function in the post of Superintendent Grade I. The relevant portion of the said order reads as follows:
“The officials will work in their earlier own pay scale and above promotions will be subject to the recommendations of the Departmental Promotion Committee. On the approval of the above committee they will be given financial benefits. On the basis of these orders the officials will not claim any seniority, etc.”
We have considered the factual aspect involved in the
given case wherein also the writ petitioner has been directed to perform his duty as Superintending Engineer (Current Charge) for the period from 26.07.2007 till 25.07.2011 and thereafter asked to perform his duty as Chief Engineer (Current Charge) for the period from 26.07.2011 till his superannuation on 30.04.2013, however with the condition
that he will work in his earlier own pay scale and his promotion will depend upon the final decision to be taken for regular promotion and, therefore, according to our considered view, the factual aspect involved in State of Punjab and Another v. Dharam Pal (Supra) is almost similar to the instant case as also the provision of Rule which is the subject matter of the argument advanced on behalf of the parties is also pari materia , as has been referred hereinabove, therefore, the ground which has been agitated by the appellant-State for reversal of the order passed by the learned Single Judge that as because the writ petitioner has never been granted promotion to the post of Superintending Engineer and Chief Engineer, rather he was holding the post in the substantive capacity of Executive Engineer and as such, he is not entitled to get the pay scale of the post of Superintending Engineer and Chief Engineer, is not acceptable to this Court taking into consideration the fact that the issue has already been dealt with by the Hon'ble Apex Court in the case of State of Punjab and Another v. Dharam Pal (Supra).
Therefore, this Court is of the view that the learned Single Judge since has come to a conclusion holding the writ petitioner entitled to get the pay scale of the post of Superintending Engineer and Chief Engineer as also for fixation of pension on the basis of the last pay drawn i.e., the pay scale attached to the post of Chief Engineer, therefore,
the order passed by the learned Single Judge suffers from no infirmity.
14. Accordingly, the instant appeal fails and is dismissed.
15. Consequently, interlocutory application being I.A.
No.10179 of 2019 also stands dismissed.
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Birendra/ N.A.F.R.
2 issues framed by the court
Whether an employee who discharged the duties of higher posts on current charge basis, without regular promotion and on a condition denying monetary benefit, is entitled to the pay scale of those high
Whether the writ court was justified in directing payment of arrears of difference of salary and fixation of pension on the basis of the pay scale of the post of Chief Engineer.
Colour shows how this judgement treated each authority
A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil NaduDistinguished¶74
A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu [(2014) 13 SCC 283] · Who else cites this
State of Punjab v. B. K. DhirReferred¶81
State of Punjab v. B. K. Dhir [(2017) 9 SCC 337] · Who else cites this
State of Punjab and Another v. Dharam PalApplied¶90
State of Punjab and Another v. Dharam Pal [(2017) 9 SCC 395] · Who else cites this
Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and OthersReferred¶117
Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and Others [(1998) 5 SCC 87] · Who else cites this
P.Grover (Smt) v. State of Haryana and AnotherReferred¶93
P.Grover (Smt) v. State of Haryana and Another [(1983) 4 SCC 291] · Who else cites this
2 provisions across 1 enactments
State of Jharkhand, through Principal Secretary, Department of Water Resources, Government of Jharkhand
Joint Secretary, Department of Water Resources, Government of Jharkhand
Baneshwar Rabidas
Ravi Ranjan
Sujit Narayan Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
