State of Haryana and Others Vs Sher Singh Malik and Others

Keeping in view the averments made in the application, which are duly supported by an affidavit, the application is allowed. Delay of 27 days in filing the present appeal is condoned.

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CM-4800-LPA-2026

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Present application has been filed seeking condonation of delay of 100 days in re-filing the present appeal.

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Keeping in view the averments made in the application, which are duly supported by an affidavit, the application is allowed. Delay of 100 days in re-filing the present appeal is condoned.

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026 2

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LPA-1974-2026 (O&M)

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The present appeal has been filed challenging the order dated 31.12.2025 passed by the learned Single Judge in CWP No. 7189 of 2021, wherein, the benefit of pay scale of higher post, which was being held by the respondents on Current Duty Charge (CDC), has been granted of the such higher post.

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It may be noticed that the respondents were appointed as Tracer with the Government of Haryana and while discharging the said post, as far back as in the year 1997, they were given the current duty charge of the Assistant Draftsman, Head Draftsman and Circle Head Draftsman and thereafter, they were subsequently promoted to the said post on regular basis keeping in view the fact that the regular promotions were granted much subsequent to the grant of Current Duty Charge (CDC), consequently writ petitions were filed contending that they were entitled for the salary of the higher post for the period they had discharged the duties of the higher post on CDC basis. The said contention was accepted by the learned Single Judge and a direction was given that for the period, the respondents had performed the duties of the higher post on CDC basis, prior to their regular promotion, they should be paid the salary of the post in question of which they had discharged the duties of CDC basis along with arrears.

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Learned counsel appearing on behalf of the State submits that though, the learned Single Judge has noticed Rule 76 of the Haryana Civil Services (Pay) Rules, 2016 (hereinafter referred to as ‘2016 Rules’) but the

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026 3

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same have not been dealt within a manner required so as to deny the benefit in terms of the said rule. Learned counsel submits that the benefit cannot be extended keeping in view 2016 Rules.

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We have heard learned counsel for the appellant and have gone through the record with his able assistance.

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It may be noticed that the CDC was given in the year 1997. Thereafter, the said CDC was also regularized by converting the same into a regular promotion. It may also be noticed that Patram Rattan and Madan Gopal were given the CDC prior to the promulgation of 2016 Rules and hence, even 2016 Rules cannot be made applicable to deny the benefits, especially when, prior to the promulgation of 2016 Rules, the Punjab Civil Services Rules (as applicable to Haryana) were applicable and the same have already been interpreted more than once to hold that the employee is entitled for benefit of the pay of the post of which he/she is made to discharge the duties.

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The Rule 76 of Haryana Civil Service (Pay) Rules, 2016 though provides for the no additional pay for holding the independent or additional charge of another post or a higher grade pay regardless of the duration. However, it may be noticed that if an employee is made to work on a promotional post/higher responsibility, the liability of the State exists to pay the salary keeping in view the responsibility entrusted to such employee. Merely that employer is in a dictating position to deny the said salary by enacting the Rule but in case such Rules are contrary to the settled principle

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026 4

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of law and rather operates to deny the benefit admissible to an employee as per the settled principle of law, the said rule needs to be interpreted in a manner so as to come to the rescue of an employee and to be in consonance with settled principle of law so as to grant the benefit of salary of the post of which duties have been discharged by the employees concerned.

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The Apex Court in State of Punjab Vs. Dharam Pal, 2017(2) SCC (L & S), 866 examined the Rules 4.13, 4.16, 4.22 and 4.24 of the Punjab Civil Services Rules. Relevant paragraphs 9 to 13 of the said judgment are as under :-

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“9. The said orders have to be tested on the anvil of the Rules. It needs no special emphasis to state that if the orders are in consonance with the Rules indubitably the respondent cannot put forth a claim unless the Rules are declared unconstitutional. Our attention has been invited to Rule 4.13 which occurs under the heading "Pay of Officiating Government Employees". The relevant part of the said Rule reads as follows:

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"Rule 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:

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Provided that the competent authority may exempt from the operation of this rule, any service which is not

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026

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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:

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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.

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(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."

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10. Certain Notes have been appended to the said Rule but they are not relevant for adjudication of the present controversy. On a close scrutiny, it is noticeable that the said Rule postulates that the government employee appointed to an officiating post shall not draw pay higher than his substantive pay in respect of a permanent post unless the post in which he is appointed to officiate is one enumerated in the Schedule to the Rules and further the officiating appointment involves assumption of duties and responsibilities of greater importance than those attached to the post. It is not in dispute that the posts of Superintendent Grade II and Grade I are covered under the Schedule. Be it

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026

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mentioned, the extension of benefit is subject to the provisions of Rules 4.22 and 4.24.

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11. In view of the aforesaid Rule position, it is necessary to reproduce Rule 4.22 and Rule 4.24. They read as follows:

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"Rule 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:

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Provided that the employee must fulfil the requisite qualifications and conditions for services for both the posts.

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Rule 4.24. When a Government employee holds current duty charge of another post, in addition to that of his own substantive post, he does not officiate in the former post and as such is not entitled to any additional remuneration."

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12. As we understand the said Rules, they categorically convey that the employee who holds the higher post must fulfil the requisite qualifications and conditions for service for both the posts. It is not controvered at the Bar that the respondent was eligible to hold the post of Superintendent Grade II and Grade I. In this context, the learned counsel for the appellants has commended us to Rule 4.16. The said Rule reads as follows:

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"Rule 4.16. A competent authority may fix the pay of an officiating Government employee at an amount less than that admissible under these rules.

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Note 1. -One class of cases falling under this rule is that in which a Government employee merely holds charge of

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026

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the current duties and does not perform the full duties of the post.

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Note 2. -When a Government employee is appointed to officiate in a post on a time-scale of pay but has his pay fixed below the minimum of the time-scale under this rule he must not be treated as having effectually officiated in that post within the meaning of rule 4.4 or having rendered duty in it within the meaning of rule 4.9.

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Such a Government employee, on confirmation, should have his initial pay fixed under rule 4.4 (b) and draw the next increment after he has put in duty for the usual period required, calculated from the date of his confirmation.

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Note 3. -The power conferred by this rule is not exercisable save by a special order passed in an individual case and on a consideration of the facts of that case.

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A general order purporting to oust universally the operation of rule 4.14 would be ultra vires of this rule. Although, the practice of passing ostensibly special order on every individual case would not be ultra vires of this rule it would constitute the grossest possible fraud thereon."

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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.”

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026 8

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The Hon’ble Supreme Court held that once an employee is required to discharge the duties and responsibilities of a higher post, he/she is ordinarily entitled to pay attached to that post. As per the settled principle of law noticed here-in-after, the employees who discharged the duties of a higher post i.e. the proportional post which carry higher responsibility, the employer is liable to pay as per the pay scale of such higher post and it is to be necessarily followed rather than a rule exploiting the Officers of the State by first making them discharge the duty of a higher post and then denying them the salary of the said higher post.

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The Hon’ble Supreme Court has consistently held that where an employee is made to discharge the duties of a higher post for a considerable period, denial of the pay scale attached to that post violates the constitutional mandate of equality. In Selvaraj Vs. Lt. Governor Of Island, Port Blair, (1998) 4 SCC 291, the Court held that an employee put it full charge of higher posts is entitled to the pay of that post and administrative conditions to the contrary cannot defeat substantive justice. Relevant paragraph 3 of the said judgment is as under :-

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“3. It is not in dispute that the appellant looked after the duties of Secretary (Scouts) from the date of the order and his salary was to be drawn against the post of Secretary (Scouts) under GFR 77. Still he was not paid the said salary for the work done by him as Secretary (Scouts). It is of course true that the appellant was not regularly promoted to the said post. It is also true as stated in the counter-affidavit of Deputy Resident

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026

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Commissioner, Andaman & Nicobar Administration that the appellant was regularly posted in the pay scale of Rs 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter. However, in our view, these averments in the counter will not change the real position. Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum meruit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.”

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Reliance is also placed upon the decision of the Hon’ble

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Supreme Court in Smt. P. Grover Vs. State Of Haryana and Anr., AIR 1983 SC 1060. The relevant paragraph of the said judgment is as under :-

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“We mentioned that she was promoted as an acting District Education officer with effect from July 19, 1976. The order of promotion contained a super-added 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 to promotion. The initial order extending her services recited that

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026

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she was an acting District Education Officer, but contained a super-added condition that her pay would not be more than the maximum of the Principal's grade. Smt. Grover claims that having been promoted as District Education officer, she was entitled to the pay of a District Education officer and there was no justification for denying the same to her. A writ petition filed by her was dismissed by the High Court of Punjab and Haryana and she is before us by way of special leave under Art. 136 of the Constitution. The counter-affidavit filed on behalf of the Government of Haryana offers no rational explanation for denying the pay of District Education Officer to Smt. P. Grover after she was promoted to act as District Education officer. All that was said in the counter-affidavit was that there were no Class-I post 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 District Education officer, a Class-I post, on an acting 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 to pay to an officer promoted to a higher post the salary of such higher post (the validity of such a rule would be doubtful if it existed), we must hold that Smt. Grover is entitled to be paid the salary of a District Education officer from the date she was promoted to the post, that is, July 19, 1976, until she retired from service on August 31, 1980. The appeal is accordingly allowed with costs.” 11. Similar issue has been decided by the Division Bench of this Court while deciding LPA No. 1061 of 2024 titled as Punjab State Power Corporation Limited, Patiala Vs. Sukhpreet Singh and others, on

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026 11

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30.04.2024. The relevant paragraphs 5 and 6 of the said judgment are as under :-

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“5. The Full Bench judgement of this Court in Subhash Chander Vs State of Haryana and others, 2012(1) RSJ 442 also granted the said benefit as such that if the additional charge is given then the higher pay attached to the higher post for additional work involving higher responsibilities deserves to be paid. The above well settled legal proposition is being consistently followed till date. Reference is made to another judgment of the coordinate Bench in Pritam Singh Dhaliwal vs. State of Punjab and another, (2004) 6 SLR 758. In the said case, higher pay had been claimed for having performed the duties of Deputy Director of Panchayat/Additional Deputy Commissioner (Development) from time to time pursuant to the orders passed by the Government while holding a lower substantive post i.e. District Development and Panchayat Officer. It was held therein that if a person is asked to perform the duties regularly though in officiating capacity or on current duty charge or as a temporary measure, the said person would be entitled to the higher pay i.e. the pay which is payable while performing the duties in higher/promotional post. In the said case also, the petitioner therein had continued to work on the higher post in officiating capacity till his superannuation.

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6. Reference can also be made to the judgement by another coordinate Bench passed in LPA-1491-2016, titled State of Haryana vs. Sita Ram, decided on 27.11.2019, wherein the issue was of holding current duty charge of the post of BDPO in the pay-scale of Social Education and Panchayat Officer. The incumbent in that case continued working as such on the higher post on current duty charge, but was paid the salary of Social

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CM-4802-LPA-2026 ; CM-4800-LPA-2026 ; CM-4801-LPA-2026 ; CM-4803-LPA-2026 in/and LPA-1974-2026

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Education and Panchayat Officer, his substantive post. After considering and applying the ratio and dictum of the judgments of the Apex Court in Arindam Chattopadhyay vs. State of W.B., (2013) 4 SCC 152 and State of Punjab vs. Dharam Pal, (2017) 9 SCC 395, the Division Bench declined to exercise jurisdiction against challenge to the writ petition having been allowed, whereby the petitioner therein was held entitled to the salary for the higher post for the period he held current duty charge.”

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