Chhavinder Kohli vs State of Punjab

R.S. Mongia, J.—A two-fold prayer has been made in this writ petition i.e. firstly that the petitioner should be paid the salary of the post of General Manager, Punjab Roadways, w.e.f. the date he is holding the rank of General Manager and secondly he should be regularly promoted as a General Manager.

So far as the first prayer is concerned, suffice it to say that as per the written statement, out of the total posts of General Managers, there are four posts of General Managers, which are to be filled from the quota of Traffic Managers to which category the petitioner belongs. Four persons, namely S/Sh. Pishawar Singh, A.P.S. Sarkaria, B.S. Sohi and Kartar Singh are the substantive holders of the four posts of General Manager from the quota of Traffic Managers, B.S. Sohi and Kartar Singh are under suspension w.e.f. a date in the year 1995. (Though there was some intervening period for which they were reinstated, but again suspended). They are under suspension even today. Vide order dated January 9, 1996, two persons, namely S/Sh. Iqbal Singh Sikand and Joginder Paul, belonging to the category of Traffic Managers, were promoted on ad hoc basis against the temporary vacancies caused due to suspension of S/Sh. B.S. Sohi and Kartar Singh. Petitioner in fact had been given the current duty charge of the post of General Manager vide order dated June 3, 1993, copy Annexure R-1, and he is continuing as such till date. It is not disputed that both Iqbal Singh and Joginder Paul are senior to the petitioner in the rank of Traffic Managers. The stand of the respondent is that since the petitioner was only given Current Duty Charge of the post of General Manager, he is not entitled to the pay of General Manager and in fact an affidavit was obtained from the petitioner that on his continuance as a General Manager he would not claim the salary of General Manager. There was also a condition in his order dated June 3, 1993, that he would not claim the salary of the post of General Manager.

It is further not disputed that Sh. Joginder Paul, who was promoted as General Manager from the quota of Traffic Manager against the temporary vacancy caused by suspension of Kartar Singh, General Manager has since retired from December 31, 1999. In other words, there is a temporary vacancy in the quota meant for Traffic Managers for promotion as General Manager since 31.12.1999.

For the time being we are not deciding as to whether the petitioner is entitled for the pay of General Manager, right from 1993, but we are of the view that atleast w.e.f. January 1, 2000, when a post, though temporarily, had fallen vacant in the quota of Traffic Managers for being promoted as General Manager, the petitioner is entitled to the pay of General Manager. At the behest (cost ?) of repetition, we may observe that this will be without prejudice to the right of the petitioner to claim the pay of the General Manager w.e.f. 1993, which will be decided at the time of final hearing of the writ petition.

The view we are taking in the matter is supported by the judgment of the Apex Court in Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Others, in which it was laid down that if the officiating promotion is not a stop-gap arrangement then the person'' discharging the higher duties cannot be denied the pay of the highest post. It was further laid down that a contract whereby the person workingon the higher post on officiating basis is to be denied the pay of the higher post was held to be against the public policy and not enforceable. In other words, the affidavit of the petitioner that he will not claim the pay of the higher post becomes meaningless. While admitting the case to regular hearing, we direct the respondents to comply with the interim order given above.

This writ petition may be heard with CWP No. 3808 of 1991.

A copy of this order, attested by the Special Secretary of this Court, be given to Mr. G.S. Cheema, for onward transmission to the concerned quarters.

Order accordingly.