Prithvi Pal vs State of Punjab

Rajesh Bindal, J.—Prayer in the present petition is for a direction to the respondents to grant regular promotion to the petitioner to the post of Block Primary Education Officer from the date persons junior to him were promoted with all other consequential benefits and further directing the respondents to grant pay and allowances attached to the post of Block Primary Education Officer for the period, the petitioner was directed to work on the said post. Learned counsel for the petitioner submitted that the petitioner was appointed as JBT teacher on ad hoc basis on 25.11.1969. His services were regularised as such w.e.f. 21.1.1976. On 21.12.2001, the petitioner was promoted as Centre Head Teacher. From 16.1.2002 onwards, the petitioner had been serving as Block Primary Education Officer. He retired as such on 28.2.2009. Though certain persons junior to the petitioner were promoted as Block Primary Education Officer on regular basis, whereas the petitioner was not promoted. However, considering the fact that the petitioner had retired from service on 28.2.2009, learned counsel for the petitioner submitted that his prayer with regard to promotion to that post has been rendered infructuous, however, he claims that the petitioner is entitled to pay and allowances of the higher post on which he worked continuously for more than 7 years before his retirement. In support of his plea, reliance was placed upon a judgment of Hon''ble the Supreme Court in Selvaraj Vs. Lt. Governor of Island, Port Blair and Others, and of this court in CWP No. 4552 of 2003 - Darshan Singh and another v. The State of Punjab and others, decided on 1.7.2010.

On the other hand, learned counsel for the respondents submitted that the petitioner is not entitled to pay and allowances for the post of Block Primary Education Officer for the reason that he was only given temporary charge to exercise the power of drawing and disbursing officer while specifically mentioning in the order that he will not be entitled to any extra allowances for the same. The petitioner having accepted those conditions had been working on that post. At this stage, he cannot be permitted to claim the benefits of that post.

Heard learned counsel for the parties and perused the paper book.

The only issue which requires consideration in the present petition is as to whether the petitioner, who was substantively a Centre Head Teacher, is entitled to pay and allowances of the post of Block Primary Education Officer, on which he worked from 16.1.2002 till 28.2.2009, the date of his superannuation. The fact that the petitioner had been discharging the duties of Block Primary Education Officer from 16.1.2002 till 28.2.2009, the date of his retirement, has not been disputed. During this period, the petitioner remained posted as such at different places, the details of which is as under:

It is also not in dispute that Block Primary Education Officer is a promotional post from Centre Head Teacher.

The aforesaid facts clearly establish that assignment of duty of the post carrying higher responsibility to the petitioner was not a stop-gap arrangement for small duration. He continued working on the post for a period of more than 7 years. The issue as to whether under these circumstances an employee is entitled to pay and allowances of the higher post has been considered by Hon''ble the Supreme Court in a recent judgment in Arindam Chattopadhyay and Others Vs. State of West Bengal and Others, and it has been opined therein that once it is found that an employee is discharging the duties of a higher post not as a stop gap arrangement but for quite some time, there is no legal or other justification to deny him salary and allowances for that post on the plea that he has not been regularly promoted, as convening of Departmental Promotion Committee or taking other steps for filling up the promotional post is not in the control of an employee. Relevant paragraphs of the judgment are extracted below:

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, 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.

In the result, the appeal is allowed. The impugned order as also the one passed by the Tribunal are set aside and the respondents are directed to pay salary and allowances to the appellants in the pay scale of the post of CDPO with effect from the date they took charge of these posts. This exercise must be completed within 8 weeks from today. The arrears shall be paid to the appellants within a period of 9 months.

As in the present case, the fact that the petitioner had been discharging the duties of Block Primary Education Officer from 16.1.2002 till 28.2.2009 without any complaint, is not in dispute, he cannot be denied the benefit of pay and allowances of the higher post, once he had regularly discharged the duties to the satisfaction of his superiors for the aforesaid period. For the reasons mentioned above, the writ petition is allowed. The petitioner is held entitled to pay and allowances of the post of Block Primary Education Officer from 16.1.2002, when he was directed to discharge the duties of higher post till his retirement on 28.2.2009. However, as the writ petition was filed in this court on 7.4.2011, it is directed that after the calculation, the petitioner shall be entitled to payment of arrears only for a period of 38 months from the date of filing of the writ petition. The petitioner shall also be entitled to consequential retrial benefits.