State of Punjab vs Deep Singh Sahota

This Letters Patent Appeal has been filed by the State of Punjab against the judgment dated 3.7.2013 passed by learned single Judge whereby the writ petition filed by the respondent has been allowed and he has been held entitled to the pay and allowances of the post of Director for the period he had worked on such post i.e. from 30.11.1999 to 31.12.2000 with all consequential benefits. The deduction of Rs. 16,380/- from the gratuity of the respondent has also been ordered to be refunded to him. The respondent has also been held entitled to interest at the rate of 6% per annum from the date of filing of the petition till the date of actual disbursement. A few facts relevant for the decision of the controversy involved, as narrated, in the appeal may be noticed. The respondent joined the department of agriculture, Punjab as Agriculture Officer on 17.7.1973. Later on he worked on the post of Joint Director, Agriculture and subsequently he was given current duty charge to the post of Director Agriculture and joined as such on 30.11.1999. His selection was challenged in this Court in CWP No. 9362 of 2000 and the order of his appointment as Director was quashed by this Court vide order dated 10.10.2000, Annexure P. 3. This Court further allowed the State Government to give him current duty charge of the post of Director Agriculture till the post was filled by promotion by adopting proper procedure. Accordingly, the respondent was reverted to the post of Joint Director, Agriculture, Punjab. The respondent through CWP No. 19580 of 2001 prayed for grant of pay scale for the post of Director of Agriculture, all consequential benefits alongwith interest at the rate of 18% per annum and pension. He also prayed for quashing the order for deduction of Rs. 16,380/- from his gratuity. Vide order dated 3.7.2013, this Court allowed the said petition with the relief as mentioned in para. 1 above. Hence the present appeal by the State of Punjab.

We have heard learned counsel for the appellant and perused the record.

The only point for consideration in this appeal is whether the respondent employee was entitled to salary for the higher post for the period he had worked on the same.

In Smt. P. Grover Vs. State of Haryana and Another, while dealing with identical question, the Hon''ble Apex Court observed as under:--

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 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 prompted 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 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.

Similarly in Secy.-Cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Others, a three Judges Bench of the Hon''ble Supreme Court observed as under:--

Learned counsel for the appellant has placed reliance on Sreedam Chandra Ghosh Vs. State of Assam and others, as also on State of Haryana Vs. S.M. Sharma and others, to contend that since the respondent was promoted on the basis of stop-gap arrangement, he could not claim promotion as a matter of right nor could be claim salary for the post of Junior Engineer-I as he was given only current duty charge of the post. Both the contentions cannot be accepted. The Tribunal has already held that the respondent having been promoted as Junior Engineer-I, though in stop-gap arrangement, was continued on that post, and therefore, he has a right to be considered for regular promotion. Having regard to the facts of this case, there is no reason to differ with the Tribunal.

Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stopgap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer-I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act.

The learned single Judge held that the respondent was entitled to emoluments of higher post during the period he was called upon by the State Government to discharge duties on the said post, following the law laid down by the Hon''ble Supreme Court. We do not find any ground to differ with the view taken by the learned single Judge. Consequently, finding no merit in the appeal, the same is hereby dismissed. Since the appeal has been dismissed on merits, no order is required to be passed on the application for condonation of delay in filing the appeal.