Punjab-Haryana High Court
Nihal Singh Saini And Others vs Punjab State Power Corporation Limited ... on 24 September, 2024
Neutral Citation No:=2024:PHHC:126090
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP-457-2016
Reserved on : 19.09.2024
Date of decision : 24.09.2024
Nihal Singh Saini and others .....Petitioners
Versus
Punjab State Power Corporation Limited and others .....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present : Ms. Garima Pandey, Advocate for
Mr. Anil Mehta, Advocate for the petitioners.
Ms. Eknoor Kaur Sara, Advocate for
Mr. Vikas Chatrath, Advocate for the respondents.
NAMIT KUMAR, J.
1. The petitioners have approached this Court by filing the present petition under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing the condition contained in promotional letters (Annexure P-1 colly) of the petitioners to the extent that despite working as Deputy CA/Deputy CAO/Deputy F.A., they shall not claim pay attached to the said posts. Further seeking a writ of mandamus, directing the respondents to grant the petitioners pay scale associated to the posts on which they have worked and grant all the consequential benefits accordingly.
2. Brief facts of the case, as have been pleaded in the writ petition, are that the petitioners are employees of the Punjab State Power Corporation Limited (erstwhile Punjab State Electricity Board) and working as Senior Accounts Officers/Accounts Officers. However, petitioner No.1 was posted with Bhakra Beas Management Board by an 1 of 11 ::: Downloaded on - 25-09-2024 06:37:24 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 2 administrative order passed by PSPCL. Vide promotional letters (Annexure P-1 colly), the petitioners were ordered to work as Deputy Chief Accounts Officer/Deputy C.A./Deputy F.A. with the condition that they shall be placed in their own pay scale of Senior Accounts Officer/Accounts Officer without any financial benefits. All the petitioners retired while working as Deputy Chief Accounts Officer/Deputy C.A./Deputy F.A., however, during the period of their service and while calculating their retiral benefits, they have not been granted the benefit of promtional scale of Deputy Chief Accounts Officer/Deputy C.A./Deputy F.A. The service particulars of the petitioners and their date of assuming the charge of the abovementioned posts are as under:-
Name of Date of Period of Date of Date of
Employee/Emp. Assuming Service as Assuming retirement
Code with charges as AO/Sr. AO Charges as working as
Father's name AO (Approx) Dy.CAO/Dy.CA/ Dy.CAO/Dy.CA/
Dy.FA Dy.FA
Nihal Singh Saini, 09.05.2008 5Y 4M 01.10.2013 30.09.2014
107964 S/o
Manohar Singh
Narinder Kumar 10.04.2007 5Y 11M 11.03.2013 30.09.2013
Goel, 107485 S/o
Sh. Amir Chand
Sunil Kumar, 31.05.2006 6Y 6M 20.12.2012 31.08.2013
107264 S/o Sh.
Gopal Dass
Mrs. Nishi, 108158 07.07.2009 4Y 8M 07.03.2014 30.07.2015
D/o Baldev Raj
Sood
Suraj Bhan, 06.12.2006 6Y 20.12.2012 31.01.2013
107382 S/o Sh.
Ved Parkash
Amrinder Gupta, 03.01.2006 6Y 3M 30.04.2012 31.05.2012
107161 S/o Sh.
Ram Charan Dass
During the course of their employment, all the petitioners have made representation Annexure P-3 (colly) to the respondents to grant the 2 of 11 ::: Downloaded on - 25-09-2024 06:37:24 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 3 financial benefit attached to the said posts, but to no avail. Hence, the present petition.
3. Initially, the present petition was allowed by the learned Single Bench of this Court vide order dated 12.01.2016 and further directed the respondents to pay costs of Rs.25,000/- to the petitioners.
Since the said order was passed ex parte, respondents filed an appeal bearing LPA No.522 of 2016 and the matter was remitted back to the learned Single Bench vide order dated 03.12.2018 to follow the principles of natural justice and decide the same afresh after affording an opportunity of hearing to the parties, in accordance with law.
4. Pursuant to issuance of notice of motion, written statement on behalf of respondents have been filed, wherein it has been stated that the petitioners were posted on the posts of Deputy Chief Accounts Officer/Deputy C.A./Deputy F.A. in their own pay scale without any financial benefits and once having accepted the said condition and joined on the said posts and even after their retirement, the petitioners cannot claim the pay scale of the said posts and further their posting was only due to administrative exigencies and as a stop-gap arrangement.
The relevant paras of the written statement read as under :-
"xx xx xx xx xx
3. That petitioners were posted as Dy. CAO's/Dy. CA/Dy. FA which were meant for Reserve Category after the PSPCL failed to get any favorable orders from Punjab Government regarding De-reservation of the posts due to Administrative exigencies and as a stop gap arrangement due to non-completion of requisite time gap of 5 years as laid down in Regulation 7(f) (i) of PSEB Accounts & General Services (Class-I & Il Officers) Regulations, 1972 3 of 11 ::: Downloaded on - 25-09-2024 06:37:24 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 4 & which had been carried out vide O/o No.420 dt 20.12.11 for promotion from AO/Sr. AO to Dy. CAO. Once they do not fulfill the requisite experience and eligibility conditions, consequently, they were aware that they could not be promoted to the said post, as such, claim made by the petitioners is misconceived and writ petition is liable to be dismissed.
4. That petitioners have laid no fundamental grounds for claiming quashing of the condition contained in the posting orders of petitioners as Dy CAO's/Dy. CA/Dy. FA w.e.f. the date they had joined in their own scale especially after a palpable delay w.e.f. the initiate date of order, which is subject matter of the present writ petition. As such, the present writ petition is liable to be dismissed.
5. That petitioners had continued to discharge the duties in terms of the posting orders, same cannot be construed as promotion which the petitioners are trying to project with soiled hands. They continue to discharge duties till the superannuation which shows that there was acquiesce on their part to the terms and conditions of their posting orders (P-1 Colly). They cannot turn around to challenge the conditions as laid down in their posting orders and that too after palpable delay of issuance of the orders of transfer. Writ petition is liable to be dismissed on the grounds of delay and laches, keeping in view the peculiar facts and circumstances of the present case.
Consequently, petitioners are not entitled to any relief from the Hon'ble Court, as such the petition is liable to be dismissed on the ground above.
xx xx xx xx xx"
5. Learned counsel for the petitioners submits that the conditions laid down in the posting orders (Annexure P-1) (Colly) of the 4 of 11 ::: Downloaded on - 25-09-2024 06:37:24 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 5 petitioners that they shall be placed in their own pay scales without any financial benefits is totally erroneous and arbitrary and deserves to be set aside as it is a settled proposition of law that an employee who has discharged duties on higher post is entitled to the pay attached to such higher post. In support of his contention, she has placed reliance upon the judgment of Hon'ble Supreme Court passed in Smt. P. Grover Vs. State of Haryana : 1983(4) SCC 291.
6. Per contra, learned counsel for the respondents submits that the petitioners were posted on the posts of Deputy Chief Accounts Officer/Deputy C.A./Deputy F.A. in their own pay scale without any financial benefits and their posting is only due to administrative exigencies and as a stop-gap arrangement. Since the petitioners have already accepted the said conditions and thereafter, joined on the posts of Deputy Chief Accounts Officer/Deputy C.A./Deputy F.A., therefore, they are not entitled for the pay scales of the said post, which are being claimed post retirement.
7. I have heard learned counsel for the parties and perused the relevant documents.
8. Facts are not in dispute and the issue raised in the petition is no longer res integra. The similar issue has already been considered by this Court in 'Sukhpreet Singh and others Vs. Punjab State Power Corporation Limited and others' 2024 NCPHHC 9924 wherein it has been observed as under :-
"xx xx xx xx xx
8. The petitioners, who were working as Assistant Accounts Officers, have been posted against the posts of Accounts Officers after they had rendered service of more 5 of 11 ::: Downloaded on - 25-09-2024 06:37:24 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 6 than 05 years as Assistant Accounts Officers. Once the petitioners have performed the duties of the posts of Accounts Officers, they cannot be denied the pay scale of the said post. The condition that the petitioners shall be placed in their own pay scale of Assistant Accounts Officer without any financial benefit is totally arbitrary and not sustainable.
9. The Hon'ble Supreme Court in its judgment passed in Smt. P. Grover's case (supra) has held that the officer promoted to higher post on acting basis is entitled to salary of such higher post. The relevant para of the said judgment reads as under :-
"3. 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 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 6 of 11 ::: Downloaded on - 25-09-2024 06:37:25 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 7 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."
10. To the same effect is the judgment of the Hon'ble Supreme Court in Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma : 1998 AIR (SC) 2909. In the said case the employee was promoted as Junior Engineer-I in stop-gap arrangement and he had given the undertaking that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The said argument was rejected by Hon'ble Supreme Court and it was held that the Government being model employer cannot be permitted to make such an argument.
11. Similarly in the case of Selva Raj Vs. Lt. Governor of Island, Port Blair : 1999(2) S.C.T. 286 the employee looked after the duties of higher post and he worked though temporarily and in an officiating capacity, however, it was held that he was entitled to draw salary attached to the higher post during the time he actually worked on that post. To the same effect are the judgments passed in State of Punjab and another Vs. Dharam Pal : 2017 AIR SC 4438; Gurmej Singh Vs. State of Punjab : 1995 (3) S.C.T. 279; Balbir Singh Dalal and others Vs. State of Haryana and another : 2002(4) S.C.T. 422 and Pritam Singh 7 of 11 ::: Downloaded on - 25-09-2024 06:37:25 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 8 Dhaliwal Vs. State of Punjab and another : 2004(6) SLR
758.
12. In view of the above factual position and the law laid down in the abovesaid judgments, the present petition is allowed and the respondents are directed to release the pay and allowances of the post of Accounts Officers w.e.f. the date the petitioners have assumed the charge of Accounts Officers, with all consequential benefits within a period of three months from the date of receipt of certified copy of this order."
9. The abovesaid judgment has been upheld by the Hon'ble Division Bench of this Court in L.P.A. No.1061 of 2024 titled as 'Punjab State Power Corporation Limited, Patiala Vs. Sukhpreet Singh and others' decided on 30.04.2024, by recording the following findings :-
"xx xx xx xx xx
2. The learned Single Judge while allowing the writ petition had granted the benefit of pay and allowances of the higher post of Accounts Officer from the date the writ petitioners assumed the charge as such with all consequential benefits which were payable within a period of three months. The reliance by the learned Single Judge as such was upon the various judgements of the Apex Court as well as this Court which hold the field. The said judgements read as under:-
"State of Punjab and another Vs. Dharam Pal :
2017(4)S.C.T. 460; Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma : 1998(3) S.C.T. 90; Selva Raj Vs. Lt. Governor ofIsland, Port Blair : 1999 (2) S.C.T. 286; Smt. P. Grover Vs. State of Haryana : 1983(4) SCC 291; Pritam Singh Dhaliwal Vs. State of Punjab and another : 2004(4) S.C.T. 403; Balbir Singh Dalal and others Vs. State of Haryana and another : 2002(4) S.C.T. 422 and 8 of 11 ::: Downloaded on - 25-09-2024 06:37:25 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 9 Gurmej Singh Vs. State of Punjab : 1995(3) S.C.T.
279."
3. Learned counsel for the appellant has tried to convince us that the writ petitioners were estopped as such since their posting orders specifically said that they would be working on their own pay scale without any financial benefits and, therefore, having accepted the said posting orders way-back in 2013, they could not agitate for their grievances.
4. We are not convinced with the said argument. It is settled principle that the employer is always in a position of dominance and, therefore, merely because the said incorporation had been made in the order as such would not estop the writ petitioners from seeking their legal rights as such. Having taken the work and the responsibility of a higher post, the model employer should have gracefully acceded to the request and the demand of the higher pay/emoluments for the post which they held charge. It is also not disputed that thereafter they have also earned their promotions to the said post and in such circumstances once having the requisite qualifications also there was no escape for the appellant, but to dole out the necessary financial benefits.
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 (DB). In the said case, higher pay had been claimed for having performed the duties of 9 of 11 ::: Downloaded on - 25-09-2024 06:37:25 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 10 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.
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 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.
7. It is never the case as such that the writ petitioners were ineligible for promotion to the said post and rather it has been averred that they would be considered for regular promotion as per their eligibility and seniority. In such circumstances, we are of the considered opinion that the 10 of 11 ::: Downloaded on - 25-09-2024 06:37:25 ::: Neutral Citation No:=2024:PHHC:126090 CWP-457-2016 11 judgement of the learned Single Judge as such does not suffer from any infirmity which would warrant interference.
8. The appeal being meritless, accordingly, stands dismissed."
10. In view of the above factual position and the law laid down in the abovesaid judgments, the present petition is allowed and the respondents are directed to release the pay and allowances of the posts of Deputy CA/Deputy CAO/Deputy F.A. for the period the petitioners have performed the duty of the said posts, with all consequential benefits within a period of three months from the date of receipt of certified copy of this order.
(NAMIT KUMAR)
24.09.2024 JUDGE
Kothiyal
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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