Himachal Pradesh High Court
Date Of Decision: 17.03.2025 vs State Of Himachal Pradesh And Others on 17 March, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
2025:HHC:9097-DB
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Writ Petition No.5123 of 2022
Date of Decision: 17.03.2025
_____________________________________________________________________
Upinder Kumar .........Petitioner
Versus
State of Himachal Pradesh and Others .......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Chandranarayana Singh, Advocate.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C. Verma, Additional Advocates General,
with Mr. Ravi Chauhan, Deputy Advocate
General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant petition, petitioner has prayed for following main reliefs:
"i) Issue writ of Certiorari, Mandamus or other appropriate writ order or direction as this Hon'ble Court deems fit, quashing the order/Letter dated 07.06.2022 (Annexure P- 13), for all intents and purposes.
ii) Issue writ of Certiorari, Mandamus or other appropriate writ order or direction by directing the respondents department to consider the case of the Petitioner for promotion to the post of Junior Engineer( Electrical) w.e.f. 17.10.2019 for all intents and purposes, with all consequential benefits.
iii) Issue writ of Certiorari, Mandamus or other appropriate writ order or direction by directing the Respondent Department to release the arrears of pay on the post of Junior Engineer( Electrical) w.e.f. 17.10.2019 @ 12% Per annum."
2. Precisely, the facts of the case, as emerge from the pleadings as well as other documents adduced on record by respective 2025:HHC:9097-DB 2 parties are that petitioner herein was initially appointed as Electrician (Grade-I) on daily wage basis in the month of December 1989. On 11.10.2002, services of the petitioner were regularized w.e.f. 01.01.2000 as Electrician (Grade-I). During service, petitioner was permitted by respondent-department to do three-year Diploma in Electrical Engineering Course, which he successfully completed in the year 2011. Vide office order dated 17.10.2019, petitioner herein was given officiating charge of post of Junior Engineer (Electrical) on temporary basis in his existing pay-scale, in addition to his own duties, which at relevant time he was doing in the capacity of Technical Electrician (Grade-I). Afore arrangement continued till retirement of the petitioner I.e. 30.06.2022, as is evident from Annexure P-14 i.e. office order dated 30.06.2022.
3. Though, petitioner officiated against the post of Junior Engineer, as detailed hereinabove, for more than two years and eight months, but he was not paid salary and other benefits for his having worked against higher post in addition to his own duties. At the time of filing of the petition, prayer also came to be made on behalf of the petitioner for his promotion against the post in question from due date, but learned counsel representing the petitioner Mr. Chandranarayana Singh fairly stated that same is not tenable on account of change in Recruitment & Promotion Rules (for short, 2025:HHC:9097-DB 3 hereinafter referred to as 'R&P Rules') as well as keeping in view the superannuation of the petitioner.
4. Now, precisely the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Chandranarayana Singh, learned counsel representing the petitioner is that once it is not in dispute that petitioner, in addition to his own duties, worked against the higher post of Junior Engineer for more than two year and eight months, he ought to have been given higher pay and pensionary benefits. In support of aforesaid claim, petitioner placed reliance upon judgment passed by this Court in case titled as Mahender Kumar Sharma Vs. State of Himachal Pradesh and Others, 2011 SCC OnLine HP 224, as well as recent judgment rendered by this Court in case titled as Murari Lal Vs. State of Himachal Pradesh and Others, CWP No.11477 of 2024, decided on 01.03.2025, wherein this Court taking note of judgment passed by Hon'ble Apex Court in case titled as State of Himachal Pradesh and Others Vs. Raj Kumar and Others, (2023) 3 SCC 773, though has held that employee has no vested right to be considered for promotion in accordance with repealed rules in view of policy decision of the Government, but Government being modal employer cannot be permitted to raise argument that undertaking was given by employee to work without additional emoluments.
2025:HHC:9097-DB 4
5. Reply filed on behalf of respondents, if perused in its entirety, nowhere disputes facts as taken note hereinabove. Attempt has been made to defeat the claim of the petitoner on the ground that since petitioner was not eligible to be considered for promotion in terms of prevalent R&P Rules, there was no occasion, if any, for the department to grant him promotion to the post of Junior Engineer. Mr. B.C. Verma, learned Additional Advocate General vehemently argued that by now it is well-settled that promotion is to be effected on the basis of R&P Rules prevalent at the time of consideration. He submitted that since at the time of consideration of the petitioner for promotional post, R&P Rules stood amended and new condition with regard to qualification was added, which at relevant time, petitioner was not possessing, no illegality can be said to have been committed by the respondents, inasmuch as not considering his case for promotion to the post of Junior Engineer is concerned.
6. While referring to office order dated 17.10.2019 (Annexure P-5), Mr. Verma states that petitioner was given temporary charge of Junior Engineer (Electrical), in addition to his own duties, but at relevant time, he was made clear that he shall not be entitled to pay of Junior Engineer and as such, he is estopped from claiming such relief at this belated stage. He further submitted that though facts reveals that during service, petitioner completed three-year diploma, but as 2025:HHC:9097-DB 5 per R&P Rules, diploma, if done by distance mode, is not valid, as has been held by Hon'ble Apex Court in Orissa Lift Irrigation Corporation Limited versus Rabi Sankar Patro and Others, 2018 (1) SCC 468.
7. I have heard the parties and gone through the record. Though this Court in case titled as Narender Kumar Vs. State of Himachal Pradesh and Others, CWP No.1118 of 2021, decided on 06.01.2023, having taken note of judgment passed by Hon'ble Apex Court in Orissa Lift Irrigation Corporation Limited (supra) has already held that afore judgment pertains to validity of Degree in Engineering conferred by the deemed to be University through distance education mode and at no point of time, Hon'ble Apex Court has dealt with Diploma, if any, obtained through distance mode, but since at very threshold, learned counsel representing the petitioner admitted that on account of subsequent developments, prayer of the petitioner for promotion to the higher post does not survive, this Court need not go into aforesaid aspect of the matter.
8. At this juncture, precisely the question which needs to be considered is "whether petitioner could have been denied higher wages for his having worked against the higher post i.e. post of Junior Engineer for more than two years and eight months or 2025:HHC:9097-DB 6 not?". Aforesaid question has been already dealt by this Court in detail in Murari Lal (supra), relevant Para of the same reads as under:
"10. At this juncture, it would be apt to take note of judgment passed by Hon'ble Apex Court in case titled as Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Others, (1998) 5 SCC 87, wherein it came to be held that Government being a model employer, cannot be permitted to raise such an argument that undertaking was given by the employee to work without additional emoluments. Relevant Para of afore judgment reads as under:
"8. 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 stop-gap 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."
11. Reliance is also placed upon judgment, titled State of Punjab and Another Vs. Dharam Pal, (2017) 9 SCC 395.
"20. In Hari Om Sharma, the respondent was promoted as a Junior Engineer I in 1990 and had been continuing on that post without being paid salary for the said post and without being promoted on regular basis. It was in this situation, he approached the Central Administrative Tribunal which allowed the claim petition with the direction that the respondent shall be paid salary for the post of Junior Engineer I. That apart certain other directions were also issued. The Court took note of the fact that the respondent was promoted on a stop-gap arrangement as Junior Engineer I and opined that this by itself would not deny his claim of salary for the said post. In that context, the Court held: (SCC p. 89, para 6) 2025:HHC:9097-DB 7 "6. If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The Tribunal has noticed that the respondent has been working on the post of Junior Engineer I since 1990 and promotion for such a long period of time cannot be treated to be a stop-gap arrangement."
21. After so stating, the Court proceeded to opine thus: (Hari Om Sharma cases, SCC pp. 89-90, para 8) "8. The 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 stop-gap 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 the 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, 1872."
(emphasis supplied) The principle postulated in the said case is of immense significance, for it refers to concept of public policy and the conception of unconscionability of contract.
22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in P. Grover and Hari Om Sharma. As far as the authority in A. Francis is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating 2025:HHC:9097-DB 8 position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma and resultantly we hold that the view expressed by the High Court is absolutely impeccable."
12. Now doubt, in the case at hand, perusal of Annexure P-4 suggests that charge of the post of Principal was given to the petitioner in addition to his own duties, without any remuneration, but once there is no dispute qua the fact that since on the date of creation of vacancy, petitioner had been rendering services as Principal, in addition to his own duties, coupled with the fact that he is otherwise entitled to be promoted against the post in question being senior-most in the cadre, prayer made on his behalf for release of salary attached to the post of Principal, deserves to be considered.
13. Division Bench of this Court in case titled as Ranbir Singh Vs. State of Himachal Pradesh and Another, CWPOA No.5840 of 2020, decided on 27.09.2023, had an occasion to deal with similar situation, wherein, after having taken note of FR49, it proceeded to hold as under:
"4. FR 35 and 49 shall be relevant for adjudication of present matter, which read as under:-
"35. The Central Government may fix the pay of an officiating Government servant at an amount less than the admissible under these rules.
49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such cases, his pay is regulated as follows:
-
(i) where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post;
(ii) where a Government servant is formally appointed to hold dual charges of two posts in the same cadre in the same office carrying identical scales of pay, no additional pay shall be admissible irrespective of the period of dual charge: Provided that, if the Government servant is appointed to an additional post which carries a special pay, he shall be allowed such special pay;
2025:HHC:9097-DB 9
(iii) where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post, or of the highest post, if he holds chargé of more than two posts, in addition to ten per cent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 45 days but not exceeding 3 months: Provided that if in any particular case, it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of Department of Personnel and Training shall be obtained for the payment of the additional pay beyond the period of 3 months;
(iv) where an officer is formally appointed to hold full additional charge of another post, the aggregate of pay and additional pay shall in no case exceed ,25,000;
(v) no additional pay shall be admissible to a Government servant who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge;
(vi) if compensatory or sumptuary allowances are attached to one or more of the posts, the Government servant shall draw such compensatory or sumptuary allowances as the Central Government may fix:
Provided that such allowances shall not exceed the total of the compensatory and sumptuary allowances attached to all the posts."
5. Guidelines issued by the Government of India, Department of Personnel and Training vide O.M. No. 4/2/89-Estt. (Pay-II), dated 11th August, 1989 with respect to additional charge of the current duties of another post under FR 49, are also relevant in this regard, which read as under:-
"... ... ...
2. With a view to avoiding recurrence of such situations, the following guidelines may be followed while considering the question of entrusting additional charge of another post to an officer:-
(i) When an officer is required to discharge all the duties of the other post including the statutory functions, e.g. exercise of power derived from Acts of Parliament such as Income Tax Act or the Rule, Regulations, By-Laws made under various Articles of Constitution such as FRs, CCS (CCA) Rules, CSRs., DFPRs., etc., then steps should be taken to process the case for getting the 2025:HHC:9097-DB 10 approval of the Competent Authority and formal orders appointing the officer to the additional post should be issued. On appointment the officer should be allowed the additional remuneration as indicated in RF 49.
(ii) Where an officer is required only to attend to the usual routine day-to-day work of non-statutory nature attached to the post, an office order may be issued clearly stating that the officer will be performing only the routine day-to-day duties of non-statutory nature and that he would not be entitled to any additional remuneration. The office order should also specify what duties he would be discharging or what duties he would not be discharging."
14. As per aforesaid judgment, FR49(i) provides that where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office, he shall be entitled for officiating pay, unless concerned authority reduces the same under Rule 35.
9. In afore judgment, this Court having taken note of law laid down by Hon'ble Apex Court as well as Division Bench of this Court has held that once it is not in dispute qua the fact that on the date of creation of vacancy, employee concerned had been rendering the services against the post, which otherwise required to be filled-up by way of promotion, in addition to his own duties, undertaking, if any, given by the employer concerned for not claiming higher pay may not be of much relevance. FR49(i) clearly provides that where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office, he shall be entitled for officiating pay, unless concerned authority reduces the same under Rule 35. In the case at hand, there is nothing to suggest that concerned authority ever reduced the officiating pay of the petitioner under Rule 35. At this juncture, it is also relevant to take note of 2025:HHC:9097-DB 11 following Paras of judgment passed by Division Bench of this Court in case titled as Mahender Kumar Sharma (supra), which reads as under:
"9. Petitioner had been given the charge of higher post of Registrar, as per order dated 26.6.2001. He assumed his duties on 1.9.2001. He has rightly been given the benefit of F.R. 49 (i) of F.R.. He was discharging the duties of higher post in the same office and in the same cadre/line of promotion. In view of the Annexures, placed on record by the petitioner, the expression 'pay' has been used and not 'allowances'. The pay of the petitioner has been fixed at Rs. 11,320/- and he has retired from service on 31.12.2002. His basic pay from 1.9.2001 to 31.12.2002 was Rs. 11,320/-. His pension was to be calculated at Rs. 11,116/- and he was entitled to pension at Rs. 5,558/- instead of Rs. 5,320/- per month.
10. According to Government of India's order No. 1, issued under F.R. 35, no restriction are to be imposed in officiating pay in cases of regular cadre promotion. Similarly, according to Government of India's order No. 2, there are restrictions of officiating pay issued under F.R. 35 in cases of cadre promotions not on regular basis. This is the only restriction, which can be put while regulating pay under F.R. 49 (1). The expression 'emoluments' has been explained under rule 33 of Central Civil Services (Pension) Rules, 1972 and it means basic pay, as defined under rule 9 (21) (a) of the F.R., which the Government servant was receiving at the time of his retirement or on the date of his death. According to rule 34 of the Central Civil Services (Pension) Rules, 1972 average emoluments are to be determined with reference to emoluments drawn by him during the last ten months of his service. In the instant case, a sum of Rs. 600/- was to be merged in petitioner's basic salary and thereafter it was to be treated as emoluments within the expression of rule 33, 34 and 49 (2) (a) of the Central Civil Services (Pension) Rules, 1972. The action of the respondents to calculate retiral benefits of the petitioner on the salary of Superintendent Grade-I was erroneous. Petitioner, In fact, was to be given his retiral/pensionary benefits on the basic pay to which the petitioner was entitled, je with effect from 1.9.2001 to 31.12.2002."
10. In afore case, petitioner was given the charge of higher post of Registrar, as per office order dated 26.06.2001 in addition to his own duties of lower post. In afore judgment, this Court held that 2025:HHC:9097-DB 12 only one restriction can be put while regulating pay under FR49(i), that too under FR35, in case of cadre promotion, not on regular basis.
11. Though, at this stage, learned counsel for the petitioner put forth argument that since the petitioner is entitled to higher pay/officiating pay of the higher post, as such, his retiral benefits like pension, gratuity etc. are to be calculated on the basis of such higher pay. In this regard, he has placed reliance upon Mahender Kumar Sharma (supra). However, this Court finds that in the aforesaid case, petitioner therein was fully eligible for promotion to the post, against which he worked on officiating basis, whereas, in the present case, the petitioner cannot be said to be eligible as per R&P Rules of the post of Junior Engineer (Electrical), for the reason that he obtained Diploma in the year 2011, from a deemed University, which is not recognized, as such diplomas were recognized only upto the year 2007-08, as such, he did not hold requisite qualification for promotion to higher post of Junior Engineer (Electrical), as such, he cannot be promoted to higher post.
12. However, since the petitioner has admittedly worked against higher post, carrying higher responsibilities, he is definitely entitled to be compensated and he is required to be granted officiating pay of higher post. However, so far submission of learned counsel for the petitioner that such officiating pay, if granted, be also taken into 2025:HHC:9097-DB 13 consideration while calculating retiral benefits like pension, gratuity etc., is concerned, this Court is not impressed with the same, for the reason that as per CCS (Pension) Rules, 1972, pension is to be calculated on the basis of last pay drawn, which means pay attached to substantive post and petitioner held substantive post of Electrician (Grade-I).
13. In view of the detailed discussion made hereinabove, the petition is allowed to the extent that the petitioner shall be paid officiating pay against the post of Junior Engineer (Electrical) for the period he worked on the said post and arrears in this regard be calculated and paid to him, within six months from today. However, so far relief of promotion to the higher post of Junior Engineer (Electrical) and payment of arrears thereof, are concerned, same is declined.
With these observations, the writ petition stands disposed of, alongwith all pending applications.
March 17, 2025 (Sandeep Sharma),
Rajeev Raturi Judge