Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1549 of 2011

The State of Punjab & Another …Appellant(s)

Versus

Dharam Pal …Respondent(s)  

J U D G M E N T

Dipak Misra, CJI

The  present  appeal,  by  special  leave,  calls  in

question  the  legal  acceptability  of  the  order  dated

20.08.2008  passed  by  the  High  Court  of  Punjab  and

Haryana at Chandigarh in Civil Writ Petition No.  18843

of 2007  whereby the Division Bench placing reliance on

the  decision  in  Pritam  Singh  Dhaliwal  v.  State  of

Punjab and another1 has acceded to the prayer made by

the respondent for getting the benefit of the pay scale for

the post he was holding on officiating basis.

2. To appreciate the gravamen of the controversy,  exposition of facts in brief is necessitous. The  respondent was appointed as a clerk on 22.05.1970  

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and promoted to the post of Senior Assistant on  22.09.1980. He was given the officiating charge of the  Superintendent Grade II vide order dated 09.12.2004  and thereafter, he was directed to function as  Superintendent Grade I vide Government Order dated  26.05.2007. As the factual narration would reveal, he  stood superannuated from service on 31.03.2008.

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3. Before  the  respondent  attained  the  age  of

superannuation, he approached the High Court in a Writ

Petition as he was not granted the benefit of the pay scale

for  the  posts  of  Superintendent  Grade  II  and

Superintendent  Grade  I  despite  having  performed  the

duties  of  officiating  current  duty  basis  regularly.  He

sought the relief for grant of pay, the arrears of pay and

other  consequential  allowances  and  benefits  with  18%

interest. As stated earlier, the High Court placed reliance

on the authority in Pritam Singh Dhaliwal (supra)  and

opined  that  the  controversy  is  covered  by  the  said

decision and disposed of the writ petition in terms of the

said judgment.  Hence, the present appeal.

4. We have heard Ms. Uttara Babbar, learned counsel

for  the  appellants  and  Mr.  Sudarshan  Singh  Rawat,

learned counsel for the respondent.  

5. Criticising the impugned order,  it  is submitted by

Ms.  Babbar  that  the  High Court  has  committed  gross

illegality in granting the benefit to the respondent totally

ignoring the restrictions incorporated in the orders dated

09.12.2004 and 26.05.2007 which clearly stipulated that

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the respondent official will work in his own pay scale and

his  officiating  promotion  would  be  subject  to  the

recommendations  of  the  Departmental  Promotion

Committee  and  on  the  approval  of  the  Committee,  he

shall be given the financial benefits. She would further

urge that  the authority relied upon by the High Court

does not hold good in view of what has been laid down by

this Court in  State of Haryana and another v. Tilak

Raj and others2, S.C. Chandra and others v. State of

Jharkhand and other3 and A. Francis v. Management

of  Metropolitan  Transport  Corporation  Limited,

Tamil Nadu4.  She has also impressed upon the aspect

that  under  the  Punjab  Civil  Services  Rules  (for  short,

“Rules”)  the  respondent  is  not  entitled  to  the  benefit

inasmuch as the Rules unequivocally prescribe for denial

of benefit.  

6. Mr.  Rawat,  learned  counsel  for  the  respondent,

while defending the order impugned, would contend that

the assumption of the State that the said Rules impose

conditions  in  the  negative  is  fundamentally  erroneous.

2  (2003) 6 SCC 123 3  (2007) 8 SCC 279 4  (2014) 13 SCC 283

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According to him, the pronouncements which have been

relied upon are not applicable to the facts of the instant

case and, therefore,  the decision rendered by the High

Court  cannot  be  found  fault  with.  He  would  further

contend  that  the  respondent  was  relieved  from  the

substantive  post  and  worked  in  the  higher  posts  and

carried  out  the  responsibilities  of  the  said  posts  and,

therefore, denial of the benefits to him would be travesty

of justice and further permit the State to pave the path of

infidelity to the real legal position.  That apart, submits

the  learned  counsel,  the  language  used  in  the  order

passed by the employer would crush the essential spirit

of the Rule.

7. In the beginning, it is seemly to state that there is

no factual dispute with regard to the appointments or the

posts.  That being the position, we think it appropriate to

refer to the orders of appointment as Ms. Babbar, learned

counsel for the appellant-State of Punjab, would harp on

the same.  The order dated 09.12.2004 reads as follows:

“ORDER

On the retirement of Smt. Chand Prabha, Superintendent  Grade  I  on  31.07.2004  the

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post  of  Superintendent  Grade  I  had  become vacant. On that vacant post Sh. Kewal Singh Supdt.  Gr.  II  is  promoted as  Superintendent Grade I in his own scale.

On  account  of  promotion  of  Sh.  Kewal Singh, Supdt. Gr. II as Superintendent Grade I and on account of proceeding on earned leave of  Shri  Bhinder  Singh  Supdt.  Gr.  II  w.e.f. 07.9.2004 Shri  Ashwani Kumar Sr. Assistant (Officiating  Superintendent  Gr.  II)  and  Sh. Dharam  Pal  (Officiting  Supdt.  Gr.  II)  are promoted as Superintendent grade II.

The  official  will  work  in  their  own  pay scale and above promotions will be subject to the  recommendations  of  the  Departmental Promotion Committee.  On the approval of the above  committee  they  will  be  given financial benefits.  On  the  basis  of  these  orders  the officials will not claim any seniority etc. “

On the basis of the aforesaid order, the respondent

functioned as the official Superintendent Grade II.

8. As stated earlier, while he was officiating on the said

post, he was promoted on officiating basis to function in

the post of Superintendent Grade I.  The relevant portion

of the said order reads as follow:

“The official will work in their earlier own pay scale and above promotions will be subject to the  recommendations  of  the  Departmental Promotion Committee. On the approval of the above  committee  they  will  be  given financial benefits.   On  the  basis  of  these  orders  the officials will not claim any seniority etc.”

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9. The said orders have to be tested on the anvil of the

Rules. It needs no special emphasis to state that if the

orders are in consonance with the Rules indubitably the

respondent cannot put forth a claim unless the Rules are

declared unconstitutional. Our attention has been invited

to  Rule  4.13  which  occurs  under  the  heading  “Pay  of

Officiating Government Employees”. The relevant part of

the said Rule reads as follows:

“Rule  4.13.  (1)  Subject  to  the  provisions  of rules 4.22 to 4.24, a Government employee who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post, unless  the  post  in  which  he  is  appointed  to officiate is one enumerated in the schedule to this rule or unless the officiating appointment involves  the  assumption  of  duties  and responsibilities  of  greater  importance  than those attaching to the post, other than a tenure post on which he holds a lien:

Provided  that  the  competent  authority may exempt from the operation of this rule, any service which is not organised on a time-scale basis  and  in  which  a  system  of  acting promotions from grade to grade is in force at the time of the coming into force of these rules:

Provided  further  that  the  competent authority  may  specify  posts  outside  the ordinary line of a service the holders of which may,  notwithstanding  the  provisions  of  this

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rule  and  subject  to  such  conditions  as  the competent  authority  may  prescribe,  be  given any  officiating  promotion  in  the  cadre  of  the service which the authority competent to order promotion may decide and may thereupon be granted the same pay (whether with or without any special pay, if any, attached to such posts) as  they  would  have  received  if  still  in  the ordinary line.  

(2) For the purpose of this rule, the officiating appointment shall not be deemed to involve the assumption  of  duties  or  responsibilities  of greater  importance  if  the  post  to  which  it  is made  is  on  the  same  scale  of  pay  as  the permanent post, other than a tenure post, on which  he  holds  a  lien,  or  on  a  scale  of  pay identical therewith.”

10. Certain Notes have been appended to the said Rule

but they are not relevant for adjudication of the present

controversy. On a close scrutiny, it is noticeable that the

said  Rule  postulates  that  the  government  employee

appointed to an officiating post shall not draw pay higher

than his substantive pay in respect of a permanent post

unless the post in which he is appointed to officiate is

one enumerated in the Schedule to the Rules and further

the officiating appointment involves assumption of duties

and  responsibilities  of  greater  importance  than  those

attached to the post. It is not in dispute that the posts of

Superintendent Grade II and Grade I are covered under

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the Schedule. Be it mentioned, the extension of benefit is

subject to the provisions of Rules 4.22 and 4.24.

11. In view of the aforesaid Rule position, it is necessary

to  reproduce  Rule  4.22  and  Rule  4.24.  They  read  as

follows:

“Rule  4.22. The  competent  authority  may appoint  one  Government  employee  to  hold substantively,  as  a  temporary  measure  or  to officiate in, two or more independent posts at one  time.  In  such  cases,  the  Government employee shall draw the highest pay to which he would be entitled if his appointment to one of the posts stood alone:

Provided that the employee must fulfil the requisite  qualifications  and  conditions  for services for both the posts.   

Rule  4.24.  When  a  Government  employee holds current duty charge of another post, in addition to that of his own substantive post, he does  not  officiate  in  the  former  post  and  as such  is  not  entitled  to  any  additional remuneration.”   

12. As we understand the said Rules, they categorically

convey that the employee who holds the higher post must

fulfil  the  requisite  qualifications  and  conditions  for

service for both the posts. It is not controvered at the Bar

that  the  respondent  was  eligible  to  hold  the  post  of

Superintendent Grade II and Grade I. In this context, the

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learned counsel for the appellants has commended us to

Rule 4.16. The said Rule reads as follows:

“Rule 4.16. A competent authority may fix the pay of an officiating Government employee at an amount less than that admissible under these rules.  

Note 1.–One  class  of  cases  falling  under  this rule  is  that  in  which a  Government  employee merely holds charge of the current duties and does not perform the full duties of the post.

Note  2.–When  a  Government  employee  is appointed to officiate in a post on a time-scale of pay but has his pay fixed below the minimum of the time-scale under this rule he must not be treated  as  having  effectually  officiated  in  that post within the meaning of rule 4.4 or having rendered duty in it within the meaning of rule 4.9.

Such a Government employee, on confirmation, should have his initial pay fixed under rule 4.4 (b)  and draw the next  increment after  he has put  in  duty  for  the  usual  period  required, calculated from the date of his confirmation.

Note 3.–The power conferred by this rule is not exercisable save by a special order passed in an individual  case  and on a consideration of  the facts of that case. A general order purporting to oust  universally  the  operation  of  rule  4.14 would be  ultra vires  of this rule. Although, the practice of  passing ostensibly special order on every individual case would not be ultra vires of this  rule  it  would  constitute  the  grossest possible fraud thereon.”

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13. On a careful scrutiny of the aforesaid prescription,

it is perceptible that the said Rule envisages a different

situation altogether. The present factual matrix is quite

different. We are inclined to so hold as the respondent

herein  was  holding  higher  posts  and  further  he  was

performing the duties of higher responsibility attached to

the  posts.  Thus  analysed,  we  arrive  at  the  conclusion

that the Rules do not bolster the proposition advanced by

the learned counsel for the State.  

14. Having analysed the Rule position, we may allude to

the authorities that have been commended to us. First,

we  shall  dwell  upon  the  decision  in  Pritam  Singh

Dhaliwal (supra) that has been relied upon by the High

Court  in  the  impugned  order.  In  the  said  case,  the

Division  Bench of  the  High  Court  had  placed  reliance

upon  Smt.  P.  Grover  v.  State  of  Haryana  and

another5 and Selvaraj v. Lt. Governor of Island, Port

Blair  and  others6 and  earlier  decisions  of  the  High

Court  and analyzing the  Rule  position opined that  the

officer  therein  had  been  asked  to  officiate  as  Deputy

5  AIR 1983 SC 1060 6  1999 (2) SCT 286

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Director  with effect  from 14.03.1996 and he had been

continuously  posted  to  equivalent  posts  such  as

Additional  Deputy  Commissioner  (D)  and  till  his

superannuation  the  officiating  charge  was  never

withdrawn and  hence,  his  entitlement  to  claim higher

pay scale for the post for which he was asked to officiate

and perform his duties till his superannuation would not

be negatived.  

15. As the reasoning of the High Court is fundamentally

based on enunciation of law propounded by the Court in

Smt. P. Grover (supra), we think it apt to appreciate the

ratio laid down in the said case.  A two-Judge Bench of

this  Court was dealing with the  fact  situation wherein

keeping in view the policy decision, the appellant therein

was  promoted  as  an  acting  District  Education  Officer.

The order of promotion contained a superadded condition

that she would draw her own pay scale which apparently

meant she would continue to draw her salary on her pay

scale prior to promotion. The claim was put forth by the

appellant  that  she  was  entitled  to  the  pay  of  District

Education  Officer  and  there  was  no  justification  for

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denying the same to her.  A Writ Petition was filed before

the High Court and the State filed the counter affidavit

contending, inter alia, that she was promoted to the post

of  acting  District  Education  Officer  as  there  was  no

Class I post and hence, she was not entitled to be paid

the salary of District Education Officer. Appreciating the

fact situation, the Court held:  

“… 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 (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.”

16. In  Tilak  Raj (supra),  the  issue  arose  regarding

justification of grant of minimum pay in the scale of pay

applicable to the regular employees to the daily wagers.

A  two-Judge  Bench  referred  to  various  decisions  and

came to hold thus:  

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“11.  A scale  of  pay  is  attached to  a  definite post and in case of a daily-wager, he holds no posts. The respondent workers cannot be held to  hold  any  posts  to  claim  even  any comparison  with  the  regular  and  permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant  hostile  discrimination before becoming eligible to claim rights on a par with the  other  group  vis-à-vis  an  alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of “equal pay for equal work” is an abstract one.

“12.  Equal  pay  for  equal  work”  is  a  concept which  requires  for  its  applicability  complete and  wholesale  identity  between  a  group  of employees  claiming  identical  pay  scales  and the other group of employees who have already earned  such  pay  scales.  The  problem about equal pay cannot always be translated into a mathematical formula.”   On  a  careful  perusal  of  the  said  decision  in  its

entirety, we are of the considered opinion that it is not an

authority  for  the  proposition canvassed by the learned

counsel for the appellants. It remotely does not support

the principle that is assiduously sought to be built by the

State.  

17. In  S.C.  Chandra (supra),  the  appellants  therein

had filed a Writ Petition in the High Court of Jharkhand

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seeking a writ of mandamus against the respondent Nos.

3 to  6 to  release the  pay,  DA with arrears along with

interest and further a direction not to close the school or

in the alternative, to issue a direction to respondent Nos.

1 to 2 to take over the management and control of the

school in question. The writ petitioners before the High

Court were teachers and non-teaching staff of the school

and  claimed  themselves  to  be  the  employees  of

Hindustan Copper Limited (HCL). The Court, after going

through the judgment of the High Court, came to hold

that solely because the management of HCL was giving

financial aid that by itself cannot be construed that the

school  was  run  by  the  management  of  HCL  and

accordingly, the Court dismissed the appeal. We have no

hesitation in opining that the principle that has been laid

down in the said judgment has no applicability  to the

facts at hand.   

18. In  A. Francis (supra), the Court was dealing with

the entitlement of the appellant to the salary in higher

pay of Assistant Manager wherein he had worked from

28.02.2001 till  31.05.2005.   The  employer  had  denied

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certain  benefits  and  the  employee  preferred  a  Writ

Petition before the High Court which was allowed by the

learned  Single  Judge.  The  Corporation  filed  Letters

Patent  Appeal  which  reversed  the  judgment  of  the

learned  single  Judge.  The  appellant  before  this  Court

placed  reliance  on  Secretary-cum-Chief  Engineer,

Chandigarh  v.  Hari  Om  Sharma  and  others7.  On

behalf of the Corporation terms of the order were pressed

into  service  contending  that  there  were  specific

conditions stipulated in the order with regard to salary

and emoluments and, therefore, the claim with regard to

higher post was not tenable in law.   

19. The Court appreciating the factual score held thus:

“The  order  dated  28-2-2001,  by  which  the appellant was allowed to discharge duties in the post of Assistant Manager had made it clear that the appellant would not be entitled to claim any benefit  therefrom  including  higher  salary  and further that he would continue to draw his salary in the post of Assistant Labour Welfare Officer. If the  above  was  an  express  term  of  the  order allowing  him to  discharge  duties  in  the  higher post,  it  is  difficult  to  see  as  to  how  the  said condition  can  be  overlooked  or  ignored.  The decision  of  this  Court  in  Secy.-cum-Chief Engineer was rendered in a situation where the incumbent was promoted on ad hoc basis to the higher  post.  The  aforesaid  decision  is  also

7  (1998) 5 SCC 87

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distinguishable  inasmuch  as  there  was  no specific condition in the promotion order which debarred the  incumbent  from the  salary of  the higher post. Such a condition was incorporated in  an  undertaking  taken  from  the  employee which was held by this Court to be contrary to public policy.”

20. In  Hari Om Sharma (supra), 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:  

“… 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.”

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21. After so stating, the Court proceeded to opine thus:   “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 added]   

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.  

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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

Smt. P. Grover (supra) and  Hari Om Sharma (supra).

As  far  as  the  authority  in  A.  Francis (supra)  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 position.

We are disposed to think that the controversy is covered

by the ratio laid down in  Hari Om Sharma (supra) and

resultantly we hold that the view expressed by the High

Court is absolute impeccable.    

23. In view of the aforesaid premises, we do not perceive

any merit in this appeal and accordingly the same stands

dismissed without any order as to costs.  

          ....................................... .....CJI  [Dipak Misra]  

...............................................J.

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[A.M. Khanwilkar]   

...............................................J.  [Dr. D.Y. Chandrachud]  

New Delhi; September 05, 2017.

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