State of
Haryana Vs. R.K. Aggarwal [1997] INSC 622
(28 July 1997)
SUJATA
V. MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
Mrs. Sujata
V. Manohar, J.
Leave
granted.
Prior
to 7th of December, 1990 the respondent was holding the post of Superintending
Engineer in the Public Works (B&R) Department of the State of Haryana. By order dated 7th of December,
1990 he was given the current duty charge as Chief Engineer (Roads) in his own
pay-scale of Superintending Engineer. The order of 7th of December, 1990 in the
"remarks" column states against the name of respondent, "(1)
Vice Shri A.N. Sehgal transferred; (2) in his own pay-scale of SE". The
respondent was given promotion as Chief Engineer with effect from 8th of
November, 1994 and was thereupon given the pay-scale of a Chief Engineer. The
order of 8th of November, 1994 issued by the Haryana Government Public Works
(B&R) Department, inter alia, states, "In pursuance of the directions
of the Supreme Court of India, the Governor of Haryana is pleased to grant the
pay-scale of Rs. 5900-6700 of the post of Chief Engineer with effect from
1.11.1994 to Shri R.K. Aggarwal holding the acting charge of the post of Chief
Engineer (National Highways); (2) The above pay-scale is granted subject to the
final outcome of the representations received from various officers with regard
to the seniority circulated vide order No. 13-70-B&R (E)-2-90 dated
7.4.1992 required to be disposed of as per the directions of Supreme Court of
India." This order clearly states that prior to 1st November, 1994 the respondent was holding acting
charge of the post of Chief Engineer. There was litigation which was pending
with regard to the inter-se seniority of various concerned officers. In
pursuance of the directions given in that litigation by this Court, substantive
appointment to the post of Chief Engineer was given to the respondent with
effect from 1st
November, 1994. But
his was made subject to the final outcome of the various representations which
had been received from officers with regard to their inter-se seniority.
By
another order dated 8th of November, 1994 issued by the Haryana Government,
Public Works (B&R) Department, the respondent was given the current duty
charge of the post of Engineer-in-Chief in addition to this present duties. The
order of 8th of November, 1994 expressly sets out that the current duty charge
given to the respondent as Engineer-in- Chief was in addition to his present
duties. Thereupon another order of 20th of December, 1994 was issued effecting
various postings/transfers of various officers. This order, inter alia, sets
out that one Shri K.B. Lal Singal was posted as Chief Engineer (National
Highways) relieving Shri R.K. Aggarwal i.e. the respondent of his duties as
Chief Engineer (National Highways). Note 2 sets out that Shri R.K. Aggarwal
will continue to look after the work of Engineer- in-Chief, PWD (B&R), Haryana,
in his own pay-scale of Chief Engineer. Once again this was done on account of
pending litigation with regard to inter-se seniority of the various concerned officers.
The respondent was ultimately given promotion of the post of Engineer-in-Chief
in the pay-scale of Rs. 7300-7600 under an order of 16th of April, 1995.
After
his retirement the respondent in 1996 filed Writ Petition No. 1156 of 1996
before the High Court of Punjab & Haryana claiming, inter alia, that for
the period 10.12.1990 to 31.10.1994 he should be given the pay-scale of a Chief
Engineer and that for the period 8.11.1994 to 15.4.1995 he should be given the
pay-scale of Engineer-in-Chief. He further prayed that his retirement benefits
should also be calculated on that basis. The claim of the respondent has been
upheld by the High Court although the relief for payment of arrears is
restricted to a period of 38 months from the date of the filing of the writ
petition. The present appeal is filed from this judgment and order of the High
Court.
From
the orders which we have referred to above relating to the respondent being
asked to hold the current duty charge first, as Chief Engineer and thereafter as
Engineer-in-Chief, it is clear that substantive promotion was not given to the
respondent during the impugned periods because of pending litigation relating
to the inter-se seniority of the various officers concerned. No substantive
promotion could be give until the question of inter-se seniority was finally
decided. That is why even the order of 8th of November, 1994 giving promotion
and pay-scale of Chief Engineer to the respondent mentions that it is subject
to the representations received from various officers with regard to their
seniority which are required to be disposed of as per the directions of this
Court. The same is the position with regard to the respondent being given
current duty charge as Engineer-in-Chief. In view of the clear terms of the
concerned orders the respondent cannot claim substantive promotion either as
Chief Engineer or as Engineer-in-Chief during the impugned relevant periods.
The
respondent has relied upon a decision of this Court in the case of Smt. P.
Grover v. the State of Haryana and Anr. (1983 (3) SCR 654). In
that case the appellant was promoted as an acting District Education Officer
but the order of promotion contained a super-added condition that she would
continue to draw her salary on her existing scale of pay as a teacher. This
Court held that in the counter- affidavit field on behalf of the Govt. of Haryana
no rational explanation was offered for denying the pay of District Education
Officer to the appellant after she was promoted to act as a District Education
Officer. 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 same
should be given from the date she was promoted to the post. This judgment will
not apply to the facts of the present case. In the present case there is a
rational explanation for not granting promotion to the respondent during the
impugned periods. This was because the litigation was pending in relation to
the inter-se seniority of various concerned officers. It was, therefore, not
clear who would be ultimately promoted. It was only pursuant to the directions
of this Court that the promotion was given to the respondent first as Chief
Engineer and thereafter as Engineer-in-Chief the latter also being subject to a
condition relating to the determination of seniority by the department pursuant
to the directions of this Court. There was, therefore, a valid reason for not
effecting the promotion of the respondent during the material period. In each
of the posts of Chief Engineer and Engineer-in-Chief the respondent has been
given his promotion from a subsequent date as the order of promotion clearly
show.
In
these circumstances, during the impugned period when no promotion had been
given to the respondent, he cannot claim the salary of the promotional post.
The impugned order of the High Court is, therefore, set aside, the appeal is
allowed and the writ petition is dismissed. In the circumstances, we make no
order as to costs.
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