Supreme Court of India
THE STATE OF PUNJAB & ANOTHERversus. DHARAM PAL
- Citation
- 2017 INSC 850
- Decided
- 5 September 2017
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
The respondent is entitled to the pay and financial benefits of the higher officiating posts under Punjab Civil Services Rules, and the High Court's order granting such benefits is upheld.
Summary
The respondent, a government employee, was appointed on an officiating basis to Superintendent Grade II in 2004 and later to Superintendent Grade I in 2007, with orders stipulating that he would continue on his own pay scale pending departmental promotion committee approval. He retired in 2008 and filed a writ petition seeking the pay and allowances of the higher posts, which the High Court granted. On appeal, the Supreme Court examined Punjab Civil Services Rules 4.13, 4.22 and 4.24, holding that the rules allow an employee who holds a higher officiating post and performs its duties to draw the higher pay, provided he meets the qualifications, and that no rule bars such payment. The Court relied on precedents such as Smt. P. Grover and Hari Om Sharma, rejecting the State's argument that the orders expressly denied the benefit. Consequently, the appeal was dismissed and the High Court's order upheld.
Issues considered
- The orders appointing the respondent to officiating posts required him to work on his own pay scale pending departmental promotion committee approval.
- Whether Punjab Civil Services Rules 4.13, 4.22 and 4.24 prohibit granting the higher pay of the officiating posts to the respondent.
- Whether the High Court erred in granting the respondent the financial benefits of the higher posts.
Subjects
officiating appointmentpay scalePunjab Civil Services RulesRule 4.13Rule 4.22Rule 4.24service lawfinancial benefitssuperannuationdepartmental promotion committee
Judgment
[2017] 14 S.C.R. 569
THE STATE OF PUNJAB & ANOTHER A
v.
. DHARAM PAL
(Civil Appeal No. 1549 of2011)
SEPTEMBER 05, 2017 B
[DIPAK MISRA, C.Jl. A. M. KHANWlLKAR AND
D~. D. Y. CHANDRACHUD, JJ.]
Service Law:
Officiating appointment - On the higher posts - Financial C
benefit - Entitlement - Respondent-employee given o(ficiating
appointment on regular basis -As per the office orders. the employee
Was not entitled to financial benefits of the higher qlficiating post -
Writ petition by the employee seeking financial benefits of the higher
officiating posts - Allowed by High Court - On appeal. held: As D
per rules 4.13. 4.22 and 4.24 of Punjab Civil Services Rule.~. the·
employee was entitled to financial benefits of higher officiating
posts - Punjab Civil Services Rules - rr. 4. I 3. 4.12 and 4.24. ·
Dismissing the appeal, the Court
HELD: 1.1 On the basis of the order dated 9.12.2004, the E
respondent functioned as the official Superintendent Grade II.
While he was officiating on the said post, he was promoted on
officiating basis to function in the post of Superintendent Grade I
by order dated 26.5.2007.The orders dated 09.12.2004 and
26.05.2007 stipulated that the respondent official will work in his
own pay scale and his officiating promotion would be subject to F
the recommendations of the Departmental Promotion Committee
and on the approval of the Committee, he shall be given the
financial benefits. The said orders have to be tested on the. anvil
of the Rules. H the orders are in consonance with the Rules
indubitably the respondent cannot put forth a claim unless the G
Rules arc declared unconstitutional. [Paras 7-9] [573-F-H; 574-
A-B]
2. Ruic 4.13 of Punjab Civil Services Rules postulates that
the Government employee appointed to an officiating post shall
not draw pay higher than his substantive pay in respect of a H
569
570 SUPREME COURT REPORTS [2017] 14 S.C.R.
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
11 and Grade I arc covered under the Schedule. The extension of
B
benefit is subject to the provisions of Rules 4.22 and 4.24. Rules
4.22 and 4.24 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 controvcred
that the respondent was eligible to hold the post of Superintendent
C Grade II and Grade I. In the instant case, the Rules do not prohibit
grant of pay scale. [Paras 10, 12 and 22] (575-A-C, F-G; 581-A]
3. 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. [Para 22] (581-B]
D Pritam Singh Dhaliwal ~: State of Puf!jah and another
2004 (4) RSJ 599; Smt. P Grover v. State of Hmyana
. and another AIR 1983 SC 1060 : (19831 3 SCR 654 -
relied on.
State <~l Haryana and another v. Tilak Raj and others
E (2003) 6 sec 123 : [20031 1 Suppl. SCR 522; S.C.
Chandra and others v. State of .Jharkhand and other
(2007) s sec· 279 : 120011 9 SCR 130 - held
inapplicable.
A. Francis v. Management of Metropolitan Transport
F Corporation Limited. Tamil Nadu (2014) 13 SCC 283 -
distinguished.
Selvaraj v. Lt. Governor of Island, Port Blair and others
1999 (2) SCT 286; Secretary-cum-Chief Engineer.
Chandigarh v. Hari Om Sharma and others (1998) 5
G SCC 87 : [19981 3 SCR 99 - referred to.
Case Law Reference
2004 (4) RSJ 599 relied on Para 1
(2003) 1 Suppl. SCR 522 relied on Para5
H
THE STATE OF PUNJAB & ANOTHER v. DHARAM PAL 571
(2007) 9 SCR 130 held inapplicable Para 5 · A
(2014) 13 sec 283 distinguished Para5
(1983) 3 SCR 654 relied on Para 14
.
1999 (2) ·SCT 286 referred to Para 14
[1998) 3 S.CR 99 referred to Para 18 B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1549
of201 l.
From the Judgment and final Order dated 20.08.2008 passed by
the High Court of Punjab and Haryana at Chandigarh in C. W.P. No.18843 C
of2007.
Ms. Uttara Babbar, Ms. Akanksha Choudhary, Jagjit Singh
Chhabra, Ad vs. for the Appellants
R. K. Kapoor. Ms. Kheyali, Rajat Kapoor, Ms. Shweta Kapoor, Anis
Ahmed Khan, Sudarshan Singh Rawat, Advs. for the Respondent D
.The Judgment of the Court was delivered by
DIPAK MISRA, CJl l. 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 iii Civil
·Writ Petition No. 18843 of2007 whereby the Division Bench placing E
reliance on the decision in Pritam Singh Dhaliwal ~·.·State of Punjab
and another 1 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 F
facts in brief is necessitous. The respondent was appointed as a clerk on
22.05 .1970 and promoted to the post of Senior Assistant on 22.09. I 980.
He was given the officiating charge of the Superintendent Grade II vidc
order dated 09.12.2004 and thereafter, he was directed to function as
Superintendent Grade I vide Government Order dated 26.05 .2007. As G
the factual narration would reveal, he stood superannuated from service
on 31.03.2008. ·
3. Before the respondent attained the age of superannuation, he
approached the High Court in a Writ Petition as he was not granted the
I 2004 i 4) RS.1 599
H
572 SUPREME COURT REPORTS [2017) 14 S.C.R.
A 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
B
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.
c
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 the
respondent official will work in his own pay scale and his officiating
D 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 fu1tber urge that the authority
relied upon by the High Court docs not bold good in view of what has
been laid down by this Court in State ofHaryana a11d another v. Tilak
E Raj and others1, S.C. Chandra and others v. State of Jharkhand
and other3 and A. Francis v. Management ofMetropolitan Transport
Corporation Limited, Tamil Nadu 4 • 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 ofbencfit.
F
6. Mr. Rawat, learned counsel for the respondent, while defending
the order impugned, would contend that the asswnption of the State that
the said Rules impose conditions in the negative is fundamentally
erroneous. According to him, the pronouncements which have been relied
upon are not applicable to the facts of the instant case and, therefore,
G 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
1
(2003) 6sec 123
'(2007l s sec 219
H
' (2014) 13sec 283
THE STATE OF PUNJAB & ANOTHER v. DHARAM PAL 573
[DIPAK MISRA, CJI]
responsibilities of the said posts and, therefore, denial of the benefits to A
him would be travesly ofjustice and further permit the State to pave the
path of infidelity to the real legal position. That apai1, submits the learned
counsel, the language used in the order passed by the employer would
cru~h the essential spirit of the Ruic.
7. In the beginning, it is seemly to state that there is no factual B
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 c
On the retirement of Smt. Chand Prabha, Superintendent
Grade I on 31.07.2004 the 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 D
as Superintendent Grade I and on account of proceeding on
earned leave ofShri Bhinder Singh Supdt. Gr. II w.e.f: 07.9.2004
Shri Ashwani Kumar Sr. Assistant (Officiating Superintendent
Gr. II) and Sh. Dhamm Pal (Officiting Supdt. Gr. II) are promoted
as Superintendent grade II. E
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 wiii be given financial benefits. Oii the
basis of these orders the officials will not c]aim any seniority etc." F
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: G
"The official will work in their earlier own pay scale and above·
promotions will be subject to the recommendations of the
Departmental Promotion Conunittcc. 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." H
574 SUPREME COURT REPORTS [2017] 14 S.C.R.
A 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 arc in consonance
with the Rules indubitably the respondent ·cannot put forth a claim unless
the Rules are declared unconstitutiorial. 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 Ruic reads as
B
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
c 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:
D 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:
E 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 rule and subject to
such conditions as the competent authority may prescribe, be
given any officiating promotion in the cadre of the service which
F 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
G
not be deemed to involve the. assumption of duties or
responsibilities of !:,'feater importance if the post to which it is
madC 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."
H
THE STATE OF PUN.JAB & ANOTHER v. DHARAM PAL 575
[DIPAK MISRA, CJl]
10. Certain Notes have been appended to the said Rule but they A
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 B
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 the Schedule. Be it mentioned, the extension
of benefit is subject to the provisions of Rules 4.22 a~d 4.24 ..
11. In view of the aforesaid Ruic position, it is necessary to C
reproduce Rule 4.22 and Rulc.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 D
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.
E
Rule 4.24. When a Government employee holds current duty
charge of another post, in addition to that ofhis 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
F.
that the employee who holds the higher post must fulfil the requisite
qualifications and conditions for service for both the posts. lt is not
controvcred at the Bar that the respondent was eligible to hold the post
of Superintendent Grade II and Grade I. In this context, the learned
counsel for the appellants has commended us to .Ru\~ 4.16. The said
·Rule reads as follows: G
· "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.
H
576 SUPREME COURT REPORTS [2017] 14 S.C.R.
A Note 1.-0ne class of cases falling under this rule is that in which
a Govemment employee merely holds charge ofthe current duties
and docs not perform the full duties of the post.
Note 2.-When a Government employee is appointed to officiate
in a post Oil a time-scale of pay but has his pay fixed be]OW the
B 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
c 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 ~ate of his confirmation.
Note 3.-The power conferred by this rule is not exercisable
save by a special order passed jn an individual case and on a
D consideration of the facts of that case. A general order purporting
to oust universally the operation of rule 4.14 would be 11/tra 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."
E 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 arc inclined to so hold
as the respondent herein was holding higher posts and further he was
pcrfonning the duties of higher responsibility attached to the posts. Thus
analysed, we arrive at the conclusion that the Rules do not bolster the
F 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
G Division Bench of the High Court had placed reliance upon Smt. P.
Grover v. State ofHaryana and another5 and Selvaraj v. Lt. Governor
of Island, Port Blair a11d others• and earlier decisions of the High
Court and analyzing the Rule position opined that the officer therein had
'AIR 1983 SC 1060
H ' 1999 (2) SCT 286
THE STATE OF PUNJAB & ANOTHER v. DHARAM PAL 577
[DIPAK MISRA, CJI]
been asked to officiate as Deputy Director with effect from 14.03.1996 A
and he had been continuously posted to equivalent posts such as Additional
Deputy Commissioner (D) and till his superannuation the officiating
charge 'o/aS 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.
B
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 ease. 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 C
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 denying the same to her. A Writ Petition was filed D
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:
E
" ... 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 F
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 G
August 31, 1980."
16. In TilakRaj (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: H
578 SUPREME COURT REPORTS [2017] 14 S.C.R..
A "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 pcnnancnt 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
B
basis of equivalence and a resultant hostile discrimination before
becoming eligible to claim rights on a par with the other group
vis-a-vis an alleged discrimination. No material was placed before
the High Court as to the nature of the duties of cjther categories
and it is not possible to hold that the principle of"equal pay for
c 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
D problem about equal pay cannot always be translated into a
mathematical fonnula."
On a earefu I 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 .,
E not support the principle that is assiduously sought to be built by the
State.
17. In S.C. Cha11dra (supra), the appellants.. therein had filed a
Writ Petition in the High Court of Jharkhand seeking a writ of mandamus
against the respondent Nos. 3 to 6 to release the pay, DA with arrears
F 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,
G , came to hold that solely because the management ofHCL 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.
H
THE STATE OF PUNJAB & ANOTHER v. DHARAM PAL 579
[DIPAK MISRA, CJI]
18. In A. Francis (supra), the Court was dealing with the · A
entitlement of the appellant to the salary in higher pay of Assistant
Manager wherein he had worked from 28.02.200 I till 31 :05 .2005. The
employer had denied 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 PatentAppeal which reversed the B
judgment of the learned single Judge. The appellant before this Court
placed reliance on Secretary-cum-ChiefEngineer,· Chandigarh i•. Hari
Om Sharma and others1 . 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 C
law. -
19. 'Fhe 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 ariy benefit · D
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 inthe higher post, it is difficult
to see as to how the said condition can be overlooked or ignored. E
The decision of this Court in Secy.~um-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
distinguishable inasmuch as there was no specific condition in
the promotion order whic.h debarred the i11cumbent from the salary
of the higher post. Such a condition was incorporated in an .F
undertaking taken from the employee which was ·held by this
Court to be contrary to public policy.".
20. In Hari Oi11 Sharma (sJ.Jpra), 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 G
on regular basis. It was in this situation, he. approached the Central
Administrative Tribunal which allowed the claim petition with the direction
thatthe respondent shall be paid salary for the post of Junior Engineer I.
'119.98) s sec x1
H
580 SUPREME COURT REPORTS [2017] 14 S.C.R.
A 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
B 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."
c 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
D 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
E 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
F 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."
G
[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.
H
THE STATE OF PUNJAB & ANOTHER v. DHARAM PAL 581
[DIPAK MISRA, CJI]
22. In the instant case, the Rules do not prohibit grant of pay scafo. A
The decision of the High Court granting the benefit gets support from
the principles laid down in Smt. P. Grover (supra) andHari 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 o\.vn facts. We
may clearly state that by an incorporation in the order or merely by B
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
c
merit in this appeal and accordingly the same stands dismissed without
any order as to costs.
Kalpana K. Tripnthy Appeal dismissed.
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