JUDGMENT
Aruna Suresh, J.
Page 0982
1. Rule DB.
2. With the consent of the learned Counsel for the parties, this writ petition is taken up for final hearing.
3. This writ petition challenges the impugned order of the Central Administrative Tribunal (CAT), Principal Bench, New Delhi dated 24th October, 2002 where the OA being No. 3230/2001 of the Respondent (herein) was allowed in the absence of the petitioners herein, i.e., Director of Education, Delhi and the Deputy Director of Education, New Delhi. The CAT had noted the absence of the petitioners in the following terms:
This case was listed at Serial No. 8 under regular matters but none has appeared for the respondents which was also the position on a number of dates earlier. Accordingly, we have heard Shri D. R. Gupta, learned Counsel for the applicant and perused the reply filed by the respondents as well as the documents on record.
4. The undisputed facts of the case are that the respondent joined petitioner No. 3 in the year 1968 as a Post Graduate Teacher (PGT). He was promoted to the post of Vice-Principal on 6.07.1995 in the pay scale of Rs. 7500- 12,000/- and was posted as such in Government Boys Senior Secondary School (GBSSS), Lodhi Road, New Delhi. In the year 1998 a post of Principal fell vacant in GBSSS Kidwai Nagar, New Delhi and in order to look after the school he was deputed to the said post and was declared the Head of the Office with effect from 27th April, 1998. The relevant portion of the posting order is as follows:
OFFICE OF THE DEPUTY DIRECtor OF EDUCATION DISTT. SOUTH: defense COLONY: NEW DELHI (ADMINISTRATION BRANCH)
OFFICE, ORDER No. 129
Shri M.P. Singh, Vice-principal, Govt. Boys Sr. Sec. School, No. 1, Lodhi Road, New Delhi, is hereby deputed to Govt. Boys Sr. Sec. School, Kidwai Nagar, New Delhi, w.e.f. 27.4.98 till further orders or till a regular Principal is posted. He is also declared Head of the office of the above school for all purposes.
Page 0983
However, he will continue to draw his salary from his present school.
This is in continuation to E.O. – S-24, Order No. 727-31, dated 27.4.98.
Sd/-
(Indira Pangtey)
Deputy Director of Education
Distt. South.
No. DDE/DS/Admn/5147 dated 30.4.1998.
5. Thereafter, the Respondent was promoted as Principal with effect from 15th December, 2001. The Respondent made representations to the petitioners for officiating pay for the period 27th April, 1998 till 15th December, 2001, which having been not responded to, the Respondent filed an O.A. being No. 3230/2001 interalia praying for grant of actual pay of the post of Principal with effect from 27th April, 1998 and arrears of the difference in the pay between the post of Vice- Principal and Principal.
6. The respondent primarily placed reliance on the following judgments:
(i) Selvaraj v. Lt. Governor of Island, Port Blair and Ors. .
(ii) Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and Ors. .
(iii) Md. Islahuddin Shah v. State of Manipur and Ors. (Guwahati High Court) 2000 (2) ATJ 450.
(iv) Varinder Mohindra v. Union of India and Ors., (Tribunal- Chandigarh Bench) 2000 (2) ATJ 376.
7. In accordance with the law laid down in the above judgments, the respondent claimed before the CAT that he should have been given actual pay of the post of Principal, i.e., the post being held by him with effect from 27th April 1998. The petitioner herein took a plea in the reply before the CAT that in order to take care of the students and to run the day to day administration of the school the arrangement of posting the respondent to the post of Principal was made, which was an ad hoc arrangement only. The declaration of the respondent being Head of the Office was to grant sanctions in order to facilitate the administration of the school and particular reliance was placed on the fact that the salary was being drawn from the earlier school.
8. By the impugned judgment, the Tribunal held that the Respondent, who was the Vice-principal in GBSSS No. 1, Lodhi Road, New Delhi, was deputed to act as Principal/Head of the Office of GBSSS, Kidwai Nagar, New Delhi, with effect from 27th April 1998. This was done as per the respondent’s own interest and in the interest of administration of the school. It is not in dispute that subsequently, the Respondent became Principal on 15th December, 2001. Page 0984 The amount involved is for the period of three years, that is from 27th April 1998 up to December, 2001, when the Petitioner was actually promoted to the post of Principal. The CAT placed reliance on the judgments of Hari Om Sharma and Selvraj’s case (supra) and accordingly allowed the claim of the Respondent.
9. Mrs. Avnish Ahlawat, learned Counsel for the Petitioner has challenged the aforesaid judgment on following pleas:
(a) The aforesaid case is fully covered by the judgment of the Division Bench of this Court in Govt. of NCT of Delhi v. Prem Prakash WP(C) 932/2002, decided on 5th October 2005.
(b) This above judgment involves the issue raised in the present writ petition and has taken note of the judgment of Hon’ble Supreme Court and distinguished it for valid reasons.
(c) The respondent was only appointed as Vice-principal and hence he was not entitled to draw the salary of Principal.
(d) As per the appointment letter dated 30th April, 1998 the Respondent was to draw his salary from his parent school that is Govt. Boys Senior Secondary School, No. 1 Lodhi Road, New Delhi and therefore it cannot be said that he was posted in Govt. Boys Senior Secondary School, Kidwai Nagar, New Delhi in the capacity of a Principal.
10. We do not find force in the pleas of the Petitioner.
11. In 4 Govt. of NCT of Delhi v. Prem Prakash 124 (2005) Delhi Law Times 10 (DB), case the Respondent Prem Prakash was Lecturer (Electrical Engineering) in Boys Polytechnic Directorate of Training & Technical Education. He was posted as Head of the Department in January, 1993 in Aryabhat Polytechnic being the senior most Lecturer and also to look after the duties and responsibilities of Head of the Department (Electrical Engineering) in addition to his normal duties. The said order reads as follows:
In continuation of this office order No. F.2(5)/ABP/Admn./43 dated 5.1.93 Shri P.P. Gupta, Lecturer, Elect. Engg. shall also look after the duties and responsibilities of Head of Department Elect. Engg. in additional to his normal duties, however, he shall not be entitled for any extra remuneration / honorarium in this regard. He shall also not have any claim on ad hoc or regular basis to the said post on this basis and his seniority amongst the Lecturers cadre shall remain unchanged.
12. On reading of this order it is obvious that the Respondent in the said case was specifically debarred from claiming any extra remuneration / honorarium nor any seniority on adhoc or regular basis to the said post and also seniority amongst the Lecturer cadre which was to remain unchanged. In the present case the only direction given to the Respondent was to draw his salary from his earlier school at Lodhi Road, without there being any such rider in the order of his posting.
13. Hence we are of the view that Prem Prakash’s case (supra) is of no help to the Petitioners.
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14. Reliance has also been placed on a case titled State of Haryana v. S.M. Sharma and Ors. to contend that this judgment related to rights arising from the current duty charge and accordingly the said judgment was clearly applicable in the facts of the present case. In the said case S.M. Sharma who was employed as Sub Divisional Officer in the Haryana State Agricultural Marketing Board was entrusted with current duty charge on the post of Executive Engineer vide order dated 13th June, 1991 which was withdrawn vide order dated 6th January, 1992 and he was transferred to Bhiwani. While dismissing the claim of S.M. Sharma, it was observed that he was neither appointed / promoted / posted as Executive Engineer nor was he ever reverted from the said post. He was holding current duty charge of the post of Executive Engineer. Therefore the question of his reversion from the post of Executive Engineer did not arise. The present case is placed on a different footing. The Respondent in this case had been performing higher duties and responsibilities as a Principal for a period of about three years continuously.
15. Reliance was also placed on the order of the Hon’ble Supreme Court dated 2.12.2002 in SLP (C) No. 6417/2002 titled State of Orissa v. Debasis Ray and Anr. where a junior scientist appointed against the higher post was denied benefit of the emoluments of the higher post. The Hon’ble Supreme Court held as under:
He approached the High Court contending that since the appointment was against a post of senior scientist and he has been discharging the duties of the Senior Scientist, he would be entitled to the salary of the Senior Scientist. This contention having found favor by the High Court and High Court having given the same, the State has put in appeal. We really fail to understand how a person appointed in the post of Junior Scientist can claim the salary of the post of a Senior Scientist merely because the appointment was against the vacancy of a Senior Scientist. We still further fail to understand how a Court can issue a Mandamus in that direction in exercise of power under Article 226 of the Constitution.
In view of the clear and unambiguous terms of appointment, which the respondent accepted, it is difficult for us to comprehend that he would be entitled to either the post or the salary attached to the post of Senior Scientist. We therefore, set aside the impugned judgment and allow this appeal.
16. From the reading of this judgment it is clear that it has no relevance and applicability to the facts of the present case as in that case the Appeal was allowed in view of the unambiguous terms of letter of appointment of the candidate appointed as Junior Scientist against the vacancy of Senior Scientist and therefore the employee could neither demand nor was entitled to the pay/post of a Senior Scientist.
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17. In the present case before us the order of posting makes it very clear that the Respondent was posted and working as the Vice Principal of GBSS School Lodhi Road New Delhi and was deputed in view of a vacancy of Principal in GBSS School, Kidwai Nagar, New Delhi with a declaration as a Head of the Office of the said school for all purposes and he accordingly had been discharging all the duties of the Principal of a Senior Secondary School for the period from 27th April, 1998 till December, 2001 when he was promoted as a Principal and therefore the Respondent has been rightly claiming the grant of actual pay for the post of Principal with effect from 27th April, 1998 till December, 2001 and payment of arrears being difference in the pay of Vice Principal and Principal for his officiation as Principal of the school for the said period.
18. It is not a case of posting of the Respondent as a Vice Principal against the post of a Principal as averred. The Petitioner in the counter affidavit before the Tribunal had admitted that Respondent was posted as Principal of the School with a declaration as a head of the office. As per the Rules it is always the Principal who has to function as Head of the Office for the school under his charge and carry out all the duties required of a Head of Office. Undisputedly, the Respondent was required to perform all his duties and exercise his powers as Principal of the GBSSS No. 1 Kidwai Nagar, New Delhi. Whereas Vice Principal can exercise its powers and duties under the supervision and control of the Principal. By virtue of a Vice Principal being declared as Head of the Office, the Principal is not relieved of his responsibilities in any manner as Drawing and Disbursing Officer. The Respondent therefore had been performing the duties and responsibilities of a Principal for a period of about three years when he was promoted as a Principal.
19. Fundamental Rule 49 regulates the pay of a person who is appointed to officiate as a temporary measure in one or more or other independent posts at one time under the Government. 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 to pay admissible to him, if he is appointed to officiate in the higher post.
20. In Balbir Singh Dalal and Ors. v. State of Haryana and Anr. 2002 (4) SCT 422. Where the Petitioners were granted current duty charge for doing the work of the post of Sub Divisional Officers which is a promotional posts, the feeding cadre being Junior Engineers and subsequently they were promoted on regular basis for that post, it was held as follows:
The essentials for raising such a claim are satisfied in the facts and circumstances of the present case. The petitioners were provided appointments in accordance with rules and were required to discharge functions and duties of the posts which admittedly carried higher responsibilities. They were not holding a dual charge. Against the posts to which they were appointed on current duty charges, the services of the petitioners were regularised. Thus, we see no reason, whatsoever, Page 0987 to reject the request of the petitioners for grant of appropriate pay scales payable to the post of Sub Divisional Officers for the limited period afore noticed.
21. In Judhistir Mohanty v. State of Orissa and Ors. 1996 VIII AD (SC) 733, it was laid down by the Hon’ble Supreme Court as follows:
It is a settled position that if the Government, for want of candidate, directs an officer in the lower cadre to perform the duties of the post in the higher cadre, during that period, necessary incumbent would be entitled to the payment of salary attached to the post if the incumbent performed the duties in that post. Similarly where concerned officer is on promotion from lower cadre to the higher cadre, though on ad hoc or even temporary basis, the incumbent would be entitled to the payment of the salary attached to the post for the period of his discharging the duty in that post.
In our view the position of law laid down in the above judgment is fully applicable to the facts of the present case.
22. The Tribunal while relying upon Selvaraj v. Lt. Governor of Island, Port Blair and Ors. allowed the claim of the Respondent. In the said case Selvaraj, Primarily School Teacher attached to Middle School, Kanyapuram was transferred to Directorate of Education (Scouts Section) to look after the duties of Secretary (Scouts). It was held:
Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum meruit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.
23. Indubitably, Respondent was delegated with and was performing the full powers and functions of Principal and to contend that he was actually a Vice Principal deputed to look after the administration of the school only, in the absence of the Principal and the plea that this was only an ad hoc arrangement which being normal practice in government services does not entitle him to claim pay of the higher post of which he was actually discharging functions, is untenable and does not appeal to reason. The Hon’ble Supreme Court has in no uncertain terms settled the law that if Page 0988 the Government for want of candidates, orders an officer in the lower post to perform the duties of a higher post, then such an officer would be entitled to the salary of such higher post as he is made to discharge the functions and duties of higher post.
24. Consequently we find no merit in the present Writ Petition as we could not find any infirmity or illegality in the impugned judgment of the Tribunal dated 24th October, 2002, hence the Writ Petition is hereby dismissed. However, Respondent shall not be entitled to count his officiating period as a Principal from 27th April, 1998 till 14th December, 2001for all other purposes.
25. The Petitioners are directed to comply with the order dated 24th October, 2002 passed by the Tribunal within a period of three months from today.