CWP-7204 v. E HARPREET SINGH BRAR

Judgment

1. The present civil writ petition rticles etition has been filed under Articles 226/227 of th 7 of the Constitution of India for issu ure of or issuance of a writ in the nature of mandamus di mus directing the respondents to grant ale to grant the salary in the higher scale to the petitioner itioners for the posts of SDO and Juni d they d Junior Engineer for the period they had worked orked on the said posts as Additiona ential itional Charge and all consequential benefits by re s by revising their salaries and pay to ing to pay to them the arrears so accruing to them with in ith interest thereon. A further writ s is writ in the nature of mandamus is PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 2 sought direct directing the respondents to decide th .2023 cide the legal notice dated 23.02.2023 (Annexure P ure P-8) within some stipulated time p time period.

Learned counsel for the petition at the etitioners inter alia contends that the petitioners ar ners are employees of the Respondent No.1, ondent No.3 - Board. Petitioner No.1, was working rking on the regular post of Junior En itional ior Engineer and was given additional charge of SD of SDO on 28.03.2019. He worked e) till orked as SDO (additional charge) till

12.12.2022 a 022 and was regularized as SDO on 1 2, was O on 13.12.2022. Petitioner No.2, was working on g on the regular post of Pump Oper itional Operator and was given additional charge of Jun of Junior Engineer on the basis of his eering of his Diploma in Civil Engineering on 29.01.201

1.2014 and is still working as Junior E e) till unior Engineer (additional charge) till date. Petition etitioner No.3, was working on the reg or and the regular post of Pump Operator and was given a iven additional charge of Junior Eng d was or Engineer on 29.01.2014 and was regularized a ized as Junior Engineer on 28.10.2021 0.2021. Petitioner No.4, was working on the regula regular post of Plumber and was giv Junior as given additional charge of Junior Engineer on on 29.01.2014 and was regula er on regularized as Junior Engineer on

19.08.2016. P

016. Petitioner No.5 was working o sistant king on the regular post of Assistant Engineer and er and was given additional charge o d was arge of SDO on 31.05.2017 and was regularized a ized as SDO on 01.04.2021.

3. Learned counsel for the petiti at the petitioners further submits that the claim regard regarding the grant of higher salary ioners salary for the period the petitioners discharged du rged duties of a higher post, in the writ red by he writ petition is squarely covered by a settled prop d proposition of law, that once an em an employee is promoted or is given additional ch nal charge of a higher post and actual f that actually discharges the duties of that post, he beco e becomes entitled to the salary attac or the attached to such higher post for the PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 3 entire period period during which he performed thos mitted ed those duties. It is further submitted that there is n ere is no justification for denying the in the g the salary of the higher post in the absence of e of any statutory rule permitting t any mitting such denial, and that any administrativ strative condition to the contrary w law. ary would be unsustainable in law. Learned coun d counsel in this regard places his re of the reliance on the judgments of the Hon'ble Supr e Supreme Court in Smt. P. Grover v AIR ver v. State of Haryana, 1983 AIR SC 1060 and and Arindam Chattopadhyay and and others v. State of West Bengal and others, ers, Civil Appeal No.25021 of of 2013, wherein it has been authoritativel itatively laid down that an employee w oyee working on a higher post cannot be denied the ied the salary attached thereto. Learn ts that Learned counsel further submits that despite the s the settled legal position, the respon nt the respondents have failed to grant the petitioners th ners the salary of the higher post fo ed on ost for the periods they worked on additional ch nal charge basis, compelling the peti notice he petitioners to serve a legal notice dated 23.02.2

3.02.2023 (Annexure P-8). Since the t been ce the said legal notice has not been decided, the d, the petitioners have been left with with no alternative but to approach this Court by urt by way of filing the present writ pe writ petition.

4. Per contra, learned counsel for t at the el for the respondents submits that the petitioners ha ners have an alternative statutory reme to the y remedy by way of an appeal to the State Govern overnment under Section 42 of the of the Punjab Agricultural Produce Market Act, t Act, 1961, which they have not avai etition ot availed, rendering the writ petition not maintain aintainable, that the petitioners were were given additional charge vide specific orde c orders (Annexures R-1, R-2, R- xpress -3) which contained an express condition tha on that "no additional allowance or be of the e or benefit will be paid in lieu of the present post t posting," which condition was y the was voluntarily accepted by the PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 4 petitioners at ners at the time of joining, and havin rotest, having done so without any protest, they are now re now estopped from claiming any a enefit any additional allowance or benefit after several everal years (in some cases up to 10 to 10 years), further learned counsel submits that s that the present petition suffers from claims s from delay and laches as the claims pertain to ad to additional charge given as far ba far back as 2014. Further, the legal notice dated 2 dated 23.02.2023 (Annexure P-8) has letter ) has already been decided vide letter dated 29.08.2

9.08.2023 (Annexure R-4), rendering e writ dering the second prayer in the writ petition infru n infructuous.

5. I have heard learned counsel f nsel for the parties and perused the record with th with their able assistance.

6. The core issue that falls for de t writ for determination in the present writ petition is wh n is whether an employee who works o itional orks on a higher post on an additional charge basis basis is entitled to the salary attach attached to that higher post for the period he act he actually discharges the duties of su r such s of such post, and if so, whether such entitlement c ent can be defeated by a condition im itional tion imposed in the order of additional charge that "n that "no additional allowance or benef r benefit will be paid."

7. It is incontrovertible that each ach of the petitioners was given additional ch nal charge of a higher post and tha d the nd that they actually discharged the duties of that of that post for the periods mentioned itioner tioned in the writ petition. Petitioner No.1 worked orked as SDO (additional charge) fo years. rge) for over three and a half years. Petitioner No ner No.2 has been working as Junior E e) for unior Engineer (additional charge) for over twelve elve years. Petitioner No.3 worked itional orked as Junior Engineer (additional charge) for o ) for over seven years before regulari egularization. Petitioner No.4 worked as Junior Eng ior Engineer (additional charge) for ov before for over two and a half years before PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 5 regularization ization. Petitioner No.5 worked as SD nearly as SDO (additional charge) for nearly four years be ars before regularization.

8. A two Judge Bench of the Hon t. P. e Hon’ble Supreme Court in Smt. P. Grover v. St v. State of Haryana, AIR 1983 S SC 1060, while speaking through Justice O. Ch O. Chinnappa Reddy observed as und as under: “3. W . We mentioned that she was pr s promoted as an acting District Educa ucation Officer with effect from r of om July 19, 1976. The order of omotion contained a superadded con d condition that she would draw her own p n pay scale which apparently mea e to meant that she would continue to draw h aw her salary on her pay scale prior prior to promotion. The initial order extend tending her services recited that that she was an acting District Educa ucation Officer, but contained a sup a superadded condition that her pay uld not be more than the maximum Smt. imum of the principal's grade. Smt. Grover rover claims that having been pr n promoted as District Education Officer fficer, she was entitled to the pay of a of a District Education Officer and there w ere was no justification for denying ing the same to her. A writ petition filed b ed by her was dismissed by the High High Court of Punjab and Haryana and sh d she is before us by way of specia f the ecial leave under Article 136 of the Consti nstitution. The counter-affidavit file it filed on behalf of the Government of Har Haryana offers no rational expla y of xplanation for denying the pay of Distric istrict Education Officer to Smt. P. . P. Grover after she was promoted to act act as District Education Officer. A ter- er. All that was said in the counter affidav fidavit was that there were no Class lass-I posts available and therefore she w e was not entitled to be paid the the salary of District Education Officer fficer. We are unable to understand ter- and the reason given in the counter affidav fidavit. She was promoted to the pos icer, e post of District Education Officer, a Clas Class-I post, on an acting basis. O d to is. Our attention was not invited to any Ru y Rule which provides that promo omotion on an acting basis would not en t entitle the officer promoted to the the pay of the post. In the absence of any any rule justifying such refusal to to a l to pay to an officer promoted to a higher gher post the salary of such higher her post (the validity of such a rule PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 6 ould be doubtful if it existed), we r is we must hold that Smt. Grover is entitled titled to be paid the salary of a Dist District Education Officer from the date sh te she was promoted to the post, t st, that is, July 19, 1976 until sh retired tired from service on August 31, 19 gly, , 1980. The appeal is, accordingly, allowe lowed with costs."” dded) (emphasis added)

9. Further, another Two Judge B dge Bench of the Hon’ble Supreme Court in Selv Selva Raj v. Lt. Governor of Island 291, land, Post Blair 1998 (4) SCC 291 while speak speaking through Justice S.P. Ku .P. Kurdukar made the following observation: ation:- “3. It . It is not in dispute that the appe s of appellant looked after the duties of Secreta cretary (Scouts) from the date of the o be f the order and his salary was to be awn against the post of secretary (S ll he ry (Scouts) under GFR. 77. Still he was no s not paid the said salary for the w the work done by him as Secretary (Scout couts). It is of course true that th at the appellant was not regularly omoted to the said post. It is also also true as stated in the counter affidav fidavit of Deputy Resident Commis missioner, Andaman and Nicobar Admin ministration that the appellant wa t was regularly posted in the pay ale of 1200-2040 and he was ask s of asked to look after the duties of Secreta cretary (Scouts) as per the order af er aforesaid. It is also true that had this ar is arrangement not been done, he w d to he would have to be transferred to the int e interior islands where the post o ost of PST was available, but the appella pellant was keen to stay in Port Port Blair as averred in the said counte unter. However in our view, these a l not se averments in the counter will not change ange the real position. Fact remains ains that the appellant has worked on the the higher post though temporarily rarily and in an officiating capacity pursua rsuant to the aforesaid order and and his salary was to be drawn during ring that time against the post of S of Secretary (Scouts). It is also not in disp dispute that the salary attached to uts) d to the post of Secretary (Scouts) was in as in the pay scale of 1640-2900. Co le of 0. Consequently, on the principle of PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 7 quantu antum merit the respondents auth authorities should have paid the appella pellant as per the emoluments ava s available in the aforesaid higher pay sc y scale during the time he actual st of tually worked on the said post of Secreta cretary (Scouts) though in an offi as a officiating capacity and not as a regula gular promotee. This limited relief elief is required to be given to the appella llant only on this ground.” dded) (emphasis added)

10. Reliance in this regard may als ay also be placed on the judgement rendered by a ed by a Three-Judge Bench of this Cou is Court in Subhash Chander v. State of Haryana, ana, (2012) 1 RSJ 442, where in it w yee is in it was held that, if an employee is appointed to ted to officiate on a post involvin s and nvolving assumption of duties and responsibility sibility of greater importance than tho antive an those attaching to the substantive post then he en he would be entitled to the salary higher alary of his officiating post in higher grade.

11. Admittedly, the respondents hav at the nts have not disputed the fact that the petitioners ac ners actually discharged the duties o g the uties of the higher posts during the aforemention entioned periods. The only defense ra anting ense raised is that the orders granting additional ch nal charge contained a condition tha ce or ion that "no additional allowance or benefit will b will be paid" and that the petitioner . This itioners accepted this condition. This Court finds m finds merit in the contention of the pet tion is the petitioners that such a condition is contrary to th y to the settled legal position and cann cannot be sustained in law.

12. A Three Judge Bench of the urt in of the Hon’ble Supreme Court in Secretary-cu cum-Chief Engineer, Chandigar 998 digarh v. Hari Om Sharma 1998 INSC 207, w , while speaking through Justice ed as ustice S. Saghir Ahmad observed as under: PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 8

8. Lea Learned counsel for the appellant a ant attempted to contend that when the re e respondent was promoted in sto stop-gap arrangement as Junior Engine gineer-I, he had given an undertak rtaking to the appellant that on the basis o sis of stop-gap arrangement, he wo s of e would not claim promotion as of right n ht nor would he claim any benef The enefit pertaining to that post. The gument, to say the least, is preposte posterous. Apart from the fact that the Go e Government in its capacity as t be as a model employer cannot be permit rmitted to raise such an argument, ent, the undertaking which is said to cons constitute an agreement between th d at en the parties cannot be enforced at law. T The respondent being an employe ployee of the appellant had to break his per s period of stagnation although, as , as we have found earlier, he was the on e only person amongst the non on-diploma holders available for omotion to the post of Junior Engin ngineer-I and was, therefore, likely to be c be considered for promotion in his o at if his own right. An agreement that if a pers person is promoted to the higher p her post or put to officiate on that post or st or, as in the instant case, a stop e to stop-gap arrangement is made to place h ace him on the higher post, he wou y or would not claim higher salary or other a her attendant benefits would be co e contrary to law and also against public blic policy. It would, therefore, be u be unenforceable in view of Section 23 of t f the Contract Act. dded) (emphasis added)

13. In light of the above this court o ourt observes that:- (i) An employee who works on a high (i) An otion, a higher post, whether on promotion, officiating basis, stop-gap arrangem officia ge, is angement, or additional charge, is entitled to the salary attached to that entitled tually o that post for the period he actually discharges its duties. dischar PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 9 (ii) The principle of quantum meruit (ii) Th mandates that an employee must be compensated with the emoluments be com ments of the higher post for the work actually performed thereon. actuall (iii) Refusal to pay the salary of the h (iii) Re e of a f the higher post, in the absence of a specific statutory rule permitting s specifi ting such denial, is arbitrary and unjustified. unjusti (iv) Any condition or undertaking imp (iv) An hat he g imposed upon an employee that he shall not claim the salary of the highe shall n eon is gher post while working thereon is contrary to law, against public pol contrar ic policy, and unenforceable under Section 23 of the Contract Act. Section (v) The State, as a model employer, (v) Th nforce oyer, cannot be permitted to enforce such unconscionable conditions or tak such u oyee's or take advantage of an employee's acceptance thereof. accepta

14. It is a well-established principl e that rinciple of service jurisprudence that salary is not a is not a bounty or a gratuitous paymen or the ayment but is the consideration for the work done b one by an employee. When an emplo s of a employee discharges the duties of a higher post, t post, they necessarily perform work o nd are ork of a higher responsibility and are entitled to the to the corresponding remuneration. A tion. Any condition that seeks to deny the salary of ary of the higher post while extracting ng but acting work of that post is nothing but a contract of ract of service that is unconscionable olicy. onable and opposed to public policy. The principle inciple of "equal pay for equal work" work" though not absolute, has been recognized a ized as a goal to be achieved under th State nder the Directive Principles of State Policy and and has also been read into Artic on in Article 14 of the Constitution in appropriate c riate cases.

15. The respondents have placed st dition ced strong reliance on the condition incorporated orated in the additional charge orders ioners rders and the fact that the petitioners accepted the ed the same. However, it is trite law toppel te law that there can be no estoppel PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 10 against statut t statute or against fundamental right sed is l rights. If the condition imposed is contrary to l y to law, the fact that the employee ate an loyee accepted it cannot validate an otherwise ille ise illegal condition. Moreover, it is a it is a matter of common knowledge that employe ployees in government service often ften accept such conditions under compulsion, lsion, as refusal may invite displeasu affect spleasure of the superiors and affect their career areer prospects. The acceptance of ce of such a condition under these circumstance stances cannot be treated as a voluntar luntary waiver of their legal rights.

16. With regard to the objection per s, it is on pertaining to delay and laches, it is observed that ed that the petitioners approached this e and ed this Court while still in service and had issued a ued a legal notice in the year 2023. by the 2023. It is trite law, as settled by the Hon’ble Sup le Supreme Court in M.R. Gupta v. SCC a v. Union of India (1995) 5 SCC 628, that a c at a claim relating to salary constitut nstitutes a continuing wrong, thereby giving rise to rise to a recurring cause of action. In le, the ion. In view of the said principle, the objection reg on regarding delay and laches cannot b nnot be sustained.

17. In view of the discussion abov ion is n above, the present writ petition is allowed. The d. The respondents are directed as und as under: (i) To grant the petitioners the salary (i) To hed to salary in the higher scale attached to the posts of SDO and Junior Enginee the po or the ngineer, as the case may be, for the periods iods they worked on said posts on a ts on additional charge basis. (ii) To revise the salaries of the peti (ii) To ay to e petitioners accordingly and pay to them the arrears so accruing, along wi them th % per ng with interest at the rate of 6% per annum from the date the amount bec actual nt became due till the date of actual payment. PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document CWP-7204- -2023 11 (iii) The respondents shall comply w (iii) T thin a ply with these directions within a period of three months from the date o period py of date of receipt of a certified copy of this order. this ord

19. Pending application(s), if any, al any, also stand disposed of. No order as to costs. RAR) (HARPREET SINGH BRAR) JUDGE February 26 P.C/Monika 26, 2026 Whether speaking/reasoned. : Whether Reportable. : Yes/No Yes/No PUNEET CHAWLA 2026.03.07 14:32 I attest to the accuracy and integrity of this document