( 2026:HHC:10735 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

CWPOA No.1233 of 2019

Decided on: 06.04.2026

Lekh Ram Mehta .......Petitioner

Versus

State of H.P and another

...Respondents

Coram

Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge.

Whether approved for reporting?

1

For the petitioner: Dr. Lalit K. Sharma, Advocate.

For the respondents: Mr.Hemant Kumar Verma,

Deputy Advocate General.

Jiya Lal Bhardwaj, Judge(Oral)

The petitioner has filed the instant petition,

praying therein for the following substantive reliefs:-

“i. That the respondent may be directed to grant the

promotion to the petitioner to the post of Superintendent

Grade-I from 6

th November, 2007 and grant all the

consequential benefits with 12% interest per annum.

ii. That the letter dated 30/07/2011 Annexure P-9 issued

by Respondent no. 1 may kindly be set aside and

quash and the respondent may be directed to grant the

officiating allowance to the petitioner w.e.f.

06/11/2007 to 30/11/2010 of the post of Supt. Grade I

with all consequential benefits alongwith 12% interest

may kindly be released to the petitioner.”

2. The facts, which emerge from the pleadings, are

that the petitioner was appointed as Clerk with the

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Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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respondents-Department on 26.06.1973 and was promoted

as Senior Assistant on 14.10.1993. Later on, he was

promoted as Superintendent Grade-II in September, 2007

and joined his duties as such on 01.10.2007. As per

Recruitment and Promotion Rules, the petitioner was eligible

for promotion to the post of Superintendent Grade-I, as he

had completed the requisite service of nine years’ combined

with as Senior Assistant and there were three vacancies of

Superintendent Grade-I lying vacant with the respondents-

Department, but with a view to save the Department from the

financial implications, he was not promoted inspite of the dire

necessity and urgency of the said post in the Department.

However, vide office order dated 06.11.2007, the petitioner,

who was working as Superintendent Grade-II, was asked to

look-after the work of Medical-IV (Budget Branch) and thus

assigned him the duties of a higher responsibility including

the statutory duties. However, despite assurance to give him

officiating allowance of the said post and promotion, nothing

was done by the respondents.

3. It has further been averred in the petition that the

petitioner had discharged the duties on the post of

Superintendent Grade-I beyond the permissible limit of three

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months and he was not paid any officiating allowance despite

representation dated 12.01.2010, requesting therein to grant

him the said benefit of the post of Superintendent Grade-I.

The petitioner has also placed on record communication

dated 30.03.2010 issued by respondent No.2, specifically

mentioning therein that the petitioner has been assigned the

duties/work of the vacant post of Superintendent Grade-I in

Medical-IV/II Branches as such and, therefore, he may be

granted the benefit of officiating allowance under FR-49 w.e.f.

06.11.2007 for looking after the work of higher post. However,

the request made by the petitioner came to be rejected vide

communication dated 30.07.2011 (Annexure P-9) on the

ground that orders of officiating were not issued in

consonance with the instructions of the Finance Department

issued vide No.Fin(C)-A(3)-8/88 dated 29

th August, 1988 and

4

th December, 1989.

4. The petitioner has laid challenge to the said

impugned order on the ground that once the petitioner had

discharged the duties and responsibilities of the higher post,

which was lying vacant, he is entitled to the remuneration of

the post of Superintendent Grade-I, in view of FR-49. The

action on the part of the respondents is illegal, unjust and

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arbitrary inasmuch as the respondents have exploited the

helpless condition of the petitioner, which is against Articles

14, 16 and 21 of the Constitution of India. Three posts of

Superintendent Grade-I were available and the petitioner was

eligible to be considered for promotion and thus, the action

on the part of the respondents, is arbitrary and illegal. He

has made a prayer seeking promotion to the post of

Superintendent Grade-I and also for grant of officiating

allowance of the post of Superintendent Grade-I w.e.f.

06.11.2007 to 30.11.2010.

5. The respondents filed reply to the petition and not

disputed the issuance of office order dated 06.11.2007.

However, it has been averred that the petitioner was assigned

the duties with different branch as an internal arrangement

only and the said office order nowhere reflected/reflects that

the petitioner was ever assigned the duties of Superintendent

Grade-I, or he was ever given any kind of assurance in any

way and manner as has been pleaded in the writ petition. It

has been averred that the petitioner was promoted as

Superintendent Grade-II in October, 2007 only and could

have never been given any assurance of promotion to the next

higher post of Superintendent Grade-I, over and above the

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R&P Rules in the year 2007 itself, which Rules specifically

provide for a minimum period of three years of working as

Superintendent Grade-II for becoming eligible to the next

promotion as Superintendent Grade-I. The plea raised by the

petitioner that vide office order dated 06.11.2007, he was

assigned the duties of Superintendent Grade-I with certain

assurances on officiating basis is not sustainable and perusal

of order itself depicts that no such assurance was ever given

to him in any way or manner. The representation made by the

petitioner has rightly been rejected, since his case was not

covered under the relevant provisions.

6. The petitioner has placed on record copy of office

memorandum dated 29.08.1988, instructions dated

30.09.2010 and a judgment passed by a Co-ordinate Bench of

this Court in CWPOA No.5378 of 2019, titled, Bishan Singh

Chandel vs. Himachal Pradesh University and another .

7. I have heard Dr.Lalit Kumar Sharma, learned

counsel for the petitioner and Mr.Hemant Kumar Verma,

learned Deputy Advocate General for the respondents-State.

The record of the case has also been perused carefully.

8. It is not in dispute that the petitioner vide office

order dated 06.11.2007 was assigned the work of Medical-IV

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(Budget branch) (Annexure P-1). It is also not in dispute that

as per Notification dated 02.09.2000 (Annexure P-2), there

were 10 posts of Superintendent Grade-I to be filled-up 100 %

by promotion and the eligibility criteria is from the feeder

cadre of Superintendent Grade-II and Personal Assistants,

who possess three years regular service on regular combined

with continues adhoc (rendered upto 31.03.1998) service, if

any, in their respective grades, failing which, by promotion

from amongst the Superintendent Grade-II and Personal

Assistants, who possess nine years regular service or regular

combined with continuous adhoc (rendered upto 31.03.1998)

service, if any, as Superintendent Grade-II and Senior

Assistant and as Personal Assistant and Senior Scale

Stenographer combined.

9. It is also not in dispute that respondent No.2 had

written on 30.03.2010 to respondent No.1, specifically

mentioning therein that the petitioner has been assigned the

duties/work on the vacant post of Superintendent Grade-I in

Medical-IV (Budget branch), as such, it was recommended

that he may be granted the benefit of officiating allowance

underFR-49 w.e.f. 06.11.2007. The respondents have not

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disputed that the petitioner had discharged the duties on the

vacant post of Superintendent Grade-I till 31.05.2010.

10. The only plea taken by the respondents is that the

petitioner is not entitled to officiating allowance of

Superintendent Grade-I, since the order of officiating were not

issued in consonance with the instructions of the Finance

Department dated 29.08.1988 and 04.12.1989. Since the

petitioner has discharged the duties on the post of

Superintendent Grade-I, irrespective of the fact that whether

his orders of officiating were not issued in consonance with

the instructions, he cannot be denied of the said benefits,

especially when the post of Superintendent Grade-I was lying

vacant when the petitioner was assigned the duties of the

higher post and responsibility, in addition to his own duties.

After passing of office order dated 06.11.2007, it was for

respondent No.2 to have got the approval from respondent

No.1, if any, required and in case there is any lapse on the

part of respondent No.1 in not granting the approval, the

petitioner, who admittedly has discharged the duties on the

post of Superintendent Grade-I, in addition to his own duties,

is entitled to the benefit of FR-49, as per pronouncement of

Hon’ble Apex Court in Syed Abdul Qadir and others vs.

( 2026:HHC:10735 )

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State of Bihar and others, (2009) 3 SCC 475 wherein it

has succinctly dealt with the issue that even if the person was

not assured to pay the additional benefits of the post, he is

entitled to the said benefits. The relevant paras of the

judgment read as under:-

“39. Rule 22(I)(a)(1) provides that when a government

servant is promoted or appointed to a higher post and

the higher post he is promoted to carries duties and

responsibilities of greater importance than those

attaching to the post held by him, his initial pay in the

time scale of the higher post shall be fixed at the stage

next above the notional pay arrived at by increasing his

pay in respect of the lower post held by him regularly

by an increment at the stage at which such pay has

accrued or rupees one hundred only, whichever is more.

40. According to FR 22(I)(a)(2) the benefit of an

additional increment, which is available to a

government servant under FR 22(1)(a)(1) would not be

available to the government servant if the higher post he

is promoted or appointed to does not carry duties and

responsibilities of greater importance than those

attaching to the post held by him.”

11. The instructions, which have been placed on

record by the petitioner, relating to FR-49 dated 04.12.1989,

the reference of which has been noticed in the rejection order,

reveals that when an officer is required to discharge all the

duties of the other post including the statutory functions,

( 2026:HHC:10735 )

9

then, steps should have been taken to process the case for

getting the approval of the competent authority and formal

orders appointing the officer to the additional post should be

issued on appointment. In case the respondents have not

taken the measures to grant approval, the petitioner, who

admittedly, has discharged the duties on the post of

Superintendent Grade-I, in addition to his own duties, as is

evident from the rejection order w.e.f. 06.11.2007 to

31.05.2010, he cannot be denied the said benefit, even if the

office order does not specifically mention the duties to be

discharged by the petitioner. Once the respondents have not

denied the factum that the petitioner has discharged the

duties and responsibilities of the post of Superintendent

Grade-I, in addition to his own duties, he cannot be denied

the benefit of FR-49, as per the law laid down by the Hon’ble

Apex Court in the judgment cited supra.

12. A Coordinate Bench of this Court in CWPOA

No.5378 of 2019, titled, Bishan Singh Chandel vs.

Himachal Pradesh University and another , decided on

5

thMay, 2021, has also dealt with the similar issue on the

principle of claim of pay-scale to the higher post and the

relevant paras of the judgment read as under:-

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“4 (ii) (a). While refusing to exercise in petitioner’s

favour, the discretionary power to relax the period of

service required for promotion to the post of Planning

& Development Officer, the respondent-University

had given him additional charge of the same post

keeping in view the work requirement. The decision

in this regard as contained in Note No.261 dated

12.11.2014 reads as under:-

“1. There is no justification to promote Sh. Bishan Singh

Chandel, Deputy Registrar (Estate) to the post of Planning &

Development Officer. However, keeping in view the

requirement of work, he is given the additional charge of the

said post without any financial benefits till further orders.”

This was followed by an order dated 12.11.2014,

whereunder petitioner was to look after the work of

Planning & Development Officer in addition to his

own duties without any financial benefits till further

orders:-

“Shri Bishan Singh Chandel, Deputy Registrar, Estate

Office will look after the work of Planning &

Development Officer with immediate effect in addition

to his own duties without any financial benefits till

further orders.”

It is an admitted fact that the petitioner worked as

Planning & Development Officer w.e.f. 12.11.2014 till

his superannuation on 31.03.2015. In support of

petitioner’s claim of pay of this post, reliance has

been placed upon a decision rendered in CWP(T)

No.7099 of 2008.

4(ii)(b). In CWP(T) No.7099 of 2008 , titled Shiv

Dayal Kataria Versus Himachal Pradesh

( 2026:HHC:10735 )

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University, a Co-ordinate Bench of this Court while

taking note of the fact that the petitioner therein had

worked as Superintending Engineer in the

respondent-University, held him entitled for financial

benefits attached to the post. Paras 8 and 9 of the

judgment read as under:-

“8. Now, the Court has to advert to the second limb of

argument of Mr. Dilip Sharma. According to him, his

client was permitted to discharge the duties of

Superintending Engineer. This order was passed by the

Registrar of the respondent-University on 03.03.1994,

whereby the petitioner was invested with the powers of

Superintending Engineer and was to function as overall

Incharge of the three engineering wings (Construction,

Design & Architectural) of the respondent-University. He

made representation seeking benefit of the services, he

had rendered as Superintending Engineer on

09.09.1997. The Vice-Chancellor on 11.09.1997 as per

his endorsement stated as follows:

“Allowed if it is on record that Sh. S.D. Kataria has

performed the duties of S.E. for more than 3 years.”

9. It is not denied by the respondents in the reply that

the petitioner has not worked as Superintending

Engineer. The objection raised by the respondent-

University is that firstly it was made clear to the

petitioner that he will not get any financial benefits as

per office order dated 03.03.1994 and secondly, the

Vice-Chancellor had no jurisdiction/authority under the

Himachal Pradesh University Ordinances to pass orders

on 11.09.1997. According to the respondent-University,

the competent authority in the case of category-B is the

Executive Council of the University and not the Vice-

Chancellor. It is true that to take a decision with regard

to appointment, suspension, removal from office, fixing of

salary, control or any other kind of matter, as far as

employees of categories ‘A’ and ‘B” are concerned, the

competent authority was the Executive Council. The

petitioner was also informed on 03.03.1994 that he will

not be entitled to any financial benefits. However, fact of

the matter is that petitioner has worked for more than

three years as Superintending Engineer and an

endorsement was also made by the Vice Chancellor on

11.09.1997 in favour of the petitioner. An employee

cannot be deprived of his right to get higher salary if he

discharges the duties of higher office. In this case, the

( 2026:HHC:10735 )

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petitioner was permitted to work as Superintending

Engineer. Superintending Engineer is a higher post and

the post of Executive Engineer is in feeder category. A

person, who performs the duties of higher office,

must get the salary of the same post. He cannot

waive of his fundamental/legal right to get the

higher salary, even if an endorsement was made in

the office order that the petitioner will not get the

monetary benefits. Petitioner is also entitled to get

the salary of the post of Superintending Engineer

on the well recognized principle of “equal pay for

equal work”. The Executive Council no doubt is the

competent authority to take decisions with regard to ‘A’

and ‘B’ categories of employees, governing their

conditions of service, but once the endorsement has been

made by the Vice-Chancellor, the matter was required to

be taken before the Executive Council. The respondent-

University in its own wisdom has not taken up the

matter with the Executive Council. The petitioner was

permitted to discharge the duties of the post of

Superintending Engineer. The Court has also taken

note of the fact that even though the post of

Superintending Engineer was not available,

however, the petitioner was still invested with the

powers as were exercised by the Superintending

Engineer of H.P.P.W.D. In view of this, the

petitioner cannot be denied the salary of the post

of Superintending Engineer for working more than

three years as Superintending Engineer .”

LPA No.100 of 2010, preferred by the respondent-

University against the above judgment, was

dismissed vide judgment dated 27.10.2015. Learned

Standing Counsel for the respondent has not

disputed the fact that the above judgment has since

attained finality and stands implemented. The ratio

of the above judgment applies to the facts of the

instant case as well. Here also the petitioner had

admittedly discharged the duties of the higher post

of Planning & Development Officer w.e.f. 12.11.2014

till his superannuation on 31.03.2015. This was

pursuant to an order passed by the respondent in

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terms of the decision taken by the Competent

Authority. The post of Planning & Development

Officer lying vacant w.e.f. 21.07.2014, was a higher

post in line of promotion from the post of Deputy

Registrar substantively held by the petitioner.

Therefore, following the dictum of Shiv Dayal

Kataria’s case, supra, in the facts and attending

circumstances of the case, petitioner deserves to be

granted the pay scale attached to the said post.

No other point was urged by either of the

parties.

In view of above discussion, petitioner’s claim

for retrospective promotion to the post of Planning &

Development Officer w.e.f. 01.09.2014 is held to be

not tenable. However, respondent-University is

directed to release the pay and allowances

alongwith consequential benefits to the petitioner for

discharging the duties of Planning & Development

Officer w.e.f. 12.11.2014 to 31.03.2015, within a

period of six weeks from today.”

13. The plea taken by the respondents that there was

no specific order to perform the duties of Superintendent

Grade-I, cannot be countenanced, in view of the fact that

respondent No.2, with whom the petitioner was working, had

written vide communication dated 30.03.2010 that the

petitioner has been assigned the duties/work of the vacant

post of Superintendent Grade-I. Had it been the case of the

( 2026:HHC:10735 )

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respondents that the post of Superintendent Grade-I was not

vacant, the said plea could have been accepted. Once the

respondents have extracted the work from the petitioner of

the post of Superintendent Grade-I, in addition to his own

duties, the impugned order cannot sustain. The petitioner, in

addition to his own duties, has discharged the duties and

responsibilities of a higher post and thus, as per provisions of

FR-49, he is entitled to get the benefits.

14. The relief prayed for by the petitioner to grant him

promotion to the post of Superintendent Grade-I cannot be

countenanced for the reason that the petitioner had only right

to be considered for promotion. Once the petitioner has now

retired from service, this Court cannot pass orders to convene

the DPC for making his promotion. However, another relief

claimed by him to grant him the officiating allowance for the

post of Superintendent Grade-Iis allowed for the reason that

once as he has discharged the duties and responsibilities of a

higher post of Superintendent Grade-I, he is entitled to the

said relief.

15. Consequently, the present petition is allowed and

the impugned order dated 30.07.2011, passed by respondent

No.1 is quashed and set aside with a direction to the

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respondents to grant the petitioner, the pay and allowances of

the post of Superintendent Grade-I along-with consequential

benefits w.e.f. 06.11.2007 to 31.05.2010, within a period of

three months from today. In case the amount of arrears is not

defrayed to the petitioner within three months from today, it

shall carry interest @6% per annum w.e.f. 30.07.2011, when

the claim of the petitioner was rejected till its payment.

16. The writ petition is disposed of in the aforesaid

terms, so also the pending applications, if any.

( Jiya Lal Bhardwaj )

6

th April, 2026 Judge

(naveen)