The High Court of Himachal Pradesh recently comprising of a bench of Justice Jyotsna Rewal Dua observed that A person, who performs the duties of higher office, must get the salary of the same post. (Bishan Singh Chandel V. Himachal Pradesh University and another)
The bench noted that the post of Planning & Development Officer lying vacant w.e.f. 21.07.2014, was a higher post in the line of promotion from the post of Deputy Registrar substantively held by the petitioner. Therefore, following the dictum of Shiv Dayal Kataria’s case, in the facts and attending circumstances of the case, the petitioner deserves to be granted the pay scale attached to the said post.
Facts of the case
The petitioner was the senior-most Deputy Registrar. The petitioner had been ordered to give an additional charge to the post of Planning & Development Officer but he had not been given the pay scale (financial benefits) attached to the post. Thus the petitioner has preferred this writ petition.
Contention of the Parties
The counsel for the petitioner contended that in any case, the respondent had taken the work of Planning & Development Officer from the petitioner w.e.f. 12.11.2014 and superannuated while discharging the duties of the said post. Thus the financial benefits attached with the post are deserved and need to be granted.
Court's observations and Judgment
The bench looking into the facts and circumstances of the case noted, "In the facts of the instant case, relaxation in the requisite length of service period was granted by the respondent-University in favour of some employees for the purpose of their next promotion only on the ground of their impending retirement even ignoring the claim of their senior, while the exercise of same power was refused in favour of others, who also needed relaxation in the required length of service by the same period and exercise of such power in their favour would not have resulted in any supersession. It is well settled that exercise of discretion should be legitimate, fair and without any aversion, malice or affection. The discretionary power to relax should be exercised sparingly to meet exceptional situations warranting such exercise. From the facts, it appears that the respondent-University did not exercise the discretionary power of relaxation either in a judicious or in an equitable manner. The principle that relaxation should only be an exception and not the rule, was not kept in mind by the respondents while exercising this power. "
The bench further noted, " Apparently, the principle that adherence to Recruitment & Promotion Rules should not ordinarily be considered a hardship for a person seeking appointment or promotion thereunder, was also not followed strictly. Be that as it may. The cases of grant of relaxation by the respondent-University being relied upon by the petitioner for claiming similar treatment are neither before this Court nor the same can be gone into at this stage. However, on the analogy of exercise of this discretionary power of relaxation in favour of some incumbents, the respondent-University cannot be directed to exercise the same discretion in favour of the petitioner. Exercise of discretionary power of relaxation in one’s favour cannot be claimed as a matter of right.
It remains a fact that subsequent to the amendment carried out in the Himachal Pradesh University Act, 1970 on 16.03.2015, the power of relaxation has not been used by the respondent. It is not for the Court to use the power and effect relaxation. Therefore, the claim of the petitioner for retrospective promotion to the post of Planning & Development Officer by way of relaxation of requisite length of service under the R&P Rules is held to be not tenable. By way of abundant caution, it is clarified that observations made heretofore with respect to mode and manner of exercise of discretionary power of relaxation are only for the purpose of adjudication of petitioner’s claim and shall have no effect upon the concluded cases."
The Court made reference to the judgment of Himachal High court in the case of Shiv Dayal Kataria v Himachal Pradesh University, wherein the following observation had been made, “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 a 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 court considering the precedents and the facts of the case held that, respondent-University should release the pay and allowances along with consequential benefits to the petitioner for discharging the duties of Planning & Development Officer. Thus disposing of the writ petition.
Read Judgment ;
SOURCE ; latestlaws.com/
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