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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: R.K. AGGARWAL

DATE OF JUDGMENT:       28/07/1997

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J.      Leave granted.      Prior to  7th of  December,  1990  the  respondent  was holding the  post of  Superintending Engineer  in the Public Works (B&R)  Department of  the State  of Haryana.  By order dated 7th  of December,  1990 he  was given the current duty charge as  Chief Engineer  (Roads) in  his own  pay-scale of Superintending Engineer.  The order of 7th of December, 1990 in  the   "remarks"  column   states  against  the  name  of respondent, "(1)  Vice Shri  A.N. Sehgal transferred; (2) in his own pay-scale of SE". The respondent was given promotion as Chief Engineer with effect from 8th of November, 1994 and was thereupon  given the  pay-scale of a Chief Engineer. The order of  8th  of  November,  1994  issued  by  the  Haryana Government  Public   Works  (B&R)  Department,  inter  alia, states, "In pursuance of the directions of the Supreme Court of India,  the Governor  of Haryana  is pleased to grant the pay-scale of  Rs. 5900-6700  of the  post of  Chief Engineer with effect from 1.11.1994 to Shri R.K. Aggarwal holding the acting charge  of  the  post  of  Chief  Engineer  (National Highways); (2) The above pay-scale is granted subject to the final outcome  of the  representations received from various officers with  regard to the seniority circulated vide order No.  13-70-B&R   (E)-2-90  dated  7.4.1992  required  to  be disposed of  as per  the  directions  of  Supreme  Court  of India."  This   order  clearly  states  that  prior  to  1st November, 1994  the respondent  was holding acting charge of the post  of Chief  Engineer. There was litigation which was pending with  regard to  the inter-se  seniority of  various concerned officers.  In pursuance of the directions given in that litigation  by this  Court, substantive  appointment to the post  of Chief Engineer was given to the respondent with effect from  1st November, 1994. But his was made subject to the final  outcome of  the various representations which had been received  from officers  with regard  to their inter-se seniority.      By another  order dated 8th of November, 1994 issued by the Haryana  Government, Public  Works (B&R) Department, the respondent was  given the current duty charge of the post of

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Engineer-in-Chief in  addition to  this present  duties. The order of  8th of  November, 1994 expressly sets out that the current duty  charge given to the respondent as Engineer-in- Chief was  in addition  to  his  present  duties.  Thereupon another order of 20th of December, 1994 was issued effecting various postings/transfers  of various officers. This order, inter alia,  sets out  that one  Shri K.B.  Lal  Singal  was posted as  Chief Engineer (National Highways) relieving Shri R.K. Aggarwal  i.e. the  respondent of  his duties  as Chief Engineer (National Highways). Note 2 sets out that Shri R.K. Aggarwal will  continue to  look after the work of Engineer- in-Chief, PWD  (B&R), Haryana, in his own pay-scale of Chief Engineer. Once  again this  was done  on account  of pending litigation with  regard to inter-se seniority of the various concerned officers.  The  respondent  was  ultimately  given promotion of  the post of Engineer-in-Chief in the pay-scale of Rs. 7300-7600 under an order of 16th of April, 1995.      After his  retirement the respondent in 1996 filed Writ Petition No.  1156 of 1996 before the High Court of Punjab & Haryana claiming, inter alia, that for the period 10.12.1990 to 31.10.1994  he should  be given  the pay-scale of a Chief Engineer and  that for  the period 8.11.1994 to 15.4.1995 he should be  given  the  pay-scale  of  Engineer-in-Chief.  He further prayed  that his  retirement benefits should also be calculated on  that basis.  The claim  of the respondent has been upheld  by the  High  Court  although  the  relief  for payment of  arrears is  restricted to  a period of 38 months from the  date of  the filing  of  the  writ  petition.  The present appeal  is filed from this judgment and order of the High Court.      From  the  orders  which  we  have  referred  to  above relating to  the respondent  being asked to hold the current duty charge  first, as  Chief  Engineer  and  thereafter  as Engineer-in-Chief, it  is clear  that substantive  promotion was not  given to the respondent during the impugned periods because of  pending  litigation  relating  to  the  inter-se seniority of  the various officers concerned. No substantive promotion could  be give  until  the  question  of  inter-se seniority was finally decided. That is why even the order of 8th of  November, 1994  giving promotion  and  pay-scale  of Chief Engineer to the respondent mentions that it is subject to the  representations received  from various officers with regard to  their seniority which are required to be disposed of as  per the  directions of  this Court.  The same  is the position with  regard to  the respondent being given current duty charge as Engineer-in-Chief. In view of the clear terms of  the   concerned  orders   the  respondent  cannot  claim substantive  promotion   either  as  Chief  Engineer  or  as Engineer-in-Chief during the impugned relevant periods.      The respondent has relied upon a decision of this Court in the  case of  Smt. P.  Grover v. the State of Haryana and Anr. (1983  (3) SCR  654). In  that case  the appellant  was promoted as  an acting  District Education  Officer but  the order of  promotion contained  a super-added  condition that she would  continue to draw her salary on her existing scale of pay  as a  teacher. This  Court held that in the counter- affidavit field  on  behalf  of  the  Govt.  of  Haryana  no rational explanation  was offered  for denying  the  pay  of District Education  Officer to  the appellant  after she was promoted to  act as  a District  Education Officer.  In  the absence of  any rule  justifying such  refusal to  pay to an officer promoted  to a higher post the salary of such higher post, the  same should  be  given  from  the  date  she  was promoted to  the post.  This judgment  will not apply to the facts of  the present  case. In  the present case there is a

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rational explanation  for  not  granting  promotion  to  the respondent during the impugned periods. This was because the litigation was pending in relation to the inter-se seniority of various  concerned officers. It was, therefore, not clear who would  be ultimately  promoted. It  was only pursuant to the directions of this Court that the promotion was given to the respondent  first as  Chief Engineer  and thereafter  as Engineer-in-Chief  the   latter  also  being  subject  to  a condition relating  to the determination of seniority by the department pursuant  to the  directions of this Court. There was,  therefore,  a  valid  reason  for  not  effecting  the promotion of  the respondent  during the material period. In each of  the posts  of Chief  Engineer and Engineer-in-Chief the  respondent   has  been   given  his  promotion  from  a subsequent date as the order of promotion clearly show.      In these circumstances, during the impugned period when no promotion  had been  given to  the respondent,  he cannot claim the salary of the promotional post. The impugned order of the  High Court  is, therefore,  set aside, the appeal is allowed  and   the  writ   petition  is  dismissed.  In  the circumstances, we make no order as to costs.