Employee Officiating On Higher Post Entitled To Salary Of That Post Even Sans Formal Promotion : Allahabad High Court

A Bench of Chief Justice Arun Bhansali and Justice Kshitij Shailendra held that denial of salary for the higher post would be "contrary to law and also against public policy”.

The HC was dealing with a writ petition filed by one Uma Kant Pandey wherein it set aside an order of the Central Administrative Tribunal (CAT), Allahabad Bench, which had dismissed the claim of a railway teacher seeking the salary of a Head Master.

Briefly put, the petitioner (Pandey) was working as a Trained Graduate Teacher (TGT) at the East Central Railway Inter College, Mughalsarai. Following the superannuation of the incumbent Head Master (Junior Wing) on November 30, 2004, the petitioner was instructed to take over charge and work as 'Teacher Incharge' till the posting of a permanent incumbent.

Pandey discharged these duties from for around 3 years and four months [December 1, 2004, to March 6, 2008]. However, his claim for the higher pay-scale, which is admissible to the post of Head Master, was opposed by the Railways.

The respondents argued that the petitioner was never promoted to the post and there was no departmental rule or statutory provision whereby the petitioner could be held entitled to the salary admissible to the Head Maste.

It was contended that the petitioner was merely directed to work as 'Teacher Incharge' as a "temporary stop-gap measure" which involved only routine duties and thus, it would not confer entitlement to get higher scale of pay.

The Tribunal accepted the Railways' argument noting that no departmental rule existed to support the claim and that the office order did not mention pay re-fixation.

Pandey then moved the HC, wherein the division bench noted that during his tenure as 'Teacher Incharge', the petitioner was subjected to disciplinary proceedings and in the charge sheet and office memorandum, the department explicitly designated him as 'Head Master (Junior Wing)'.

The Court further noted that though no punishment was awarded to him in the departmental proceedings, however, right from initiation of the same till his appeal, which was allowed, he was continuously referred as Head Master/Principal of Junior Wing.

The Court observed that if the respondents held him accountable for the liabilities of a Head Master and charged him for lapses in managing the school, they could not now turn around and claim his duties were merely "routine in nature" when it came to paying his salary.

The Bench remarked that the school could not have been functional for over three years if the petitioner had only done routine work.

"The School could not have functional for a period of over three years, if the petitioner had only done the routine work. Therefore, the working of the petitioner for such a long period of 3 years 4 months can safely be said to be in officiating capacity and not in any other capacity as suggested by the respondents", the bench remarked.

Thus, rejecting the Railways' reliance on Indian Railway Establishment Code (IREC) rules regarding "dual charge allowances”, the Court said that it was not a case of holding additional charge of a post "not filled up before", but rather occupying a vacancy caused by superannuation.

The High Court placed reliance on the Supreme Court judgment in Selvaraj vs. Lt. Governor ofIsland, Port Blair where the principle of quantum meruit was discussed.

This principle says that a person should be paid as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post, even if he was not a regular promotee.

Furthermore, the bench also relied on Supreme Court decision in Secretary-cum-Chief Engineer, Chandigarh vs. Hari Om Sharma wherein it was held that if a person is promoted to the higher post or put to officiate on that post or a stop-gap arrangement is made to place him on the higher post, denial of salary to him for a higher post would be contrary to law and also against public policy and even any contract or agreement containing such a stipulation would be unenforceable in law in view of Section 23 of the Contract Act.

Thus, noting that the Tribunal for having 'cursorily' dismissed the Original Application without thoroughly examining the record.