Skip to content


Surat Singh Thakur. Vs. State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.P. (T) No. 10931 of 2008.
Judge
ActsContract Act - Section 23
AppellantSurat Singh Thakur.
RespondentState of Himachal Pradesh and ors.
Appellant AdvocateMr. H.K. Paul, Adv.
Respondent AdvocateMr. A.K. Bansal, Adv.
Excerpt:
.....and 31.01.2001. he has given up all the other reliefs. petitioner was working as station fire officer. he was directed to look-after the additional charge of the post of fire prevention officer, head quarters temporarily till further orders on 21.02.1995. thereafter, vide office order dated 05.08.1998, the petitioner was directed to look-after the work of the vacant post of fire prevention officer in the office of chief fire officer (hdqrs.) with immediate effect till further orders. however, a condition was imposed in the office order that no extra salary/allowances and seniority benefits will be admissible to the petitioner on account of looking after the charge of the post of fire prevention officer. petitioner was adjusted against the higher vacant post of fire prevention.....
Judgment:
1. Mr. H.K. Paul, learned counsel for the petitioner, during the course of hearing, has confined his submissions only to the relief of payment and release the pay of the higher post on the basis of Annexures A-5/1, A-5/2 and A-5/3, dated 21.02.1995, 05.08.1998 and 31.01.2001. He has given up all the other reliefs. Petitioner was working as Station Fire Officer. He was directed to look-after the additional charge of the post of Fire Prevention Officer, Head Quarters temporarily till further orders on 21.02.1995. Thereafter, vide office order dated 05.08.1998, the petitioner was directed to look-after the work of the vacant post of Fire Prevention Officer in the office of Chief Fire Officer (Hdqrs.) with immediate effect till further orders. However, a condition was imposed in the office order that no extra salary/allowances and seniority benefits will be admissible to the petitioner on account of looking after the charge of the post of Fire Prevention Officer. Petitioner was adjusted against the higher vacant post of Fire Prevention Officer at State Hdqrs, H.P. Fire Services, Shimla with immediate effect vide office order dated 21st January, 2001. He was directed to look-after the duties of higher vacant post of Fire Prevention Officer till further orders.

2. Mr. H.K. Paul, learned counsel for the petitioner has strenuously argued that his client was entitled to get the salary of the higher post of Fire Prevention Officer on the basis Annexures A-5/1, A-5/2 and A-5/3, dated 21.02.1995, 05.08.1998 and 31.01.2001.

3. Mr. P. M. Negi, learned Deputy Advocate General has vehemently argued that the petitioner has been merely asked to look-after the charge of the higher post with a rider that he will not claim extra salary/allowances and seniority.

4. I have heard the learned counsel for the parties and gone through the pleadings carefully.

5. It is evident from the contents of Annexures A-5/1, A-5/2 and A-5/3, dated 21.02.1995, 05.08.1998 and 31.01.2001 that the petitioner has been directed to look-after the duties of higher post of Fire Prevention Officer. He had, in fact, discharged the duties of the higher post. However, he has not been given the salary of the higher post of Fire Prevention Officer, merely on the basis of the condition enumerated in office order dated 5th August, 1998, whereby it was specifically mentioned that the petitioner shall not be paid extra salary/allowances and seniority. The Court is of the considered view that the petitioner is entitled to the salary of the higher post of Fire Prevention Officer. It is admitted fact that the petitioner had discharged the duties of higher post of Fire Prevention Officer. The only ground taken in the reply, as argued by Mr. P.M. Negi, learned Deputy Advocate General, is that the petitioner was merely asked to look-after the work of the higher post of Fire Prevention Officer.

6. Their Lordships of the Honble Supreme Court in Secretary-Cum-Chief Engineer, Chandigarh Versus Hari Om Sharma and others (1998) 5 Supreme Court Cases 87 have held that pay of promotion post cannot be denied, even if the promotion is an officiating or stop-gap arrangement. Their Lordships have further held that an agreement that if a person is promoted to the higher posts or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. Their Lordships have further held that it would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872. Their Lordships have held as under:

8. Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma-holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872.

7. Accordingly, in view of the observations and discussions made hereinabove, the petition is partly allowed. The respondents are directed to pay and release the petitioner salary of the higher post of Fire Prevention Officer for the period he has worked against the said post on the basis of Annexures A-5/1, A-5/2 and A-5/3, dated 21.02.1995, 05.08.1998 and 31.01.2001, within a period of two months from the date of production of a certified copy of this judgment by the petitioner. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //