An employee discharging duties of a higher post is entitled to pay and allowances for that position, regardless of the absence of formal promotion orders. Delay in processing claims does not nullify entitlement.

JUDGMENT :

Jiya Lal Bhardwaj, J.

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 6th 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 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 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 29th August, 1988 and 4th 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 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 res