IMPORTANT POINT
When Rules do not bar pay of the officiating higher posts the employee would be entitled to pay of higher posts he officiated on.

JUDGMENT :

Dipak Misra, CJI.

The present appeal, by special leave, calls in question the legal acceptability of the order dated 20.08.2008 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 18843 of 2007 whereby the Division Bench placing reliance on the decision in Pritam Singh Dhaliwal v. State of Punjab and another, 2004 (4) RSJ 599 has acceded to the prayer made by the respondent for getting the benefit of the pay scale for the post he was holding on officiating basis.

2. To appreciate the gravamen of the controversy, exposition of facts in brief is necessitous. The respondent was appointed as a clerk on 22.05.1970 and promoted to the post of Senior Assistant on 22.09.1980. He was given the officiating charge of the Superintendent Grade II vide order dated 09.12.2004 and thereafter, he was directed to function as Superintendent Grade I vide Government Order dated 26.05.2007. As the factual narration would reveal, he stood superannuated from service on 31.03.2008.

3. Before the respondent attained the age of superannuation, he approached the High Court in a Writ Petition as he was not granted the benefit of the pay scale for the posts of Superintendent Grade II and Superintendent Grade I despite having performed the duties of officiating current duty basis regularly. He sought the relief for grant of pay, the arrears of pay and other consequential allowances and benefits with 18% interest. As stated earlier, the High Court placed reliance on the authority in Pritam Singh Dhaliwal (supra) and opined that the controversy is covered by the said decision and disposed of the writ petition in terms of the said judgment. Hence, the present appeal.

4. We have heard Ms. Uttara Babbar, learned counsel for the appellants and Mr. Sudarshan Singh Rawat, learned counsel for the respondent.

5. Criticising the impugned order, it is submitted by Ms. Babbar that the High Court has committed gross illegality in granting the benefit to the respondent totally ignoring the restrictions incorporated in the orders dated 09.12.2004 and 26.05.2007 which clearly stipulated that the respondent official will work in his own pay scale and his officiating promotion would be subject to the recommendations of the Departmental Promotion Committee and on the approval of the Committee, he shall be given the financial benefits. She would further urge that the authority relied upon by the High Court does not hold good in view of what has been laid down by this Court in State of Haryana and another v. Tilak Raj and others , (2003) 6 SCC 123 S.C. Chandra and others v. State of Jharkhand and other, (2007) 8 SCC 279 and A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu, (2014) 13 SCC 283. She has also impressed upon the aspect that under the Punjab Civil Services Rules (for short, “Rules”) the respondent is not entitled to the benefit inasmuch as the Rules unequivocally prescribe for denial of benefit.

6. Mr. Rawat, learned counsel for the respondent, while defending the order impugned, would contend that the assumption of the State that the said Rules impose conditions in the negative is fundamentally erroneous. According to him, the pronouncements which have been relied upon are not applicable to the facts of the instant case and, therefore, the decision rendered by the High Court cannot be found fault with. He would further contend that the respondent was relieved from the substantive post and worked in the higher posts and carried out the responsibilities of the said posts and, therefore, denial of the benefits to him would be travesty of justice and further permit the State to pave the path of infidelity to the real legal position. That apart, submits the learned counsel, the language used in the order passed by the employer would crush the essential spirit of the Rule.

7. In the beginning, it is seemly to state that there is no factual dispute with regard to the appointments or the posts. That bein