Sabina, J. - (1.) PETITIONER has filed this petition challenging the appointment of respondent Nos. 4 and 5 on deputation and the order dated 05.04.1995 (Annexure P -15), whereby, petitioner had been denied his regular promotion.
(2.) LEARNED counsel for the petitioner has submitted that vide order dated 08.05.1991 (Annexure P -7), petitioner was given CDC charge of Assistant Engineer (Electrical) on account of long leave taken by Paramjit Singh, Assistant Engineer (Electrical). Thereafter, petitioner continued performing duties on the said post till the petitioner was regularly promoted as Assistant Engineer (Electrical) vide order dated 05.04.1995 (Annexure P -15). Learned counsel has further submitted that now the only relief that remains to be granted to the petitioner is that he has to be paid the salary admissible to Assistant Engineer (Electrical) from 08.05.1991 till he was regularly promoted as Assistant Engineer (Electrical) vide order dated 05.04.1995 (Annexure P -15). Learned counsel has further submitted that since the petitioner has performed the duties of Assistant Engineer (Electrical) from the passing of the order Annexure P -7 till he was made regular vide order Annexure P -15, he was entitled to receive salary attached to the post of Assistant Engineer (Electrical). In support of his arguments, learned counsel has placed reliance on judgment of Hon'ble the Supreme Court in Arindam Chattopadhyay and others Vs. State of West Bengal and others : 2013 (3) RSJ 230 wherein it was held as under: - Reverting to the facts of this case, we find that although the appellants were recruited as ACDPOs, the State Government transferred and posted them to work as CDPOs in ICDS projects. If this would have been a stop gap arrangement for few months or the appellants had been given additional charge of the posts of CDPO for a fixed period, they could not have legitimately claimed salary in the scale of the higher post, i.e., CDPO. However, the fact of the matter is that as on the date of filing of the Original Application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the date of filing of the writ petition, they had worked on the higher post for about 6 years. By now, they have worked as CDPOs for almost 14 years and discharged the duties of the higher post. It is neither the pleaded case of the respondents nor any material has been produced before this Court to show that the appellants have not been discharging the duties of the post of CDPO or the degree of their responsibility is different from other CDPOs. Rather, they have tacitly admitted that the appellants are working as full -fledged CDPOs, since July, 1999. Therefore, there is no legal or other justification for denying them salary and allowances of the post of CDPO on the pretext that they have not been promoted in accordance with the Rules. The convening of the Promotion Committee or taking other steps for filling up the post of CDPO by promotion is not in the control of the appellants. Therefore, they cannot be penalised for the Government's failure to undertake the exercise of making regular promotions. Learned counsel has further relied on the judgment of Hon'ble the Supreme Court in Secretary -cum -Chief Engineer, Chandigarh Vs. Hari Om Sharma : 1998 AIR (SC) 2909 wherein it was held as under: - 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 stopgap 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 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.
(3.) LEARNED counsel for the respondent -Board, on the other hand, has opposed the petition.;