- (1.) The present regular second appeal has been filed against the judgment and decree passed by the learned Civil Judge (Jr. Division), Bathinda and the learned Additional District Judge, Bathinda vide which the first appeal filed by the appellants was dismissed.
(2.) Along with this appeal an application has been filed seeking condonation of 281 days delay in filing the appeal.
(3.) The plaintiff had filed a suit claiming pay scale of the post of Work Supervisor. It was his contention that by a specific resolution of the Municipal Council the post of Clerk was converted to that of Work Supervisor. The trial Court has noticed the facts in great detail and concluded that since the post of the plaintiff was converted to that of Work Supervisor, he was entitled to the pay scale attached to the post of Work Supervisor. The relevant observations of the trial Court wherein this aspect has been dealt with are as hereunder:- "16. From the above referred arguments, the fact remained admitted between the parties that plaintiff was appointed on compassionate grounds and he joined as Clerk in MC Sangat on 22.6.93 in the pay scale of Rs. 950-1800, which was revised to Rs. 3120-6250 w.e.f. 1.1.196. It is also admitted that post of the plaintiff was converted to work supervisor of MC Sangat vide resolution no. 209 dated 31.1.2000 i.e. Ex.P-1 and defendant no. 4 i.e. Regional Deputy Director Local Govt. has given approval vide Ex.P- 3 and plaintiff joined on 20.4.2000. Further it is admitted and proved from Ex.P-2 i.e. service book of plaintiffs that on the basis of resolution of Municipal Council, bearing no. 34 dated 19.1.01 and memo no. 98/39402 dated 16.11.98 of Director, Local Govt. Plaintiff was appointed as work supervisor in the pay scale of Rs. 5000-8100. In the plaintiff's service book i.e. Ex.P-2 at page no. 7, it is also incorporated that on the basis of resolution no. 209 dated 31.1.2000 and memo no. 2583 dated 27.4.2000 of Director Local Govt. Plaintiff's post was converted from clerk to work supervisor and to this effect office order no.2 dated 28.4.2000 was passed. There is no dispute as facts that plaintiff is working on the post of work supervisor and is given the salary of Clerk. 17. From the above discussion, the following facts remained in dispute are : i) Whether plaintiff is entitled to the pay scale of work supervisor. ii) Whether necessary approval for conversion of post of Clerk to work Supervisor as required from Regional Director, Local Bodies, Punjab Chandigarh was obtained or not ? iii) Whether plaintiff is entitled to the arrears of differences of pay and other allowance as well as interest on late deposits of GPF and CPF subscription ? Now, taking up the first point under dispute, the perusal of Ex.P-1 reveals that as per resolution no. 209 dated 31.1.2000 the post of plaintiff was converted from clerk to work Supervisor on the grounds that the jurisdiction of Municipal Council has increased and it is merged with the Municipal Council and to make entries of the property in record and for its proper care, there is necessity of work supervisor. Mahesh Kumar at that time was working as Clerk as well as work supervisor, therefore, it is proposed that his post of Clerk be converted to the post of work Supervisor besides Municipal Council shall not be burdened with financial liability as pay scale for both the posts were same. The above referred facts led to the inference that it is not only the request of the plaintiff which formed the basis of conversion of his clerical post to the post of work supervisor rather there was necessity for the post also. Admittedly the plaintiff was converted and appointed to high post of work supervisor therefore, he is allowed to pay scale admissible for the post of work supervisor. It is also held by the Hon'ble Supreme Court in T. Murugesan and others v. State of Tamilnadu and others, 1993 2 SCC 340that an agreement that if a person is promoted to the higher post or put to officiate on the post or 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. 18. In view of the aforesaid observations of Hon'ble Supreme Court plaintiff is entitled to the benefits of High pay scale attached to the post of work supervisor. 19. As far as the question of necessary approval for converting the post of clerk to work supervisor is concerned, DW2 Amarjeet Lal Sr. Assistant, Regional Deputy Director local Govt. Bathinda when put to cross examination has admitted the fact as correct that for the approval of resolution of C Class committees their office is competent. The budget and meeting proceedings of Class B and Class C committees is under their office. Sangat M.C. Is also under class C. It is further admitted by DW 2 that resolution No. 209 dated 31.1.2000 has been approved by their office vide Ex.P-3 and it is further admitted by him that for the sanction of which their office is competent, there is no necessity to seek further approval from Director Local Govt. Punjab Chandigarh. 20. From the aforesaid admitted facts, no room for doubt is left to hold that the resolution No. 209 dated 31.1.2000 is approved by competent authority i.e. defendant No. 3 vide which the possession of plaintiff was converted from Clerk to work supervisor. Being C Class committee the further approval from Director Local Govt. Punjab Chandigarh was not required. Therefore, Ex.D-2 vide which the explanation for the approval of conversion of post of clerk to work supervisor from Regional Deputy Director, Local Govt. Bathinda is sought by Director Local Govt. Punjab Chandigarh has no effect upon the appointment of plaintiff to the post of work Supervisor." It is these findings which have been affirmed by the learned lower Appellate Court.;