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Judgment
Vinod K. Sharma, J.—The petitioner has approached this Court with a prayer for issuance of a Writ in the nature of Certiorari, to quash the
notification issued by the first respondent, inviting the application for the appointment to the post of Tutor/Demonstrator in Indira Gandhi Medical
College & Research Institute. The ground of challenge being that she is working on the post of Tutor, having been posted to that post by
Perunthalaivar Kamaraj Medical College and Research Centre vide order No. F. No. 71/PKMC&1/Estt/07/91 dated 19.04.2010.
The prayer on the face of it, is misconceived. The petitioner cannot challenge the notification issued by the department for filling up of the posts.
The petitioner also prays for issuance of a Writ in nature of Mandamus directing the first respondent to give regular appointment to the petitioner.
This prayer is again misconceived. The petitioner can always apply for the appointment pursuant to the impugned notification and her case for
appointment can be considered with all other eligible candidates. The petitioner has not placed any rules, regulations or Government instructions
entitling her for regularisation of her service given by way of posting from different department.
The petitioner also cannot claim regularisation to defeat the right of other eligible persons to be considered for the post. The final prayer of the
petitioner that she is entitled to regular pay scale of the post held by her deserve to be accepted, in view of the settled law, that a person is entitled
to the salary attached to the post held by him.
The Hon''ble Division Bench of the Punjab and Haryana High Court in Gurmej Singh Versus State of Punjab 1995 (3) SCT 279 was pleased to
lay down that ""If a person is holding current duty charge of higher post, he is entitled to pay and allowances of the current duty charge post"". It was
held by Hon''ble Supreme Court in Secretary-cum-Chief Engineer Versus Hari Om Sharma 1998 (3) SCT 90 that ""where the respondent was
promoted as Junior Engineer I in 1990 and had been continuing on that post without being paid salary for that post or without being provided on
regular basis. An agreement that if a person is promoted to higher post or just to officiate on that post or a stop gap arrangement is made to place
him on higher post, he would not claim higher salary or other attendance benefits, would be contrary to law and against public policy"". It was also
observed by Hon''ble Supreme Court in Salva Raj Versus Lt Governor of Island, Port Blair and others 1998 (4) RSJ 22 (SC) that where an
employee is ordered to look after the duties of higher post and he worked on higher post though temporarily and in an officiating capacity, he is
entitled to salary attached to higher post, which may not amount to promotion. Once it is not disputed that petitioner is performing the duties of a
tutor, she is entitled to regular pay scale of the post held by her. For the reasons stated above, while denying the petitioner''s prayer for quashing of
the impugned notification and relief of regularisation of the service, a Writ in the nature of Mandamus is issued to the respondent to pay the
petitioner the salary of the post of Tutor. The Writ Petition accordingly is partly allowed. Consequently, connected miscellaneous petition is closed.
No costs.