Surinder Kumar Sharma vs State of H.P. and Others

Surjit Singh, J.—Petitioner had been working as Junior Assistant with Municipal Council, Kangra, in December, 1995, when he was promoted as Senior Assistant, by the Administrative Officer of the said Municipal Council. As a matter of fact, Administrative Officer of the Municipal Council was not competent to order promotion. of course, there was a resolution by the Municipal Council, for promotion of the Petitioner, but even the Municipal Council was not competent to pass such a resolution or to promote the Petitioner. Thereafter, an order of confirmation of the Petitioner as Senior Assistant was also passed, sometime in the year 1998. It was only the State Government that was competent to order the promotion as per Himachal Pradesh Municipal Services Act and the Rules framed thereunder.

When the illegal order of promotion of the Petitioner came to the notice of the concerned authorities, i.e. Director of Urban Development, Himachal Pradesh (Respondent No. 2 herein), he passed order dated 26th March, 2001, copy Annexure A-9, canceling the resolution of confirmation of the Petitioner as Senior Assistant. It appears, after the issuance of the aforesaid order Annexure A-9, Petitioner was reverted to the post of Junior Assistant. Another order Annexure A-10 was then issued from the office of Director, Urban Development (Respondent No. 2), directing recovery of access payment made to the Petitioner, on account of his promotion as Senior Assistant.

Petitioner is aggrieved by the order of recovery of difference between the pay of Junior Assistant and Senior Assistant, as ordered vide Annexure A-10. So, he filed an Original Application before the erstwhile State Administrative Tribunal, in the year 2002. On the abolition of the said Tribunal, matter has come to this Court.

During the pendency of the Original application, Respondent No. 2 revised order Annexure A-9, vide order Annexure R-2/3 and as per this revised order not only the order and the resolution of Municipal Council, regarding confirmation of the Petitioner, but also the order of his promotion to the post of Senior Assistant, have been rescinded.

In their replies, the Respondents have stated that since the promotion of the Petitioner as Senior Assistant was ordered by a person not competent to do so, No. illegality is there in the order of recovery of difference between the pay of Junior Assistant and Senior Assistant, as ordered by Respondent No. 2, vide Annexure A-10.

I have heard learned Counsel for the parties and gone through the record.

It is not in dispute that the Petitioner, after his promotion in December, 1995, worked as Senior Assistant for Respondent No. 3. That means Respondent No. 3 took the work of a Senior Assistant from the Petitioner, after his promotion in December, 1995 till the revised order Annexure R-2/3 was issued. Now, when the Petitioner has worked as Senior Assistant, though his promotion as Senior Assistant from the post of Junior Assistant was not lawful, he is entitled to salary of Senior Assistant, because of his having worked as such. He is not responsible, in any manner, for the passing of order of his promotion by the Municipal Council, which was not competent to promote him. He could not have refused to accept the promotion and to work as Senior Assistant. On account of the Petitioner having worked as Senior Assistant and Respondent No. 3 having taken the work of that post, he is entitled to the salary of a Senior Assistant, for the period he has worked as such. In this view of the matter, I find support from a couple of judicial precedents of the Hon''ble Supreme Court. Citations are: Jaswant Singh Vs. Punjab Poultry Field Staff Association and Others, and (2005) 12 SCC 201 Coal India Ltd. and Anr. v. Ardhendu Bikas Bhattacharjee and Ors.

For the foregoing reasons, writ petition is allowed and the order of recovery, Annexure A-10, is quashed.

Writ petition stands disposed of.