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2026 DAILYLAW 16834 (HP)

S. N. Tewari v. State Of H. P

2026-03-03

Jiya Lal Bhardwaj

body2026
JUDGMENT : Jiya Lal Bhardwaj, J. The petitioner, by way of present writ petition has prayed for the following substantive reliefs:- “a) That impugned acts of the respondents above stated may very kindly be quashed and set aside with directions to the respondents to promote the petitioner Controller (Finance & Accounts) from the date he was posted in the respondent No.2 University with all consequential benefits of the said post qua salary and allowances and thereafter pensionary benefits accordingly, in the interest of law and justice; b) That in view of the principle of "equal pay for equal work" petitioner having worked as Comptroller, is entitled for salary of the said post from the date he was posted in the respondent No.2 University with directions to the respondents to pay the arrears alongwith interest @ 9% per annum with further directions to the respondents to consider and decide the pension case of the petitioner afresh in accordance with law; c) That petitioner having sought voluntary retirement and now having been superannuated from service, it is submitted that respondents may very kindly be directed to consider the pension case of the petitioner afresh in view of above stated benefits and submit the same accordingly with directions to calculate and pay the arrears accrued in equal thereto alongwith interest @ 9% per annum.” 2. It has been averred in the writ petition that the petitioner was appointed as Assistant Treasurer with respondent No.2-University in the year 1976 and after passing Subordinate Accounts Services (SAS) examination, he was appointed as Section Officer (Finance & Accounts). Thereafter, the petitioner was promoted as Assistant Controller (Finance & Accounts) in the year 1997, Deputy Controller (Finance & Accounts) in the year 2004 and thereafter as Joint Controller (Finance & Accounts) in the year 2007. 3. As per Notification dated 01.12.2009 (Annexure P-1), the petitioner was transferred and posted with immediate effect with respondent No.2-University against the vacant post of Comptroller in his own pay-scale. In sequel to the aforementioned Notification, the petitioner joined his duties with respondent No.2-University on 03.12.2009. 3. As per Notification dated 01.12.2009 (Annexure P-1), the petitioner was transferred and posted with immediate effect with respondent No.2-University against the vacant post of Comptroller in his own pay-scale. In sequel to the aforementioned Notification, the petitioner joined his duties with respondent No.2-University on 03.12.2009. After joining with respondent No.2-University, the petitioner made a representation to consider his case for promotion against one of the vacant posts of Controller (Finance & Accounts), however, the said representation was rejected vide communication dated 08.02.2011 (Annexure P-4), on the ground that only two sanctioned posts of Controllers (Finance & Accounts) are existing and both posts are filled up. At present, no post of Controller (Finance & Accounts) is lying vacant as per Recruitment and Promotion Rules, against which, the petitioner could be considered for promotion. 4. The petitioner has pleaded in the writ petition that the petitioner had discharged the duties of Comptroller and as per provisions of the Act and the University Statute, he is entitled to pay of the post of Comptroller as approved by the management from time to time. It has also been averred that the post of Comptroller is a statutory post and further as per regulation 3.6 of the Statute, the Comptroller of the University shall receive a pay as approved by the Board of Management from time to time and vide sub-clause 2, it is provided that in addition to the duties specified in Section 31 of the Himachal Pradesh Universities of Agriculture, Horticulture and Forestry Act, 1986, the powers and duties of the Comptroller have been enumerated. 5. It has further been pleaded that the persons who were earlier posted as Comptroller had been given the pay-scale of the post of Controller (Finance & Accounts) and, therefore, the petitioner ought to have been given the pay-scale of the post of Controller (Finance & Accounts) prevalent in the State of Himachal Pradesh. 6. Respondent No.1-State filed reply to petition and has averred that the post of Comptroller in University is not necessarily to be manned by the Controller (F&A) of the Department of Treasuries, Accounts & Lotteries. In fact, the post can be manned by a Deputy Controller (F&A), Joint Controller (F&A) or Controller (F&A). 6. Respondent No.1-State filed reply to petition and has averred that the post of Comptroller in University is not necessarily to be manned by the Controller (F&A) of the Department of Treasuries, Accounts & Lotteries. In fact, the post can be manned by a Deputy Controller (F&A), Joint Controller (F&A) or Controller (F&A). The issue of promotion from Joint Controller (F&A) to Controller (F&A) in the Department of Treasuries, Accounts & Lotteries, Government of Himachal Pradesh cannot be linked with posting of an officer as a Comptroller with respondent No.2- University, as such promotion is governed by the Recruitment and Promotion Rules for the post of Controller (Finance & Accounts) Class-I (Gazetted) in the Finance Department, Treasuries, Accounts and Lotteries, Himachal Pradesh. 7. It has further been averred in the reply that only persons promoted as Controller (F&A) and posted as Comptroller are entitled to draw pay of the post of Controller (F&A) and since the petitioner was a Joint Controller (F&A) in the Department of Treasuries, Accounts and Lotteries, upon his posting as Comptroller, he is entitled to draw the pay of the post of Joint Controller (F&A). 8. Respondent No.2-University filed its separate reply and submitted that posting of the petitioner as Comptroller in the University was made by the Government in his own pay-scale vide Notification dated 01.12.2009 (Annexure P-1) and further the pay which the petitioner was to receive as Comptroller was not approved by the Board of Management of respondent No.2-University, since the petitioner being on secondment basis. Thus, prayed for rejection of the writ petition. 9. I have heard the learned counsel for the parties and also perused the record carefully. 10. Learned counsel representing the petitioner has vehemently argued that since the petitioner had worked as Comptroller with respondent No.2-University being more meritorious and senior most, he may be promoted to the post of Controller (Finance & Accounts). The submission made looks attractive, however, since there was no post lying vacant, he could not have been considered for promotion to the post of Controller (Finance & Accounts). The submission made looks attractive, however, since there was no post lying vacant, he could not have been considered for promotion to the post of Controller (Finance & Accounts). It is settled law that an employee cannot claim as a matter of right promotion to the next higher post and at the best, his candidature can be considered only, that too, if the post is lying vacant and further if he or she fulfills the criteria and is in merit to hold the post among others. Since the post of Controller (F&A) was not lying vacant, the petitioner cannot seek his promotion to the said post. Hence, the prayer made by the petitioner is rejected. 11. Another contention raised by the learned counsel for the petitioner that the petitioner had discharged the duties on the post of Comptroller after joining with respondent No.2-University is concerned, it deserves to be accepted. It is admitted fact that the petitioner was posted and worked against the vacant post of Comptroller with respondent No.2-University. Once the University has taken the work from the petitioner as Comptroller, he is entitled to the pay-scale of the post of Comptroller, irrespective of the fact that the Board of Management of respondent No.2-University had not approved the pay of the petitioner to the post of Comptroller. It was not within the ambit of the petitioner to get the approval from the University. 12. The Hon’ble Supreme Court in State of Punjab and Another vs. Dharam Pal (2017) 9 SCC 395 , has succinctly dealt with the issue, after considering the law laid down in the earlier judgments, wherein it has been held that if a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The relevant paras of the judgment are reproduced hereunder:- “20. In Hari Om Sharma, the respondent was promoted as a Junior Engineer I in 1990 and had been continuing on that post without being paid salary for the said post and without being promoted on regular basis. It was in this situation, he approached the Central Administrative Tribunal which allowed the claim petition with the direction that the respondent shall be paid salary for the post of Junior Engineer I. That apart certain other directions were also issued. It was in this situation, he approached the Central Administrative Tribunal which allowed the claim petition with the direction that the respondent shall be paid salary for the post of Junior Engineer I. That apart certain other directions were also issued. The Court took note of the fact that the respondent was promoted on a stopgap arrangement as Junior Engineer I and opined that this by itself would not deny his claim of salary for the said post. In that context, the Court held: (SCC p. 89, para 6) "6. If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The Tribunal has noticed that the respondent has been working on the post of Junior Engineer I since 1990 and promotion for such a long period of time cannot be treated to be a stop-gap arrangement." 21. After so stating, the Court proceeded to opine thus: (Hari Om Sharma case, SCC pp. 89-90, para 8) "8. The 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 stop-gap 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 the 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. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the 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, 1872." (emphasis supplied) The principle postulated in the said case is of immense significance, for it refers to concept of public policy and the conception of unconscionability of contract.” 13. The Hon’ble Supreme Court in this judgment has also clearly held that even if an undertaking is given by an employee on the basis of stop-gap arrangement that he would not claim any benefits pertaining to the post, it will not preclude him to claim the salary of the post on which he has discharged his duties. 14. The contention raised by the learned counsel for respondent No.2-University that since the Board of Management of University had not approved the pay on the post of Comptroller being the petitioner on secondment, is concerned, the same is rejected for the reason that it was not within the control of the petitioner and if the Board of Management did not approve the payscale, the petitioner cannot be denied of the said scale, once the University had taken the work from the petitioner on the post of Comptroller. It is not the case of the University that the petitioner had not discharged the duties on the post of Comptroller. Therefore, denial of pay of the post of Comptroller till the time the petitioner had worked with respondent No.2-University, is arbitrary and wholly unjustified and thus the writ petition preferred by the petitioner deserves to be allowed to that extent. The petitioner is held entitled to the pay-scale of the post of Comptroller from the date of his joining till his service with the respondent No.2-University. 15. The petitioner is held entitled to the pay-scale of the post of Comptroller from the date of his joining till his service with the respondent No.2-University. 15. In view of the aforementioned reasons, the writ petition is allowed and respondent No.2-University is directed to grant the difference of the salary of the post of Joint Controller (F&A) and the post of Comptroller to the petitioner from the date of his joining till his service with respondent No.2-University and the arrears be paid to him within a period of two months from today along with interest @ 6% per annum from the date of institution of the petition till its realization. 16. The writ petition is disposed of in the aforesaid terms, so also the pending applications, if any.