An employee performing additional higher-post duties is entitled to presumptive pay despite lacking formal appointment.

Radha Krishan Joshi was appointed as a Draughtsman with the respondent-University in 1978 and promoted as Head Draughtsman in 1991.

After the deputed incumbent was repatriated, an office order dated 08.08.2000 required him to look after the work of the Estate Office/Design Branch, including the duties associated with the post of Circle Head Draughtsman.

He repeatedly sought presumptive pay under Fundamental Rule 49, but the University rejected his claim on the ground that he had not been formally appointed to the higher post by the competent authority.

The Himachal Pradesh Administrative Tribunal directed the University to reconsider his claim, following which the University again rejected it on 16.07.2005.

During the writ proceedings, the University’s own documents acknowledged that Joshi had been performing the duties of Circle Head Draughtsman since 2000 and that the post was required for the Estate Organisation.

Joshi died during the proceedings on 25.02.2010, and his wife, Asha Joshi, was substituted as the legal representative.

Whether an employee who is directed by the employer to discharge the duties of an additional/higher post is entitled to presumptive pay under FR 49(iii), despite not having been formally appointed to that post by the competent authority?

Whether the University could deny presumptive pay on the grounds that the post was non-statutory, had not been formally filled, or had allegedly lapsed, after having extracted the work from the employee?

The Court applied FR 49(iii), under which an employee performing the duties of an additional post may be granted presumptive pay for the additional charge.

It relied on Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma, (1998) 5 SCC 87, which holds that an employee officiating on or performing the duties of a higher post is ordinarily entitled to the salary attached to that post, and that an arrangement denying such pay is contrary to law and public policy.

The Court also relied on State of Punjab v. Dharam Pal, (2017) 9 SCC 395, reaffirming that an employee cannot be deprived of the financial benefits of an officiating position merely because the arrangement was temporary or lacked formal regular promotion.

Denial of the benefit in the circumstances was also held to be arbitrary and violative of Article 14 of the Constitution.

The Court found that the employee had been directed to look after the Estate Office/Design Branch and had, in fact, performed the duties of Circle Head Draughtsman for a prolonged period.

The University knew of and accepted the arrangement, did not rescind the office order, and continued to take the benefit of his services.

Its own communication confirmed that he had discharged those duties and fulfilled the prescribed requirements for the post.

Applying FR 49(iii) and the principles in Hari Om Sharma and Dharam Pal, the Court held that the absence of a formal appointment by the Registrar could not defeat the employee’s entitlement after the employer had required and accepted performance of the additional duties.

The University’s reliance on the alleged lapse or non-statutory character of the post was rejected, particularly because the post existed and the University had itself granted similar ex-post-facto benefits in another case involving additional charge.

It directed the respondents to grant presumptive pay under FR 49(iii) from 08.08.2000 until the period during which Radha Krishan Joshi discharged the additional duties.

Since he had died, the benefit was directed to be released to his wife, Asha Joshi, within six months.

In case of non-payment within that period, the amount would carry interest at 6% per annum from the date of judgment until actual payment.

No order as to costs was made.