HP High Court Quashes Denial of FR 26 Increment Benefit to Deputy Labour Commissioner Who Officiated in Higher Post for 460 Days

The Himachal Pradesh High Court held that service on a higher post in multiple spells still counts for increments under FR 26, and that denying the benefit violated Article 14.

The High Court of Himachal Pradesh has quashed the State Government's rejection of an increment benefit claimed by a Deputy Labour Commissioner who had officiated as Joint Labour Commissioner across multiple short spells totalling 460 days. Justice Jiya Lal Bhardwaj, sitting singly at Shimla, held that Rule 26 of the Fundamental Rules and Supplementary Rules (F.R.S.R.) does not require service on the higher post to be in a single continuous spell, and that once the State had paid the salary of the higher post for those days, it could not simultaneously deny the counting of that period for increment purposes. The court further held that the denial, in the face of a comparable benefit already extended to another employee, was violative of Article 14 of the Constitution.

The Dispute Before the High Court

Sansar Chand Awasthi was appointed as Deputy Labour Commissioner with the State of Himachal Pradesh on 7 August 1986. Over the years, he was asked to discharge the duties of Joint Labour Commissioner on different occasions during the leave period of the then Joint Labour Commissioner, Sh. J.L. Chauhan. The total period of such officiating service came to 460 days, spread across multiple spells.

Awasthi was eventually promoted to the post of Joint Labour Commissioner on a regular basis on 12 June 1998. After his promotion, he filed a representation on 10 June 2005 seeking that the 463 days of past duty on the higher post be counted for the purpose of increment in the time scale applicable to the post of Deputy Labour Commissioner, as permitted under F.R.S.R. 26 and 49. The State Government, in consultation with the Finance Department, rejected this claim by communication dated 22 October 2005. That rejection, Annexure A-12, was the impugned order before the court.

Awasthi filed the writ petition on 11 May 2006. His reliefs included quashing of the rejection order, a direction to count the 463-day period for increment purposes, and release of monetary benefits under F.R.S.R. 49(i) for the remaining 306 days for which admissive pay had not been granted. He had received pay of the higher post for only 157 of the 463 days at the time of filing.

The Statutory Provision at the Centre of the Dispute

F.R. 26(c)(i) of the F.R.S.R. provides that if a Government servant, while officiating in a post or holding a temporary post on a time-scale of pay, is appointed to officiate in a higher post, his service in the higher post shall, if he is reappointed to the lower post or to a post on the same time-scale, count for increments in the time-scale applicable to the lower post. The rule adds that this counting is restricted to the period during which the Government servant would have officiated in the lower post but for his appointment to the higher post. The rule also applies to a Government servant who was not actually officiating in the lower post at the time of appointment to the higher post, but who would have so officiated had he not been appointed to the higher post.

Awasthi's case rested on a plain reading of this provision: he had officiated in the higher post of Joint Labour Commissioner, had returned to the lower post of Deputy Labour Commissioner, and had subsequently been promoted to the higher post on a regular basis. The period of officiating service, he argued, was required to be counted for increments in the lower post's time scale.

The State's Objections

Respondents No.1 and 2 admitted in their reply that Awasthi had officiated in the higher post in short spells, that his representation had been filed, and that the rejection had come from the Finance Department. Respondent No.2 stated it had never opposed granting the legitimate claim. The total period admitted by the respondents was 460 days, not 463.

Respondent No.3, the Finance Department, raised two specific objections. First, it contended that F.R. 49 could only be invoked where the officer had been specifically authorised to officiate on the higher post and was entitled to presumptive pay, and that no specific orders had been issued when Awasthi was asked to perform the duties of Joint Labour Commissioner. Second, it argued that the various spells, having gaps and not being in continuity, could not be aggregated for the purpose of preponement of annual increment under F.R. 26. The Finance Department also stated that the proposal received on its file reflected only 270 days, not 460 or 463.

The Finance Department's position was that since the officiation had not been done in accordance with the procedure under the Recruitment and Promotion Rules, and since no specific orders had been issued under F.R. 49, the petitioner was not eligible for the benefit of F.R. 26 either.

How the Court Reasoned

Justice Bhardwaj began by noting that during the pendency of the writ petition, the respondents had paid Awasthi the salary of the post of Joint Labour Commissioner for the period he had discharged those duties. That concession, the court held, was fatal to the State's first objection.

The court observed that once the respondents had paid the salary of the higher post for 460 days, the plea that Awasthi had not been appointed to the higher post following the prescribed procedure under the Recruitment and Promotion Rules could not be sustained. The two positions were irreconcilable: the State could not simultaneously acknowledge the service by paying the higher post's salary and then deny the counting of that very service for increment purposes on the ground that the appointment was procedurally irregular.

On the second objection, that the service had been rendered in multiple spells with gaps, the court rejected the Finance Department's reading of F.R. 26(c)(i). A bare reading of the rule, the court held, does not stipulate that service on the higher post must be in a single unbroken spell. The rule speaks of officiating service in the higher post counting for increments in the lower post's time scale; it places no condition of continuity. The court held that once the respondents had granted the benefit of the pay of the higher post for 460 days, that period was also required to be counted for the purpose of increments.

The court then turned to the comparator. The respondents had admitted that one Sh. Manoj Tomar, while working as Deputy Chief, University Employment Information and Guidance Bureau, Shimla, had been granted additional remuneration at 10% of presumptive pay under F.R. 49 for holding additional charge of the higher post of Deputy Director (Employment), H.P., from 16 September 1999 to 8 December 1999. Respondent No.2 had not given a specific reply on whether Tomar had also been granted the preponement of increment benefit under F.R. 26. The court found that the benefit of F.R. 26 had been extended to a similarly situated employee, and that denying the same benefit to Awasthi was violative of Article 14 of the Constitution of India. The impugned rejection was accordingly quashed.

Limitation on Arrears

The court addressed the question of how far back the arrears could be claimed. Awasthi had filed the petition on 11 May 2006, after his claim was rejected by communication dated 22 October 2005. The court held that he was entitled to arrears on account of the grant of increments only for the three years prior to the filing of the petition. It clarified, however, that the benefits were to be calculated from the due date, not from the date of the order.

Order

Justice Bhardwaj allowed the writ petition and quashed the impugned order dated 22 October 2005. The respondents were directed to grant the benefit of F.R. 26 to Awasthi by counting, for increment purposes in the time scale applicable to the post of Deputy Labour Commissioner, the period during which he had served on the post of Joint Labour Commissioner.

Arrears were directed to be calculated and paid from three years prior to the filing of the petition. The court further directed that if the arrears were not paid within three months from 25 April 2026, the respondents would be liable to pay interest on the arrears at 6% per annum from that date until actual payment.

All pending applications were disposed of along with the petition.