Full Text
HIGH COURT OF DELHI
W.P.(C) 7435/2026 and CM APPLs. 36162/2026 and
36163/2026 UNION OF INDIA .....Petitioner
Through: Mr. Varun Pratap Singh Adv, for Mr. Rohan Jaitley, CGSC
Through: Mr. L.R. Khatana, Advocate
HON'BLE MR. JUSTICE VINOD KUMAR
JUDGMENT
03.07.2026 C. HARI SHANKAR, J.
1. The respondent was promoted from the post of Deputy Technical Advisor[1] in the Food and Nutrition Board in the Ministry of Women and Child Development, to the post of Joint Technical Advisor[2] on ad hoc basis on 20 September 2007.
2. While he was working as JTA on ad hoc basis, he was directed, with effect from 1 October 2007, also to perform the duties of the post of Technical Advisor[3], which was vacant at that point of time. “DTA”, hereinafter “JTA”, hereinafter “TA” hereinafter
3. As the additional charge held by the respondent of the post of TA was for a period of more than three months, the matter was referred to the Department of Personnel and Training[4] for an opinion as to whether the respondent’s pay would be fixed under FR 49(i)5.
4. As no benefit of pay fixation under FR 49 was given to the respondent for the period he held additional charge of TA, the respondent approached the Central Administrative Tribunal[6] by way of OA 1546/2009.
5. By judgment dated 18 December 2009, the Tribunal disposed of OA 1546/2009 with a direction that a Departmental Promotional Committee[7] be held to consider the regular promotion of the respondent as JTA with effect from 10 January 2007. Additionally, the Tribunal also observed that, for the period when the respondent held additional charge of the post of TA, his case for fixation of pay under FR 49(i) be considered.
6. On 29 March 2010, a DPC was constituted in terms of the directions contained in the judgment dated 18 December 2009 of the Tribunal. The DPC assessed the respondent as fit for promotion as JTA. However, the UPSC which conducted DPC entered a comment “DOPT” hereinafter The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such cases, his pay is regulated as follows: -
(i) Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post; “the Tribunal”, hereinafter “DPC” hereinafter to the effect that the promotion would only be prospective even though it had been made against vacancies which had arisen in earlier years, in view of the instructions issued by the DOPT in that regard.
7. Mr. Khatana, learned counsel for the respondent, points out that, even as per the OM of the DOPT, prospective application of the promotion granted was subject to any directions passed by the Court and, inasmuch as the Court had directed that the respondent should be promoted as JTA with effect from 10 January 2007, there was no question of making the promotion prospective.
8. The petitioner, meanwhile, challenged the judgment dated 18 December 2009 passed by the Tribunal in OA 1546/2009 before this Court by way of WP (C) 6736/2010.
9. While the writ petition was pending, the Minister of State[8] granted ex post facto approval to the grant of benefit to the respondent of FR 49(i) on 18 August 2009.
10. WP (C) 6736/2010 came to be disposed of, by a Division Bench of this Court, on 19 December 2013. We deem it appropriate to reproduce from the judgment of this Court, the following paragraphs:
14 We are of the view that in view of the decision of the Minister on August 18, 2009 this writ petition was not required to be filed at all on September 28, 2010. The decision to grant him the benefit of FR.49(i) was conclusive and should have been honoured. Unfortunately the same was being contested by the petitioners only on the ground that such an action was not approved by the DoP&T. We do not accept the conduct of the petitioners in denying the said benefit to the respondent No.l very well knowing that a decision has already been taken in that regard.
15 The facts of this case demonstrate that the respondent No.l was not only made to suffer a regular promotion to the post of Joint Technical Advisor but also despite a higher responsibility given to him which included the financial powers attached to the higher post, he was denied the pay of that post to which charge was given to the respondent No.l for more than one year.
16 In the given facts of the case, we are of the view that the respondent No.l is entitled to the benefit of FR.49(i) with effect from the date he was given the charge to the post of Technical Advisor till the date of his superannuation. He would be entitled to pay fixation from the date he has taken over the charge of Technical Advisor. He would also be entitled to the difference of salary between the period he would be granted the pay of the higher post till the date of superannuation. On superannuation the respondent No.l would be entitled to all arrears related to pension. Accordingly for the reasons stated above, we do not find any merit in the writ petition and the same is accordingly dismissed.” (Emphasis supplied)
11. A bare reading of the aforesaid paragraph from the judgment of this Court makes it clear that the Court held, in clear and unambiguous terms, that the respondent was entitled, for the period during which he held additional charge of the post of TA, which spanned 1 October 2007 to 31 October 2008 when he superannuated, to the pay of the post of TA. This Court, therefore, directed that the respondent be granted the said benefit.
12. However, despite such clear directions of this Court, the petitioner proceeded on 24 December 2014 to pass an order granting the benefit of FR 49(i) to the respondent, but making it subject to FR
35.
13. On the basis of this caveat, the petitioner did not, in fact, grant the respondent the pay of TA during the period for which he held additional charge but granted him only the pay of JTA.
14. This was clearly violative of the directions issued by this Court in its judgement dated 19 December 2013 in WP (C) 6736/2010.
15. With respect to the matter of pay fixation, the respondent also approached this Court by way of Contempt Petition (C) 825/2015, which was disposed of by this Court, by order dated 8 November
2016. While holding that no case of contempt had been made out – with which we may not wholly be in agreement – the respondent was given liberty to seek fresh remedies if he was aggrieved by the order dated 24 December 2014.
16. In that view of the matter, the respondent re-approached the Tribunal by way of OA 4230/2016 in which the present impugned judgment has come to be passed. In the said OA, the respondent also sought promotion as TA with effect from 10 January 2010, pursuant to the recommendations of the DPC on 29 March 2010.
17. However, before the Tribunal, the petitioner pointed out that the respondent had retired on 31 October 2008 and could not, therefore, be promoted as TA with effect from 10 January 2010.
18. Ergo, the respondent before the Tribunal, restricted his claim to grant of the benefit of FR 49(i), as had been directed by this Court in its judgment dated 19 December 2013 following the approval of the MOS granted therefor.
19. In these circumstances, the Tribunal disposed of OA 4230/2016, thus:
20. Aggrieved thereby, the UOI has approached this Court by means of the present writ petition.
21. We have heard Mr. Varun Pratap Singh, learned counsel for the petitioner, who has argued the matter with due earnest and has endeavoured, to the best of his abilities, to satisfy this Court that there was no illegality in the action of the petitioner.
22. We record our appreciation at the fact that Mr. Singh argued the matter, and argued it well, though he was appearing on behalf of Mr. Rohan Jaitley, CGSC.
23. The basic issue which arises for consideration before us is, therefore, whether the respondent was, or was not, entitled to the unconditional benefit of FR 49(i) for the period between 1 October 2007 and 31 October 2008 when he superannuated.
24. On this, we find the reasoning of the Tribunal as contained in paras 18 to 20 to be unexceptionable. Though Mr. Singh has drawn our attention to the caveat contained in FR 49(i), which makes it subject to reduction of the officiating pay by the Competent Authority under FR 35, we are of the opinion that the petitioner cannot be entitled to the benefit of the said caveat. The initial decision to fix the respondent’s pay under FR 49(i), as approved by the MOS on 18 August 2009, was not subject to any caveat entitling the petitioner to invoke FR 35 and reduce the officiating pay available to the respondent for the period he held additional charge as TA. It was not permissible, therefore, for the petitioner to make the grant of relief under FR 49(i) subject to FR 35 and, thereby, grant to the respondent a pay lower than that which was applicable to the post of TA.
25. In fact, to our mind, this would amount to re-writing the order passed by the Division Bench of this Court on 19 December 2013 and effectively negating the benefit which the Division Bench has granted to the respondent. This was clearly impermissible.
26. The Division Bench, quite categorically, held the respondent to be entitled to the benefit of FR 49(i) for the entire period during which the respondent held additional charge as TA. The Division Bench did not grant any liberty to the petitioner to make the said payment subject to FR 35. In that view of the matter, we are in complete agreement with the Tribunal that the respondent was entitled to the actual pay of TA which was applicable to the post of TA, during the period between 1 October 2007 and 31 October 2008 when he superannuated.
27. No cause, therefore, arises for us to interfere with the impugned judgment of the Tribunal.
28. The writ petition is, accordingly, dismissed in limine.
29. We direct that the arrears of pay, if any, which are due to the respondent, be disbursed to the respondent positively within six weeks from today, failing which, they shall carry interest at the rate of 12% p.a. till the date of actual payment.
30. List on 21 August 2026 to report compliance.
C. HARI SHANKAR, J
VINOD KUMAR, J JULY 3, 2026