JUDGMENT
Hrishikesh Roy, J.
1. This matter came to be considered by the Division Bench in view of the different views taken by the two learned Single Judges of this court. The entitlement of the writ petitioner to pensionary and retirement benefits on the basis of service rendered in the higher posts as in charge Assistant Headmaster and in-charge Headmaster, in addition to his duties of Assistant Teacher, is the issue which is to be answered by this court.
2. In order to appreciate the legal issues involved, it is important to take a note of the relevant facts. The petitioner while serving as Assistant Teacher in Chakalaghat High School, later on upgraded as Higher Secondary School was allowed to hold charge as Assistant Headmaster and thereafter as Headmaster for the period from 1.4.1991 to 30.4.1993 and 1.5.1993 to 31.3.1994 respectively in addition to his own duties. The petitioner was allowed to hold charge on the exigent happening of retirement of the regular incumbent. While functioning as in-charge Headmaster, on 31.3.1994 the petitioner retired from service on attaining the age of superannuation. After retirement the petitioner was granted provisional pension as Assistant Teacher and his gratuity was also paid as per his entitlement.
3. One year after retirement of the writ petitioner, the Director of Secondary Education, Assam passed the Annexure-III order on 20.4.1995, allowing the petitioner to officiate as Assistant Headmaster w.e.f. 1.4.1991 to 30.4.1993 and as Headmaster w.e.f. 1.5.1993 to 31.3.1994 in the prescribed pay scale in the Chakalaghat High School from where the writ petitioner retired on 31.3.1994 while holding the substantive post of Assistant Teacher.
4. Another order dated 24.7.1997, (Annexure-IV) after over three years of the retirement of the petitioner on 31.3.1994, was passed by the Director of Secondary Education, Assam, whereby the officiating appointment given to the petitioner was ordered to be regularized for the purpose of the pensionary benefit.
5. On the basis of the aforesaid post-retirement orders dated 20.4.1995 and 24.7.1997, claim for pensionary and other retirement benefits with reference to the emoluments drawn by the petitioner as Headmaster and Assistant Headmaster respectively, has been put forward in the writ petition.
6. In the averments of the writ petition, the fact that the petitioner was allowed to hold only current duty charge of both the posts, i.e., the Assistant Headmaster and Headmaster respectively was not mentioned. Instead what was stated in paragraph 2 of the writ petition is that the writ petitioner was promoted to the post of Assistant Headmaster on 1.4.1991 and thereafter served as Headmaster w.e.f. 1.5.1993 and his ultimate retirement from service as Headmaster of the school on 31.3.1994. However, through counter affidavit filed by the respondent No. 3, the Director of Pension, Assam, it was revealed to the court that the petitioner was not promoted to the post of Assistant Headmaster but was allowed to remain in-charge of Assistant Headmaster in addition to his own duties in terms of the order dated 7.5.1991 passed by the Inspector of Schools, Nagaon.
7. Another aspect that was highlighted by the Director of Pension in his counter affidavit was that the writ petitioner was given the fixation benefit of pay with effect from 1.4.1991 under FR 22(1)(a)(1) as if he was promoted on regular basis. Whereas in order to be eligible to fixation benefit of pay under the aforesaid FR, one should be appointed or promoted to the higher post on regular basis and merely allowing a person to remain in-charge of higher post will not make him eligible for benefit of fixation under FR 22(1)(a)(1).
8. On the functioning of the petitioner as Headmaster, the respondent No. 3 in the counter affidavit contended that the writ petitioner was allowed to officiate as Headmaster based on order issued after his retirement, i.e., he was allowed to officiate as Headmaster with retrospectively effect from 1.5.1993 vide order dated 20.4.1995 issued by the Director of Secondary Education. On this occasion also in the higher post of Headmaster, the writ petitioner was allowed benefit of fixation of pay at higher stage then what he was drawing as Assistant Headmaster which itself was also erroneous and such benefit is not envisaged under any rule. It was further contended that benefit of promotion cannot be allowed with retrospective effect as was sought to be given to the writ petitioner.
9. After the order dated 20.4.1995 was passed allowing the petitioner who had already retired on 31.3.1994, allowing him to officiate as the Assistant Headmaster and Headmaster, the Annexure-I representation dated 22.3.1997 was addressed on behalf of the petitioner to the Director of Secondary Education, Assam for regularising the service rendered in the higher posts from 1.5.1993 to 31.3.1994 (till superannuation). Then the order dated 24.7.1997 of the Director of Secondary Education, Assam regularizing the officiating appointment of the retired Headmaster of the school was passed for pensionary benefit. Thereafter the petitioner claimed that his retirement benefits be determined by considering his emoluments drawn as Headmaster/Assistant Headmaster. However, belying the expectation of the petitioner, the respondent No. 4, the Finance and Accounts Officer, Directorate of Accounts, Assam sent the Annexure-VI impugned letter dated 10.5.1999 to the Inspector of Schools, Nagaon ordering that retrospective promotion to the petitioner as Assistant Headmaster and Headmaster is not admissible. The stand of the respondent No. 3 led to issuance of the impugned communication dated 10.5.1999, (Annexure-VI) from the Director of Pension to the Inspector of Schools, Nagaon ordering that retrospective promotion of the writ petitioner to the post of Assistant Headmaster w.e.f. 1.4.1991 and Headmaster w.e.f. 1.5.1993 is not permissible. Accordingly recovery proceeding was directed of excess pay and allowances drawn from 1.4.1991 to the date of retirement of the writ petitioner. The said communication of the respondent No. 4 dated 10.5.1999 has been challenged by the writ petitioner who is praying for setting aside of the aforesaid Annexure-VI communication dated 10.5.1999. A further direction is sought to grant pensionary and other retirement benefits to the petitioner by treating him to have retired, in the higher posts as Headmaster preceded by his promotion as Assistant Headmaster, and not as an Assistant Teacher.
10. Arguing for the writ petitioner, Mr. S.C. Biswas, learned Counsel relied on the decision of a learned Judge of this court reported in (2003) 3 GLR 70 Upendra Nath Sarma v. State of Assam and Ors. and claimed that on the strength of the said decision the petitioner is entitled to the relief claimed in the writ petition. In this reported decision, the facts were somewhat similar to this case as the writ petitioner therein Upendra Nath Sarma, was allowed to hold charge of the office of Headmaster of the Choukhunty High School on 6.3.1991 in addition to his own duties as Assistant Headmaster. While holding charge as Headmaster, the incumbent retired on 28.2.1995 on superannuation. After retirement, an order dated 21.12.1995 was issued by Director of Secondary Education, Assam, allowing Upendra Nath Sarma to officiate as Headmaster w.e.f. 1.1.1991 retrospectively.
11. In the aforesaid case of Upendra Nath Sarma (supra), the respondents referred to a communication dated 19.5.1998 and contended that “regularisation of officiating promotion with retrospective effect is neither regular nor fixation benefit can be claimed by any one for holding current charge of any higher post.” However, the learned Single Judge disagreed with the stand taken by the respondents and held that writ petitioner Upendra Nath Sarma is entitled to get his pension and other retiral benefits computed on the basis of emoluments which he had drawn at the time of retirement as officiating Headmaster.
12. The learned Single Judge while considering claim for pension with reference to the higher posts on in-charge basis held by Deba Kanta Sarma, referred to the decision rendered earlier by the learned Single Judge in the case of Upendra Nath Sarma (supra) and could not persuade himself to take the view in the Upendra Nath Sarma case and felt that the interference with the impugned order dated 10.5.1999 denying such pensionary benefit is not called for. In support of the contrary view, the learned Single Judge relied on the decision rendered by the Division Bench of this hon’ble Court in Golap Ch. Chetia v. Assam Administrative Tribunal and Ors. reported in 2004 (1) GLT 5 which was in the context of a person holding charge of a higher post in addition to his own regular post and what are the entitlement of the incumbent in terms of provision of FR 49(a). The Division Bench in Golap Ch. Chetia’s case held that –
It is amply clear from the FR 49(a) that a Government servant can be asked by the Government to hold substantively, as a temporary measure, or to officiate in, two or more independent posts at one time and in that case his pay shall be regulated as provided under Clause (a) of FR 49 on fulfilling other conditions mentioned therein. The necessary condition for application of FR 49 is appointment on two or more independent posts at one time. We have gone through the orders issued by the Government wherein the appellant was directed to hold the charge of the Financial Adviser in the Health & Family Welfare Department from this it is clear that he has not been appointed on the post of Financial Adviser but he has been directed to hold the charge of the post. In the absence of any appointment in the post, FR 49 has no application as it stood before its amendment in 1991. That being the case, we do not find any infirmity in the orders passed by the Tribunal as well as by the learned Single Judge.
13. As the learned Single Judge was unable to agree with the view taken in the Upendra Nath’s case the facts of which were somewhat similar to the facts of the present case, the present case was referred for consideration of the Division Bench by judgment dated 2.7.2004
14. We have heard Mr. S.C. Biswas, learned Counsel appearing for the writ petitioner and Mr. M.R. Pathak, learned Counsel representing Education Department.
15. Mr. Pathak, learned Counsel appearing for the Education Department has drawn attention of this court to another Division Bench decision rendered on 26.5.2005 in W.P.(C) No. 2995/99 where the Division Bench considering the scope on FR 49 declined to grant relief to the writ petitioner Kirtty Ch. Kalita. But the attention of the learned Single Judge was not drawn to this unreported judgment of the Division Bench, when he passed the judgment dated 2.7.2004 referring the present case for adjudication by a Division Bench. In Kirtty Ch. Kalita’s case the prayer, inter alia, was-
To consider his case for regularization to the post of Principal of the School or to give him all financial and pecuniary benefits, which he is entitled to under the existing Rules from the, date of his assuming charge as Principal of the school with retrospective effect for the purpose of computing his pensionary benefits.
16. The Director of Secondary Education, Assam by filing affidavit in that case denied the claim of Kirtty Kalita by reference to the provisions of Fundamental Rule 49 of the Assam Fundamental Rules and Subsidiary Rules which was amended vide Notification No. FEG/4/62 Pt. 86 dated 23.12.1971 which took effect from 23.12.1971. Chapter VI and Fundamental Rule 49 of the Assam Fundamental Rules and Subsidiary Rules were again amended/substituted vide Notification No. FEG. 18.90/24 dated 5.8.1991, which took effect from 5.8.1991.
The Fundamental Rule 49 after amendment read as under:
FR 49. The State Government may direct a Government servant to hold charge of one or more independent posts at one time in addition to the post he holds substantively or in officiating capacity. In such cases his pay shall be regulated as follows:
(a) Where a Government servant is formally directed to hold full charge of the duties of a higher post or posts which are 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 of the higher post or the highest post if he holds full charge of more than one post, in addition to ten per cent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 39 days but not exceeding three months:
Provided that the concurrence of the Finance Department shall be obtained for making such arrangement and for payment of the additional pay.
(b) Where a Government servant is formally directed to hold charge of higher post or posts which is or are not in the same office of which though, the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post or the highest post if he holds charge of more than one post, in addition to ten per cent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 39 days but not exceeding three months:
Provided that the concurrence of the finance department shall be obtained for making such arrangement and for payment of the additional pay.
(c) No additional pay shall be admissible to a Government servant who is directed to hold current charge of the outing duties of a higher post irrespective of the duration of the additional charge.
(d) Where a Government servant is formally directed to hold dual charge of two posts in the same cadre in the same office carrying identical scales of pay, no additional pay shall be admissible irrespective of the period of dual charge:
Provided that if the Government servant is directed to hold charge of an additional post which carries a special pay, he shall be allowed such special pay;
(e) Where a Government servant is allowed to perform duties of a lower post or posts no addition at pay shall be allowed for performing the duties of the lower post or posts;
(f) If compensatory or sumptuary allowances are attached te one or more of the posts, the Government servant shall draw such compensatory or sumptuary allowances as the State Government may fix:
Provided that such allowances shall not exceed the total of the compensatory and sumptuary allowances to all the posts.
17. The Division Bench of this court in Kirtty Ch. Kalita’s case found that the claim of the petitioner does not fall in any of the Sub-clauses of the amended FR 49 and accordingly dismissed the petition and declined to grant relief of higher pensionary benefits sought by Kirtty Ch. Kalita.
18. We have carefully considered the issues raised in the present case with reference to the contentions raised on behalf of the parties as well as the case laws referred by the two learned Counsels.
19. Having regard to the fact that the petitioner till the time of his retirement on 31.3.1994 was holding the substantive post of teacher and was additionally permitted to hold higher charge of the post of Assistant Headmaster and Headmaster respectively and only after his retirement, first an order permitting him to officiate in the two higher posts and a second order regularizing the said officiating service was passed, the claim of the writ petition for getting pensionary benefits with reference to emoluments in the higher posts of Assistant Headmaster and Headmaster on the strength of the two posts are not tenable. The pensionary entitlement of the petitioner be decided accordingly.
20. Accordingly we declare that the correct approach of the authorities in such cases would be to follow the law laid down by the Division Bench of this court in the case of Golap Ch. Chetia (supra), Kirtty Chandra Kalita (supra) and also the view dated 2.7.2004 taken by the learned Single Judge in this case while referring this case to the Division Bench. Consequently the view taken by the learned Single Judge in Upendra Nath Sarma (supra) is not approved.
21. In view of above, the writ petition fails. No costs.