NAGAON DISTRICT HIGHER SECONDARY PRINCIPALS COUNCIL AND 34 OTHERS Vs. THE UNION OF INDIA AND 4 OTHERS
LAWS(GAU)-2018-2-158
HIGH COURT OF GAUHATI
Decided on February 13,2018

Nagaon District Higher Secondary Principals Council And 34 Others Appellant
VERSUS
The Union Of India And 4 Others Respondents

JUDGEMENT

AJIT SINGH,C.J. - (1.) Petitioner No.1 is Nagaon District Higher Secondary Principal's Council whereas remaining petitioners are its members. According to them, during the period 1999-2000, while serving as Assistant Teachers/Subject Teachers/Graduate Teachers on regular basis, they were allowed to hold the current charge of Principals of their respective schools under FR 49(c) of the Fundamental Rules due to vacancies created on the retirement/resignation etc. of the Principals. Also, in the orders passed by the competent authority allowing the petitioners to hold the current charge of Principals, it was clearly mentioned that they shall make financial transaction for drawal and disbursement of the pay of teaching and non teaching staff of the school till the appointment of regular Principal. Apparently, but for allowing the petitioners to make such financial transaction for drawal and disbursement of the pay, they were not allowed to discharge any statutory functions of the post of Principal. Despite this, the petitioners claimed pay benefits attached to the post of Principal by filing WP(C) Nos.4477, 4478 and 4479, all of 2010 and the same were dismissed by the learned Single Judge of this Court vide judgment and order dated 15.12.2011. Aggrieved, they then filed WA No.260/2011 and it too was dismissed by a Division Bench vide order dated 9.11.2012. Thereafter, the petitioners filed Special Leave to Appeal (Civil) No.13985/2013, which was also dismissed vide order dated 9.1.2015. The petitioners then challenged the validity of FR 49(c) before the Supreme Court in Writ Petition (Civil) No.483/2015 and the same was dismissed as withdrawn vide order dated 31.7.2015 with a liberty to approach the High Court under Article 226 of the Constitution. It is in this background, the petitioners have filed the present petition challenging the validity of FR 49(c) on a belief that the same is arbitrary and violative of Article 14 of the Constitution of India.
(2.) The relevant extract of FR 49 reads as under:- "F.R. 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 is or 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 percent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 39 days but 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 in the same cadre or which though in the same office, is or are 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 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 routine duties of a higher post irrespective of the duration of the additional charge."
(3.) The main thrust of challenge to the validity of FR 49(c) is that it confers arbitrary powers to the authority directing the Government servant to hold current charge of higher post with no additional pay benefits irrespective of the duration of additional charge. According to the petitioners, the provision is so arbitrary that it cannot be said to be in conformity with Article 14 of the Constitution. On the other hand, the learned Advocate General, Assam defended the validity of the impugned Rule and argued that in exercising the power of judicial review, the courts cannot be oblivious of the practical need of the Government. The learned Advocate General has also argued that no arbitrariness was found in the earlier round of litigation against the action of the Government while allowing the petitioners to hold the current charge of Principal to the extent of making financial transaction for drawal and disbursement of pay of school staff in addition to their normal duties as Assistant Teachers.;


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