High Court
Legal Reasoning
HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. P.Mahanta, learned counsel for the petitioner. Also heard Mr. M.R. Pat hak, learned Standing counsel, Education Department appearing for respondent Nos . 1, 3 and 4 and Mr. U.K. Nair, learned counsel appearing for respondent Nos. 2, 5 and 6. 2. By way of this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to pay him revised pension in th e scale of Headmaster of High School and also challenges the decision of the Dir ector of Pension, Assam to recover an amount of Rs. 2,368/- stated to have been paid to him as excess pension. 3. Case of the petitioner is that he was serving as Graduate teacher in th e Sanmilita High School of Golaghat District and by order dated 25.10.1994 issue d by the Inspector of Schools, Golaghat District Circle, he was allowed to hold current routine charge of the post of Headmaster of the said school in addition to his own duties without financial benefit. 4. Petitioner retired from service on 30.04.1996 on attaining the age of su perannuation. An order dated 21.06.1996 was thereafter passed by the Director of Secondary Education, Assam regularizing the officiating appointment of the peti tioner as Headmaster. Petitioner was allowed to draw provisional pension as reti red Headmaster at Rs. 729/- per month plus other allowances. Following the Revis ion of Pay Rules, 1988, pay scale of Headmaster of High School was enhanced with effect from 01.01.1996. Petitioner was expecting revised pension at higher scal e as provided to Headmaster of High School. But his pension was revised at Rs. 1 ,567/- per month which was as per revised pay scale of Graduate teacher. An orde r was passed by the Director of Pension, Assam to recover an amount of Rs. 2,368 /- which was paid to the petitioner as excess pension drawn as due to Headmaster which the petitioner was not entitled. Petitioner submitted representation date d 28.01.2002 before the Director of Secondary Education, Assam to allow him to d raw pension at the revised scale of Headmaster but no decision was taken. 5. liefs as indicated above. 6. Affidavit has been filed by respondent No. 3, i.e. Director of Secondary Education, Assam. Stand taken is that the substantive post held by the petition er was the post of Graduate teacher. He was only allowed to hold current charge of the post of Headmaster in addition to his own duties without financial benefi t. Therefore, petitioner would be entitled to receive pensionary benefit as Grad uate teacher and not as Headmaster. He has, however, admitted that petitioner’s service as Headmaster for the period from 01.10.1994 to 30.04.1996 was regulariz ed on 21.06.1996 for the purpose of pensionary benefit only but the said order w as passed after retirement of the petitioner. 7. Respondent No. 5, i.e. Director of Pension, Assam in his affidavit has a lso stated that petitioner was allowed to hold routine charge of the Headmaster of the concerned High School with effect from 01.10.1994 without any financial b enefit. But later on, his service as Headmaster was regularized by the Director of Secondary Education on 21.06.1996 with effect from the date of holding routin e charge of the post of Headmaster. Respondent No. 5 has stated that this fact w as not brought to the notice of his office and, therefore, the claim of the peti tioner could not be attended to. 8. Mr. M.R. Pathak, learned Standing counsel, Education Department submits that the issue raised in this petition has already been decided by a Division Be nch of this Court in Deba Kanta Sarmah -vs- State of Assam and Ors reported in 2 006 (4) GLT 553 and by a Full Bench of this Court in Assm Tombi Singh -vs- State of Manipur and Ors reported in 2006 (4) GLT 608. He further submits that follow ing the above decisions, a Single Bench of this Court in a recent judgment dated 05.03.2013 had dismissed similar claim in WP(C) No. 3781/2008 (Assam Provincial Aggrieved, petitioner has filed the present writ petition seeking the re ized Retired Teachers Association -vs- State of Assam). 9. In Deba Kanta Sarmah (supra), the issue before the Court was entitlement to pensionary and retirement benefits on the basis of service rendered in the h igher post as in-charge Assistant Headmaster and in-charge Headmaster in additio n to duties of Assistant teacher. In that case, the holding of additional charge of the higher post was regularized by the departmental authorities for getting pensionary benefit after retirement. This Court held in paragraph 19 as under:- (cid:28)19. Having regard to the fact that the petitioner till the time of his retirement on 31.03.1994 was holding the substantive post of teacher and was add itionally permitted to hold higher charge of the post of assistant Headmaster an d Headmaster respectively and only after his retirement, first an order permitti ng him to officiate in the two higher posts and a second order regularizing the said officiating service was passed, the claim of the writ petitioner for gettin g pensionary benefits with reference to emoluments in the higher posts of assist ant Headmaster and Headmaster on the strength of the two posts are not tenable. The pensionary entitlement of the petitioner be decided accordingly. (cid:29) 10. In Assm Tombi Singh (supra), the issue before the Full Bench Court was w hether an employee simply holding higher post without any appointment to the hig her post will be entitled to the pay scale of the higher post. The Full Bench he ld in categorical terms that an employee simply placed in charge of the higher p ost without any appointment therein is not entitled to claim pay and allowances of such higher post. Learned counsel for the petitioner has not been able to show any disting 11. uishing feature in the present case. Thus, the Court is of the considered view t hat the present case is squarely covered by the above decisions. 12. is accordingly dismissed. 13.
Decision
In view of above, this Court finds no merit in the writ petition, which No cost.