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2004 DIGILAW 434 (GAU)

Deba Kanta Sarma v. State of Assam

2004-07-02

BIPLAB KUMAR SHARMA

body2004
Judgment : B.K. Sharma, J. 1. The petitioner who has since retired from service claiming himself to have been promoted as Assistant Headmaster and thereafter as Headmaster in the particular school in which he had worked, has prayed for fixation of his pensionary and other retirement benefits on that basis instead of fixation of such benefits treating him to have retired from service as Assistant Teacher by the impugned decision. 2. The petitioner while was 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 periods from 1.4.1991 or 30.1.1993 and 1.5.1993 to 31.3.1994 respectively in addition to his own duties. Such arrangements had to be made on retirement of the regular incumbents. On 31.3.1994, the petitioner retired from service on attaining the age of superannuation. The petitioner was granted provisional pension as Assistant Teacher and his gratuity was also paid on that basis. 3. After one year of retirement from service, the Director of Secondary Education, Assam passed an order on 20.4.1995 allowing the petitioner to officiate as Assistant Headmaster and Headmaster in the prescribed pay scales for the aforesaid two periods. On the face of it, such officiation was allowed retrospectively. However, but for the date of the order, on a plain reading of the same, it would appear to be an order allowing officiating promotion prospectively. The said order reads as follows : OFFICE OF THE DIRECTOR OF SECONDARY EDUCATION : ASSAM KAHILIPARA: GUWAHATI -19. ORDER Shri Deba Kanta Sarma, Retd. Incharge Headmaster of Chakalaghat High School of Nagaon Dist. Is hereby allowed to officiate as Assistant Headmaster of the said school for the period with effect from 1.4.1991 to 30.4.1993 in the scale of pay of Rs. 1475-3825 P.M. plus other allowances as admissible under rules. Shri Sarma is also hereby allowed to officiate as Headmaster of the said school with effect from 1.5.1993 to 31.3.1994 in the scale of pay of Rs. 1785-4200 P.M. plus other allowances as admissible under rules. Sd/- Smti. T. Barooah, Director of Secondary Education Assam, Kahilipara : Guwahati-19. 4. After, more than two years of issuing the above order, another order was issued by the Director of Secondary Education, Assam on 24.7.1997 purportedly regularising the officiating appointment of the petitioner for pensionary benefits. 1785-4200 P.M. plus other allowances as admissible under rules. Sd/- Smti. T. Barooah, Director of Secondary Education Assam, Kahilipara : Guwahati-19. 4. After, more than two years of issuing the above order, another order was issued by the Director of Secondary Education, Assam on 24.7.1997 purportedly regularising the officiating appointment of the petitioner for pensionary benefits. The order reads as follows : OFFICE OF THE DIRECTOR OF SECONDARY EDUCATION : ASSAM KAHILIPARA: GUWAHATI -19. Dated the 24th July/97. No. GV/EST/APIT/82/96/17 ORDER The officiating appointment of Sri Deba Kanta Sarma Retd. Headmaster Chakalaghat High School, Nagaon is hereby regularised for pensionary benefits. Sd/- Dr. G.H. Talukdar, Director of Secondary Education Assam, Kahilipara : Guwahati-19. 5. It is on the above basis, the petitioner claims his pensionary and other retirement benefits treating him to have retired as Headmaster preceded by his promotion as Assistant Headmaster. In the writ petition, the petitioner has conveniently suppressed the fact that he was only allowed to hold current duty charge of both the posts i.e. Assistant Headmaster and Headmaster respectively for the aforesaid periods in addition to his own duties as Assistant Teacher. At the time of hearing of the case, learned Counsel appearing for the petitioner conceded that aspect of the matter, but insisted for payment of pensionary benefits on the basis of the above quoted two orders dated 20.4.1995 and 24.7.1997. However, he produced a copy of the order dated 7.5.1991 issued by the Inspector of Schools, Nagaon by which the petitioner was allowed to remain in-charge of the Assistant Headmaster of the school in addition to his own duties of Assistant Teacher. The order reads as follows: ORDER Shri Debakanta Sharma, Seniormost Asst. Graduate teacher Chakalaghat High School is hereby allowed to remain-in-charge of the Assistant Headmaster in Chakalaghat High School in addition to his own duties with immediate effect vide Shri Prabhat Ch. Hazarika, Asst. Headmaster of the aforesaid High School retired on 31.3.1991. Sd/- Mrs. L. Laskar, Inspector of Schools, Nagaon Dist. Circle : Nagaon. Memo No. Pro/AAP/78/70/3137-41 Dated 7.5.1991. 6. The whole projection made in the writ petition is that the petitioner had officiated in the posts of Assistant Headmaster and Headmaster for the aforesaid two periods and till his retirement from service and thus he is entitled to get his pension fixed on that basis, more particularly, in view of the above quoted two orders dated 20.4.1995 and 24.7.1997. The whole projection made in the writ petition is that the petitioner had officiated in the posts of Assistant Headmaster and Headmaster for the aforesaid two periods and till his retirement from service and thus he is entitled to get his pension fixed on that basis, more particularly, in view of the above quoted two orders dated 20.4.1995 and 24.7.1997. But for the affidavit-in-opposition filed by the respondent No: 3, the real position as projected in the writ petition relating to the aforesaid two periods would have gone unrefuted. However, in Annexure-V representation dated NIL of May, 1994 preferred by the petitioner to the Director of Secondary Education, Assam, the petitioner admitted that he was appointed as Assistant Headmaster, in-charge and Headmaster in-charge only by orders under memo No. Pro/AAP/ 78/70/3137-41 dated. 7.5.1991 and memo No. Pro/AAP/583/91/1271 dated. 30.4.1993 issued by the Inspector of Schools, Nagaon and that he had retired from service on 30.4.1994 on that basis. In the said representation he admitted that he had gone on superannuation on 31.3.1994 without any regular appointment and pay benefit. 7. The petitioner is aggrieved by the letter dated 10.5.1999 (Annexure-VI) issued by the Directorate of Pension, Assam, under the signature of Finance & Accounts Officer intimating the Inspector of Schools, Nagaon that the petitioner was shown promoted to both the posts with retrospective effect after his retirement which was not permissible and that excess drawl of pay and allowances from 1.4.1991 to the date of retirement, if any should be assessed and intimated for recovery. The service book of the petitioner and other related papers were returned for necessary correction and for re-submission after meeting the irregularities indicated in the letter. It is the stand of the petitioner that after issuance of the said letter dated 10.5.1999, nothing has followed except stoppage of even provisional pension as Assistant Teacher with effect from 1.5.2000. 8. It is in the above backdrop, the writ petition has been filed praying for setting aside and quashing of the said letter dated 10.5.1999 issued by the Directorate of Pension and for a direction to the respondents to pay the petitioner his pensionary and other retirement benefits treating him to have retired as Headmaster preceded by his promotion as Assistant Headmaster and not as Assistant Teacher and to re-fix his pensionary benefits taking into account the prescribed pay scales attached to the said two posts. 9. 9. The respondent No. 3 has filed an affidavit controverting the claim of the petitioner. The stand in the affidavit is that the petitioner's remaining as in-charge of Assistant Headmaster and Headmaster in addition to his own duties as Assistant Teacher did not involve any promotion and thus he was not entitled to fixation benefits of pay with effect from 1.4.1991 as per provisions of Rule 22(1)(a)(i) which benefit the incumbent is entitled to only in case of regular promotion. Further stand in the affidavit is that the petitioner could not have been allowed to officiate as Assistant Headmaster and Headmaster retrospectively after his retirement granting him the scale of pay attached to the posts and that such a course of action adopted by the Director of Secondary Education was erroneous and inflated not supported by any rule. Placing reliance on a letter dated 19.5.1998 issued under No. PPG(P9/98/68 in respect of similarly situated teacher, it is the further stand in the affidavit that the retrospective promotion granted to the petitioner was illegal and was by way of granting undue benefit of higher pay. As per the stand in the affidavit, the petitioner has rightly been paid his provisional pension and gratuity as Assistant Teacher inasmuch as at the time of retirement of the petitioner on 31.3.1994, his substantive appointment and status was that of an Assistant Teacher. 10. Mr. S.C. Biswas, learned Counsel appearing for the petitioner during the course of his submission reiterated the stand in the writ petition which was further reiterated by filing an affidavit-in-reply to the affidavit-in-opposition filed by the respondent No. 3. He submitted that the above quoted two orders dated 20.4.1995 and 24.7.1997 having been issued by the competent authority of the respondents under whom the petitioner was employed, the petitioner is entitled to pensionary and retirement benefits on that basis. He placed reliance on the decision of this Court as reported in (2003) 2 GLR 70(Upendra Nath Sarma v. State of Assam and Ors.). 11. Mr. V.M. Thomas, learned Standing counsel, Education Department submitted that the above quoted two orders dated 20.4.1995 and 24.7.1997 issued by the Director Secondary Education, Assam still hold the field and thus the necessary consequence flowing from the same would continue till a contrary decision is taken by the competent authority. 11. Mr. V.M. Thomas, learned Standing counsel, Education Department submitted that the above quoted two orders dated 20.4.1995 and 24.7.1997 issued by the Director Secondary Education, Assam still hold the field and thus the necessary consequence flowing from the same would continue till a contrary decision is taken by the competent authority. None appeared for the respondent No. 3 and 4 who have made their stand clear by filing the aforesaid affidavit-in-opposition. 12. From the aforesaid narration of facts two things emerge as an admitted position. They are, the petitioner was never appointed as Assistant Headmaster and Headmaster during his tenure of service either on officiating basis or on regular basis. He was only allowed to act as in-charge in Addition of his own duties. And that by the aforesaid two orders dated 20.4.1995 and 24.7.1997, he was allowed to officiate as Assistant Headmaster and Headmaster , although by the time and said two orders were issued, he had already retired from service on attaining the age of superannuation with effect from 31.3.1994. Thus on the date of retirement his status and position was that the Assistant Teacher who was allowed to hold charge of Headmaster in addition to his own duties. 13. The aforesaid two orders dated 20.4.1995 and 24.7.1997 were issued not by way of granting any benefit of promotion to a retired employee to which he was legitimately entitled to at the time of his service tenure. It is a practical reality in service jurisprudence that a person who was entitled to get promotion during his service tenure is not given such promotion either on mistake of fact or on mistake of law. Such a person can legitimately be given the benefit of promotion with retrospective effect from a date which falls within his service tenure. In the instant case, such is not the position. It is not a case of deprivation of promotion to a selected candidate or suppression of a senior by a junior or otherwise debarring an eligible and suitable employee from promotion. In such an eventuality the departmental authorities are entitled to grant retrospective promotion to the person concerned which naturally will entail him with higher pensionary benefits. Same is not the case in hand. It is not the pleaded case of the petitioner that he w as a selected candidate for promotion as Assistant Headmaster and Headmaster. In such an eventuality the departmental authorities are entitled to grant retrospective promotion to the person concerned which naturally will entail him with higher pensionary benefits. Same is not the case in hand. It is not the pleaded case of the petitioner that he w as a selected candidate for promotion as Assistant Headmaster and Headmaster. It is also not the pleaded case of the petitioner that some juniors had superseded him. The aforesaid two orders were issued much after retirement of the petitioner allowing him to officiate as Assistant Headmaster and Headmaster for the two periods when in fact he was acting in-charge in addition to his own duties. Thus a practical reality was set at naught by creating a situation which in fact was not to be. 14. The aforesaid two orders, but for the date of the same, in ordinary parlance would and can only mean granting of benefits of officiating promotion to an incumbent prospectively. Could such benefit be given to the petitioner when he was no longer in service is the moot question for determination. It is in this context the impugned letter dated 10.5.1999, has been issued by the respondent No. 3 who is responsible for proper calculation and disbursement of pensionary benefits to the retirees. FR 49(C) clearly speaks/that no additional pay shall be admissible to a Government servant who is appointed to hold current charge of the routine duties of a higher post irrespective of the duration of the additional charge. There is no dispute and instances are at galore that such current duty charge is entrusted to the seniormost teacher of the school and it is a fait accompli that the incumbent is not entitled to the pay scale attached to the post of which the current duty charge is entrusted or held by him. 15. The whole controversy has arisen because of the aforesaid two orders dated 20.4.1995 and 24.7.1997. could those orders be issued allowing officiation to the petitioner in the higher post of Assistant Headmaster and Headmaster at a time when the petitioner was longer in service? As noticed and observed above on a plain reading of the said orders would only mean prospective promotion, but for the dates of the orders. could those orders be issued allowing officiation to the petitioner in the higher post of Assistant Headmaster and Headmaster at a time when the petitioner was longer in service? As noticed and observed above on a plain reading of the said orders would only mean prospective promotion, but for the dates of the orders. In my considered opinion the said two orders could not have been issued allowing officiating promotion to the petitioner by altering the position with which the petitioner retired from service. Such officiating promotions granted to the petitioner could not have and cannot alter the position of the petitioner with which he retired. It is not a case of granting the promotional benefits to an incumbent who has already retired from service on the aforesaid grounds of denial of promotions during service tenure either on mistake of fact or on mistake of law. The petitioner has been simply shown to have officiated in the higher posts of Assistant Headmaster and Headmaster with the pay scale at t ached to the posts and thereby the actual position and status of the petitioner with which he retired was sought to be altered, which in my considered opinion is impermissible in law. 16. Let us now examine the decision relied on by the learned Counsel for the petitioner. That was also a case under similar fact situation as in the instant case. In that case also the writ petitioner was allowed to hold the charge of Headmaster of the school in question on 6.3.1991 in addition to his own duties of Assistant Headmaster. By an order dated 6.10.1995 i.e. after his retirement from service with effect from 28.2.1995, he was allowed to officiate as Headmaster with the pay scale attached to the post as in the instant case. Thus, like the present case he was allowed the benefit of officiation for the period he remained as in-charge Headmaster. Such a course of action was adopted after the retirement of the petitioner. As in the instant case, the Directorate of Pension took the same stand. The letter dated 19.5.1998 which has been relied upon by the respondent No. 3 in his affidavit was also referred to in that case. Such a course of action was adopted after the retirement of the petitioner. As in the instant case, the Directorate of Pension took the same stand. The letter dated 19.5.1998 which has been relied upon by the respondent No. 3 in his affidavit was also referred to in that case. The letter dated 19.5.1998 is quoted below : Government of Assam Pension and Public Grievances Department, Dispur No. PPG(P)9/98/68 dated Dispur the 19th May'98 From : Smt. S. Goswami, Under Secy to the Govt of Assam, Pension & Public Grievances Deptt To : The Director of Pension, Assam, Ganeshguri, Dispur, Guwahati-6. Sub: Pension case in respect of Shri Keshab Ch. Nath, Retd. Headmaster, I/S Nagaon. Ref: Your letter No. DP/PR-1/Pen/18526/1 dated. 15.12.1997 Sir, In inviting a reference to the letter cited above, I am directed to return herewith the service Book (in original) and other relevant documents in respect of Shri Keshab Nath, Retd. Headmaster and to say that Govt. Agree with your views that regulation of officiating promotion with retrospective effect neither regular nor fixation benefit can be claimed by anybody for holding current charge of any higher post. Since, Shri K.C. Nath was holding the current charge of the post of H.M. under statutory provisions of F.R. 49(C) from 1.4.1994 to 29.2.1996, DSE's order dated 28.8.1996 in respect of regulation of service with retrospective effect from 1.4.1994 is not in order. You are, therefore, requested to finalise his pension case accordingly. This has the approval of Commissioner & Secy. Pension and Public Grievances Department. 17. The learned Single Judge held the said letter dated 19.5.1998 to be not a circular of general application. Referring to the provisions of FR 49 and Rules 108 and 114 of the Assam Services (Pension) Rules, 1969, the learned Single Judge held that the writ petitioner was entitled to get his pension fixed on the basis of the officiating promotion granted to him. FR 49(1), Rule 108 and Rule 114 of the aforesaid Rules on which the learned Single Judge placed reliance are quoted in paragraph 9 of the said judgment. Paragraph 9 of the judgment is reproduced below : 9. In support of his submissions Mr. Roy has taken me through the provisions of FR 49 as well as Rules 108 and 114 of Assam Services (Pension Rules), 19069 (for short 'Rules'). Paragraph 9 of the judgment is reproduced below : 9. In support of his submissions Mr. Roy has taken me through the provisions of FR 49 as well as Rules 108 and 114 of Assam Services (Pension Rules), 19069 (for short 'Rules'). The relevant provisions so cited by the learned Counsel for the petitioner are quoted below : "FR 49 - The State.... (a) Where a Government servant is formally appointed 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, . 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; Provided that.... (c) no additional pay shall be admissible to a Government servant who is appointed to hold current charge of the routine duties of a higher post irrespective of the duration of the additional charge. Rule 108. The amount of pension shall be regulated as follows : (a) After a service of less than ten years, gratuity not exceeding (except in special cases, and under the orders of the Governor up to maximum of 12 months' emoluments) one half month's emoluments for each completed six monthly period of service. If the emoluments of the officer has been reduced during the last three years of service, otherwise than as a penalty, average emoluments may, at the discretion of the authority which has power to sanction the gratuity, be substituted for emoluments. (b) After a service of not less than ten years a pension succeeding the following amounts : Completed six Monthly period of Qualifying service Scale of pension Maximum limit of pension (1) (2) (3) Rs. Rs. 20 1000th of average emoluments 2,000 a year or 166 a month 114. Emoluments and average emoluments.- (1) The term 'Emoluments' as used in this part of the rules, means the emoluments which the officer was receiving immediately before his retirement and includes. (a) Substantive pay in respect of a permanent post other than a tenure post, held in a substantive capacity.... Emoluments and average emoluments.- (1) The term 'Emoluments' as used in this part of the rules, means the emoluments which the officer was receiving immediately before his retirement and includes. (a) Substantive pay in respect of a permanent post other than a tenure post, held in a substantive capacity.... (2)(a) If an officer holding a permanent post in substantive capacity - (i) Officiates in a higher permanent post (other than a tenure post) or holds higher temporary post (other than a tenure post) borne on a cadre which includes permanent posts on the same time-scale as the temporary post, continuously for not less than three years, and retires or dies while so officiating or holding the higher post; or (ii) is confirmed in such higher permanent post at any time during the last three years of his service after having officiating in that post continuously for three years or more. His emoluments for pension in respect of the higher post for any period beyond three years' continuous service in that post shall be determined under Clause (i) above as if he held, in substantive capacity, a permanent post on a time-scale identical with that of the higher posts. Referring to FR 49(a) and other provisions of law above mentioned, the learned Senior counsel for the petitioner has contended that since the petitioner was not holding any current charge as evident from the communication made by the concerned authority allowing him to officiate since 1991 till his retirement, the petitioner is entitled to his pay as per FR49(a). 18. From the above quoted provisions of the Rules it will appear that while FR 49(a) speaks of formal appointment of a Government servant to hold full charge of the duties of a higher post or posts in the same cadre/line of promotion, Rule 108 of the aforesaid Rules speaks of admissible amount of gratuity after a particular period of service. Rule 114 of the Rules speaks of emoluments and average emoluments. Rule 114 of the Rules speaks of emoluments and average emoluments. Rule 114 also speaks of officiating in a higher permanent post (other than a tenure post) or holding of higher temporary post (other than a tenure post) borne on a cadre and that in such an eventuality the emoluments for pension in respect of the higher post for any period beyond three years' continuous service in that post shall be determine din the manner as prescribed therein, as if he held, in substantive capacity, a permanent post on time scale identical with that of the higher post. None of these provisions help the case of the petitioner in the instant case. All these provisions are in respect of formal appointment to a higher post and rendering of a particular period of service and calculation of emolument for pension in respect of the higher post. In the instant case none of the factors as contemplated under the aforesaid provisions of the Rules are present to help the case of the petitioner. The petitioner was never formally appointed to a higher post. It is only on the basis of the above quoted two orders dated 20.4.1995 and 24.7.1997 which were issued much after the retirement of the petitioner from service, the petitioner has based his claim for the benefit of higher pension. 19. As regards the case law on which the learned Single Judge placed relies i.e. AIR 1998 SC 2909 (Secretary-Cum-Chief Engineer v. Hari Office Memorandum Sharma and Ors.) and AIR 1999 SC 838 (Salva Raj v. Lt. Governor of Island, Port Blair and Ors.) are also not applicable to the instant compensation Section. In both the cases the Apex Court held that if a person is put to officiate on a higher post with greater responsibility he is entitled to pay of that post to which he is attached to officiate. The learned Single Judge held that since the writ plaintiff-respondents was officiating as Headmaster, he was entitled to the pay attached to the post, although as in the instant case he was not in fact officiating in the higher post and was only acting as in-charge Headmaster in addition to his own duties of Assistant Headmaster. Such a claim of the petitioner was accepted solely on the basis of the order issued much after his retirement allowing the petitioner to officiate for the period of question. 20. Such a claim of the petitioner was accepted solely on the basis of the order issued much after his retirement allowing the petitioner to officiate for the period of question. 20. It is true that in case of officiating in a higher post, the incumbent is entitled to the salary attached to the post. However, but for the aforesaid two orders, the petitioner cannot say that he in fact officiated in the higher post. He remained in-charge Assistant Headmaster and Headmaster in addition to his own duties of Assistant Teacher and retired on that basis and the provisions of FR 49(c) apply in full vigour. Likewise, FR 22(1)(a)(1) also speaks of fixation benefits on promotion and shouldering of higher responsibilities. However, it was not a case of promotion for the petitioner so as to attract the provisions of the FR 22(1)(a)(1). In my considered opinion it is the provisions of FR 49(c), which is applicable to the case of the petitioner and consequently he is not entitled to the benefits of pay fixation as contemplated under FR 22(1)(a)(1). Thus there is no infirmity in the impugned letter dated 10.5.1999 issued by the respondent No. 3. 21. Coming to the letter dated 19.5.1998, while it is true that the same cannot be said to be a circular but by issuing the said letter the Government of Assam in the Pension & Public Grievances Department made their position clear. In that case also as in the instant case, the incumbent mentioned in the letter was given officiating promotion with retrospective effect which was held to be irregular and that no fixation benefit can be claimed by anybody for holding current charge of any higher post. It was clarified, that the Director of Secondary Education, by issuing orders could not have violated the statutory provisions of FR 49(c) as has been done in the instant case. The letter was issued with the approval of the Commissioner and Secretary, Pension & Public Grievances Department. In my considered opinion the view expressed in the said letter is the correct view and in conformity with rules. In this connection, I may also gainfully refer to the Division Bench decision of this Court as reported in 2004 (1) GLT 4 (Gopal Ch. In my considered opinion the view expressed in the said letter is the correct view and in conformity with rules. In this connection, I may also gainfully refer to the Division Bench decision of this Court as reported in 2004 (1) GLT 4 (Gopal Ch. Chetia v. Assam Administrative Tribunal and Ors.) in which under somewhat similar circumstances referring to FR 49(a) the appellant was held to be not entitled to higher pay of the promotional post for holding the charge only. 22. The pay of a public servant and matters concocted therewith are generally governed by service Rules. Fundamental rules are applicable to the State Government servants. Such rules are more or less structured on certain basic principles. The word pay in its ordinary significance in relation to service means to give what is due for service done. For the purpose of computing pension it is the actual service rendered which is relevant. A pension, which is not a bounty but is claimable as a matter of right, yet the right is not absolute or unconditional. The general principle of administrative law that the administrator can correct a mistake made is also applicable when an erroneous fixation is made. If the fitment or fixation is not in accordance with rules or administrative instructions or on a misconceived or irrational basis, it would be an illegal fixation and liable to be quashed. 23. In view of the above, I am of the considered opinion that the petitioner is not entitled to the relief claimed in the writ petition. I am constrained to hold that the periods of service rendered by the petitioner as in-charge Assistant Headmaster and in-charge of Headmaster in addition to his own current duty charge of assistant Teacher till the date of his retirement cannot cloth the petitioner to get his pension fixed on assumption of officiating promotions and that too much after his retirement as was bestowed to him by the aforesaid two orders dated 20.4.1994 and 24.7.1997. Consequently, I am not inclined to interfere with the impugned letter dated 10.5.1999. 24. The question now arises as to what course of action is to be adopted having regard to the aforesaid decision of the learned Single Judge in Upendra Nath Sarma's case, in which case under similar fact situation the claim of the petitioner has been allowed. Consequently, I am not inclined to interfere with the impugned letter dated 10.5.1999. 24. The question now arises as to what course of action is to be adopted having regard to the aforesaid decision of the learned Single Judge in Upendra Nath Sarma's case, in which case under similar fact situation the claim of the petitioner has been allowed. With the foregoing reasons, discussions and conclusions I cannot but respectfully disagree with the aforesaid decision of the learned Single Judge. In such a situation and being guided by the principles of judicial discipline and having regard to the provisions of Chapter V-A of the Gauhati High Court Rules I would like to refer the matter to the Hon'ble Chief Justice for his Lordships decision to place the matter before the Division Bench having regard to the importance of the case, so much so that it is not only the case of the petitioner but also many other such cases will have a bearing in pensionary and other retirement benefits. 25. Although the matter stands referred to the Hon'ble Chief Justice for his Lordships decision to place the matter before the Division Bench, a direction is hereby issued to the respondent No. 3 to continue to pay pension to the petitioner which he had all along enjoyed after his retirement till April, 2000. The arrears shall be paid within one month from the date of furnishing a certified copy of this judgment and order. He shall be paid his current pension regularly. Such payments to the petitioner shall be subject to the final decision to be arrived by the Division Bench.