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2015 DIGILAW 459 (GAU)

Karuna Sarma v. State of Assam and Ors.

2015-04-20

MICHAEL ZOTHANKHUMA

body2015
Michael Zothankhuma,J.:-- Heard Mr. R.S. Chouhan, learned counsel for the petitioner and Ms. S. Khanikar appearing on behalf of Ms. A. Verma, learned counsel for the respondent Nos.1, 2,4 and 5. Also heard Mr. S.U. Ahmed, learned counsel for the respondent No.3. 2. The case of the petitioner is that he was appointed as Junior Accounts Assistant vide order dated 05.02.90 and joined the said post on 06.02.90. By order dated 19.04.91, the service of the petitioner was regularized w.e.f 06.02.90. The petitioner was thereafter promoted to the post of Senior Accounts Assistant vide order dated 10.07.2002. Subsequently by order dated 30.03.2010, the petitioner was to be handed over charge of Accountant-I of Nalbari Treasury while still being a Senior Accounts Assistant. By another order dated 30.03.2010, the petitioner was to look after the work of Sri. Satish Barman, Accountant-II. Thereafter, vide order dated 22.02.2012, the petitioner who was the seniormost Accounts Assistant of Nalbari Treasury was transferred and posted at Belsor Sub Treasury as in-Charge Accountant w.e.f 01.03.2012. Thereafter, by order dated 29.02.2012, the petitioner was released from his duties as Senior Accounts Assistant of Nalbari Treasury to enable him to join at Belsor Sub Treasury as in-Charge Accountant. The petitioner joined the Belsor Sub Treasury as in-Charge Accountant w.e.f 1.3.2012 and has been working as in-Charge Accountant of the said Treasury till date. 3. The submission of the counsel for the petitioner is that the petitioner has been working as Accountant since 30.3.2010 and, as such, he should be provided the scale of pay of an Accountant as admissible under ER. 49(a). 4. The petitioner also submitted a representation dated 5.8.2010 to the respondent No.2 praying that he should be provided the pay scale of an Accountant as per F.R. 49(a) and to promote him to the post of Accountant. The said representation has not been decided by the respondent No.2 till date. 5. The counsel for the respondents submitted that they have not received any instructions till date and, as such, they have no comments to offer at this stage. They have prayed for time to obtain necessary instructions. 6. The present case has been filed on 18th June, 2014 and the same has been listed several times before this Court. 5. The counsel for the respondents submitted that they have not received any instructions till date and, as such, they have no comments to offer at this stage. They have prayed for time to obtain necessary instructions. 6. The present case has been filed on 18th June, 2014 and the same has been listed several times before this Court. As more than 10 months have elapsed from the date of tiling of the case, I find that enough time has been given to the respondents to obtain necessary instructions pertaining to the present case. 7. A perusal of the orders dated 30.03.2010 issued by the Treasury Officer, Nalbari and the Deputy Commissioner, Nalbari would go to show that the petitioner has been ordered to look after the work of Accountant of Nalbari Treasury, The petitioner continued to look after the work of Accountant of Nalbari Treasury till the transfer order dated 22.02.2012 was issued transferring and posting him at Belsor Sub Treasury as in-Charge Accountant w.e.f 01.03.2012. Thus, the petitioner's case is that he has been continuously discharging the functions of an Accountant w.e.f 30.03.2010. F.R. 49(a) being relevant is reproduced below: "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 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." 8. The Supreme Court in the case of Judhistir Mohanty vs. State of Orissa, reported in (1996) 10 SCC 531 has observed: "It is a settled position that if the Government, for want of candidate, directs an officer in the lower cadre to perform the duties of the post in the higher cadre, during that period, necessarily, the incumbent would be entitled to the payment of the salary attached to the post, if the incumbent had performed the duties in the post. Similarly, where the officer concerned is on promotion from lower cadre to the higher cadre, though on ad-hoc or even temporary basis, the incumbent would be entitled to the payment of the salary attached thereto for the period of his discharging the duty in that post" The aforesaid observation of the Supreme Court has also been relied upon and reiterated by this Court in its order dated 18.8.2010 passed in WP(C) 2400/2010 (Anjanava Dutta & Ors. vs. State of Assam & Ors.). 9. In view of the aforesaid observation of the Apex Court and this Court with regard to performing duties of a post in a higher cadre by a person from a lower cadre and as the petitioner has been continuously discharging the functions of an Accountant since 30.3.2010, the respondents are hereby directed to provide the petitioner the pay scale of Accountant w.e.f 30.3.2010 till the date he is replaced by a regular Accountant. 10. The said exercise shall be completed within a period of two months from the date of receipt of a certified copy of this order. The writ petition accordingly stands disposed of. -