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2021 DIGILAW 628 (GAU)

Laithanzauva v. State of Mizoram

2021-10-27

NELSON SAILO

body2021
JUDGMENT : NELSON SAILO, J. 1. The issue to be decided in the present case is as to whether the petitioner will be entitled to the pay and allowances and other benefits given to a Principal of Government College in terms of the relevant United Grants Commission (UGC) Regulations, while he is holding the post of Principal on Incharge basis. 2. Heard Ms. Lalawmpuii, learned counsel for the petitioner and Mrs. Linda L. Fambawl, learned Government Advocate for the State respondents. 3. Facts of the case in brief is that the petitioner was appointed as Lecturer vide Office Order No. 1/1984 dated 31.01.1984 in Economics Department in Aizawl College and he joined the said post on 01.02.1984. The petitioner was thereafter placed in the senior scale of Rs. 3000-5000 per month w.e.f. 01.02.1992. From the senior scale, he was again placed in the pay scale of Selection Grade Lecturer i.e. Rs. 12000-18300 per month w.e.f. 27.07.1998 vide Notification dated 30.08.2000 (Annexure-3). Thereafter, vide Notification dated 26.09.2000 (Annexure-4), the petitioner was promoted as Reader in the pay scale of Rs. 12000-18300 per month w.e.f. 28.12.1999. Subsequently, vide Notification dated 25.01.2011 (Annexure-5), the petitioner was re-designated as Associate Professor. 4. The petitioner was then transferred and posted from the Govt. Aizawl College to Govt. Aizawl West College to take the charge of the Principal of the said college with immediate effect vide Notification dated 05.04.2011 (Annexure-6). The petitioner, accordingly, took the charge of the said post on 13.4.2011 vide Certificate of Transfer of Charge dated 13.04.2011 (Annexure-7). 5. The petitioner, thereafter, submitted a representation to the respondent No. 3 on 10.01.2017 (Annexure-8) claiming the benefit of pay and allowances of the post of Principal as permissible under F.R 49(i). His representation was forwarded to the Under Secretary to the Govt. of Mizoram, Higher & Technical Education Department by the respondent No. 3 vide communication dated 20.01.2017 (Annexure-9). However, the petitioner did not get any response to his representation and he, upon attaining the age of superannuation pension, retired from service w.e.f. 28.02.2017 (A/N) which was notified by the Department vide Notification dated 16.02.2017 (Annexure-10). Being aggrieved with the denial of the pay and allowances of the post of Principal of a Government College, as permissible under the UGC Regulations notified in the Mizoram Gazette Vol-XXXVIII in dated 30.11.2010 (Annexure-12) more particularly at paragraph 5.1, the petitioner has filed the instant writ petition. Being aggrieved with the denial of the pay and allowances of the post of Principal of a Government College, as permissible under the UGC Regulations notified in the Mizoram Gazette Vol-XXXVIII in dated 30.11.2010 (Annexure-12) more particularly at paragraph 5.1, the petitioner has filed the instant writ petition. 6. Appearing for the petitioner, Ms. Lalawmpuii Fanai, learned counsel submits that since the petitioner was given the charge of the post of Principal, Aizawl West College vide Notification dated 05.04.2011, he is entitled to Academic Grade Pay (AGP) of Rs. 10,000/- and also a special allowance of Rs. 2000 per month in terms of UGC Regulations para 5.1. Referring to FR-49(i), the learned counsel also submits that where a Government servant is formally appointed to hold full charge of the duties of a higher post 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 admissible to him, if he is appointed to officiate in the higher post, unless the competent authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post. She submits that the petitioner was performing the duty of the Principal which admittedly is a higher post and therefore, he is entitled to be given the pay and allowances of a Principal of a College. In support of her submission, she relies upon the Apex Court decision rendered in Selva Raj Vs. Lt. Governor of Island, Port Blair & Ors., reported in AIR 1999 SC 838 . 7. Mrs. Linda L. Fambawl, on the other hand, submits that there are certain requirements and qualifications to be fulfilled in order to be appointed as a Principal of a Government College. Referring to the affidavit-in-opposition of the State respondents filed on 24.01.2018, the learned Government Advocate submits that the qualification of a Principal is provided in paragraph 4.2.0 of the UGC Regulation, 2010 which is to the following effect:- "4.2.0. Principal i. A Master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University. ii. A Ph.D. Degree in concerned/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance. iii. Principal i. A Master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University. ii. A Ph.D. Degree in concerned/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance. iii. Associate Professor/Professor with a total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education. iv. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges." 8. The learned Government Advocate submits that the petitioner does not fulfill the above criteria and moreover, he was not formally appointed as the Principal of Aizawl West College but only given the charge of the post of Principal. Therefore, his substantive post remains as the post of Associate Professor and against which he was drawing his monthly salary. Therefore, the petitioner is not entitled to the pay and allowances of a college Principal as provided by the UGC Regulations. In support of her submission, the learned Government Advocate relies upon the case of Assm Tombi Singh Vs. State of Manipur, reported in 2006 (4) GLT 608 (KB). 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 10. As may be noticed, the claim of the petitioner is to be given the pay and allowances entitled to a college Principal as per the UGC Regulations since he was given the charge of the post of Principal, Aizawl West College vide Notification dated 05.04.2011. A perusal of the Notification dated 5.4.2011 (Annexure-6) goes to show that the teachers mentioned in the said notification in the interest of public services have been transferred and posted to the office or college as shown against each of their names with immediate effect. The notification also provides as to which of the officer concerned would move first to the new place of posting. There is, however, no mention as to whether the officers being transferred will draw their respective salary in their original posts or in the transferred post and/or as to whether they will be entitled to additional emoluments against the new place of posting. There is, however, no mention as to whether the officers being transferred will draw their respective salary in their original posts or in the transferred post and/or as to whether they will be entitled to additional emoluments against the new place of posting. The petitioner has annexed his Last Pay Certificate for the month of February, 2017 as Annexure-14 in the writ petition. His designation in the said certificate is given as acting Principal/Associate Professor, office of the Principal, Aizawl West College. What can be gathered from the said certificate is that the petitioner is not drawing his pay against the post of Principal, Aizawl West College but as an acting Principal and Associate Professor. 11. In the case of Selva Raj (supra), in the given facts of that case, the Apex Court noticed that the appellant who was a primary school teacher was transferred and attached to a middle school to look after the duties of Secretary (Scouts) with immediate effect and that his pay would be drawn against the post of Secretary (Scouts) under GFR-77. The same is not the case in the present writ petition and the petitioner undisputedly is drawing his pay and allowance against the post of Associate Professor. A full Bench of this Court in Assm Tombi Singh (supra) in the given facts of that case held that an employee simply placed in charge of a higher post, without any appointment therein, in terms of FR-49 is not entitled to claim pay and allowances for such higher post. Similarly, an incumbent holding the higher post on Incharge basis under an order which contains specific conditions that it would be without extra remuneration, is not entitled to read in the order more than what it discloses. This ratio in my considered view squarely applies to the present case. Although the order of transfer and posting does not spell out the entitlement of the transferee after being transferred but nevertheless, the transfer and posting is undisputably only on Incharge basis and moreover, the monthly salary drawn is also against the post of Associate Professor. Such being the case, the petitioner cannot be said to have any legitimate grievance against the respondents. Accordingly, the writ petition is found to be without merit and the same is dismissed. 12. Under the facts and circumstances, the parties are directed to bare their own costs.