NAGAON DISTRICT HIGHER SECONDARY PRINCIPALS COUNCIL AND 34 OTHERS Vs. THE UNION OF INDIA AND 4 OTHERS

JUDGEMENT

(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the validity of FR 49(c) before the Supreme Court in Writ Petition (Civil) No.483/2015 and the same was dismissed as withdrawn vide order dated 31.7.2015 with a liberty to approach the High Court under Article 226 of the Constitution.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:-

(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.