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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER 2016
PRESENT
THE HON’BLE MR.JUSTICE JAYANT PATEL AND THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.946/2016(S-CAT)
BETWEEN :
THE UNION OF INDIA REP. BY ITS SECRETARY CENTRAL BOARD OF DIRECT TAXES NORTH BLOCK, 460 HOTEL SAMRAT CHANAKYAPURI NEW DELHI-110021
THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX NO.121, M.G.ROAD(ADMN), NUNGAMBAKKAM, CHENNAI-600034.
THE CHIEF COMMISSIONER OF INCOME TAX NO.44, WILLIAMS ROAD, TRICHY-620001. ... PETITIONERS
(BY SRI GANGADHAR SANGOLLI, ADVOCATE)
2 AND :
SRI R.S. NAIK, S/O S.D. NAIK, AGED ABOUT 59 YEARS JOINT COMMISSIONER OF INCOME TAX, RANGE 13, HMT BHAVAN, BELLARY ROAD, GANGANAGAR BANGALORE-560032.
... RESPONDENT
(BY SRI JAVED HUSAIN, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU IN O.S.NO.1120/2014 DTD:7.7.2015 (VIDE ANNEXURE-A) AND FURTHER BE PLEASED TO DISMISS THE O.A.NO.1120/2014 FILED BY THE RESPONDENT
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, JAYANT PATEL J., PASSED THE FOLLOWING:
ORDER
The present petition is directed against the order dated 7.7.2015 passed by the Tribunal, whereby the Tribunal for the reasons recorded in the order has directed for disbursement of the additional remuneration as per Fundamental Rules 49, within the prescribed period.
We have heard Mr.Gangadhar Sangolli, learned counsel appearing for the petitioner and Mr.Javed Hussain, learned counsel appearing for the respondent.
The contention raised on behalf of the petitioner was that as per proviso to FR 49(iii), unless the sanction is obtained of the higher authority for giving additional charge to a particular officer in a case where the period exceeds three months, no payment for additional charge allowance can be made. It was submitted that the decision upon which the reliance has been placed by the Tribunal are also carried before the higher forum, more particularly of Kerala Bench and the SLP is also pending before the Apex Court. The learned counsel in furtherance to his submission relied upon the Office Memorandum dated 16th April, 2015 issued by the Government of India, wherein it has been provided that the orders for appointment of holding additional charge should be passed after obtaining approval of the competent authority. To make appointment to the post, he contended
4 that in the present case, the orders were not obtained and therefore, in view of this clarification dated 16th April, 2015, the relief could not be granted by the Tribunal and hence, this Court may interfere.
We may at the outset record that the respondent held the charge of another post in addition to his regular post and the said aspect is not in dispute. It is not the case of the petitioner that the respondent held the charge unauthorisedly or without prior approval of the competent authority. 5. The reliance placed by the learned counsel appearing for the petitioner upon proviso to FR 49(iii) reads as under; “Provided that if in any particular case, it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of the Department of Personnel and Training shall be obtained for the payment of the additional pay beyond the period of 3 months;”
5 6. The aforesaid proviso shows that for the purpose of payment of additional pay beyond the period of three months, sanction is required. It does not speak for non entitlement, on account of the holding charge exceeding a period of three months. In our view, the entitlement for the additional charge allowance/remuneration is one thing and the disbursement aspect is another thing. FR 49(iii) expressly provides for the charge allowance for holding the charge of another post. Once the entitlement is proved, merely because for disbursement, the sanction is required of the higher authority is no ground to deny the benefit for the additional charge allowance. The interpretation as canvassed by the learned counsel that in the absence of any sanction granted by the higher authority, one is not entitled for the charge allowance for the period exceeding three months is not correct and the same cannot be accepted.
The reliance placed upon the Office Memorandum dated 16th April, 2015 is also ill founded, inasmuch as firstly
6 the same has been issued on 16th April 2015, which is much after the period during which the respondent has held the additional charge and therefore, it cannot be applied with a retrospective effect. Further, by Office Memorandum the statutory effect of the Fundamental Rules can neither be nullified nor can be diluted. When proviso to FR 49(iii) expressly provides for sanction of the competent authority for payment, it cannot be mixed with the sanction to be granted at the time when charge is to be handed over. In any case, it was not contended on behalf of the petitioner before the Tribunal nor any material is shown to this Court that the respondent held charge of the additional post unauthorisedly. Under these circumstances, once the charge of additional post is held in lawful manner, the employee concerned would be entitled for additional charge allowance. The disbursement thereof is a procedural aspect which cannot nullify the entitlement of the employee concerned.
7 8. The aforesaid is coupled with the aspect that vide circular dated 3.9.2013, copy whereof is produced at Annexure-R3, based on the decision of the Calcutta Bench of the Tribunal the payment is also sanctioned for charge allowance. The Tribunal has considered the said aspect. Under the circumstances, if ultimate decision is taken by the Tribunal for directing payment of remuneration as per FR 49 cannot be said to be illegal, no interference would be called for.
In view of the above, no case is made out for interference. Hence, the petition is dismissed.
Sd/- JUDGE
Sd/- JUDGE
nd/