WP(C) 1149/2003 BEFORE HON’BLE MR. JUSTICE H.N. SARMA Refusal of the respondent authorities to grant the benefit of past servi ce of the petitioner in the cadre of undergraduate teacher when she got fresh ap pointment in the graduate cadre regulated and guided by separate set of Service Rules and rejection of such prayer by the Assam Administrative Tribunal vide ord er dated 27/11/02 passed in ATA No.55/02 is the subject matter of dispute raised in this writ proceeding. 2) Heard Mr. N. Dhar, learned counsel for the petitioner and Mr. UK Goswami , learned Standing Counsel, Education Department for the respondents. 3) The relevant facts necessary for disposal of the writ proceeding which a re not in dispute are as follows: The petitioner is a science graduate from the Gauhati University. In the year 1988, on the basis of an advertisement issued by the Director, Secondary E ducation/ Respondent No.2 for filling up certain vacant posts of teachers in the various Govt. High Schools in the State of Assam, the petitioner duly applied f or such a post. Another advertisement having been published by the respondent au thorities for filling up certain posts of teachers in the provincialised schools subsequent to the earlier advertisement, the petitioner also applied in terms o f the said advertisement. The petitioner in course of time appeared before in th e selection board for appointment as per subsequent advertisement and was select ed in the interview and accordingly appointed in the cadre of under graduate tea cher in the scale of Rs.525-920/- and was posted in the Morley High School, Salg anga, vide order dated 12/9/88. Pursuant to the aforesaid appointment, the peti tioner duly joined in the post as under graduate teacher in the aforesaid school . Thereafter, the selection procedure for selection of candidates for recruitment to the post of assistant teachers in the Govt. School as pr the fresh advertise ment was initiated in the office of the Director and petitioner was called upon to appear in the interview scheduled on 22/6/89. The petitioner appeared in the said selection process and she was duly selected. Accordingly, the Inspector of Schools, CDC/Respondent No.3 vide order dated 30/1/92 appointed her as an assis tant teacher in A.L.S.S., Grade-A and posted in the Govt. Girls H.S.& M.P. Scho ol, Silchar. The pay scale for the post was Rs.1185-2395/-. On her request, th e petitioner was duly released by the Headmaster of Morley HS School, Salganga w here the petitioner was serving since undergraduate cadre, in order to enable he r to join in the newly appointed post. Accordingly, the petitioner joined in the new post leaving her earlier service. However, the petitioner having prayed for , was granted lien for a period of one year by the respondent No.2 vide order da ted 25.5.92. The advertisements in question, however, have not been made availa ble before the Court. 4) The claim of the petitioner is that she is entitled to be provided with the benefit of her past service which she had rendered as an undergraduate teach er in terms of appointment letter dated 12.9.88 when she joined as a graduate teacher in the Govt. Girls HS & MP School, Silchar, including financial benefit. The prayer for grating such financial benefit made by the petitioner was reject ed by the authority but her past service was allowed to be counted only for the purposes of pensionary benefit as she was working without any break in service, her prayer for protection of pay was also turned down by the respondents vide co mmunication dated 7.11.2001. 5) The aforesaid decision was challenged before the Assam Administrative Tr ibunal, Guwahati in Case No. 35ATA/2002 and the learned Tribunal rejected the c laim of the petitioner and dismissed the appeal vide order dated 27.11.2002. 6) Mr Dhar, learned counsel appearing for the petitioner submits that the p etitioner is entitled to get her pay protected in terms of FR 22(a)(ii) and deni al of such benefit to the petitioner has not only caused injustice to her but al so such denial has been made in violation of the provisions of Fundamental Rules as the said claim of right to get her pay protected in the new service rests on FR 22. 7) Mr. Goswami, learned Standing Counsel, Education Department opposed the claim of the petitioner and contends that the case of the petitioner is not cove red under FR 22 and her claim to count her past service has been rightly rejecte d, however, the State being a model employer has decided to count her past servi ce for the purpose of pensionary benefit only although the petitioner is not ent itled to such benefit under the relevant service rules. 8) Submissions made by the learned counsels have received due attention of the Court. As indicated above, the relevant facts as regards selection, appoint ment and rendering services by the petitioner as an undergraduate teacher in the Morely High School, Salganga and her subsequent selection and appointment in th e cadre of ALSS Grade-A as graduate teacher in Govt. Girls’ HS & MP School, Sil char and grant of benefit in respect of past service for the purpose of pensiona ry benefit are not in dispute. No counter affidavit has been filed by the respo ndents. 9) The pin-pointed grievance of the petitioner is that the benefit of past service as undergraduate teacher rendered in Morely High School, Salganga from t he year 1988 till she joined in the Govt. HS & MP School, Silchar had been illeg ally rejected while fixing her pay in the newly appointed post as Graduate Teach er under ALSS Grade-A Cadre and the petitioner is entitled to such benefit of pa st service under FR 22 for fixing his initial pay. 10) The term pay has been defined under FR 9(21)(a) as follows:- FR 9(21)(a) Pay means the amount drawn monthly by a Governme nt servant as- (i) the pay, other than special pay or pay granted in view of his personal q ualifications, which has been sanctioned for a post held by him substantively o r in an officiating capacity, or to which he is entitled by reason of his positi on in a cadre; and (ii) overseas pay, technical pay, special pay and personal pay; and (iii) any other emoluments which may be specially classed as pay by the State Government. 11) Pay is a consideration for services rendered by an employee in its ori ginal significance in relation to government service. Although there are differe nt kinds of ’pay’ but under FR 9(28) the subsistence pay is defined as follows: Substantive pay means the pay other than special pay, personal pay or em oluments classed as pay by the provincial government under Rule 9(21)(a)(iii), t o which a government servant is entitled on account of a post to which he has be en appointed substantively or by reason of his substantive position in a cadre. The substantive pay to an employee is provided as per fixation made in t he relevant service rules. The pay scale of the petitioner has been specified in her appointment or der itself as Rs.1185-2395/-. FR 21 provides that Rules 22 to 29 inclusive and Rule 31 apply to time s cales of pay generally. They do not, however, apply to any time scale sanctione d by the State Government in so far as they are inconsistent with terms speciall y so sanctioned for such time scale. 12) In the instant case, time scale of pay indicated in the appointment lett er of the petitioner is not shown to be inconsistent with any other terms so spe cially sanctioned by the State Government. Accordingly, a bare reading of FR 21 disclose that FR 22 as sought to be relied by Mr. Dhar is not applicable. 13) The appointment of the petitioner as ALSS in Grade-A in Govt. HS & MP Sc hool, Silchar in the graduate cadre is a higher post then the one where she was earlier appointed. The scale of pay in the subsequently appointed post is also much higher. Both the appointments are regulated and guided by two different se ts of procedures. The graduate teacher in a Govt. HS/HSS school is included in Assam Lower School Services, Grade-A. Admittedly, both the posts in which the petitioner was appointed and selected are of two different cadres and regulated by different sets of procedures. There is no linkage of the service of the peti tioner appointed in the post under ALSS, Grade-A with that of her appointment in the undergraduate cadre in a deficit school. The post is also not a promotiona l one and appointment of the petitioner to the subsequent post is a fresh appoin tment and not on promotion. The instructions as appended in FR 22 clearly discl ose that the scope and object of the Rule is not for the purpose as the petition er has sought to apply. 14) The pleaded facts would clearly demonstrate that the case of the petitio ner is not a case of transfer from one cadre to another cadre wherein such a pay protection under FR 22 can be claimed which is appears to be the sole purpose o f FR 22. Both the posts and cadres in which the petitioner are appointed are di stinct, separate and are of different cadres and praying for appointment in the posts the petitioner made separate applications and she was subjected to appear in separate recruitment process. However, the State Government in its own wisdom being a welfare State and a model employer has considered the past services of the petitioner for the purpose of pensionary benefit only. By taking aid of such gracious attitude, the petitioner is not entitled to claim as a matter of right to get her pay protected as sought for. The respondent authorities has not com mitted any error in the in the decision making process, justifying interference of the action taken in rejecting the claim of the petitioner. 15) In view of the above, I do not find any merit in this appeal. Accordingl y, the appeal stands dismissed.