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2003 DIGILAW 574 (JHR)

Braj Ballabh Pathak v. State Of Bihar

2003-05-06

AMARESHWAR SAHAY, GURUSHARAN SHARMA

body2003
JUDGMENT 1. Appellant was posted as Assistant Teacher in Rajkiya Madhya Vidyalaya, Giddore (Itkhori). On 12.5.1994 he was transferred to Primary School, Tikulia within Simaria Anchal. His representation against the transfer was not disposed of by the Deputy Commissioner and/or the District Superintendent of Education, Chatra. As such, he filed CWJC No. 1930 of 1994 @ in this Court, which was allowed to be withdrawn on 15.2.1995, to pursue the representation before the competent authority. 2. He claimed that the District Superintendent of Education verbally allowed his representation and directed him to work at Giddore, but Headmaster of the said school did not allow him to join. He, therefore, filed CWJC No. 1059 of 1995@, which was disposed of on 21.7.1995 with a direction to the authorities to recall order of his transfer dated 12.5.1994. Thereafter on 18.8.1995 said transfer order was withdrawn, but his arrears of salary for the period from July, 1994 onward was not paid. Hence, he filed CWJC No. 171 of 1996@ in this Court, which has been dismissed by the learned Single Judge on 16.8.2000 holding that he was not entitled to get his salary for the period he did not discharge his duty as Assistant Teacher at the transferred place. 3. The present appeal has been filed against the said order of the learned Single Judge. 4. It appears that during pendency of his representation against the order of transfer dated 12.5.1994, the District Superintendent of Education deputed him in training course at Simaria from 4.4.1995 to 14.4.1995 treating him as an Assistant Teacher of Giddore Middle School. Again for the period 5.5.1995 to 8.5.1995 he was sent for training at Ranchi. Subsequently by interim order dated 16.5.1995 passed in CWJC No. 1059 of 1995.(R) this Court directed him to continue in his previous position, i.e. at Giddore, if no body had joined in his place in the said school after his transfer on 12.5.1994. 5. It is true that instead of joining his transferred post, the appellant filed representation and thereafter filed Writ applications in this Court and, ultimately, said transfer order was recalled on 18.8.1995, pursuant to order dated 27.1.1995 passed by this Court. Learned Single Judge, therefore, rightly observed that his absence from duty at the transferred place cannot be said to have been legalized after his transfer order was recalled. 6. Learned Single Judge, therefore, rightly observed that his absence from duty at the transferred place cannot be said to have been legalized after his transfer order was recalled. 6. It was not expected that the appellant after order of his transfer, instead of joining at the transferred place, would have remained absent awaiting the result of his representation. Admittedly, it appears that he did not discharge his duty as Assistant Teacher till his order of transfer was recalled. In such a situation, it was for the competent authority to determine whether such absence from duty was unauthorised and the same amounted to misconduct under the statutory Rules and pass appropriate orders regarding his claim for arrears of salary. 7. We are of the view that in exercise of powers under Article 226 of the Constitution of India, the learned Single Judge was not justified in holding that the writ petitioner was not entitled to get his salary for the period he did not discharge his duty as Assistant Teacher at the transferred place, in absence of determination duly made by the competent authority under the statutory Rules as to how the said period was to be counted. 8. We, therefore, set aside the impugned order dated 16.8.2000 passed by the learned Single Judge and remit the matter to the competent authority to determine as to whether the appellants absence from duty during the period in question was authorized or unauthorised and pass appropriate orders in accordance with law regarding his claim of arrears of salary for the said period. We hope and trust that necessary orders would be passed after giving an opportunity of hearing to the appellant within six months from the date of receipt of a copy of this order. This appeal is accordingly disposed of.