Om Prakash Mishra v. State Of Jharkhand Through Its Chief Secretary
2005-04-21
N.N.TIWARI
body2005
DigiLaw.ai
ORDER N.N. Tiwari, J. 1. In this writ application the petitioner has prayed for the direction to the respondents to suitably post the petitioner against the vacant sanctioned post of In Charge Superintending Engineer in the department of Drinking Water and Sanitation and for payment of arrears of salary from 1.9.2003 till date. 2. The case has a chequered background. Earner the petitioner was sought to be transferred from Dhanbad to Sahebganj Division on the post of Executive Engineer. The petitioner having been aggrieved by the said order had taken resort to this Court in a writ application being W.P.(S) No. 4681/2003 which was culminated into L.P.A. No. 639/2003. The Division Bench while disposing of the said L.P.A. passed the following order : "For the foregoing reasons and considerations, we are also of the opinion that the appellant should not have been transferred as an Executive Engineer and similarly, the respondent No. 6, should not have been described as a Superintending Engineer-in-Charge because by doing so, an unwarranted complacency is created in the mind of the respondent No. 6 to the prejudice of the appellant who justifiably therefore, considers this to be an affront to his status. Although, both have not yet been promoted on the post of Superintending Engineer and although both still are Executive Engineers, the Notification dated 12.9.2003 in so far as it relates to the appellant can not, stricto sensu, be considered to be an order of reversion but a genuine grievance can definitely be inculcated in the mind of the appellant when he finds that a person who was junior to him in the cadre of Assistant Engineers, has been asked to function as Superintending Engineering in charge whereas he has been shifted out of that post and has been asked to work as an Executive Engineer. The entire exercise of the Government therefore, appears to be irrational and unfair. Consequently, we are of the opinion that both the Notifications i.e. Notification No. 3787, dated 12.9.2003 as contained in Annexure-8 and the Notification No. 3797, dated 12.9.2003 as contained in Annexure-7 transferring the appellant to Sahebganj as an Executive Engineer and posting the respondent No. 6 as Superintending-in- Charge at Dhanbad in place of the appellant should also be set aside.
Consequently, these two Notifications as also Notification dated 3.7.2003 as contained in Annexure-9 are hereby set aside and the matter is remanded to the concerned authorities to reconsider the matter strictly in accordance with law after taking into consideration the observations made above as also judgment of Honble Supreme Court of India referred to above." 3. The grievance of the petitioner is that in spite of the said order of this Court, the petitioner was not given proper place and he was not paid his salary. The petitioner then approached this Court over again in W.P. (S) No. 2284/2004 and the writ application was disposed of with a direction to the Commissioner- Secretary, Drinking Water and Sanitation Division to consider the petitioners representation dated 24.3.2004 in accordance with law and pass an appropriate order within a period of four weeks from the date of receipt/production of a copy of this order. It was observed that according to the order of the Division Bench, the petitioner would be entitled to the current salary. The grievance of the petitioner is that in spite of the said order, the petitioners salary has not been paid till date. 4. Counter affidavit has been filed by the respondent No. 2 stating, inter alia, that the petitioners claim that he himself assumed charge was not approved or accepted by the department and he was treated to be absent from the duty unauthorizedly. However, it has been stated that the claim of posting shall be considered after the clearance of roster and he will be immediately posted thereafter. A supplementary counter affidavit has also been filed stating, inter alia, that the petitioner has been posted as In-Charge-Technical Secretary to the Chief Engineer H.Qs. by Memo No. 1440, dated 4.4.2005 and if the petitioner files an application for payment of salary, a decision will be taken by the department as soon as possible. 5. Mr. Dilip Jerath, learned counsel appearing on behalf of the petitioner, submitted that so far the claim of posting is concerned, now the same has been redressed by the said notification dated 4.4.2005. But the claim of the petitioners salary has been purportedly negated and circumvented by the respondents by disclosing their mind that the intervening period from 1.9.2003 up to the date of the said order dated 4.4.2005 shall be treated as unauthorized absence. 6. Mr.
But the claim of the petitioners salary has been purportedly negated and circumvented by the respondents by disclosing their mind that the intervening period from 1.9.2003 up to the date of the said order dated 4.4.2005 shall be treated as unauthorized absence. 6. Mr. S. Akhtar, learned SC II, on the other hand, submitted that the decision has not been taken regarding the payment of salary as no application has been filed by the petitioner. Mr. Delip Jerath, learned counsel appearing on behalf of the petitioner, however, contradicted the same stating that several representations were filed and copies of some of them have been made Annexures-8, 9, 10 and 11 to this writ application, but the same have not been disposed of and no order has been passed till date. 7. Having heard the learned counsel for the parties and considered the facts and circumstances of the case, this writ application is disposed of with a direction to the petitioner to file a fresh representation before the respondent No. 2. Secretary-Drinking Water and Sanitation Department, Jharkhand, Ranchi making his claim for salary of the intervening period, within a period of one week. The respondent No. 2 thereafter shall pass a reasoned order in accordance with law, within a period of two weeks thereafter. 7. However, it is made clear that since the earlier transfer order has been set aside by this Court and a Bench of this Court has held that the petitioner is entitled to his salary, and that the absence during the said period can not be treated as unauthorized absence while disposing of any claim regarding the payment of salary. 9. With the above directions/observations this writ application is disposed of.