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2006 DIGILAW 1365 (JHR)

Punam Kumari v. State Of Jharkhand

2006-11-28

DILIP KUMAR SINHA, M.Y.EQBAL

body2006
JUDGMENT M.Y. Eqbal, J. 1. This Letters Patent Appeal is directed against the judgment dated 8.8.2006 passed in W.P. (S) No. 3096 of 2004 whereby the learned Single Judge disposed of the writ application with certain directions. 2. The aforementioned writ application was filed by the appellant seeking a direction for payment of arrears of salary for the period 10 th July, 2002 to 5 th January, 2004 and also for issuance of pay slip for future salary. 3. The facts of the case lie in a narrow compass: By notification dated 16 th April, 2004, the appellant who was working as District Education Officer, Pakur, was transferred as Principal, Government Teachers Training College, Hazaribagh. The appellant joined the place of posting on 10 th May, 2002. Within a period of two months, the appellant was again transferred vide order 30 th June, 2002 from Hazaribagh to Koderma as District Education-Officer. The appellant challenged the said order by filing a writ application being W.P. (S) No. 4003 of 2002. The writ application was dismissed on 12.9.2002. The appellant filed L.P.A. No. 542 of 2002. The L.P.A. was allowed and the transfer order of the appellant dated 30 th June, 2002 was quashed. The respondents were directed to pass appropriate order accordingly. 4. In compliance of the aforesaid direction passed in L.P.A. No. 542 of 2002, the respondent-authority posted the appellant as Principal, Government Teachers Training College, Hazaribagh. The appellant joined the place of posting on 6 th January, 2004 and made an application for payment of salary. The respondents- Human Resources Development Department, vide letter dated 12 th March, 2004 directed the appellant to apply for leave. The appellant, instead of applying for leave, again filed representation on 24.3.2004 claiming salary for the period 10 th July, 2002 to 5 th January, 2004. 5. The learned Single Judge, after considering the entire facts of the case, held that after the transfer order dated 30 th June, 2002 passed against the appellant, she was duty-bound to join the place of posting in absence of any interim order passed either in the writ petition or in the L.P.A. 6. Admittedly, the appellant did not join her place of posting and it was only when she was again posted as Principal, Government Teachers Training College, Hazaribagh, she submitted her joining. Admittedly, the appellant did not join her place of posting and it was only when she was again posted as Principal, Government Teachers Training College, Hazaribagh, she submitted her joining. In such circumstances, unless the appellant files an application for leave, no direction could be issued for payment of salary. 7. Mr. Anil Kumar Sinha, learned Sr. Counsel firstly submitted that when the order of transfer dated 30 th June, 2002 was quashed by the Division bench vide judgment 9.4.2003, the appellant became entitled to salary for the entire period irrespective of the fact whether the appellant submitted her joining or not. According to the learned Counsel, the appellant is not bound to make application for leave for the purpose of regularization of services for payment of salary Learned Counsel put reliance on a decision of the Supreme Court in the case of Union of India v. K.V. Jankiraman and in the case of Dharrna Nand and Anr. v. Union of India and Ors. (2004)10 S.C.C. 609 . 8. In Jankiramas case (supra), the facts and law involved are totally different from that of the instant appeal. In that case, the Supreme Court held that an employee cannot be deprived of any benefit including salary and promotional benefits merely because of the pendency of the disciplinary proceeding. It was further held that when an employee is completely exonerated in a criminal case/ disciplinary proceeding and is not visited with any penalty even of censor, he should not be deprived of any benefit including salary of the promotional post. 9. In Dharma Nands case (supra) the employees of canteen who were appointed for a fixed period, were terminated. The order of termination was declared illegal. On those facts, the Supreme Court held that the employees are entitled to reinstatement and consequential benefits. In our view, the decisions, referred to herein above are not at all applicable in the present case. 10. In the instant appeal, admittedly by order dated 30 th June, 2002, the appellant was transferred from Hazaribagh to Koderma as District Education Officer. Instead of joining the said post, the appellant challenged the said order in W.P. (S) No. 4003 of 2002. The writ petition was dismissed on 12.9.2002. Inspite of dismissal of the writ petition, the appellant did not join at Koderma. On the contrary, she challenged the said order by filing L.P.A. No. 542 of 2002. Instead of joining the said post, the appellant challenged the said order in W.P. (S) No. 4003 of 2002. The writ petition was dismissed on 12.9.2002. Inspite of dismissal of the writ petition, the appellant did not join at Koderma. On the contrary, she challenged the said order by filing L.P.A. No. 542 of 2002. However, on 9.4.2003 LPA was allowed and the order of transfer was quashed. But the fact remains that from the date of transfer dated 30.6.2002 till 9.4.2003 when the L.P.A. was allowed, the appellant, on her own, did not choose to join the transferred place of posting, although there was no interim stay granted either in the writ petition or in the L.P.A. In our view, therefore, the appellant cannot, as a matter of right, claim salary for that period. The learned Single Judge rightly held that the appellant should apply for leave for those period and the leave application shall be considered by the respondents in accordance with law. 11. In the facts and circumstances of the case discussed above, we do not find any reason to interfere with the impugned judgment passed by the learned Single Judge. This Letters Patent Appeal is, accordingly, dismissed.