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2008 DIGILAW 1256 (JHR)

Sitaram v. State of Jharkhand

2008-11-12

D.G.R.PATNAIK

body2008
JUDGMENT : The petitioner was initially appointed on 25.6.1979 as a Peon under the Adult Education Department, Government of Bihar. Thereafter, on 25.7.1985, considering his qualification, he was appointed to a vacant class III post of Typist clerk. The Adult Education Department was later on converted into Mass Education Department under the Directorate of Primary Education. Though he belonged to the Primary Education Department, his services were taken on deputation on the post of Typist cum Clerk under the Secondary Education under the Directorate of Secondary Education . 2. On the plea that the Department of Mass Education was closed with effect from 15.5.2001, the payment of salary of the petitioner was stopped. Thereafter, the petitioner filed a writ application being WP(S) No. 1182 of 2002 before this Court. While disposing of the writ application, this Court directed the respondents to consider the petitioner’s representation, both for payment of his salary as well as for his adjustment in the Directorate of Primary & Secondary Education i.e. the Department in which he was already working on a vacant post. 3. The grievance of the petitioner is that despite the fact that the Non Formal Education Scheme along with its corresponding District Mass Education Office, including the District Mass Education Office, Palamau, was closed with effect from 16.5.2001, but even during his continuance in his parent department, his services were taken in the Secondary Education Department under the Directorate of Secondary Education on the vacant post of Typist cum Clerk. Prior to the closure of the office in his parent Department, the petitioner was never repatriated to his parent Department, nor was he retrenched or relieved from service on the ground of closure of the Establishment where he was originally appointed. As such, the respondents cannot deny payment of salary to the petitioner for the period when he had worked continuously and furthermore, since the petitioner is deemed to be a Government employee, merely by closure of a particular department of the Government , he cannot be deemed to have ceased to be a Government employee. Referring to the judgment of this Court in the Case of Bhubneswar Mahato Vs. Referring to the judgment of this Court in the Case of Bhubneswar Mahato Vs. State of Jhakrhand and others ( WPS 4751 of 2003), learned counsel for the petitioner submits that a similar issue was raised before this Court in the aforesaid case wherein this Court held though the scheme was closed, but the employees were not retrenched and there being no laches on the part of the employees, the respondents cannot deny salary to the employees. It is always open to the State Government not to take work from an employee, but they are duty bound to pay salary if the employees are in service. Learned counsel adds that the same principle applies to the case of the petitioner also and the respondents cannot deny him payment of his salary. 4. Counter affidavit has been filed on behalf of the respondents. The stand taken by the respondents was that the petitioner is an ex employee of the Mass Education Department and consequent upon the decision of the Government of India with regard to the abolition of the Non Formal Education Scheme, all field offices including the Education Office at Palamau, where the petitioner was posted, has been closed by the State Government with effect from 16.5.2001 and all the employees including the petitioner working under this office, became out of service from 16.5.2001. While admitting the fact that the petitioner was continuing his job in the Directorate of Secondary Education on deputation at the time of the closure of his parent department, the respondents have claimed that consequent upon the abolition of the substantive post which the petitioner was holding, the question of his continuation on the post on his deputation did not arise. It is sought to be explained that due to lack of communication to the Directorate of Secondary Education about the closure of the parent office of the petitioner, the petitioner was allowed to continue to work till 25.10.2002 and he has been paid his salary till 25.10.2002. It is sought to be explained that due to lack of communication to the Directorate of Secondary Education about the closure of the parent office of the petitioner, the petitioner was allowed to continue to work till 25.10.2002 and he has been paid his salary till 25.10.2002. It appears from the documents filed by the petitioner that during the pendency of the writ application, a decision was taken by the State Government under the Department of Secondary Education and the same was notified by notification No. 6/01/2008/314 dated 01.02.2008 to adjust and absorb altogether 167 additional employees, who were earlier appointed in the Adult & Non Formal Education Department on various posts under the Directorate of Secondary Education. The petitioner also availed the benefit of the said decision and he has been posted under the upgraded +2 Standard Secondary School, Ormanjhi, Ranchi. The above fact has been admitted by the respondents. 6 The only grievance which the petitioner has now raised is that the payment of his salary which was not made since November, 2002 till January, 2008 should be paid to him since he continued to remain as a Government employee and rendered his services in the Secondary Education Department even after the closure of the Mass Education Department. 7 The fact that the petitioner was a regular employee of the State has not been denied or disputed by the respondents. Admittedly, the petitioner was neither retrenched, nor relieved from service even after the closure of his parent Department on 15.5.2001. Rather, his service continued to be taken albeit on deputation in the Secondary Education Department till October, 2002. Thereafter, payment of his salary was stopped on the plea that he was an additional employee. 8. As observed in the case of Bhubneshwar Mahato (supra) (WPS 4751 of 2003), the petitioner having not been retrenched or relieved from his service even after the closure of the parent Department of the petitioner, he is deemed to have continued as a Government employee. Even though the authorities of the concerned respondents have not taken any work from the petitioner since after 25.10.2002, yet, there being no laches on his part, the respondents cannot deny him salary. As observed in the case of Bhubneswar Mahato (supra), it is open to the State Government not to take work, but the Government is bound to pay if the employee is in service. As observed in the case of Bhubneswar Mahato (supra), it is open to the State Government not to take work, but the Government is bound to pay if the employee is in service. Thus, the petitioner is deemed to be in service even after October, 2002 and the State Government is therefore bound to pay him his salary, including the arrears from November, 2002 till the date of his absorption in the Secondary Education Department in the month of February, 2008. In the light of the above discussions, I find merit in this writ application. Accordingly, this writ application is allowed. The respondents are directed to pay to the petitioner within three months from the date of receipt of this order, arrears of salary from November, 2002 till January, 2008, at the rate last paid to him for the month of October, 2002. If the payment is not made within the stipulated period, the respondents will be liable to pay interest @ five percent per annum on the total amount payable to the petitioner commencing from the date of expiry of the stipulated period till the payment is finally made.