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Jharkhand High Court · body

2009 DIGILAW 630 (JHR)

Silas Aind v. State of Jharkhand

2009-04-28

D.G.R.PATNAIK

body2009
JUDGMENT : Petitioner in this writ application, has prayed for a direction upon the concerned Respondents, particularly to the Respondent No. 3 to release the petitioner’s salary for the period February, 1999 to May, 2000 and adjust 308 days against the Half Pay Leave and for a further direction to pay the arrears of salary for the aforesaid period and also pension with interest. 2. Heard Mr. A. K. Sahani, learned counsel for the petitioner, Mrs. Kiran Burman, learned J.C. to SC. (Mines) for the Respondent-State as also Mr. Sudarshan Shrivastava, learned counsel for the Respondent No. 4 and perused the counter affidavit filed on behalf of the Respondents. With the consent of the learned counsel for the parties, this case is heard and disposed of at the stage of admission itself. 3. The facts of the petitioner’s case in brief are that he was initially employed as a Headmaster in the Kisan Uchcha Vidyalay, Dehkela in the district of Ranchi. Later in May, 1981, the School was taken over by the then State of Bihar under the provisions of Bihar Government School taking Over Act, 1980 and thereafter, he was authorized by then District Education Officer to continue as Headmaster in the aforesaid School. 4. In the month of February, 1999, an order was issued transferring the petitioner from Government High School, Dehkela to Shankari High School, Itki. The petitioner challenged the aforesaid order of his transfer by filing a writ application being C.W.J.C. No. 1831 of 1999 (R) before this Court. During the pendency of the writ application, the order of his transfer was recalled, by the Additional Director of Education, Ranchi vide his order dated 25.04.2000 with a direction that the petitioner shall be allowed to continue in his original post as it was Under such circumstances, the aforesaid writ application was disposed of by order dated 20.02.2001, with an observation that the petitioner may file his representation before the concerned authorities for payment of arrears of his salary. 5. The petitioner filed representation to the District Education Officer and the District Education Officer, vide his order dated 14.10.2001, had directed for payment of the arrears of salary to the petitioner. Inspite of the aforesaid order, the arrears of the petitioner’s salary was not paid to him and during the pendency of his representation, the petitioner has retired from service on 28th February, 2003. 6. Inspite of the aforesaid order, the arrears of the petitioner’s salary was not paid to him and during the pendency of his representation, the petitioner has retired from service on 28th February, 2003. 6. Post retirement, the petitioner expecting payment of his retiral benefits to be paid to him but except the amount of G.P.F., the other amounts were not paid to him. Thereafter, the petitioner filed his representation before the concerned authorities demanding payment of the arrears of his salary and in response, the Respondents had fixed and paid his pension and Gratuity. However, his claim for the arrears of salary for the period, February, 1999 to May, 2000 was not acceded on the ground that he was absent from duty, during that period and had not even applied for leave for such period. Instead, the Respondents had adjusted the period of the purported absence towards his leave both unutilised and half pay leave and after calculating the amounts payable, had released the payable amounts to him on the basis of a total 180 permissible days leave. 7. The grievance of the petitioner is that by the order under which the earlier order of transfer was recalled and the petitioner was allowed to continue in his post as before. As such, the impugned order i.e. (Annexure-4) by which the period between February, 1999 to May, 2000 has been treated as absence from duty is illegal and the Respondents cannot presume that the petitioner was absent during that period. Learned counsel for the petitioner would further argue that the total period of earned leave, even according to the Rules at the relevant date, was 240 days and instead of computing the leave on such basis, the Respondents have arbitrarily counted the aforesaid period on the basis of 180 days only and illegally denied the petitioner’s salary. The petitioner therefore is entitled the leave salary for the remaining period. 8. Per contra, learned counsel for the Respondent-State submits that in pursuance to the order of his transfer, the petitioner ought to have left his post. The petitioner therefore is entitled the leave salary for the remaining period. 8. Per contra, learned counsel for the Respondent-State submits that in pursuance to the order of his transfer, the petitioner ought to have left his post. Instead, had challenged his order of transfer by filing the aforesaid writ application and he succeeded too but in between the date of the order of his transfer till the recall of the order passed in April, 2000, the petitioner did not mark his attendance in the School and neither did he filed any application seeking any leave. 9. Learned counsel for the petitioner would submit that such submissions on the part of the learned counsel for the Respondents is against the pleadings in as much as there is no averment in the counter affidavit that the petitioner had not marked his attendance during the aforesaid period or that he is deemed to have been relieved from the post pursuant to the order of his transfer. 10. It is not the petitioner’s case, that since the date of the order of his transfer, he had regularly attended the School and marked his attendance and continued to remain in the School notwithstanding the order of his transfer. Admittedly, he had challenged the order of his transfer by filing the writ application and though he could persuade the concerned authorities of the Respondents to recall the order of his transfer. The recall order, would suggest that the petitioner was allowed to continue in his previous post as before, meaning thereby that the transfer order would not affect the petitioner’s continuation in his post in the School. 11. The order does not clarify as to whether the petitioner should have marked his attendance during the period commencing of the order of his transfer and till the date, the transfer order was recalled. 12. Learned counsel for the petitioner would however, insist that the petitioner did mark his attendance regularly by attending his School/Office even during the aforesaid period and this aspect of the matter was not verified before passing the impugned order. 13. 12. Learned counsel for the petitioner would however, insist that the petitioner did mark his attendance regularly by attending his School/Office even during the aforesaid period and this aspect of the matter was not verified before passing the impugned order. 13. Be that as it may, considering the petitioner’s claim that he had marked his attendance during the period between February, 1999 to April, 2000, the Respondents authorities shall verify the same from the Attendance Register of the School and if it is confirmed that the petitioner did mark his attendance for the foresaid period, then in the light of the order recalling the earlier transfer order, the Respondents within three months of the date of receipt/production of this order, shall consider the payment of the salary for the aforesaid period. The Respondents shall also consider the petitioner’s claim regarding the permissible days of earned leave and if they find that the relevant Rules permits 240 days of earned leave then the Respondents shall compute the payable amount of salary accordingly. 14. With these observations, this writ application stands disposed of. 15. Let a copy of this order be given to the learned counsel for the Respondent-State.