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2010 DIGILAW 673 (JHR)

Janardan Prasad v. State Of Jharkhand

2010-06-25

R.R.PRASAD

body2010
Judgment Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents. Learned counsel appearing for the petitioner submits that the petitioner, a member of Engineering Service while was under deputation in the Urban Development Department was transferred to Irrigation Division, Pakur in place of Shailendra Kumar Mandal, vide notification dated 29.6.2007 issued by the Joint Secretary (Management), Water Resources Department, Government of Jharkhand. Under the said notification, instructions were issued to the concerned Executive Engineers to hand over the charge within three days to his successor and if the person does not hand over the charge, he would be treated to have been relieved from the work which would be confirmed by the Chief Engineer. Pursuant to that notification, the petitioner gave his joining in Irrigation Division, Pakur on 5.7.2007 but Mr. Shailendra Kumar Mandal in whose place the petitioner had been transferred, did not hand over the charge and, therefore, the petitioner by assuming the charge filed an application on 6.7.2007 before the Superintendent Engineer, Water Resources Department, Dumka requesting therein to confirm the charge which the petitioner had assumed. The Superintendent Engineer forwarded the application with the recommendation for confirmation of the assumption of charge by the petitioner. Thereupon the Chief Engineer, vide its order as contained in letter dated 10.7.2007 (Annexure 5) confirmed it. 2 Meanwhile, said Shailendra Kumar Mandal filed a writ application before this Court, vide W.P.(S) No.3648 of 2007 wherein on 9.7.2007, an interim order was passed directing the authority not to relieve the petitioner. Accordingly, the Department issued another notification on 30.11.2007 whereby transfer of Shailendra Kumar Mandal was stayed till further order but no order with respect to transfer/posting of the petitioner was passed until 14.12.2007. When the Deputy Secretary (Management ), Water Resources Department directed the petitioner to give his joining at the Headquarters within three days. The petitioner on getting said letter immediately joined in the Headquarters on 17.12.2007. Subsequently, another notification was issued on 29.12.2007 whereby he was transferred to Irrigation Division No.II, Sikhtiya where the petitioner did join on 3.1.2008 and took over the charge of Executive Engineer, Irrigation Division II, Sikhtiya on 15.1.2008. Thereupon the petitioner wrote a letter to the Joint Secretary (Management), Water Resources Department to treat that period during which the petitioner was awaiting posting i.e. 25.8.2007 to 14.1.2008 as a period of duty. Thereupon the petitioner wrote a letter to the Joint Secretary (Management), Water Resources Department to treat that period during which the petitioner was awaiting posting i.e. 25.8.2007 to 14.1.2008 as a period of duty. But the Deputy Secretary (Management), Water Resources Department, respondent no.4 instead of passing the order to that effect passed an order as contained in Annexure 13 that period from 25.8.2007 to 28.12.2007 would be treated as unpaid leave whereas period from 29.12.2007 to 14.1.2008 would be treated as earned leave. Being aggrieved with that order, the petitioner has filed this writ application challenging that order to be bad for the reason that the petitioner during the period from 25.8.2007 to 28.12.2007, though was not holding any regular charge but it was not due to fault of the petitioner which has been accepted by the Department even then that period was not regularized as a period of duty as, according to the respondents, the petitioner did not join in the Headquarters which is absolutely incorrect as the record and even the notification under which the petitioner was transferred to Sikhtiya would go to show that the petitioner had given his joining in the Headquarters as soon as he was asked to join Headquarters and similarly the petitioner, pursuant to notification issued on 29.12.2007 as contained in Annexure 10 gave his joining on 3.1.2008 and then took over charge on 15.1.2008, still the period from 29.12.2007 to 14.1.2008 was not regularized as the period of duty. A counter affidavit has been filed wherein same thing has been reiterated that though the petitioner was not at fault in not having regular joining from the period from 25.8.2007 to 28.12.2007 but he did not join the Headquarters and that, pursuant to notification issued on 29.12.2007, the petitioner gave his joining at his place of posting at Irrigation Division No.II, Sikitiya on 15.1.2008. Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that under a notification dated 29.6.2007 when the petitioner was transferred to Irrigation Division, Pakur in place of Shailendra Kumar Mandal, the petitioner did assume charge as the said Shailendra Kumar Mandal did not hand over the charge and the report of the assumption of the charge was sent to the Chief Engineer for its confirmation in terms of the notification which was approved by the Chief Engineer but as the order of the transfer of Shailendra Kumar Mandal was stayed by this Court, notification was issued on 30.11.2007 to the effect that Shailendra Kumar Mandal shall remain posted at Pakur but surprisingly, no notification was issued with respect to transfer of the petitioner and only when the petitioner was asked by the Deputy Secretary (Management), Water Resources Department through the Chief Engineer on 14.12.2007 to join at Headquarters, the petitioner gave his joining in the Headquarters. Still in the order as contained in Annexure 13, it has been stated that the petitioner did not join in the Headquarters which apparently appears to be incorrect. Even the notification under which the petitioner was transferred to Irrigation Division No.II, Sikhtiya his place of previous posting has been shown as Headquarters. Further it does appear that pursuant to notification issued on 29.12.2007 transferring the petitioner to Irrigation Division No.II, Sikhtiya, the petitioner, as per his statement made in the writ application, gave his joining on 3.1.2008 copy of which has been annexed as Annexure 11. That statement has never been denied on behalf of the State. However, it does appear that the petitioner did take over the charge on 15.1.2008. Thus, the petitioner cannot be said to be at fault for not having in regular charge of the post either from 25.8.2007 to 28.12.2007 or from 29.12.2007 to 14.1.2008. In that view of the matter, the respondents in stead of treating those period as the period of duty passed the order as contained in Annexure 13 whereby the period from 25.8.2007 to 28.12.2007 was regularized as unpaid leave whereas the period from 29.12.2008 to 14.1.2008 was regularized as earned leave. Hence, the order dated 1.8.2009 as contained in Annexure 13 being bad is hereby set aside. Hence, the order dated 1.8.2009 as contained in Annexure 13 being bad is hereby set aside. Accordingly, respondent no.4, the Deputy Secretary (Management), Water Resources Department, Government of Jharkhand, Ranchi is directed to take decision afresh in the matter within a period of three weeks from today. Thus, this application is allowed.