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2011 DIGILAW 1970 (RAJ)

Kiran Bala v. State of Rajasthan

2011-09-13

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—In this writ petition filed by the petitioner, the petitioner has prayed for quashing impugned order dated 12.10.2010, Annex.22 and prayed that the respondents may be directed to permit the petitioner to join duties at Bikaner in pursuance of order dated 20.8.2010. The writ petition was listed in the Court on 16.11.2010. On that date, while admitting the writ petition notices were issued and following interim order was passed : "In the meanwhile and until further orders, operation and effect of order dated 12.10.2010 passed by the Director, Secondary Education, Rajasthan, Bikaner shall remain stayed. The Director, Secondary Education, Rajasthan, Bikaner as directed as an interim measure to allow the petitioner to continue on the promotional post in his office at Bikaner." 2. As per facts of the case, the petitioner was working on the post of Senior Teacher (Physical Education) in the Education Department and in the month of July 2008 the petitioner made a complaint against the Principal, Government Girls Sr. Secondary School, Pachpadra and District Education Officer (Secondary), Barmer regarding harassment meted out to her by them. A prayer was made by the petitioner to hold inquiry against them and till the enquiry is concluded he may be posted in the office of Deputy Director (Secondary), Jodhpur. Upon the said complaint made by the petitioner, vide order dated 15.7.2008 Joint Director (Training), Secondary Education, Bikaner directed initiation of inquiry against the Principal, Government Girls Sr. Secondary School, Pachpadra and District Education Officer (Secondary Education), Barmer and during the pendency of that enquiry the petitioner was ordered to be kept under awaiting posting order at the office of Deputy Director (Secondary), Jodhpur. The petitioner accordingly joined duties at Jodhpur. 3. On 17.9.2008, the petitioner was posted at Government Girls Higher Secondary School, Bilara and in pursuance of order dated 17.9.2008 the petitioner was relieved from the office of Deputy Director (Secondary), Jodhpur on 19.9.2008. During the pendency of the inquiry, the petitioner was again posted in the office of the Dy. Director (Secondary Education), Jodhpur vide order dated 24.4.2010 and, in pursuance of order dated 24.4.2010, the petitioner joined duties at Jodhpur. The petitioner was permitted to mark her attendance in the office of the Deputy Director (Secondary), Jodhpur till 2.5.2010 and, thereafter, by verbal order dated 3.5.2010 the petitioner was asked to join duties at Bilara. Director (Secondary Education), Jodhpur vide order dated 24.4.2010 and, in pursuance of order dated 24.4.2010, the petitioner joined duties at Jodhpur. The petitioner was permitted to mark her attendance in the office of the Deputy Director (Secondary), Jodhpur till 2.5.2010 and, thereafter, by verbal order dated 3.5.2010 the petitioner was asked to join duties at Bilara. When the petitioner asked for supplying her copy of the order the same was not supplied to her. on 4.5.2010, the petitioner sent telegram for permitting her to join the duties but the petitioner was not allowed to join duties. 4. In the aforesaid circumstances, the petitioner submitted an application under Right to Information Act for supplying her certain information including copy of order dated 3.5.2010. In pursuance of the application filed by the petitioner, on 18.5.2010, the petitioner received order dated 3.5.2010 which is sent through registered post, whereby, the petitioner was relieved for training for census work and that training was for 2 days only. After 15.5.2010, there was summer vacation, therefore, the petitioner went to Bilara after summer vacation number of times for joining her duties but she was not permitted to join duties. In such compelling circumstances, the petitioner submitted a representation on 15.8.2010; but, vide order dated 20.8.2010, the petitioner was promoted to the post of Lecturer (Physical Education) and posted in the office of Director, Secondary Education, Bikaner as APO. 5. The petitioner made several requests to the Deputy Director, Secondary Education, Jodhpur where she was giving attendance to relieve her to join duties in the office of the Director, Secondary Education, Bikaner but she was not relieved. Thereafter, the petitioner preferred writ petition before this Court being S.B. Civil Writ Petition No. 8460/2010, in which, the co-ordinate Bench of this Court passed order directing the respondents to immediately relieve the petitioner to join her duties in the office of Director of Secondary Education at Bikaner in pursuance of promotion-order and further order was passed that payment of salary for the period upto before the petitioner was relieved by the respondents shall be made by the Deputy Director (Secondary Education), Jodhpur. 6. As per contention of the petitioner, after passing the above order the petitioner was relieved but she was directed to furnish undertaking that she will not claim any benefit of working on higher post. 6. As per contention of the petitioner, after passing the above order the petitioner was relieved but she was directed to furnish undertaking that she will not claim any benefit of working on higher post. After relieving from the office of the Deputy Director (Secondary), Jodhpur on 11.10.2010, the petitioner joined duties on 12.10.2010 in the office of the Director, Secondary Education, Bikaner which is evident from joining report dated 12.10.2010. 7. It is very strange that the day on which the petitioner joined duties, the Director, Secondary Education, Bikaner passed order whereby the order of promotion dated 20.8.2010 was cancelled, which is under challenge in this writ petition. 8. Learned counsel for the petitioner submits that the reason which is mentioned in the order of withdrawal of the promotion order dated 20.8.2010 is totally untenable because for the purpose of promotion to the post of Lecturer (School Education) the seniority is maintained State-wise and so called inquiry which is said to be contemplated for willful absence from duty was not in existence because as per the judgment of the co-ordinate Bench of this Court a specific order was made to pay salary to the petitioner till she was relieved from the office of the Deputy Director (Secondary), Jodhpur. 9. Learned counsel for the petitioner further submits that in the promotion order dated 20.8.2010, it was categorically observed that this promotion is purely on temporary basis till duly selected candidates by the Departmental Promotion Committee or Rajasthan Public Service Commission are made available as per rules and, in the impugned order, none of the grounds is in existence. Therefore, in view of the judgment rendered by the Division Bench of this Court in D.B. Civil Writ Petition No. 1908/1989, Mrs. Anita Kothari vs. State of Rajasthan and Others, decided on 20.8.1990 (See 1990(2) WLN 17) the order impugned deserves to be quashed. 10. Learned counsel for the petitioner further argued that all the proceedings undertaken against the petitioner is outcome of the complaint filed by the petitioner for initiating inquiry against two officials of the department viz., the Principal, Government Girls Senior Secondary School, Pachpadra and District Education Officer, Barmer, therefore, the order impugned may be quashed. 11. 10. Learned counsel for the petitioner further argued that all the proceedings undertaken against the petitioner is outcome of the complaint filed by the petitioner for initiating inquiry against two officials of the department viz., the Principal, Government Girls Senior Secondary School, Pachpadra and District Education Officer, Barmer, therefore, the order impugned may be quashed. 11. Per contra, learned counsel appearing on behalf of the respondents vehemently argued that the order dated 12.10.2010 which is impugned in this writ petition is perfectly legal order because earlier the petitioner was working in Ajmer Division, therefore, after her transfer to Jodhpur Division, she lost her original seniority in Jodhpur Division and, further, a departmental inquiry was contemplated against the petitioner for willful absence from duty. In this view of the matter, the petitioner cannot be permitted to raise voice against impugned order dated 12.10.2010. 12. Learned counsel for the respondents submits that although in the promotion order it was mentioned that this promotion is purely on temporary basis till duly selected candidates are made available but the fact remains that a departmental inquiry was initiated against the petitioner, therefore, it was felt necessary by the director to pass order for withdrawal of the promotion order. It is vehemently argued by learned counsel for the respondents that no case is made out for interference, therefore, the writ petition deserves to be dismissed. 13. After hearing learned counsel for the parties, I am of the opinion that the reasons for passing order Annex.22 dated 12.10.2010, impugned in this writ petition, are totally contrary to the facts and non-existent because in view of the order passed by the co-ordinate Bench in S.B. Civil Writ Petition No. 8460/2010, filed by the petitioner earlier, there was no question of initiating departmental inquiry against the petitioner for willful absence from duty because the co-ordinate Bench passed order for making payment of salary for the period during which the petitioner was not allowed to join duties and, admittedly, in pursuance of the said order payment has already been made. 14. With regard to the other reason for losing her seniority upon transfer to Jodhpur Division, taken as plea by the respondents for withdrawal of the promotion order, I am of the opinion that the petitioner was promoted purely on urgent temporary basis without any monetary benefits. 14. With regard to the other reason for losing her seniority upon transfer to Jodhpur Division, taken as plea by the respondents for withdrawal of the promotion order, I am of the opinion that the petitioner was promoted purely on urgent temporary basis without any monetary benefits. it is very strange that welfare State is utilizing services on number of higher posts in the garb of according promotions on purely urgent temporary basis without granting monetary benefit of the pay and allowances of the higher post till duly selected candidates by DPC/RPSC are made available observing following assertion in the promotion order : "ikrs osru in ij"; meaning thereby, in fact, the State Government is playing game with the future of the School Lecturers while granting promotion on urgent temporary basis without pay and allowances of the promotional post nor extending promotion on regular basis; and, strangely adopting third illegal method of giving promotion on urgent temporary basis with "ikrs osru in ij" (drawing the existing salary), which is totally arbitrary and unconstitutional. Such practice is severely deprecated because as per Article 39(d) of the Constitution of India the welfare State is under obligation to pay salary for the particular post on which the State is utilizing the services of the employee. 15 . Here, in this case, the petitioner was granted promotion on ad hoc basis but without any salary of the higher post and that order is also withdrawn when the petitioner joined duties in pursuance of the order passed by the co-ordinate Bench of this Court. It appears that on the one hand the respondents displayed their compliance of the order passed by this Court in S.B. Civil Writ Petition No. 8460/2010 while relieving the petitioner from Jodhpur to enable her to join duties at Bikaner but, on the other hand, no sooner did the petitioner join duties at Bikaner the impugned order dated 12.10.2010 was passed by the Director, Secondary Education, Bikaner. In this view of the matter, the respondents somehow did not want to grant benefit of promotion to the petitioner even on ad hoc basis because she made complaint and approached the Court. 16. Consequently, this writ petition is allowed. Order impugned dated 12.10.2010 is quashed and set aside and while following the judgment of the Division Bench rendered in Mrs. 16. Consequently, this writ petition is allowed. Order impugned dated 12.10.2010 is quashed and set aside and while following the judgment of the Division Bench rendered in Mrs. Anita Kothari's case (supra) the respondents are directed to allow the petitioner to work on the post of Lecturer (Physical Education) till duly selected candidates, as per order of promotion dated 20.8.2010, are made available. There shall, however, be no order as to costs.