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2014 DIGILAW 182 (JK)

Mehraj-ud-Din Ashai v. State Of J&K

2014-04-25

ALI MOHAMMAD MAGREY

body2014
1. The petitioner, a retired teacher, has filed this writ petition seeking quashment of order no. 5553-DSEK of 2003 dated 02.12.2003 issued by Director, School Education, Kashmir, whereby and whereunder the period of his service from 29.11.1994 to 01.04.2002 has been treated as leave whatever kind due to him. Further, the petitioner has sought writs in the nature of mandamus to command the respondents to release the petitioner's emoluments alongwith all arrears of pay, allowances etc. together with interest; and to settle, finalize and release his retiral benefits/pension alongwith interest. 2. This case, it may at the outset be observed, depicts a pathetic story of a government servant and the extreme apathy demonstrated by the concerned functionaries of the Education Department, from time to time, towards his plight. The height of administrative slackness and callousness on the part of the concerned departmental authorities can be gauged from the fact that after the petitioner had attained the age of superannuation on 31.05.2002, he was issued a charge sheet dated 20.06.2002 on the allegation of having been found absent from duty on 15.06.2002. Not only that, vide notice dated 30.09.2002 issued under the signatures of Director, School Education, Kashmir, published in Srinagar Times in its issue dated 1.10.2002, the petitioner was required to resume his duties or show cause within a week's time as to why action should not be initiated against him, failing which, he was informed, his services shall be terminated under Article 128 of the J&K CSRs. This, despite the fact that the petitioner, responding to the charge sheet dated 20.06.2002 served on him by the Chief Education Officer, had, on 02.08.2002, informed the authorities that the charge sheet was unwarranted as he had retired on 31.05.2002. Thus, this is a glaring example of tossing the fate of a government employee, not on basis of facts, but on mere dreamed up perceptions. 3. The petitioner had been appointed as a teacher on substantive basis in terms of order no. A-l/2586-90 dated 06.08.1964 issued by the then District Inspector of Schools, Srinagar. On 20.09.1994, while he was posted as teacher at Government High School, Wanghat, the Chief Education Officer, Srinagar, issued order no.CEO/12346-12400, effecting transfer of about 120 teachers in the district. Petitioner, whose name figured at serial no.99 of the said order, was ordered to report to Zonal Education Officer, Gulab Bagh, against an available post. On 20.09.1994, while he was posted as teacher at Government High School, Wanghat, the Chief Education Officer, Srinagar, issued order no.CEO/12346-12400, effecting transfer of about 120 teachers in the district. Petitioner, whose name figured at serial no.99 of the said order, was ordered to report to Zonal Education Officer, Gulab Bagh, against an available post. The order carried the following dicta: "The concerned Drawing and Disbursing officer will verify whether the transferees holds substantive posts before he/she is relieved to report his/her new place of postings (sic). In no case the premature transferees or teacher working other than substantive posts should be relieved at any cost which fact may be verified with the service records properly." The above quoted paragraphs contained in the order clearly, inter alia, demonstrate that the authorities at the helm of affairs did not have the requisite service records or information available with them about the teachers to know or to ascertain whether they were holding the posts on substantive basis or were temporary / leave arrangement teachers. Be that as it may, pursuant to the aforesaid order, petitioner was relieved by the Head Master, Government High School, Wanghat, on 29.11.1994 vide even dated order with direction to report to the Zonal Education Officer, Gulabbagh for further adjustment on the available post. 4. It is averred in the petition that consequent upon the above, he reported for duty before the Zonal Education Officer, Gulabbagh, respondent no. 4 herein, on 29.11.1994 itself. However, it is averred, respondent no.4 did not issue his adjustment orders, for respondent no.4 could not locate the available post. On account of non-adjustment of the petitioner, his salary could not be withdrawn. Faced with this situation, where the petitioner, on the one hand, was not adjusted in any School and, on the other hand, was left without salary, he is stated to have made a representation dated 27.12.1994 to the Chief Education Officer, Srinagar, respondent no.3 herein, which was duly received in his office under receipt no.5752. Faced with this situation, where the petitioner, on the one hand, was not adjusted in any School and, on the other hand, was left without salary, he is stated to have made a representation dated 27.12.1994 to the Chief Education Officer, Srinagar, respondent no.3 herein, which was duly received in his office under receipt no.5752. In the said representation, the petitioner made the following prayer: "It is as such requested that the ZEO Gulabbagh may kindly be directed to adjust me in his Zone on any available post or I may be adjusted somewhere else other than Gulabbagh Zone so that I am not put to financial difficulties by remaining unadjusted during the winter vacations." It is averred in the petition that the aforesaid representation did not evoke any response and the petitioner continued to suffer on account of non-drawal of his salary. Thereafter, the petitioner made a series of representations from time to time, copies whereof have been placed on record of this petition, clamoring for attention of the respondents towards his plight and redressal of his genuine grievances, but to no avail. These representations dated 09.06.1995, 30.07.1996, 05.11.1996, 06.12.1996, 15.03.1997 and 09.01.1998, bearing the Receipt Seals of the respondents' offices, were addressed either to the Chief Education Officer, Srinagar, or the Director, School Education, Kashmir. 5. One such representation appears to have evoked a blink of response, inasmuch as the Chief Education Officer seems to have addressed communication dated 21.08.1996 to the Zonal Education Officer, Gulabbagh, referring the petitioner's application to the latter. In reply, the Zonal Education Officer, vide his communication dated 12.10.1996 addressed to the Chief Education Officer had responded as under: "As has been transpired from the relevant records available in this office, the teacher has never reported this office for his adjustment and as such the question of drawing his salary from 01.11.1994 to date as has been prayed by him now in his application which is returned in original does not arise at all. So far as his posting is concerned, the U/S may like to seek necessary guidance from your end about the action to be taken now after a lapse 2 years, since the administrative powers in respect of all the zonal education officers stand withdrawn by the Government vide its order No.230-edu of 1996 dated 15.02.96." However, no further action was taken at the level of any of these authorities, namely, the Zonal Education Officer, the Chief Education Officer and the Director, School Education, either to look into the allegation of non-reporting for duty by the petitioner, as contained in the aforesaid communication dated 12.10.1996 of the Zonal Education Officer, or to redress his grievances despite he having made repeated representations. 6. Having no other option, the petitioner is stated to have filed a writ petition, SWP no. 1556/2000, wherein he had sought directions to the respondents to identify a post of teacher in the department, to post him against the said post, to release his emoluments with effect from November, 1994 till the formal order of adjustment is issued and to settle the intervening period from 29.11.1994 till the date of issue of the prayed for order. In the aforesaid writ petition, an interim direction was passed by the Court on 16.10.2000 to the effect that, in the meantime, the petitioner shall be posted against the post in terms of his appointment by respondent no.3 within notice period provided his appointment was genuine. The writ petition was, however, finally disposed of on 18.02.2002 with the following direction: "The respondents will identify the post of teacher and issue the formal orders of adjustment of the petitioner within three weeks. The petitioner shall be entitled to pay from the date he reports for duty after his adjustment order is issued. The intervening period from 29.11.1994 too shall be decided by the respondents in accordance with rules and if they intend to hold an enquiry, they are at liberty. The period shall be settled by the respondents expeditiously. 7. Pursuant to the aforesaid Court orders, the Director, School Education, Kashmir, issued order dated 01.04.2002 "allowing the petitioner to join with immediate effect" and posting him as teacher at Boys P/S Daryadin, Gulabbagh. It was provided in the order that the intervening period will be decided separately as per orders of the Court and / or in accordance with rules. Pursuant to the aforesaid Court orders, the Director, School Education, Kashmir, issued order dated 01.04.2002 "allowing the petitioner to join with immediate effect" and posting him as teacher at Boys P/S Daryadin, Gulabbagh. It was provided in the order that the intervening period will be decided separately as per orders of the Court and / or in accordance with rules. Pursuant to the aforesaid order, the petitioner joined in the office of Zonal Education Officer, Gulabbagh on 01.04.2002 itself. This is borne out by the order dated 17.04.2002 issued by the Zonal Education Officer, Gulabbagh, placed on record as annexure `N' to the petition. The petitioner, thereafter, seems to have been posted at Government BPS, Baba Daryadin where he joined on 18.04.2002. 8. After his posting in the aforesaid School, the petitioner made representation dated 24.04.2002 to the Zonal Education Officer, Zone Gulabbagh, requesting him that since the intervening period of his service had yet to be decided, his pay with effect from 01.04.2002 be drawn in his favour at the minimum / basic pay as admissible under rules. This was followed by another representation to the same effect made by the petitioner on 29.04.2002. The petitioner also made a representation dated 30.04.2002 to the Chief Education Officer requesting him to direct the Zonal Education Officer to draw his pay at the minimum basic pay from the date of his joining. Meanwhile, the petitioner attained the age of superannuation on 31.05.2002. However, his salary from the date of his joining before the Zonal Education Officer on 01.04.2002 till the date of his retirement, too, was not withdrawn. After the date of his retirement, the petitioner served legal notices dated 13.05.2002 and 01.08.2002 on the Director, School Education to pay him his salary with effect from 01.04.2002 to 31.05.2002 and to settle the intervening period with effect from 29.11.1994 till ending March, 2002. But to no avail. 9. It was only on 28.10.2002 that the Director, School Education, Kashmir, seems to have realized that the notice, got published by him in the Daily Srinagar Times in its issue dated 01.10.2002, was an unfounded and unwarranted slur, and, consequently, got published another notice in the Srinagar Times in its issue dated 29.10.2002, withdrawing the notice dated 01.10.2002, stating that the petitioner had retired on 31.05.2002 and that the notice had been issued inadvertently. 10. 10. Thereafter, the same Director issued a seven-line order, being Order no.5553-DSEK of 2003 dated 02.12.2003 to the following effect: "The intervening period in favour of Mr. Mehraj-ud-Din Ashaie, Ex. Teacher from 29.11.1994, the date of relieving from Boys High School, Wangath to the date of issue of this office order No.l004-DSEK of 2002 dated 1.4.2002 (the date the teacher was allowed to rejoin his duties in Boys Primary School, Daryadin Gulabbagh is treated as on leave whatever kind due to him." It is the aforesaid order which is under challenge in this petition. 11. The respondents have filed their reply which, on the face of it, is as slender as their administrative capacities axiomatic from the facts narrated above. It is averred therein that the petitioner was transferred from Boys High School, Wangath, Srinagar, on 29.11.1994 and was ordered to report to Zonal Education Officer, Gulabbagh for further adjustment, but he did not join the zone then, but filed SWP no. 1556/2000. The Court disposed of the writ petition on 18.02.2002 with direction to identify a post for the petitioner for his adjustment and also decide the intervening period of the petitioner from 30.11.1994 in accordance with rules. The respondents identified a post and adjusted the teacher under order no.l00l-DSEK of 2002 dated 01.01.2002 and, thereafter, the whereabouts of the petitioner were not known till he retired on superannuation on 31.05.2002. The pay of the petitioner for the working period was drawn but was not paid to him as his whereabouts were not known. Further, that in compliance to the court directions the intervening period was decided vide impugned order whereby the period was directed to be treated as leave whatever kind due to him. It is submitted that in terms of SRO 514 the period of unauthorized absence of the petitioner was to be reckoned dies non, but in view of the fact that the petitioner was due to retire on superannuation, a lenient view was taken. It is also averred that for settlement of pensionary benefits, the petitioner is required to complete certain formalities to enable the department to process his case. Since the petitioner has not come forward to complete the requisite formalities, no action could be taken in the matter. 12. I have heard learned counsel for the parties and considered the matter. It is also averred that for settlement of pensionary benefits, the petitioner is required to complete certain formalities to enable the department to process his case. Since the petitioner has not come forward to complete the requisite formalities, no action could be taken in the matter. 12. I have heard learned counsel for the parties and considered the matter. The learned counsels for the parties restricted their arguments to the submissions made in their respective pleadings. 13. All the relevant facts have already been narrated above with, somewhat, minute details; therefore, it is unnecessary to reiterate them. However, at the cost of repetition, it needs to be mentioned that order dated 20.09.1994 enjoined upon the Zonal Education Officer, Gulabbagh, to adjust the petitioner against an available post in his Zone. But, according to the petitioner, the Zonal Education Officer could not locate the available post on account of which the petitioner was not adjusted against any post. Resultantly, the petitioner's pay could not be drawn on which he made a representation dated 27.12.1994 to the Chief Education Officer requesting him to direct the ZEO, Gulabbagh, to adjust him on an available post, with further request therein, else to adjust him somewhere other than Gulabbagh Zone so that he was not put to financial difficulties by remaining unadjusted during the winter vacation that was ensuing. No action was taken by the respondents on his aforesaid representation. After the winter vacation, he continued unadjusted and, therefore, made representations on similar lines, but the respondents seem to have least bothered to look into the matter. These representations were duly received in the office of the Chief Education Officer. The genuine requests of the petitioner so made seem to have fallen to the deaf ears of the respondents. It is true that the Zonal Education Officer, vide communication dated 12.10.1996 addressed to the Chief Education Officer, almost after two years of the transfer of the petitioner, refuted the petitioner's joining in his office. If that was so, it was legally incumbent upon the respondents to take recourse to the rules having bearing on the matter - issue a notice to the petitioner, initiate some sort of proceedings to find out his whereabouts etc. Nothing of that sort has been done. Instead, the Chief Education Officer as well as the Zonal Education Officer, thereafter, maintained a conspicuous silence. Nothing of that sort has been done. Instead, the Chief Education Officer as well as the Zonal Education Officer, thereafter, maintained a conspicuous silence. As is evident from the dicta contained in the transfer order dated 20.09.1994, quoted above in this judgment, the respondents seem to have had no access to the teaching staff posted in their respective areas of jurisdiction, inasmuch as the Chief Education Officer did not have the information as to who amongst the transferees was holding the post on substantive basis and who amongst them did not fall under that category; therefore, the dicta. In that situation, the report made by the Zonal Education Officer has to be taken with a pinch of salt, especially so because no action was thereafter taken either by the Zonal Education Officer or the Chief Education Officer, at least, to find out the whereabouts of the petitioner, if what the Zonal Education Officer had reported was true. The inaction on the part of the Chief Education Officer suggests that he did not believe in what had been reported to him by the Zonal Education Officer. It is pitiable that the respondents have not responded to the representations of the petitioner even once till he filed the writ petition in the year 2000. Even, thereafter, the respondents have slept over the matter. A keen and conscious look at the contents of these representations made by the petitioner, from time to time, even now gives the feeling of the painful clamour of the petitioner contained therein. The respondents have demonstrated an acute degree of apathy and insensitivity towards the petitioner's plight and have perpetrated a cruelty on him by their lax and ineffective administration, throwing not only the rules of business to winds, but grossly violating the legal and fundamental rights of the petitioner. It is unimaginable that a government servant is left high and dry for almost eight years, without any subsistence and sustenance, that too, without any fault on his behalf and without recourse to the established principles of law. 14. Coming to the impugned order, it is a class in itself in its content, norm and form; just with a stroke of pen, the Director has ordered treatment of the intervening period as on leave due to the petitioner. The order is not based on any enquiry, material or report of any subordinate officer. 14. Coming to the impugned order, it is a class in itself in its content, norm and form; just with a stroke of pen, the Director has ordered treatment of the intervening period as on leave due to the petitioner. The order is not based on any enquiry, material or report of any subordinate officer. It does not disclose any reason and is grossly non-speaking. No opportunity of hearing has been given to the petitioner. No notice has ever been issued to the petitioner before issuing the impugned order. At the top of it, the order has been passed seven months after the petitioner had superannuated. The order gives an impression that it has been passed at the drop of hat only to show some sort of semblance of compliance with the Court orders passed in the petitioner's earlier writ petition, and to shake off the mental burden of the disturbing memories of the blunder committed in the shape of framing and serving of charge sheet against the petitioner for his having been allegedly found absent from duty on a date much after his superannuation; the issue of notices in print media on 09.06.2002 and 30.09.2002 calling upon the petitioner to resume his duties and to show cause why his services be not terminated under Article 128 of the J&K CSRs, when the petitioner had superannuated on 31.05.2002. Apart from reflecting upon the overall conduct and lack of administrative control over the things, this by itself makes the report of the Zonal Education Officer dated 12.10.1996 incredible and demonstrative of the fact that the respondents did not have any records available with them, or, even if there was any such record, they did not wish to know the facts before issuing the reports and notices. Even while withdrawing the notices dated 09.06.2002 and 30.09.2002, the respondents have not withdrawn the charge sheet dated 20.06.2002 framed and served upon the petitioner by the Chief Education Officer for his alleged absence from duty on a date after his retirement. 15. Even while withdrawing the notices dated 09.06.2002 and 30.09.2002, the respondents have not withdrawn the charge sheet dated 20.06.2002 framed and served upon the petitioner by the Chief Education Officer for his alleged absence from duty on a date after his retirement. 15. In any case, the respondents have failed to establish that the petitioner had remained absent from duty or that he had not reported before the Zonal Education Officer, Gulabbagh, on 29.11.1994 after his transfer from High School, Wanghat, This is a case where the respondents have put the petitioner to acute hardship for none of his faults and have left him to live a life of penury. His salary from 29.11.1994 to 31.05.2002 has not been paid to him. He having retired on 31.05.2002, his retrial benefits have not been released in his favour. His pension case has not been prepared and forwarded to the Accountant General. This despite the court orders passed in his earlier writ petition, SWP no.1556/2000 on 16.10.2000 and 18.02.2002. 16. Learned counsel for the respondents at the hearing of this case had no answer, muchless a cogent and plausible explanation, to the inaction on the part of the respondents and the treatment meted out to the petitioner. 17. A Government servant has a right to salary / emoluments unless the same is forfeited by way of punishment or he is found to have voluntarily absented from duty without any cause in a departmental enquiry held in accordance with the Rules governing the field and in tune with the established principles law. Nothing has been brought on record by the respondents that the petitioner was not attending his duties. Even if so, they have failed to conduct any enquiry in accordance with law till the petitioner retired from service. Almost for eight years prior to his superannuation from a date when the petitioner would have been of the age of about 50 years, the petitioner has been left without salary. He was not even placed under suspension at any stage. The petitioner has retired on 31.05.2002, i.e., almost 12 years back the age of 58 years. Now he must be of about the age of 70 years. Cumulatively, for last 20 years, at the fag end of his service and life, he has been made to suffer unabated at the hands of sloppy administrative attitude. The petitioner has retired on 31.05.2002, i.e., almost 12 years back the age of 58 years. Now he must be of about the age of 70 years. Cumulatively, for last 20 years, at the fag end of his service and life, he has been made to suffer unabated at the hands of sloppy administrative attitude. This, therefore, is a fit case, warranting award of interest and costs. 18. For all what has been discussed above, this petition is allowed. Order no.5553-DSEK of 2003 dated 02.12.2003 issued by the Director, School Education, Kashmir, is quashed. The petitioner is held to be entitled to his salary from the date it has not been paid to him after his transfer to the office of Zonal Education Officer, Gulabbagh, where he had reported for duty on 29.11.1994 till the date of his retirement on superannuation on 31.05.2002 together with increments that would become due to him, the increase and arrears of pay on account of Pay Revisions made by the Government during the relevant period together with all consequential service benefits. The petitioner is also held entitled to all the retiral benefits as may be permissible under Rules governing the subject. Respondents in general and respondent no.2, in particular, are, accordingly, directed to release the aforesaid dues (salary, arrears of pay, retiral benefits etc. etc.) to the petitioner within a period of one month from today, failing which the petitioner would also be entitled to, and paid, by the respondents simple interest at the rate of 6% calculable from the date following the expiry of one month, on the such sums of the petitioner remaining outstanding against the Education Department. The respondents are further directed to process and complete his pension papers within next 15 days from the date of expiry of one month from today, and forward the same to respondent no.5 who shall deal with the same under Rules with the required speed. 19. In the facts and circumstances of the case, the petitioner is also held entitled to costs of Rs.20,000.00 to be paid to him by respondent no.2 alongwith his aforesaid dues. 20. This also disposes of the connected CMR.