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Jharkhand High Court · body

2017 DIGILAW 32 (JHR)

Kumari Archana v. State of Jharkhand, through the Secretary Human Resources Department, Government of Jharkhand, Ranchi

2017-01-05

ANANDA SEN

body2017
ORDER : The petitioner in this writ application is praying to quash the letter No. 1118dated 27.07.2016 issued by the District Superintendent of Education-cum-District Program Officer, Giridih, whereby the petitioner has been directed to refund the excess amount of salary paid to the petitioner in the account of the Kasturba Gandhi Balika Vidyalaya (hereinafter referred to K.G.B.V.), Deori, Giridih on the ground that she has not completed 3 years of service, therefore, is not entitled to 50% enhancement in the salary. Further the petitioner prays to quash the memo no. 1126 dated 28.07.2016, by which the petitioner has been transferred from K.G.B.V. , Deori to K.G.B.V., Pirtand on the ground that as per the terms of the contract she has to perform her duty in the place assigned in the contract itself. She further prays to quash Memo no. 1263,Giridih dated 13.08.2016, whereby the teachers, who were already working from before in K.G.B.V., Gawan and Tistri, have been transferred to K.G.B.V., Deori. 2. The petitioner was appointed on contract as a General Science Teacher on 12.06.2006. The contract of the petitioner was terminated vide letter no. 1121 dated 01.10.2008. She applied for reconsideration of her case, which was placed before District Committee. Her case was considered sympathetically and it was decided to appoint the petitioner on fresh contract and subsequently appointed in K.G.B.V., Deori. As per the said decision a fresh contract of employment was entered into, which the petitioner accepted and thereafter she joined pursuant to the new contract of employment. One of the clause of the said contract was that the petitioner will have no claim on the past appointment and she will not get any monetary benefit in lieu of the earlier appointment. 3. The State of Jharkhand issued a letter dated 07.09.2012, by which the salary of the contractual employees of the Jharkhand Education Project was enhanced and 50% enhancement of salary was approved by the Government and the same was implemented. The enhancement of 50% in contractual salary was with effect from 01.04.2012. The petitioner, pursuant to the said letter dated 07.09.2012 was allowed 50% enhancement. On 27.07.2016 a letter was issued to recover the 50% enhanced amount, which was granted to the petitioner on the ground that she was not entitled for the same and a direction was given to the petitioner to refund the said amount. 4. The petitioner, pursuant to the said letter dated 07.09.2012 was allowed 50% enhancement. On 27.07.2016 a letter was issued to recover the 50% enhanced amount, which was granted to the petitioner on the ground that she was not entitled for the same and a direction was given to the petitioner to refund the said amount. 4. Counsel for the petitioner while challenging the said letter submits that as per the letter dated 07.09.2012, the petitioner was entitled to get the enhancement and the same was granted to her, He submits that the impugned order is absolutely bad and failed to take into consideration that the petitioner had earlier worked in K.G.B.V. Deori and the said letter dated 07.09.2012 is applicable to the petitioner and she is entitled to get the benefit of 50% enhanced salary. The petitioner has referred to a decision of Hon'ble the Supreme Court in the case of Sushil Kumar Yadunath Jha Vs. Union of India and another reported in AIR 1986 Supreme Court 1636. 5. Now to decide the issue raised in this application, it is necessary to deal with the clauses of letter no. 07.09.2012, which enhances the contractual salary of the employees. 6. From perusal of Clause-1 of the said letter it is clear that 50% enhancement in salary would be granted to those teachers who have completed contractual period of 3 years as on 01.04.2012. Further Clause-2 of the said letter suggests that while working on contract in a particular post, if a candidate joins another post the earlier period of contract will be counted for the purpose of enhancement. 7. From the aforementioned position it is clear that a person must have worked for 3 years as on 01.04.2012 and while working on contract, if he joins a new post under fresh contract, the earlier period will be counted. This means that there should be a seamless transaction from one contract to another and there should not be any break in the contract period. 8. In the instant case, the petitioner's earlier contract was terminated on 01.10.2008 and fresh contract was entered vide Memo No. 17 dated 03.01.2011. Thus, on the effective date i.e. on 01.04.2012 the petitioner did not complete 3 years of continuous service as her new contract was with effect from 03.01.2011. 8. In the instant case, the petitioner's earlier contract was terminated on 01.10.2008 and fresh contract was entered vide Memo No. 17 dated 03.01.2011. Thus, on the effective date i.e. on 01.04.2012 the petitioner did not complete 3 years of continuous service as her new contract was with effect from 03.01.2011. There was a clause in the new contract that no benefit of earlier contract would be given to the petitioner. The second contract is a fresh one and cannot be said to be a continuation of the earlier one. There is a gap of nearly 2½ years between the two contracts and the petitioner, knowing this fact, and fully understanding the clauses of the second contract has accepted the same and has given her joining. Thus petitioner was not entitled to get 50% enhancement of her salary with effect from 2011 as she had not completed three years of service on that date. Her earlier contract cannot be taken into consideration as a clause of the second contract has categorically barred her from getting any benefit of the earlier employment. With open eyes when the petitioner accepted the second contract, with all its clauses, the petitioner now cannot be allowed to raise any grievance. Thus, there is no ground to interfere with the impugned orders. The factual aspect of this case is quite different with the case of Sushil Kumar Yadunath Jha (supra) cited by the learned counsel for the petitioner. In the instant case the petitioner was on contractual appointment and there were two distinct contracts. It is not a case that the petitioner is a permanent employee and was terminated and thereafter reinstated which was the fact of the case decided by the Hon'ble Supreme Court. 9. Further the petitioner claims that she could not have been transferred. There is nothing on record to suggest that the petitioner cannot be transferred. The contract only says that the petitioner has to perform her duties to the full satisfaction of the authorities concerned in the place mentioned in the contract. There is no express clause in the contract which bars transfer of the petitioner. It is the prerogative of the employer to transfer its employees. The employer of the petitioner had jurisdiction to transfer the petitioner to any place. There is no express clause in the contract which bars transfer of the petitioner. It is the prerogative of the employer to transfer its employees. The employer of the petitioner had jurisdiction to transfer the petitioner to any place. The transfer of the petitioner from K.G.B.V. Deori to K.G.B.V. Pirtand neither diminishes the rank of the petitioner nor her status or salary. The petitioner has also failed to show that this transfer is malafide or without jurisdiction. Thus, there is no ground to interfere with the transfer order of the petitioner also. 10. In view of what has been discussed above, I find no merit in this writ application, the same is dismissed.