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Court No.22
Writ Petition No.216 (SS) of 2004
Bache Singh ... Petitioner
Versus
State of U.P. and others ... Opp. Parties
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Hon'ble S.S. Chauhan, J.
The present petition has been filed with the prayer that the arrears of salary
from March, 1994 to October, 2000 and the remaining arrears of salary for the
period 3.1.2000 to 31.5.2001 may be paid to the petitioner and further with a prayer
for quashing of the order dated 24.3.2004.
The dispute initially arose when the petitioner was transferred by means of
order dated 3.3.1994 from Lucknow to Varanasi. Since the petitioner could not join
forthwith as directed, he was placed under suspension vide order dated 5.3.1994.
The matter of the petitioner’s suspension was referred to the Deputy Director, Uttar
Pradesh Police Computer Centre by the Superintendent of Police, Special
Investigating Cell (Cooperative). The petitioner thereafter approached the State
Government and the transfer of the petitioner was modified by the State
Government in June, 1996 to be posted at Lucknow. The petitioner thereafter tried
his level best to join at Lucknow, but he was not permitted by the authority
concerned and so he proceeded to file Writ Petition No.973 (SS) of 2000, which was
disposed of finally on 29.2.2000 with the direction that the State Government shall
see that its order is complied with. After the aforesaid order the petitioner was
permitted to join on 29.9.2000. The opposite parties took a decision in regard to the
payment of salary of the petitioner in the meantime and it was decided by means of
order dated 24.3.2004 that the petitioner will not be entitled for salary except the
suspension allowance during the period 5.3.1994 to 8.6.1995. It was held by the
State Police Transport Officer, Sitapur that said salary for the aforesaid period would
not be payable to the petitioner as he has not worked during that period.
Counsel for the petitioner submits that the petitioner all along tried his level
best to join on the post in question after the State Government took a decision to
modify his transfer order and continue him to work at Lucknow, but he was
deliberately prevented by the authorities from joining at Lucknow and as such he
could not join on the post in question. It is further submitted that when the petitioner
was deliberately obstructed by the opposite parties and was not allowed to work on
the post in question, then the petitioner cannot be blamed for the same and the
petitioner is entitled for payment of salary during the aforesaid period. In regard to
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the aforesaid order, the petitioner’s counsel states that the suspension order was held
to be invalid by an officer of equivalent rank and it shall be presumed that there was
no suspension order existing against the petitioner.
Learned Standing Counsel by filing counter affidavit states that the petitioner
did not join after 9.6.1996. The petitioner was directed to report at Varanasi by
means of order dated 16.10.1996 and the said decision was taken pursuance to the
order of the Police Head Quarter dated 10.10.1996, but the petitioner did not turn up
to join on the post in question although offer was given to him, therefore, he is not
entitled for any salary and the authorities have committed no illegality in not making
payment of salary to the petitioner.
I have heard learned counsel for the parties and perused the record.
There is no dispute in regard to the fact that the petitioner was transferred
vide order dated 3.3.1994 and he was asked to join forthwith by means of the said
transfer order. Since the petitioner failed to join in pursuance to the transfer order he
was placed under suspension on 5.3.1994. The petitioner after being placed under
suspension did not join anywhere, but preferred to approach the State Government
challenging his transfer order and the State Government in June, 1996 cancelled the
transfer order of the petitioner and directed that the petitioner should be continued at
Lucknow. After cancellation of the transfer order the petitioner was not permitted to
join at Lucknow although he has tried his level best, so much so he was compelled
to file Writ Petition No.973 (SS) of 2000, which was disposed of finally on
29.2.2000 with the direction that the State Government shall see that its order is
complied with. After much efforts the petitioner was permitted to join on 29.9.2000.
It was the opposite parties who were responsible in not allowing the petitioner to
join on the post in question although he was ready at all point of time to join on the
post in question. The stand taken in the counter affidavit does not appear to be
correct on account of the fact that the petitioner was directed to join at the transfered
place forthwith, but once the transfer order was cancelled by the State Government
in June, 1996 there was no occasion for the petitioner to join at Varanasi. The order
dated 24.3.2004 has been passed on the assumption that the petitioner has not
worked and, therefore, he is not entitled for salary. Be that as it may, but the fact
remains that the petitioner has not worked on account of the own inaction of
opposite parties and the said intervening facts and the circumstances were created
by the opposite parties themselves rather than the petitioner is to be blamed for the
same. The petitioner being a watchful and disciplined person has tried his level best
to join on the post in question, but he was prevented from doing so and, therefore, in
the opinion of the Court the authorities are responsible to a large extent in not
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complying the order of the State Government of June, 1996 and the order of this
Court dated 29.2.2000.
The claim of the petitioner in regard to payment of salary during the
suspension order does not appear to be correct as the order of the suspension as
argued by the counsel for the petitioner cannot be said to be an order without
jurisdiction. The petitioner had not joined in pursuance to the transfer order and till
the petitioner had not joined, he remained under the jurisdiction of the authority
concerned. The equivalent rank authority was not authorised and was having no
jurisdiction to hold that the transfer order was without jurisdiction. So far the claim
of the petitioner in regard to payment of salary from 10.6.1995 to 2.10.2000 is
concerned, the petitioner, prima facie, appears to have been prevented from working
and as such the responsibility lies upon the opposite parties in not allowing him to
work on the post in question. In the aforesaid circumstances, the petitioner would be
entitled to 75% back wages in regard to the aforesaid period i.e. from 10.6.1995 to
2.10.2000 and the order dated 24.3.2004 is quashed. The claim of the petitioner in
regard to other period fails.
The writ petition is allowed to the above extent in part.
10.8.2010
Rao/-