ORDER
A.D. Mane, J.
1. The important question involved in this writ petition is whether the waiting period of posting of the Zilla Parishad employee/Assistant Teacher on his return from sanctioned leave is to be treated as duty period or not?
2. In order to appreciate the question it is relevant to state facts which are not disputed by the parties. The petitioner is working as Assistant Teacher in the High School run by the Zilla Parishad at Beed. At present he is working at Dighol-Amba. He proceeded on medical leave on 1-7-1989 till 3-10-1989. When he was on leave he was transferred from Ambe Jogai to Dharmapuri, by order dated 6-7-1989. It was clearly stated in the transfer order that “on expiry of the leave period he should join at his transferred place”. On expiry of period of medical leave, the petitioner went to Dharmapuri to join his duty on 4-10-1989 with a fitness certificate. The Headmaster of the School, however, did not allow the petitioner to join the duty. The Headmaster addressed a tetter to Education Officer, Zilla Parishad, Beed on 4-10-1989 seeking clarification as to whether the petitioner should be allowed to join at Dharmapuri or not? The petitioner was told that unless and untill he brings the letter from Education Officer, Zilla Parishad, Beed it was not be possible to allow the petitioner to resume duty at Dharmapuri.
3. It appears that the Headmaster gave the letter to the petitioner who handed over it to the Education Officer, Zilla Parishad, Beed on the same day. The petitioner, however, waited for the reply. According to the petitioner on 19-10-1989 the Education Officer, Zilla Parishad, Beed issued a posting order at Dharmapuri to Shri A.L. Joshi, who is respondent No. 2 herein, against the vaccant post, ignoring the claim of the petitioner, and instead of giving the posting order to the petitioner. Thereafter, petitioner submitted many representations to the Education Officer, Zilla Parishad, Beed and Chief Executive Officer, Zilla Parishad, Beed seeking his posting, but according to the petitioner, his case was not considered untill he was required to take resort at hunger strike.
Petitioner states that the Education Officer under the directions of Chief Executive Officer, Zilla Parishad then gave sanction to the petitioner’s waiting period for posting. Leave was, however, treated as leave not due (leave without pay) by order dated 15-3-1991. The petitioner submits that he had never applied for leave for the period from 4-10-1989 to 5-2-1990. But, only to avoid the payment of the salary to the petitioner, the respondents have sanctioned the leave not due making it without pay.
4. The petitioner asserts that he is entitled to wages for the period from 4-10-1989 to 5-2-1990 which is a waiting period of posting order from respondent No. 1 and 2. The petitioner further states that he has not attended duty at Dharmapuri for want of order from respondent No. 1 during the said period. The respondent No. 1 and 2 therefore have acted arbitrarily.
5. The respondent No. 1 and 2 filed affidavit-in-reply. In reply, it is submitted that after passing the transfer order dated 1-7-1989 the petitioner, intentionally, in order to avoid to join at the transfer place viz. Dharmapuri Zilla Parishad, High School has not reported to the duty and thus did not obey the order of the superior officer. Without reporting the duty at Zilla Parishad High School, Dharmapuri he, however, proceeded on leave on 1-7-1989 upto 3-10-1989 without taking prior permission of the concerned authority. The respondent No. 2 further submits that on 4-10-1989 the petitioner reported duty at Zilla Parishad High School at Dharmapuri alongwith fitness certificate but as he has not reported duty within joining period of 7 days, the Headmaster of the High School at Dharmapuri did not allow the petitioner to resume duty but sought the guidance from the Higher Authority. It is, further submitted that even leave period of 3-7-1989 to 3-10-1989 was sanctioned by order dated 10-1-1990 as medical leave therefore, it cannot be said that the action of respondent was not fair. It is also stated that since 4-10-1989 to 5-2-1990 the petitioner had not reported duty at the office of the respondent No. 1 and was not present in the office at the above period, but only he has submitted representations through post therefore, no posting order could be given to him till 5-2-1990. It is submitted that the petitioner issued a notice of hunger-strike on 12-3-1991 and in response to the notice, the respondent authorities informed the petitioner that the period of leave 4-10-1989 to 5-2-1990 is already decided by an order dated 15-3-1991 therefore, the notice of hunger-strike was illegal and petitioner will be responsible for that. In this context it is avered that during the relevant period a complaint was received to the effect that the petitioner was conducting private coaching classes, for which enquiry was held.
6. Lastly, it is submitted that the petitioner has not availed the remedy of appeal as per the Rule 14 of the Maharashtra Zilla Parishad District Service (Discipline & Appeal) Rules, 1964, as a Statutory Appeal and directly approached this Court under Article 226 of the Constitution of India. On this ground also the petitioner is devoid of merit and liable to be dismissed with costs.
7. The petitioner has also filed an affidavit-in-rejoinder and denied all the contentions raised in affidavit-in-reply filed by the respondent No. 1 and 2 including the
allegation of his conducting private coaching classes. It is stated by the petitioner that such sort of allegation is made for the first time in the affidavit-in-reply and as a matter of fact there has been no such enquiry conducted by the respondent and no show cause notice was issued to the petitioner. It is also denied that the petitioner did not report to duty on expiry of the leave period. It is submitted that it cannot be said that the petitioner was absent without reporting to duty on expiry of leave period of 4-10-1989 to 5-2-1990.
8. The learned Counsel appearing for the petitioner invited our attention to Rule 9 sub-rule (14) of the Maharashtra Civil Service (General Condition of Service) Rules 1981 for the purpose of meaning of words “duty”. The definition of “duty” as defined in sub-rule (14) of Rule 9 so far as it is relevant in the present case is as under.
“Sub-rule (14) Duty – Duty includes (f) the period of which a Government Servant is required to wait compulsorily until receipt of his posting orders in the cases mentioned below;
“(f) (ii) Who, on return from leave or deputation or on abolition of the post held
by him, has to await receipt of posting orders”
The learned Counsel for the petitioner submits that Rule 9 of the Maharashtra Civil Services (General Conditions of Service) Rules, 1981 are applicable to the employees of the Zilla Parishad. The fact that services of Zilla Parishad employees are governed by Maharashtra Civil Services Rules is not in dispute, therefore, it is clear from the sub-rule (14) of Rule 9 that the period for which a Government Servant is required to await compulsorily until receipt of his posting order in case he returns from leave constitutes a duty period. That necessarily means that waiting period of posting of Zilla Parishad employee/Asstt. Teacher on his return from sanctioned leave must be held to be a duty period.
9. Now we may turn to the incidental question as to whether the petitioner is disentitled to the benefit of duty period for the reason stated in affidavit-in-reply by the respondents. The petitioner has proceeded on leave prior to the date of order of the transfer. Moreover, the medical leave of the petitioner was also sanctioned in due course. The petitioner was not served with any show cause notice on the complaint received by the respondent that while he was at Ambajogai he was conducting private coaching classes. Therefore, it is not possible to accept either of the grounds urged by the respondents that after leave period was over the petitioner was at fault in not resuming the duty at Dharmapuri. On the other hand it is apparent that the headmaster of Zilla Parishad High School did not permit the petitioner to resume the duty for no reason disclosed in the affidavit. Significantly, no counter-affidavit of the concerned Headmaster is filed. Quite apart, the posting of Mr. A.L. Joshi in place of petitioner suggests that the respondent did not intend to allow the petitioner to resume duty. No intimation was received by the petitioner from the respondent either to report to head office or to any school until the posting order was served on him on 5-2-1990. There is nothing on record to show that the petitioner was to return to office of respondent when there was no posting. These circumstances suggest that the petitioner was required to wait for the receipt of posting orders on his return from duty since 4-10-1989 to 5-2-1990 for no fault of his. There is absolutely no material to accept that an enquiry was conducted on the basis of a complaint against the petitioner of his conducting private coaching classes as avered in reply by way of an explanation, as an after thought to cover the one’s own wrong.
10. In the circumstances, there is no escape but to hold that the period of which the petitioner was required to wait compulsorily until receipt of his posting order falls within the definition of ‘duty’ under sub-rule (14) of Rule 9 as hereinabove mentioned.
That being the position from the above facts, we have no hesitation to uphold the claim of the petitioner that he is entitled to full wages for the period for which he was required to wait for receipt of posting order i.e. from 4-10-1989 to 5-2-1990.
In view of the above position, we allow the petition.
The Rule is made absolute in terms of prayer Clause (B) and (C).
The impugned order dated 15-3-1991 is hereby quashed and set aside and respondents are directed to pay full wages to the petitioner for the period from 4-10-1989 to 5-2-1990 with all other consequential benefits.
There shall be no order as to costs.
11. Petition allowed.