IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 646 of 2005
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Mrs. Kalyani Choudhary ... ... Petitioner
-V e r s u s-
State of Jharkhand & Others ... Respondents.
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioner : - Mr. Saurav Arun, Advocate.
For the State : -Mr. Rajesh Kumar, J.C. to S.C. (Mines).
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C.A.V. On: - 17/10/2008 Delivered On: - 20/10 /2008
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4/ 20 .10 .2008 Petitioner in this writ application has prayed for quashing the
letter dated 15.01.2005 (Annexure-16), by which the salary of the petitioner for the
period 10.07.2000 to 17.01.2002 has been denied to her.
2. The decision taken by the Respondents-authorities vide the
impugned letter has been challenged on the ground that it is illegal, arbitrary and
devoid of any justifiable grounds.
3. Petitioner's case in brief is that she was initially appointed on the
post of Assistant Teacher in a middle School on 30.03.1987. During the course of
her service, she was transferred to several schools on many occasions. The last
transfer was made by order dated 10.07.2000 to Primary School, Kashidih Block,
Chauparan. On her being relieved from the School, where she was posted on
10.07.2000
, the petitioner submitted her joining at the Primary School, Kashidih
Block, Chauparan on 15.07.2000 by submitting her joining letter (Annexure-1).
However, the Headmaster of the School did not accept her joining on the ground
that no post was vacant for the petitioner at the said School. The petitioner filed
her representation before the District Superintendent of Education, Hazaribagh
(Respondent No. 3) on 17.07.2000 informing that she had submitted her joining on
15.07.2000 but the same was not accepted by the Headmaster of the School. The
Headmaster of the School had also informed, by his letter dated 17.07.2000
(Annexure-3), the District Superintendent of Education that though the petitioner
had submitted her letter of joining in terms of her transfer orders but the same
could not be accepted on account of the fact that there was no vacant post in the
School for the petitioner.
Thereafter, the petitioner, by her letters dated 21.07.2000 and
26.07.2000 (Annexures-4 and 4/1) addressed to the District Superintendent of
Education (Respondent no. 3), requested for her posting at any suitable place and
expecting her posting, the petitioner remained at the Headquarter at Hazaribagh.
After keeping her waiting for one and half years till 16.01.2002, the Respondents-
authorities had offered her posting in the School at Pasai, Kutkamsandi Block,
where she joined on 17.01.2002.
Again by another order of transfer dated 09.10.2002
(Annexure-6), she was transferred to the Boys’ School, P.S. Kumhartoli, Municipal
block, Katkamsandi Block.
The further case of the petitioner is that another teacher,
namely, Sushila Gupta, alongwith the petitioner was also kept waiting at the
Headquarters for her posting and after a considerable period, she too was given
the posting at another School.
The petitioner’s grievance is that on the one hand the
Respondents-authorities paid the arrears of salary to the other teacher, namely,
Sushila Gupta for the period during which she remained at the Headquarter
without proper posting, but the petitioner’s claim for her salary, has been denied
to her on the ground that she was “absent from duty” and therefore, she was not
entitled to any salary on the principle of “No Work No Pay”.
4. The petitioner, thereafter filed a writ petition vide W.P. (S) No. 3311
of 2004. While disposing of the aforesaid writ application by order dated
15.07.2004, this Court had directed the petitioner to file a fresh representation
before the District Superintendent of Education, Hazaribagh with a corresponding
direction to the D.S.E. to consider the petitioner’s representation and pass
appropriate orders in accordance with law within a period of six weeks from the
date of receipt of the representation.
The petitioner filed her representation before the District
Superintendent of Education in accordance with the orders passed by this Court.
It is further stated that after consideration of the
representation submitted by petitioner, the District Superintendent of Education,
Hazaribagh vide his letters (Annexures-12 and 14) addressed to the Director of
Education, has prayed for allotment of funds in order to meet the budget expenses
including the arrears of salary payable to the petitioner.
5. Counter affidavit has been filed on behalf of the Respondents. While
denying and disputing the claim of the petitioner, the stand taken by the
Respondent is that while the petitioner was posted in Yadunath Girls Middle
School, Hazaribagh, she was transferred to the Primary School, Kasiadih under
Circle, Chauparan vide order dated 30.06.2000 but she did not submit joining at
the aforesaid School, where she was transferred and instead, submitted her joining
in the office of the District Superintendent of Education, where there was no post
of teachers. It was later, when she was transferred and posted at her place of
posting from the Primary School, Kasiadih, Chauparan Block to the Middle School,
Pasai under Katkamsandi Block vide order dated 17.01.2002, the petitioner had
submitted her joining. Later, on her own representation, the petitioner was
transferred from the Middle School, Pasai, Katkamsandi Block to the Boys’ School,
Kumhar toli on 09.10.2002. It is stated that from 10.07.2000 to 17.01.2002, the
petitioner did not perform her duties and therefore, she was not found entitled to
any salary for the aforesaid period.
6. From the counter affidavit of the Respondents, it appears that though
a stand has been taken by them that the petitioner did not report for duty and she
was found absent from 10.07.2000 to 17.01.2002, but the stand taken by the
petitioner that she had submitted her letter of joining at the School to the
Headmaster of the School, where she was transferred to, on 15.07.2000 and that her
joining was not accepted by the Headmaster of the School and that even the
Headmaster of the School had informed by his letter (Annexure-3) that in absence
of any post vacant in the School, he could not accept the petitioner’s joining, have
not been denied and controverted by the Respondents. Furthermore, the
petitioner’s assertion that another teacher namely, Sushila Gupta who together
with the petitioner was also kept waiting at the Headquarters for her posting at an
appropriate place, was paid the arrears of her salary for the period during which
she was kept waiting, has also not been denied by the Respondents. Likewise, the
petitioner’s assertion that by Annexure-12 and Annexure-14, the District
Superintendent of Education had himself written to the Director of Education for
allotment of funds, to enable the payment of arrears of salary to the petitioner for
the period 10.07.2000 to 17.01.2002 has also not been denied, disputed or explained
by the Respondents.
It is apparent from the above facts stated by the petitioner,
which in absence of any denial by the Respondents, invariably suggests that the
petitioner’s joining at the School, where she was transferred to, was not accepted
on the ground of absence of any vacancy and she was kept waiting at the
Headquarters for her posting in spite of the several representations and requests
made by her as indicated by the several Annexures to the writ application. It
cannot, therefore, be said that the petitioner had intentionally absented herself
from duty, since no duty was offered to her during the relevant period. It further
appears that while similarly placed another teacher, namely, Sushila Gupta, was
paid the arrears of her salary for the period she was kept waiting for her posting,
the petitioner has arbitrarily been denied her claim for payment of arrears of
salary. From Annexure 12 and Annexure-14, it transpires that even the District
Superintendent of Education (Respondent No. 3), at the relevant time, had
acknowledged the claim of the petitioner for payment of arrears of her salary and
had even requested the Director of Education for allotment of funds for making
the payments, but surprisingly, he has made volte-face denying the petitioner’s
claim. In the facts and circumstances of the case, the principle of “No Work No
Pay” cannot be applied to deny the rightful claim of the petitioner.
7. In the light of the above discussions, I find merit in this application
and, accordingly, this writ application is allowed. The impugned order (Annexure-
16) is hereby quashed. The Respondent no. 3 is directed to pay to the petitioner the
arrears of salary for the period 10.07.2000 to 17.01.2002 along with interest @ 6 per
cent per annum on the total payable amount, within a period of three months from
the date of this order.
Let a copy of this order be given to the learned counsel for the
Respondents.
(D.G.R. Patnaik, J.)
APK