Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17785 of 2011 ====================================================== Meena Gupta, W/O Dr. Madan Prasad, Resident of Ram Krishna Nagar, Police Station Ram Krishna Nagar, District Patna. .... .... Petitioner. Versus 1. The State Of Bihar through the Chief Secretary, Bihar, Patna. 2. The Principal Secretary, Secondary Education, Bihar, Patna. 3. The Director Secondary Education, Bihar, Patna. 4. The Internal Financial Advisor-Cum-Director, Primary Education, Bihar, Patna. 5. The Regional Deputy Director of Education, Patna Division, Patna. 6. The District Education Officer, Patna, Bihar. 7. The Principal Secretary, Finance Department, Bihar, Patna. 8. Smt. Lalti Devi, W/O not known to this Petitioner Headmistress, Narayani Girls High School, Patnacity, District Patna. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Nandlal Kumar Singh For the Respondent/s : Mr. Subhash Pd. Singh, GA-7 ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 4 04-04-2013 Heard learned counsel for the petitioner and the State. The petitioner was an Assistant Teacher in Narayani Girls High School, Patna City. In the year, 2003, a general communiqué was issued by which mass transfers of Assistant Teachers of High Schools were made. The said order came to be stayed by this Court. It appears that a separate transfer order was issued on 10.09.2004 transferring the petitioner to Vyapar Mandal Girls High School, Fatuha, Patna. The petitioner moved this Court in C.W.J.C. No.11585 of 2004 against the transfer order, which was permitted to be withdrawn with a liberty to move the 2
Legal Reasoning
Patna High Court CWJC No.17785 of 2011 (4) dt.04-04-2013 2 / 7 Government. The petitioner filed a detailed application / representation before the Hon’ble Minister of Education vide representation dated 26.10.2004. The Hon’ble Minister made an endorsement on the representation to take appropriate steps for cancelling the transfer order vide his note dated 02.11.2004. The petitioner submits that her transfer order was cancelled by the Director, Secondary Education, Bihar only on 04.05.2006. Copy of order dated 04.05.2006 passed by the Director, Secondary Education, Bihar, Patna cancelling her transfer from Narayani Girls High School, Patna City to Vyapar Mandal Girls High School, Fatuha is contained in Annexure-5. It appears that thereafter petitioner moved this Court in C.W.J.C. No.11176 of 2007 for payment of various reliefs including payment of arrears of salary from September 2004 to 02.11.2006. The learned Single Judge disposed of the writ application on 27.03.2009 directing the respondents to make an enquiry as to under what circumstances the salary of the petitioner was not paid. The relevant extract of the order of the learned Single Judge is quoted herein below for easy reference: “In so far as the issue of claim for salary from September, 2004 to 1.11.2006 is concerned, the law is well settled that salary can be stopped for reasons justifiable in law. If it is a case of unauthorized 3 Patna High Court CWJC No.17785 of 2011 (4) dt.04-04-2013 3 / 7 absence or absence without sanctioned leave, there has to be a determination first in accordance with law of the issue of fact only whereafter can any punishment be passed in accordance with law. On facts, it transpires that the petitioner was transferred to Vayapar Mandal Girls High School, Fatuha, on 10.9.2004. Her joining was declined by the Headmistress. The petitioner approached the Minister for Education, who cancelled the transfer order on 4.5.2006. This came to be assailed allegedly at the behest of the Headmistress of the school, in question, by another before this Court in C.W.J.C. No.6699 of 2006 which was dismissed. L.P.A. No.739 of 2006 against the same came to be dismissed. The counter affidavit of the respondents states that the petitioner was granted leave by the In- charge Head Master and not by the Head Master and, therefore, it was not a leave sanctioned in accordance with law. This Court shall have its reservation on the same but declines to arrive at any finding in view of the nature of the order to be passed.” The petitioner filed L.P.A. against the order of the learned Single Judge bearing L.P.A. no. 707 of 2009, which was disposed of vide order dated 08.09.2009 with a direction to the Principal Secretary, Secondary Education, Bihar, Patna to take appropriate decision in respect of payment of salary within three months. 4 Patna High Court CWJC No.17785 of 2011 (4) dt.04-04-2013 4 / 7 The petitioner is now aggrieved by order dated 22.07.2010 passed by Principal Secretary, Human Resources Department, which is contained in Annexure-1/A. The petitioner submits that the Principal Secretary, Human Resources Department erred in not allowing the salary for the period September 2004 to 01.11.2006. The petitioner has additionally prayed in this writ application for making payment of salary for the period 03.01.2011 to 14.01.2011, the period during which the school was closed as per the Government order contained in Annexure-11. Counsel for the State submits that the petitioner was not paid salary for the said period, as he did not perform any work during those period. In nut shell, it appears that the petitioner has prayed for payment of salary for the period September, 2004 to 01.11.2006 and 03.01.2011 to 14.01.2011. So far as payment of salary from 03.01.2011 to 14.01.2011 is concerned, I find substance in the submission of the petitioner. It appears that the school was closed on account of inclement weather by the order of the Government and it was not the petitioner and other teachers, deliberated absented from duty. The teachers should not suffer on account of decision of the 5 Patna High Court CWJC No.17785 of 2011 (4) dt.04-04-2013 5 / 7 Government which too was taken in the interest of the students. Thus, I find that the petitioner is entitled for payment of the salary for the period 03.01.2011 to 14.01.2011 and is directed accordingly. The other issue is for payment of salary for September, 2003 to 01.11.2006. The petitioner was transferred to Vyapar Mandal Girls High School, Fatuha, Patna on 10.09.2004. It appears from the order of the learned Single Judge that her joining was declined by the Headmistress. The petitioner approached the Hon’ble Minister of Education, who directed for taking steps for cancelling the transfer order vide his note dated 02.11.2004 and the transfer order was finally cancelled by the Director, Secondary Education on 04.05.2006. The order cancelling the transfer of the petitioner from Narayani Girls High School, Patna City to Vyapar Mandal Girls High School, Fatuha, Patna dated 04.05.2006 is contained in Annexure-5. The petitioner tried to give her joining on 05.05.2006, which was not accepted. The petitioner approached the District Education Officer, Patna, who directed the Headmistress to accept the joining vide his order dated 06.05.2006 (Annexure-10). It appears that thereafter only the joining of the petitioner was accepted that too on 02.11.2006. I thus find that there is no dispute that the earlier 6 Patna High Court CWJC No.17785 of 2011 (4) dt.04-04-2013 6 / 7 order dated 10.09.2004 transferring the petitioner to Vyapar Mandal Girls High School, Fatuha, Patna from Narayani Girls High School, Patna City was cancelled by Director, Secondary Education on 04.05.2006. The petitioner gave her joining on 05.05.2006 but the same was not accepted. In my view, the Headmistress was not correct in not accepting the joining of the petitioner. Finally the joining of the petitioner was accepted on the further direction of the District Education Officer, Patna and that too on 01.11.2006. The petitioner was thus illegally prevented from performing her duty. The petitioner would be entitled to salary for the period 05.05.2006 to 01.11.2006. So far as non-payment of salary for the period September, 2004 to 05.05.2006 is concerned, it appears that the petitioner did not perform work in either of the two schools. The petitioner submits that she cannot be denied salary even for these period as she tried to give her joining at the transferred place, which was not accepted by the headmistress, which fact is also noted in order dated 27.03.2009 (Annexure-7). It is the case of the petitioner that after the transfer order dated 10.09.2004, her joining was declined by the headmistress of Vyapar Mandal Girls High School, Fatuha, Patna. It would be open for the petitioner to 7 Patna High Court CWJC No.17785 of 2011 (4) dt.04-04-2013 7 / 7 bring the aforesaid facts to the notice of the concerned authority. In this view of the matter, so far as non-payment of salary for the period September, 2004 to 04.05.2006 is concerned, the petitioner may approach the Director, Secondary Education, Bihar, Patna as she could not be blamed for not performing the work at the transferred place, if the joining itself is not accepted by the Headmistress. In case a representation to the aforesaid effect is filed before the Director, Secondary Education, Bihar, Patna, he would dispose of the same within a period of three months from the date of receipt of a copy of this order without being influenced by the impugned order dated 22.07.2010 (Annexure-1/A) passed by the Principal Secretary, Human Resources Department. The authority would make payment for the period 05.05.2006 to 01.11.2006 and from 01.01.2011 to 14.01.2011 forthwith. With the aforesaid direction, this application is