Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7074 of 2012 ====================================================== Ganpat Singh S/O Late Ambika Singh Resident Of Village - Jalpura, P.S.- Haspura, District - Aurangabad At Present Posted As Junior Engineer, O/O Executive Engineer, Local Area Engineering Organization, Chapra - 1 .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Road Construction Department, Govt. Of Bihar, Patna 2. The Engineer In Chief, Rural Works Department, Govt. Of Bihar, Patna 3. The District Magistrate, Siwan 4. The Deputy Development Commissioner, Siwan 5. The Executive Engineer, National Rural Employment Programme, Siwan 6. The Block Development Officer, Siwan Sadar Block, Siwan 7. The Accountant General, Bihar, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ravi Verma For the Respondent/s : Mr. Rajesh Kumar GP-8 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 5 17-01-2013 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “directing the respondent authorities of the “State” to pay the salary of the petitioner for the period 24.3.2010 to 31.1.2011 which has not arbitrarily been paid to him on extraneous consideration.” Learned counsel for the petitioner has submitted that initially the petitioner was transferred under the jurisdiction of the District Magistrate, Siwan under the orders of the Engineer-in- Chief dated 10.6.2008, whereafter the District Magistrate had assigned him the post of Junior Engineer in Siwan Sadar Block but Patna High Court CWJC No.7074 of 2012 (5) dt.17-01-2013 2 the petitioner was unceremoniously removed by way of transfer from the aforesaid post under the subsequent order of the District Magistrate, Siwan dated 13.2.2010 purportedly on the basis some recommendation of the Executive Engineer, N.R.P.E., Siwan contained in letter No. 317 dated 26.11.2009, whereas the fact remains that the said authority, the Executive Engineer, had subsequently made it clear that he had made no such recommendation for transfer of the petitioner. Learned counsel, therefore, proceeds that the said order of transfer was without jurisdiction and in fact illegal and therefore, when the said order of transfer was ultimately cancelled by the District Magistrate on 25.1.2011 (Annexure 11), the petitioner would be entitled for payment of salary of the interregnum period i.e. 24.3.2010 to 31.3.2011. In this regard he has relied on the judgment of this Court in the case of Chandra Bhushan Singh vs. State of Bihar & ors., reported in 2005(2) PLJR 112. Learned counsel for the State, on the other hand, has submitted that it would be wholly incorrect to say that the District Magistrate, Siwan had no jurisdiction to transfer the petitioner. In this regard he has referred to the terms and conditions of the transfer order, Vide Annexure 1, wherein it has been clearly mentioned that the place of posting of the petitioner shall be
Legal Reasoning
Patna High Court CWJC No.7074 of 2012 (5) dt.17-01-2013 3 decided by the District Magistrate. On the basis of the
Legal Reasoning
aforementioned order contained in Annexure 1 learned counsel for the State has also proceeded to submit that once the petitioner was transferred by a subsequent order of the District Magistrate he was duty bound to comply it and the fact that the same order was not stayed at any point of time either by the District Magistrate himself or by the State Government or even by this Court would not give him liberty for claiming payment of salary for the interregnum period if the petitioner did not comply the transfer order and work at the transferred place. In the considered opinion of this Court learned counsel for the State seems to be correct. The order of transfer of the petitioner which was issued by the District Magistrate on 13.2.2010 was wholly within his power and jurisdiction, inasmuch as when the Engineer-in-Chief had placed the services of the petitioner in Siwan District the said order dated 10.6.2008 read as follows: ^^Jh x.kir flag] duh; vfHk;ark] dkdks iz’kk[kk] xzkeh.k dk;Z foHkkx] dk;Z izeaMy] tgkukckn dks dk;Zfgr esa mDr LFkku ls LFkkukUrfjr djrs gq, ftyk inkf/kdkjh] lhoku ds v/khu inLFkkfir fd;k tkrk gSA** From the aforementioned order it would be clear that the District Magistrate had not only power and jurisdiction but also Patna High Court CWJC No.7074 of 2012 (5) dt.17-01-2013 4 the authority to place the services of the petitioner at any place in Siwan District and therefore, when he did so by his order dated 14.7.2008 placing the services of the petitioner as a Junior Engineer in Siwan Sadar Block, the petitioner did not raise this question of the order being wholly without jurisdiction. The petitioner being aggrieved by the subsequent transfer order dated 13.2.2010 somehow developed a feeling that the District Magistrate, Siwan should not have disturbed him and he came to this Court challenging the said transfer order. This Court by its order dated 10.3.2010 did not interfere with the transfer order in the writ application filed by the petitioner, C.W.J.C.No. 3869/2010, relevant portion whereof reads as follows: “Transfer and posting are normal incidence of service and it is for the government authorities to decide where an employee is to be posted and his services utilized in what manner. The alleged procedural irregularities in an order of transfer may not necessarily invite interference by the Court unless there be grave allegation of malafides, arbitrariness or violation of statutory rules which does not appear the case presently. Without interfering with the impugned order of transfer, this Court directs that the order dated 13.2.2010 be placed before the Executive Engineer for post facto approval or dissent, as he may consider appropriate in accordance with law, and the representation of the Patna High Court CWJC No.7074 of 2012 (5) dt.17-01-2013 5 petitioner in that regard filed along with a copy of the present order be disposed within a maximum period of three months from the date of receipt and or presentation thereof before respondent no.6. The writ application stands disposed.” It would be thus apparent that this Court did not either hold the order of transfer to be bad or declare the action of the District Magistrate, Siwan to be without jurisdiction. The petitioner, however, on account of non-disposal of his representation had filed a contempt petition, M.J.C.No. 2107/2010
Decision
and that was disposed of by an order dated 2.2.2011 by recording that the order of this Court passed in the writ application dated 10.3.2010 had been complied. It has to be noted that this Court while disposing of the contempt application also did not hold the petitioner entitled for payment of salary and in this regard it was held as follows: “The contempt proceedings are disposed with the observation that if the petitioner represents for any arrears of salary the Court expects the same to be considered in accordance with law and disposed off preferably within a maximum period of six weeks from the date of receipt/ presentation of a copy of this order.” As would be apparent first of all this Court did not interfere with the transfer order and when the contempt application was filed the order which was passed by the Collector recalling the Patna High Court CWJC No.7074 of 2012 (5) dt.17-01-2013 6 transfer order, was under the threat and guise of the contempt application. The same would be also apparent from reading of the order dated 25.1.2011 which is quoted hereinbelow: ^^LFkk;h leqins’kd la[;k&9] ekuuh; mPp U;k;ky;] iVuk ds i=kad AKS/PHC 871, fnukad 21-01-2011] tks voekuuk okn la[;k 2107@2010 x.kir flag ouke fcgkj ljdkj ,oa vU; esa ekuuh; mPp U;k;ky; ds }kjk ikfjr vkns’k dk lalwpu gSa] ds vkyksd esa bl dk;kZy; ds vkns’k Kkikad 396@vfHk0] fnukad 13-02- 2010 dks foyksfir djrs gq, Jh x.kir flag] duh; vfHk;ark jk"Vzh; xzkeh.k fu;kstu dk;Zdze dks floku lnj iz[kaM esa inLFkkfir fd;k tkrk gSA ;g vkns’k rRdkfyd izHkko ls ykxw gksxkA g0@& ftyk inkf/kdkjh floku A question, therefore, would arise if this Court had never said about the transfer order to be bad or in the contempt application no such order was passed directing the District Magistrate to recall the order of transfer, whether the transfer order issued by the District Magistrate on 13.2.2010 would become without jurisdiction so as to give the petitioner benefit of payment of salary in the interregnum period. Obviously the answer to the said question has to be in negative. A Government servant would be paid his salary only because he has rendered his service. When the petitioner deliberately flouted the transfer order which was well within the competence of the District Magistrate, Patna High Court CWJC No.7074 of 2012 (5) dt.17-01-2013 7 it was not open for the petitioner to claim payment of salary for the period he had not complied transfer order and had worked. That being so, this Court does not also find any error in the impugned order directing the petitioner to avail extraordinary leave for the period of his absence. The reliance placed by the learned counsel for the petitioner on the judgment of this Court in the case of Chandra Bhushan Singh (supra) with reference to paragraph no.5, which is quoted hereinbelow: “From the facts, as noticed above, it appears to me that the petitioner challenged the order of transfer before this Court and ultimately the authorities changed his place of posting, vide order as contained in Annexure 1 and thus, the petitioner could not work in the interregnum period and thus, the authorities were required to pay his salary for the period as there was no laches on his part. For withholding of the salary of the petitioner for the period aforesaid, no other plausible reason has been assigned in the counter affidavit as to whether his period of absence was treated to be break in service or it was treated to be leave without salary. For the reasons aforementioned, in my opinion, the petitioner would be entitled for his due salary, as referred to above.” will itself make it clear that the facts were entirely different in that case. In that case the counter affidavit did not give any reason for non-payment of salary of the petitioner but in the present case Patna High Court CWJC No.7074 of 2012 (5) dt.17-01-2013 8 there are sufficient reasons for the petitioner for not being paid salary. In this regard paragraph no. 7, 8 and 10 of the counter affidavit is quoted hereinbelow:- "7. That it is humbly stated in reply of para 14 of the writ petition that in compliance of the order of D.M, Siwan, B.D.O., Siwan relieved the petitioner, petitioner did not give any representation, objection to any officer, instead he remained absent in unauthorized way. 8. That it is humbly stated in reply of para 19 of the writ petition that so far payment of salary from 24.03.2010 to 25.01.2011 is concerned, Sri Ganpat Singh has been transferred from Siwan to Dariyapur Block in Saran District and his service book has been sent to Dariyapur Block in Saran District and his service book has been sent to Dariyapur Block vide letter no. 146 dated 27.12.2011 by B.D.O., Siwan. Salary of the writ petitioner for the period 01.03.2010 to 23.03.2010 during which he performed his duties, had already been paid and deposited in State Bank of India, Main Branch Siwan in Bank A/c No. 11050260616 in the name of the writ petitioner. District Magistrate Siwan vide his letter no. 108(1)/Avikaran dated 05.04.2011 wrote to Engineer in Chief R.W.D. Bihar that Sri Singh was transferred to Basantpur Block vide letter no. 396 dated 13.02.2010 and he had been given additional charge of lakrinawiganj and he was relieved vide letter no. 405 dated 23.03.2010 but Sri Singh disobeyed the order and did not join and did Patna High Court CWJC No.7074 of 2012 (5) dt.17-01-2013 9 not perform his duties. As per order of Hon'ble Court he was posted in Siwan Block vide letter no. 20(1)/Avikaran dated 25.01.2011. It is important to mention here that Sri Singh did not perform his duty during the period 24.03.2010 to 25.01.2011 extra ordinary leave is to be sanctioned by Engineer in Chief R.W. Department Bihar, Patna Engineer in Chief RWD Bihar, Patna has been requested vide District Magistrate letter no. 179/Avikaran dated 31.05.2012 to sanction extra ordinary leave for the period spent without work from 24.03.2010 to 25.01.2011 because under the Bihar executive Rule 2007, competent authority to sanction extra ordinary leave is Engineer in Chief, Sri Ganpat Singh is Junior Engineer and his appointing authority is Engineer in Chief. 10. That it is humbly stated that in reply of para 23 of the writ petition that prior to this instant writ petitioner filed C.W.J.C. No. 3869/2010, M.J.C. No. 1739/2011 in which he did not raise this issue of this duty during election in EVM sealing. He has raised a new issue that he did election duty in EVM sealing as per the order of the District Magistrate cum District Election Officer, Siwan contained in his Memo No. 441/(ii) dated 02.07.2012. A report has been sought from the Deputy Election Officer regarding duty done by the petitioner in EVM sealing vide letter no. 23 dated 12.10.2010. The Deputy Election Officer, Siwan has reported that the writ petitioner has done duty in EVM sealing only one day i.e. on 21.10.2010. In fact the writ petitioner has raised this new issue only for making his case and nothing else. As Patna High Court CWJC No.7074 of 2012 (5) dt.17-01-2013 10 earlier submitted by respondents in M.J.C. No. 2107/2010, it is humbly submitted that the petitioner remained absent from his duties. He was absent knowingly, intentionally, deliberately and willfully. So the payment was not made to him for the period 24.03.2010 to 25.01.2011." From the aforesaid uncontroverted statement of the counter affidavit it would become clear that the petitioner had done no work in the relevant period. It has to be again mentioned at the cost of repetition that the order of transfer of the petitioner was never stayed by any authority or the Court so that he could be given the salary for the said period. There is also no averment in the writ petition or in reply to counter affidavit to show that the petitioner had worked even at the earlier place after issuance of the order of transfer by the District Magistrate and his being relieved on 23.3.2010. That being so, this application is wholly misconceived and is accordingly dismissed. (Mihir Kumar Jha, J) surendra/-