Misc. Application No. 21 of 2002 · The High Court · 2012

The order of rejection dated 25.06.2003 by the Deputy Director, NVS, Shi 6. llong has raised another subject matter in OA No. 43 of 2004. The said OA No. 43 of 2004 came up for consideration on 12.08.2005 before the Tribunal, whereby th e learned Tribunal dismissed the case holding that the disputed question of fact s cannot be a subject matter of adjudication of the Tribunal, which was challeng ed in a writ proceeding being WP(C) No. 367 of 2007. The writ court disposed of the writ petition on 29.01.2007 requiring him to submit a fresh representation, whereof the official respondents were directed to consider his representation wi thin the time limit prescribed therein. However, the Court made it clear that in case he is not satisfied with the findings of the authority, he would be at lib erty to approach appropriate forum for redressal of his grievances. In pursuance to the order dated 29.01.2007, the petitioner ventilated his grievances in the form of a representation dated 07.02.2007 reiterating his entitlement of salary with effect from 17.10.2001. The concerned authority took up his representation for scrutiny, but rejected his representation vide memorandum dated 11.06.2007 h olding that he is not entitled to any pay and allowance for the period as asked for.

The petitioner called in question the legality and validity of the order of rejection dated 11.06.2007 of his representation before the learned Tribunal in OA No. 98 of 2009. The learned Tribunal after marshalling the entire pleadin gs of the parties along with the annexures appended thereto has come to a catego rical finding that there is no material or evidence to establish that the petiti oner indeed worked in the post of Principal after handing over the charge as Pri ncipal on 16.10.2001 and there was no document of taking over the charge as like handing over the charge pursuant to the interim order passed by the Tribunal on 22.10.2001. The Tribunal has further noticed that the reference of letter dated 2/5.11.2001 and 18.11.2002 whereby the petitioner has claimed that he served as Principal, JNV, Kalaigaon, Darrang is lack of better particulars. The communica tion dated 18.11.2002 was addressed to his original residence at Barpeta wherefr om he came on deputation and thus dismissed OA No.98/2009 vide order dated 19.5. 2010 the legality of which has been questioned in the instant writ proceeding.

Heard Mr. M Chanda, learned counsel appearing for the petitioner. Also h eard Mrs. R Bora, learned Central Govt. Counsel appearing for respondent No.1 an d Ms. RS Choudhury, learned Standing Counsel, NVS, appearing for the respondent Nos.2 to 6.

The pleaded facts of the contesting parties are noticed. Perused the rel evant records placed before this Court by Ms. Choudhury. The records of the case would disclose that the petitioner joined as Principal, JNV, Darrang on deputat ion vide appointment letter dated 02.08.1999 for a period of two years initially , extendable on yearly basis. As per terms and conditions of the appointment ord er, deputation period may be curtailed or extended at the discretion of the comp etent authority without assigning any reason or notice. Though his willingness w as invited for extension of another year vide letter dated 18.07.2001 and the pe titioner had submitted his willingness for permanent absorption as Principal in any of the Navodaya Vidyalayas, but the official respondents did not respond to his permanent absorption rather by an order dated 14.09.2001 repatriated him to his parent department with effect from 17.10.2001 and release order was issued o n 15.10.2001 and accordingly, he had handed over the charge on 17.10.2001 to the in-charge Principal. The orders dated 14.09.2001 and 15.10.2001 were challenged before the learned Tribunal being OA No. 426 of 2001 which came up for consider ation on 22.10.2001 whereby the learned Tribunal admitted the case and in the in terim suspended the impugned orders dated 14.09.2001 and 15.10.2001 till the nex t date fixed. After getting the interim order in his favour, the same was commun icated to the official respondents on 23.10.2001 and the petitioner had reported for duty on 24.10.2001 whereby a letter was issued on 2/5.11.2001 with referenc e to the interim order restraining the petitioner not to discharge any financial powers without the approvals of NVS Headquarter. In the said OA No. 426/2001, t he petitioner filed a Misc. Application being No. 21/2002 wherein he sought for a direction to release his salary with effect from 17.10.2001.

The aforesaid OA No. 426/2001 was finally disposed of on 09.04.2002 alon g with the Misc. Application No. 21 of 2002 directing the petitioner to submit a detailed representation expressing his willingness for permanent absorption wit h a further direction that till his representation is considered the interim ord er dated 22.10.2001 shall continue and the impugned orders dated 14.09.2001 and 15.10.2001 shall be kept in abeyance. The Misc. Application No. 21 of 2002 was d isposed of directing the respondents to pay full salary to the petitioner on and from 17.10.2001. However, the representation submitted by the petitioner pursua nt to the order dated 9.4.2002 was rejected by the authority on 10.06.2002. The order dated 10.06.2002 issued by the official respondents rejecting 11. the prayer of the petitioner for permanent absorption in NVS was under challenge before the learned Tribunal being OA No. 231 of 2002. The said OA No. 231 of 20 02 came up for consideration before the learned Tribunal whereby the learned Tri bunal admitted the case with a further direction to the official respondents not to repatriate the petitioner to his parent department. However, the then Princi pal-in-charge by a communication dated 18.11.2002 conveyed to the petitioner tha t in compliance of the order dated 05.11.2002 of the Regional Office, Shillong, the salary of the petitioner is required to be released with effect form 17.10.2 001 onwards till further orders, requiring him to submit certain documents for settlement of income tax from salary for payment. Communication dated 18.11.2002 written by the then Principal-in-charge is a routine communication.

In the meantime, the official respondents took the order dated 09.04.200 2 passed in OA No.426 of 2001 in a writ proceeding being WP(C) No. 135 of 2003. The Court in the aforesaid writ proceeding while admitting the case passed an in terim order dated 07.01.2003, the relevant portion of which is quoted hereunder: - (cid:28)The order passed on 9.4.2002 in Misc. Petition No. 21 of 2002 shall remain susp ended for the period from 17.10.2001 to 10.06.2002, if the respondent has not re ndered service. (cid:29) The said writ petition was finally disposed of by the Court on 08.05.2003 whereb y the Court set aside the order of the learned Tribunal passed on 09.04.2002 in OA No. 426 of 2001 with the following observation: - (cid:28) However, it is made clear that the respondent shall be entitled for all sala ries for the period he has worked on the post of Principal of the school, may b e as a result of the interim or the final order issued by the Tribunal or by th e High Court. The salaries shall be paid by the authority within a period of thr ee months from today. (cid:29) In view of the order passed in the writ proceeding on 08.05.2003, the ca 13. se pending before the learned Tribunal being OA No. 231 of 2002 was withdrawn. H owever, on receipt of the order dated 08.05.2003 passed in WP(C) No. 135 of 2003 , the petitioner made a representation addressed to the Deputy Director, NVS, Sh illong on 27.05.2003 seeking release of his salaries with effect from 17.10.2001 . On receipt of the aforesaid representation, the Deputy Director vide communica tion dated 25.06.2003 issued a demand draft amounting to Rs.10,692/- which inclu des arrear of increment from 01.09.2000 to 16.10.2001 for Rs.6,995/- and Teachin g allowance from 27.9.1999 to 16.10.2001 for Rs.3697/- but rejected the prayer f or releasing his salaries with effect from 17.10.2001 holding that the petitione r did not render any service with effect from 17.10.2001 which is the subject matter in OA No. 43 of 2004.

The aforesaid OA No. 43 of 2004 came up for final hearing before the lea rned Tribunal on 12.08.2005 wherein the learned Tribunal after threadbare discus sion and taking into consideration the orders passed on OA No. 426 of 2001, WP( C) No.135 of 2003 and the communications made between the contesting parties, mo re particularly, the letter dated 25.06.2003 wherein the Deputy Director NVS Shi llong had taken a stand on verification of the record, that the petitioner did not render any service in the school after 17.10.2001 and also after perusal of the rejoinder and the stand of the petitioner that he assumed the charge and ha d worked as the Principal of the school, has found that the rejoinder speaks oth erwise which is quoted hereunder: - (cid:28)The applicant repeatedly insisted on his resumption of duty as Principal of JNV , Kalaigaon and even submitted representation to the Dy. Director, NVS, Shillong , but it is the respondents who restrained the applicant from discharging his d uties in utter violation of the order of the Tribunal and as such the contention of the respondents that the applicant did not render service after 17.10.2001 i s false. (cid:29) Further, the learned Tribunal has observed that if the respondents had restraine d him from resuming his duties, it was for the petitioner to bring the said fact immediately to the notice of the Tribunal to get further order in the matter as the interim passed in OA No. 426 of 2001 was in his favour. Moreover, when the Court passed an interim order on 07.01.2003 in WP(C) No. 135/2003 suspending the order dated 09.04.2002 passed in M.P. No. 21 of 2002 arising out of OA No. 426 of 2001, the petitioner did not make any endeavor to vacate the interim order da ted 07.01.2003 holding that such disputed question of facts is beyond the scope of judicial review, thereby dismissed OA No. 43 of 2004 vide order dated 12.8.20 05, observing that the petitioner may approach the appropriate civil courts for reliefs.

Against the order passed on 12.08.2005 in OA No. 43 of 2004 the petiti oner approached the Court by filing a writ petition being WP(C) No. 367 of 200 7 which was disposed of on 29.01.2009 with a direction to the petitioner to appr oach the concerned authority for consideration of his clam afresh keeping in min d the communications from the school dated 02.11.2001 and 18.11.2002 by way of r epresentation whereof the authority shall consider the same within a period of three months and if the authority after proper scrutiny comes to the conclusion that the petitioner had actually rendered his services in the school as Princip al, they shall release his pay and allowances in accordance with law with a ri der that if the petitioner is not satisfied with the findings of the authority, he may approach the appropriate forum for redressal of his grievances.

Accordingly, the petitioner submitted a detailed representation dated 07 .02.2007 before the authority seeking release of salary from 17.10.2001 to 26.05 .2003 in pursuance of the order passed in WP(C) No. 367 of 2007. The official re spondents disposed of the representation on 11.06.2007 holding that the petition er did not render his service as Principal in the Samity during the period from 17.10.2001 to 26.05.2003 after his release though the petitioner had relied on t wo documents viz. communication dated 02.11.2001 and 18.11.2002 whereof the lett er dated 02.11.2001 written by Regional Office, Shillong to the Principal-in-Cha rge, JNV, Darrang informing that the petitioner should not be allowed to exerc ise any financial power in case of his joining on the basis of stay order gran ted by the learned Tribunal, whereas the letter dated 18.11.2002 has been writte n by Principal, JNV, Darrang to the petitioner advising him to submit required documents for settlement of income tax and these two letters do not, in any way , establish that the petitioner had actually taken over the charge of Principal of JNV, Darrang and was functioning in that Vidyalaya. On the contrary, these le tters reveal that the petitioner was not in JNV, Darrang thereby requested to su bmit some documents for settlement of Income Tax and hence rejected his represen tation.

The order dated 11.06.2007 gave rise to a new cause of action culminati ng another OA being 98 of 2009 seeking a direction to release the salary of t he petitioner from 17.10.2001 to 26.05.2003 in terms of the order dated 29.01.2 007 passed in WP(C) No. 367 of 2007. The aforesaid OA No. 98 of 2009 came up for final hearing on 19.05.2010 wherein the learned Tribunal after marshalling t he entire evidence on record came to a categorical finding that save and except a bold statement that the petitioner served as Principal of the School no concr ete material or evidence had been furnished by him to establish that he indeed worked in the said post. The learned Tribunal has further observed that if the p etitioner had indeed taken over the charge from the Principal-in-Charge after 17 .10.2001 pursuant to the interim order passed by the learned Tribunal, there wou ld have been some written document in proof of taking over the charge as like of handing over the charge which he had given to Principal i/c on 16.10.2001. Othe r observations made by the Tribunal are similar to the order dated 12.08.2005 p assed in OA No. 43 of 2004. By observing as thus, the Tribunal dismissed the OA No. 98 of 2009 which is under challenge in the instant writ proceeding.

We have given our anxious consideration to the matter at hand. In partic ular, we have taken note of the communications dated 2/5.11.2001, 05.11.2002 and 18.11.2002 which set out the entitlement of salary of the petitioner. For bette r appreciation and effective adjudication of the case, the aforesaid communicati ons are quoted hereinbelow;- (cid:28)Regional Office NAVODAYA VIDYALAYA SAMITY SHILLONG Ministry of Human Resource Development (Deptt. of Education) Dated 2/5.11.2001 To The Principal Incharge, JNV, Kalaigaon Assam. Sub: Joining of duty of Shri DD Pathak, Ex-Principal, JNV, Darrang reg. Sir, With reference to the subject cited above and to convey that Hon’ble CAT in an interim order passed in OA. No.426/2001 has temporarily suspended the ope ration of orders of NVS Hqrs and Regional Office, Shillong till next date. As Sh ri DD Pathak, has already handed over the charge and financial powers has alread y been transferred to the Incharge Principal, he will not start exercising the f inancial powers without the formal order of NVS Hqrs and Regional Office, Shillo ng. You are therefore advised/requested not to hand over the financial charg e without the order of the competent authority. The compliance must be ensured and communicated to this office immediate ly. Yours faithfully, (B SINGH) ASSTT. DIRECTOR (ASP) Copy to :- 1. se financial powers without orders from the competent authority. Shri DD Pathak, Ex-Principal, JNV Darrang with a direction not to exerci

ssary action. The Branch Manger, SBI, Mangoldoi, Distt. Darrang for information & nece

The Dy. Commissioner cum Chairman, VMC, JNV, Darrang for information. ASSTT. DIRECTOR (ASP) (cid:29) (cid:28)OA. NO.426/2001-NVS (SHR)/Admn/5580

05.11.2002

O R D E R As per decision passed by Hon’ble CAT, Guwahati Bench, Guwahati on 9.4.2 002, on the Miscellaneous Application No.21/2002(OA 426/2001), Shri D.D. Pathak, Principal to pay full salary from 17.10.2001 onwards. It is hereby ordered to p ay full salary to Shri D.D. Pathak on and from 17th October, 2001 onwards till f urther orders. Compliance report may be sent to the undersigned latest by 11th November

2002. (D. HAZARIKA) DEPUTY DIRECTOR. To, The Principal JNV, Darrang Assam. Copy to:

The Joint Director (Admn), NVS HQrs, New Delhi-110 002 with reference to his telephonic instructions dated 5.11.2002.

2. Shri D.D. Pathak (Through Principal, JNV, Darrang).

3. Shri KN Choudhury, Senior Advocate, Rupnagar, Guwahati to apprise the ma tter to the Hon’ble CAT Guwahati Bench Guwahati and to take steps to drop the co ntempt proceedings. DEPUTY DIRECTOR. (cid:29) (cid:28)JAWAHAR NAVODAYA VIDYALAYA Ministry of Human Resource Development Govt. of India, Deptt. of Education, Udmari: Kalaigaon PO: Tengabari (784525) Dist: Darrang (Assam). Ref &PF(DDP)/2002-03/JNV(KLG)/Udmari/9943-44 Dated 18.11.02 To Shri Dambarudhar Pathak Near St. Mary’s High School, Ward no.-3 Kalahbhanga Distt: Barpeta (Assam) Sub: REGARDING SUBMISSION OF DOCUMENT OF SAVINGS FOR SETTLEMENT OF INCOME TEX FOR THE PAYMENT OF SALARY W.E.F. 17.10.2001. Sir, With reference to the subject cited above I would like to inform you tha t as per NVS (R.O.) Shillong letter no.426/2001-NVS (SHR)/Admn/5580 dt: 05.11.02 your salary is to be released from this office w.e.f 17.10.01 onwards till furt her order. Therefore you are hereby asked to submit the documents i.e. receipt of s avings during April ’01 to 31st March’ 02 which is required for settlement of in come tex from Salary for payment. This is for your kind information and compliance please. Yours faithfully, Thanking you. Principal. J.N.V. Kalaigaon Udmari, Darrang. Mangaldai Copy to :- 1. The Deputy Director, NVS (R.O.) shillong for information.

2. Office copy. Principal. J.N.V. Kalaigaon Udmari, Darrang. (cid:29)

After perusal of the entire records, it would further reveal that the P rincipal-in-charge issued a communication dated 23.11.2002 to the Deputy Direct or, NVS, Shillong as to how the payment would be made when the petitioner had ne ver resumed duties as Principal of the school after his release on 16.10.2001. The communication dated 23.11.2002 being relevant, is quoted hereinbelow;- (cid:28)To, Date-23.11.02 The Deputy Director, (R.O.) Navodaya Vidyalaya Samiti Shillong-3 (Meghalaya) Ref No. Your letter no. OA no.926/2001-NVS (Admn) 5580 Dt. 05.11.02 SUB PATHAK, EX. PRINCIPAL OF JNV KALAIGAON, UDMARI, DARRANG REGARDING THE PAYMENT OF SHRI DAMBARUDHAR : Sir, With reference to the subject cited above and as per above mentioned letter, you r honour is hereby requested to kindly give the suggestion regarding the followi ng points. 1. How payment be made, as Shri Dambarudhar Pathak is nither on duty nor at the Vidyalaya and there is no evidence of presence after his release on 16.10.0

1. 2. This is for your kind information and necessary suggestion please. If payment is made then the date from which to which date to be done. Thanking you. Yours faithfully Principal JNV, Kalaigaon, Udmari Distt: Darrang, Assam. (cid:29)

The records also do not support the claim of the petitioner that he inde ed joined in service after 16.10.2001 when he handed over the charge to the next senior most teacher on repatriation. The communication dated 18.11.2002 clearly demonstrates that the petitioner had not served as Principal of the school afte r 16.10.2001 as the same was sent to the petitioner at his original house addres s, i.e. Kalahbhanga, district Barpeta. Therefore, the Court is constrained to h old that the petitioner, in fact, did not render any service as Principal of the school for the period with effect from 17.10.2001 to 26.05.2003.

In the result, the writ petition is found to be devoid of any merit and the same is dismissed accordingly. The parties are left to bear their own costs.