High Court · 2009

ecretary, Govt. of Assam, Education Department requesting to pass necessary orde r for regularization of the service period of the petitioner w.e.f. 1/12/03 to 5 /6/05. The relevant portion of the aforesaid letter dated 30/3/06 is quoted herein belo w: (cid:28) &. In this connection, it is stated here that Sri Himangshu Badan Nath was transfer red from Karipara High School to Lower Chatipara High School by the Inspector of Schools, Goalpara vide his letter No.IS/GLP/GB/Trns/B/216-22, dt. 14.10.03but d ue to public obstruction Sri Nath could not join his new place of posting. Subs equently, to accommodate him, he was transferred several times to other schools but he could not join anywhere. Finally Sri Nath was able to join Lower Chatipa ra High School on 6.6.2005 as per this office order issued vide letter No.GB-Est /Aptt/13/93/pt/27 dt. 2.6.05. Under these circumstances the service of Sri Nath was hanging with effect from 1-12-2003 to 5.6.2005. Now the Inspector of Schools, G.D.C. Goalpara has submitted the proposal for reg ularisation of the services of Sri H.B. Nath for the hanging period with effect from 1-12-03 to 5.6.2005. Al throughout this period the post of Headmaster, Low er Chatipara High School, Goalpara was vacant. (cid:29) Upon receipt of the said letter, the Education Department made certain q ueries from the officers concerned which was duly furnished in due course of tim e. Finally vide communication dated 11/6/07, the Dy. Secretary to the Education (s) Department intimated the Director, Secondary Education to the effect that si nce the transfer order of the petitioner was made at his own request, he was not entitled and hence refused to regularize the extension of joining time and ther eby refused to pay salary for the period w.e.f. 1/12/03 to 5/6/05. Being aggrie ved by the aforesaid action of the respondents, the petitioner has filed this wr it petition. I have heard Mr. D.K. Saikia, learned counsel for the petitioner and Mr. M.K. Misra, learned Standing Counsel, Education Department, Assam appearing on behalf of the respondents. The prayer of the petitioner was resisted by the respondents by filing s eparate affidavits by both the Director, Secondary Education as well as by the I nspector of Schools, Goalpara District Circle, Goalpara. The stand of the Respondent No.3, the Deputy Director of Secondary Educa tion, Assam, in his counter dated 9/4/2003 is that the Director, Secondary Educa tion vide his order dated 3/8/04 allowed the petitioner to take charge of the He admaster of Baladmari High School but subsequently, he submitted an application on 30/11/04 requesting him to be posted in some other places which shows that th e petitioner did not want to continue at Baladmari High School and accordingly h is subsequent order of transfer to the Goalpara High School was treated as trans ferred at his own request. In that view of the matter, the Director is of the s tand that the period spent on transfer and posting of the petitioner deserves co nsideration as per existing Rule and hence the period spent for his joining cros sed the limit beyond 30 days as per the provisions of Subsidiary Rules -139 and accordingly necessary approval of the Govt. is necessary. The Director in his co unter did not dispute that transfer of the petitioner was on public interest. T he stand of the Director is that the petitioner is entitled to his salaries as h e was transferred in the interest of public service/ at his own request provided the Govt. regularize the hanging period spent in his transfer and posting from one school to another. In the counter dated 9/4/2003 filed by the Respondent No.5, the Inspecto r of Schools, Goalpara District Circle, Goalpara, the stand of the petitioner to the effect that he could not join at his places of posting on transfer in diffe rent High Schools due to obstruction of local people, students and staff of the school, has not been disputed. It is further stated in the said counter that due to long absence of Headmaster in Lower Chatipara High School and as desired by local public, the Inspector of Schools visited the said school and discussed the issue regarding the posting of Headmaster with the public in general and in the said meeting public of the locality agreed to an amicable solvent of the situat ion and this fact was also intimated to the Director of the Secondary Education vide letter dated 11.05.2005. Consequently, the Director vide order dated 02.06 .2005 transferred and posted the petitioner as Headmaster in Lower Chatipara Hig h School, wherein he could joined and serving till date. In the facts narrated herein above as disclosed from the pleadings as well as co mmunication/documents made available before me it is amply clear that the petiti oner could not join in his transferred post as Headmaster in Bhaladmari High Sch ool, Lower Chatipara High School and in Goalpara Girls’ High School due to obstr uction raised by the local people and the school authority etc. although the pet itioner duly complied with such transfer orders and attempted to join in those s chools by submitting his joining report. Both the respondent Nos.3 and 5 are fu lly aware of the facts and infact the orders passed by the Inspector of Schools, have been passed only after consultation with the Director of the Secondary Edu cation. In the aforesaid situation, the decision that calls for is as to whethe r the stand of the Government as reflected in the impugned order dated 11/06/200 7 rejecting to regularize the service of the petitioner and to pay his salary is justified or not. In joining time of a Govt. servant either on transfer or after expiry of leave under Chapter-II of the Fundamental Rule, S.R.137 provides the period dur ing which a Govt. servant is required to join in a certain number of places on t ransfer or on expiry of his leave. S.R. 139 provides that in case involving a n ecessary change of station the joining time allowed to a Govt. servant is subjec t to a maximum of 30 days and 6 days are allowed for preparation and in addition , a period to cover the actual journey as indicated therein are also entitled to avail by a Govt. servant. However, the aforesaid maximum period of 30 days as i ndicated in S.R.139 is not a inflexible Rule and S.R.147 provides a provision fo r granting long period of joining time then the prescribed maximum 30 days. S.R . 147 is quoted herein below: (cid:28)S.R. 147.- Within the prescribed maximum of 30 days, a competent authority may, on such conditions as it thinks fit, grant to a Government servant a longer per iod of joining time than is admissible under the rule in the following circumsta nces: (a) when the Government servant has been unable to use the ordinary mode of traveling or, notwithstanding due diligence on his part, has spent more time on the journey than is allowed by the rules; or when such extension is considered necessary for the public convenience, (b) or for the saving of such public expenditures is caused by unnecessary or purely formal transfer; or (c) when the rules have in any particular case operated harshly; as for exam ple, when a Government servant has through no fault on his part missed a steamer or fallen sick on the journey. (cid:29) There is no dispute to the fact that the provision regarding the joining time is regulated and guided by the aforesaid Rule. From a bare reading of S.R. 147 on e can easily understood that the competent authority is empowered to extend the joining time from 30 days in appropriate cases. In the instant case, from the c ounter filed by the respondent No.3 and on perusal of the impugned order, it is not disclosed that the respondent authorities complied with the provision of S.R . 147 as well as in the facts situation of the present case. In passing the imp ugned order dated 11/06/2007 rejecting the claim of the petitioner for regulariz ation of the period with effect from 01/12/1995 to 05/06/2006 except the joining time was not passed on proper application of mind and appropriate addressal to the relevant facts. It is not disputed by the respondent authorities which infa ct is clearly established from the various orders as well as from the pleadings of the parties that the petitioner infact could not join in the transferred post due to obstruction from the local people or from the school authorities, studen ts etc. The petitioner on various occasions went to join his transferred post a nd submitted his joining report and unfortunately he could not succeed for no fa ult of his own. S.R. 105 and S.R. 137 prescribe the joining time of a Government employee either on transfer and/or expiry of the leave. It is not subject to or deal with a sit uation where the incumbent is not in a position to join due to such obstruction from the local people or in other situations beyond his control. The rule making authority in SR 147 has reserved such discretion to grant further time beyond 3 0 days for joining after expiry of transfer period or availing theleave in conte mplation of such a situation. In the instant case, as indicated hereinabove, it is clear established that the petitioner could not join in his transferred place of posting for no fault of his own but being faced with a situation beyond his control. The stand of the respondents that the petitioner has been transferred a t his own request is total misunderstanding of the entire circumstances and such finding is nothing but a perverse one on the face of the record. While passing the impugned order the respondent authorities totally ignored the aforesaid relevant facts to be considered more particularly, the power of the au thority to extend the joining time beyond 30 days as contemplated under S.R. 147 . In view of the above discussion, I am of the considered opinion that the period from 1.12.2003 to 4.6.2005 spent by the petitioner in joining time in the transf erred post is required to be regularized by the authority by passing appropriate orders. On misreading of the circumstances by the authorities, the petitioner h as suffered a lot. The petitioner was transferred as Headmaster in different Hig h Schools and he could not join for no fault of his own. The respondents also di d not take any action to ease the circumstances by taking aid of the police or a ny other authority, allowing the petitioner to suffer immensely. In view of the above discussion, the writ petition is allowed. The respondent au thorities are directed to regularize the period spent by the petitioner i.e. 1/1 2/03 to 5/6/05 forthwith and to pay the salary and allowances for the said perio d. The entire exercise shall be completed within a period of 30 days from the da te of receipt of certified copy of this order by passing appropriate orders fail ing which the amount payable shall carry an interest of 12% per annum. It would be open for the respondent authorities to realize such interest from the office rs concerned found to be negligent in complying with this order. With the above direction, the writ petition stands disposed of.