Sow v. The State of Maharashtra

ORAL JUDGMENT (PER SMT. MHATRE, J.)

1. The present Petition has been filed by a retired Assistant Teacher, who contends that the orders passed by the respondents depriving her of her rightful dues are illegal and therefore ought to be set aside. 2 wp705.06

2. The petitioner joined service as an Assistant Teacher on 21st July, 1967 in the Zilla Parishad, Beed. She continued to work there till she was transferred from Patoda to Dongargaon in 1988. Thereafter, she filed a representation seeking that she should be retransferred to Patoda. According to her, the Rule of Couple Adjustment entitled her to be posted in Patoda as her husband was also working as an Assistant Teacher in Ambi-Jalgaon, Tq. Karjat, Dist. Ahmednagar, which is near Patoda. She has placed on record several other difficulties which she had to face for travelling all the way to Dongargaon. One of her travails was that she had to look after her physically challenged son. It appears that thereafter she submitted a fresh representation to transfer her to a place where the bus service was available. Accordingly, the petitioner was transferred from Dongargaon to Savargaon Ghat. The petitioner then went on medical leave from 19th September, 1989 to 6th October, 1989, which according to her was sanctioned. Thereafter, she worked at Savargaon from 7th October, 1989 to 15th June, 1990. The petitioner applied for leave again on medical grounds from 16th June, 1990 to 31st July, 1990, which was sanctioned. Thereafter, the petitioner informed the Block Education Officer, Patoda that it would be troublesome for her to continue to work at Savargaon due to various reasons. She was on Casual Leave on 9th August, 1990 and 10th August, 1990. Again the petitioner proceeded on medical leave from 11th October, 1990 to 24th April, 1991.

3. The petitioner filed a Writ Petition No. 2589 of 1990 before this 3 wp705.06 Court in respect of her transfer. It appears, however, that the Writ Petition was withdrawn by the petitioner, since a statement was made by the Zilla Parishad that she would be transferred in the general transfers, which took place in April/May, 1991 and that the petitioner could be transferred to Patoda or some other suitable place. As the respondent no.2 did not abide by the statement made in the Court, the petitioner preferred Writ Petition no. 3029 of 1991 seeking the relief that she should be retransferred to Patoda. That Petition was dismissed by this Court while observing that if the petitioner submitted any representation, it should be considered by the authorities concerned. It appears that a 3rd Petition was filed by the petitioner in 1992 being Writ Petition No. 1155 of 1993. The Court while disposing of that Writ Petition observed that any representation sent to the authorities by the petitioner, should be considered sympathetically.

4. According to the petitioner, she then submitted several representations to the respondents in order to ensure that she was retransferred to Patoda. Ultimately, on 4th February, 1997, the petitioner was transferred to Patoda, where she worked till she retired from service.

5. According to the petitioner, the respondents have denied her the benefits of her service for six years, five months and twenty three days, on the ground that she was not present on duty. An order was passed on 16th July, 2004 by the State Government, indicating that the period 4 wp705.06 of her absence would not be counted for pension and any other service benefits. The period was to be treated as `not on duty'. The petitioner then submitted a review application. The order was reviewed and by an order passed on 23rd August, 2004, the Chief Executive Officer of the Zilla Parishad, Beed was directed to fix the petitioner's salary to the minimum level and one increment was directed to be withheld temporarily.

6. In the present Petition, the petitioner has contended that she is entitled to have this period of her absence condoned and consequently is entitled to all the benefits available to the Assistant Teacher during this period.

7. The learned Advocate appearing for the petitioner has submitted before us that the petitioner's case must be treated compassionately and sympathetically. According to him, the petitioner, who is a lady has had to face several difficulties for continuing in service. He points out that the petitioner was absent for the aforesaid period only because her representation to continue at Patoda was not accepted by the authorities. He states that the respondents flouted the Rule of Couple Adjustment by directing the petitioner to work in Dongargaon and then Savargaon Ghat. According to him, the petitioner's husband working at Ambi-Jalgaon, which is close to Patoda and therefore, the petitioner ought to have been continued there in service. He further states that the petitioner's son was afflicted with polio and it was difficult for the 5 wp705.06 petitioner to tend to his needs when she was transferred to Savargaon. He further points out that the petitioner was not given any residential accommodation in Dongargaon, and therefore, it was difficult for her to continue to work in Dongargaon. As regards the petitioner's transfer to Savargaon Ghat, he points out that there was only one Bus from Patoda to Savargaon, which run at odd hours, which was unsuitable for the school time. The learned Advocate also states that antisocial elements have harassing the petitioner both at Dongargaon and Savargaon Ghat, and therefore, the petitioner was constrained to file the aforesaid Writ Petitions prior to the present Petition. According to the learned Advocate, this Court had taken cognizance of the fact that the petitioner is being harassed by some of the villagers, and therefore, had directed the respondents to consider her representation sympathetically.

8. An enquiry was conducted against the petitioner in respect of her absence and she was found guilty. By an order dated 7th January, 2004, the Zilla Parishad directed that the salary of the petitioner should be brought to the minimum level for one year. The petitioner, instead of filing of Departmental Appeal, which would have been maintainable before the Divisional Commissioner, Aurangabad, submitted a representation to the Government against the order dated 7th January, 2004 passed by the Chief Executive Officer, Zilla Parishad, Beed.

9. The Government, after considering the petitioner's case 6 wp705.06 exercised its power of review in accordance with Rule 24 of the Maharashtra Zilla Parishad District Services (Discipline and Appeals) Rules, 1964. The State considered the fact that the petitioner was absent from 9th August, 1990 to 31st January, 1997 because she refused to accept her transfer orders. It has then reviewed the order of the Chief Executive Officer and directed that the period of absence should be treated as "Non-Working" as per the sanction order of the Government dated 16th July, 2004. However, it was further directed that this period of absence would not be counted for pension and other service benefits. The Government passed this order in view of the fact that the petitioner had worked for 23 years with the Zilla Parishad and that lowering her salary to the minimum level would have a long term adverse effect on her finances and her pension. In these circumstances, the State set aside the order passed by the Chief Executive Officer and instead, directed that the annual increment for one year should be withheld temporarily.

10. The submission of the learned Advocate for the petitioner that the petitioner's absence from the duty was because of certain acts committed by the respondents, is in our view, unsustainable. The petitioner had been transferred from Patoda to various places. The petitioner had filed Writ Petitions in this Court in order to ensure that the representations submitted by her with respect to her transfer should be decided. However, it appears that the transfer orders issued to the petitioner were never set aside. Therefore, the petitioner was required 7 wp705.06 to attend duty as directed. firstly in Dongargaon and then in Savargaon Ghat. However, the petitioner stayed away from the work for six years, five months and twenty three days. The Rules governing the petitioner do not permit the condonation of her absence for such a long period of time. However, the State acting on the basis of the representations submitted by the petitioner has reduced the punishment imposed by the Zilla Parishad for not having reported for work at the aforesaid places. The State on sympathetic grounds has directed that though the period of absence treated as "Non-working", it would be treated as "continuous service" so that her qualifying service for the purpose of pension would not be affected.

11. In our opinion, the impugned order passed by the State on 23rd August, 2004 is a well reasoned order and has taken into consideration the difficulties faced by the petitioner and the earlier history of the case. A person is not entitled to stay away from the work for one reason or the other and then contend that that period should be condoned unless the Rules governing such service permit such condonation or relaxation for all purposes, including the payment of arrears of salary etc. The learned Advocate for the petitioner has been unable to point out any such Rule to us, and therefore, in our opinion, there is no need for us to interfere with the order dated 23rd August, 2004, which is impugned in the present Petition. We have perused the impugned order dated 23rd August, 2004, by which, the State has modified the order of punishment imposed by the Zilla Parishad. In our opinion there 8 wp705.06 is no need to interfere with this order in our extraordinary writ jurisdiction.

12. The Petition is, therefore, dismissed. The Rule discharged. No order as to costs. (M.T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) ga s/wp705.06