The Chief Secretary, Government of Jharkhand, Ranchi, having its office v. at Project Building, P.O. & P.S
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 4453 of 2024 Dr. Natwa Hansdak, aged about 66 years, S/o late Pradhan Hansdal, R/o Burdwan Compund, P.O. & P.S.- Lalpur, District – Ranchi. … … Petitioner 1. The State of Jharkhand. 2. The Chief Secretary, Government of Jharkhand, Ranchi, having its office Versus at Project Building, P.O. & P.S.- Dhurwa, District – Ranchi. 3. The Principal Secretary, Higher & Technical Education, Government of Jharkhand, Ranchi, having its office at Nepal House, P.O. & P.S.- Doranda, District – Ranchi. 4. The Joint Secretary, Higher & Technical Education, Government of Jharkhand, Ranchi, having its office at Nepal House, P.O. & P.S.- … Respondents Doranda, District – Ranchi. …
Legal Reasoning
Earlier the petitioner has approached this Court in W.P.(S). No. 1509 of 2021 whereby he had assailed the order of transfer dated 12.08.2021. It was brought to the notice of this Court that petitioner was subjected to transfer and was compelled to join under persons who were 12 years junior to him and after hearing the parties, this Court observed at paragraph No. 7 which is quoted hereinbelow:- “7. Be that as it may, having gone through rival submission of the parties across the bar, this Court is of the considered view that admittedly transfer is an incidence of service and 1 no person can be allowed to continue at a particular place. In the instant case, petitioner was transferred within a period of one year on the ground that on the earlier posting he was found to be guilty of misconduct. But surprisingly, till date no departmental proceeding has been initiated against the petitioner, not even the chargesheet has been issued. If petitioner is found guilty of misconduct, it was open to the respondents to initiate proceeding against the petitioner and pass order of punishment for the same if he would have been found guilty of the charges. Contention of the respondents that earlier he was found guilty of misconduct, is not acceptable to this Court. On the other hand it also cannot be left open and it cannot be on the sweet will of the petitioner to disobey the administrative order and continue filing writ petition. As per Rules, petitioner was to represent before the authorities and the authorities were to pass order. Petitioner having failed to do so, cannot claim any salary for the period he remained absent. However, since petitioner has been transferred to a place where person 12 years junior to him has been made in-charge, same cannot be permitted by this Court.” 4. However, since the petitioner has been transferred to a place where persons 12 years junior to him has been made in-charge, same cannot be permitted by this Court. Thereafter, a direction was issued to take a decision on the representation of the petitioner within a period of three weeks regarding transfer as well as salary of the period not paid to the petitioner and thereafter though a reasoned order has been passed and joining of the petitioner has been accepted in a different college as a Principal In-charge in Government Polytechnic College, Simdega but salary of the said period during which he remained out of work i.e., 01.04.2021 to 18.02.2022 was not paid and hence this writ petition has been preferred. 5. Learned counsel for the petitioner Mr. Mahesh Tewari submits that from perusal of the earlier order passed by this Court in W.P.(S). No. 1509 of 2021, it can comfortably be inferred that order of transfer was not tenable in the eyes of law. Thereafter, the respondent- authorities have accepted the joining of the petitioner in a different college to the post of Principal In-charge, it further clarifies that earlier order was not in accordance with law and therefore, after interference of the order of this Court, the same has been changed. 2 6. Learned counsel further submits that the period from which petitioner remained out of duty has been treated to be as an Extraordinary Leave. It is the respondents who did not allow the petitioner to work and, therefore, they cannot take the benefit of “No Work No Pay”. Since the petitioner has been compelled not to join this post as the order of transfer was not in accordance with law, he did not join the post. Since the petitioner has already retired, a direction be given to the respondents to calculate the salary of the said period and extended the same to the petitioner within a stipulated time with all consequential benefits. 7. Learned counsel for the respondents Mr. Ashok Kumar Singh submits that since the petitioner did not join the transferred post, he is not entitled for salary for the period he remained out of service. It has been further argued that the petitioner remained absent from the period 01.02.2021 to 18.02.2022 as an Extraordinary Leave but the fact remains that the petitioner did not work during the said period and, as such, the period has been treated as “No Work No Pay” therefore, rightly the petitioner has been denied the salary for the said period. 8. Justifying the impugned order, learned counsel submits that there is no infirmity or illegality in the order and the writ petition is fit to be dismissed. 9. Having heard the learned counsel for the parties at length, this Court is of the view that case of the petitioner needs consideration. 10. After hearing the learned counsel for the parties, aforesaid writ
Arguments
--- CORAM :HON'BLE DR. JUSTICE S. N. PATHAK --- : Mr. Mahesh Tewari, Advocate : Mr. Ashok Kumar Singh, Advocate --- For the Petitioner For the Respondents 03/22nd October 2024 1. 2. Heard the Learned counsel for the parties at length. Petitioner has approached this Court for a direction upon the respondent no. 2 to send to this Hon’ble Court all records pertaining to the issuance of order Memo No. 854, dated 28.08.2023 (Annexure -4) wherein it has been categorically stated that vide office order no. 849 dated 25.08.2023 (Annexure -3) the total period of 324 days shall be treated and approved as extraordinary lave and the petitioner shall be paid the total amount for which he is entitled to with all consequential benefits as well as to quash / set aside the said order. 3.
Decision
petition was disposed of with a direction therein that “however since the petitioner has been transferred to a place where persons 12 years junior to him has been made in-charge, the same cannot be permitted by this Court”. Since the order of transfer has been held to be not tenable in the eyes of law and further, it is the respondents who have transferred the petitioner at a place where 12 year junior to him was made in-charge. 11. Respondents taking same into consideration have already transferred the petitioner and has accepted his joining letter as 3 Principal of Government Women’s College, Ranchi and the petitioner has joined the said post also. Petitioner has rightly claimed salary for the said period during which he remained out of service. 12. The theory of “No Work No Pay” cannot be taken as a rule of thumb if the petitioner has been compelled not to work on the said post due to inaction on the part of the respondents, he is entitled for the salary for the period he was kept out of service. The period from which the petitioner was on leave has been considered as an Extraordinary Leave and, as such, petitioner is also entitled for the salary of the said period. 13. I hereby direct the petitioner to file fresh representation annexing the order of this Court before respondent no. 2 and 3. On receipt of the said representation, the Principal Secretary, Higher & Technical Education, Government of Jharkhand, Ranchi shall consider the same and pass order for payment of salary of the petitioner for the period from 01.04.2021 to 18.02.2022. Since the petitioner has already retired, he may raise all the contentions before respondent no. 2 for payment of salary with all consequential benefits and the same shall be considered in accordance with law. 14. Let the entire exercise be completed within a period of eight weeks from the date of the receipt of the copy of this order. 15. Accordingly, the writ petition stands disposed of. Aditi (Dr. S. N. Pathak, J.) 4