Patna High Court - Orders
Sunil Kumar Jha vs The State Of Bihar & Ors on 4 December, 2013
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1591 of 2011
In
Civil Writ Jurisdiction Case No.7425 of 2011
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Sunil Kumar Jha, son of late Singheshwar Jha, resident of Village - Ram
Nagar, P.S. - Gaighat, District - Muzaffarpur. Presently posted as Revenue
Clerk in Anchal Choraut, Distt.- Sitamarhi.
.... .... Writ Petitioner-Appellant
Versus
1. The State of Bihar through the Commissioner, Revenue Department,
Govt. of Bihar, Patna
2. The Commissioner, Tirhut Division at Muzaffarpur.
3. The District Magistrate, Muzaffarpur.
4. The District Magistrate, Sitamarhi
5. The Sub-Divisional Officer, Belsand, Distt.- Sitamarhi.
6. The Circle Officer, Anchal Belsand, Sitamarhi.
7. The Circle Officer Anchal Runnisaidpur, District - Sitamarhi.
.... .... Respondents- Respondents
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Appearance :
For the Appellant : Mr. Umakant Shukla, Advocate
Mr. Md. Anisur Rahman, Advocate
For the Respondents : Mr. Arvind Ujjwal, S.C.- 25
Mr. Maruth Nath Roy, A.C. to S.C.-25
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
7. 04-12-2013This Appeal under Clause 10 of the Letters Patent has been preferred by the writ petitioner against the order dated 9 th August 2011 made by the learned single Judge in CWJC No.7425 of 2011.
Patna High Court LPA No.1591 of 2011 (7) dt.04-12-2013 2/5The matter at issue is the payment of salary to the appellant for the period of 10 months from 6th July 2005 till 5th June 2006. The claim for salary made by the appellant has been rejected by the respondent- authority on the ground of "no work, no pay". The challenge to the order of the respondent- authority in above CWJC No.7425 of 2011 has failed before the learned single Judge. Therefore, this Appeal.
The facts leading to the present Appeal are that the appellant, then a Revenue Clerk in the Office of the District Collector, Sitamarhi made a request for transfer to the District- Collector, Muzaffarpur. After following the due procedure, his request was accepted. Under order dated 4th November 2004, he was transferred from the office of the District Collector, Sitamarhi to that of District Collector, Muzaffarpur. Pursuant to the said order dated 4th November 2004, the District Collector, Sitamarhi, under his order dated 4th April 2005 directed that the appellant be relieved to join the duty under the District Magistrate, Muzaffarpur. However, he was not relieved till 6th July 2005. On his being relieved on 6th July 2005 he reported for duty at Muzaffarpur on 11th July 2005. The District Collector, Muzaffarpur, however, did not allow the appellant to join the duty on the premise that there was no vacancy in the office of the District Collector, Muzaffarpur. He directed the appellant to join the District Collector, Sitamarhi. On being refused to receive the joining report, on 28th July 2005 the appellant approached the Commissioner, Tirhut Division, Muzaffarpur for appropriate order of posting. As no posting order was made by the Commissioner, Tirhut Division, Muzaffarpur, the appellant sent a reminder on 7th January 2006. Pursuant to his request, the Divisional Commissioner, under his order dated 26th May 2006, directed the Patna High Court LPA No.1591 of 2011 (7) dt.04-12-2013 3/5 appellant to join the duty under the District Magistrate, Sitamarhi. Pursuant to the said order, the appellant joined the duty under the District Magistrate, Sitamarhi on 5th June 2006. During the aforesaid period, the date he was relieved by the District Magistrate, Sitamarhi on 6th July 2005 and he again joined the office of the District Magistrate, Sitamarhi on 5 th June 2006, the appellant was not paid his salary. He, therefore, approached this Court under Article 226 of the Constitution in CWJC No.7418 of 2006. This Court, under order dated 12th July 2006, directed the appellant to make representation to the Commissioner, Tirhut Division. Pursuant to the said direction and the representation made by the appellant, under order dated 29th September 2008 made by the Commissioner, Tirhut Division, Muzaffarpur, the request of the appellant to make payment of salary was turned down. According to the Commissioner, on his joining being refused by the District Magistrate, Muzaffarpur, the appellant ought to have reported for duty to the District Magistrate, Sitamarhi from where he was transferred. The said order was challenged by the appellant in CWJC No.17704 of 2009. Once again, this Court, under order dated 9th March 2010, relegated the appellant to the respondent-authority with a direction to make a speaking order. Pursuant to the said order, the Divisional Commissioner has once again considered the request of the appellant and has rejected the same on the principle of "no work, no pay". The Divisional Commissioner has observed that during the interregnum period, the appellant did not report for duty in the office of the Commissioner; he was, therefore, not entitled to salary. The challenge to the said order dated 7 th May 2010 has failed in above CWJC No.7425 of 2011. Therefore, this Appeal Learned advocate Mr. Umakant Shukla has Patna High Court LPA No.1591 of 2011 (7) dt.04-12-2013 4/5 appeared for the appellant. He has assailed the order of the learned single Judge. He has submitted that until the posting order was made by the Commissioner; the appellant had no reason to report for duty in any office, not even in the office of the Commissioner. The denial of salary for the said 10 months is not justified.
Learned advocate Mr. Maruth Nath Roy has appeared for the respondent-State of Bihar. He has relied upon the counter affidavit. He has supported the order of the learned single Judge as well as the order of the Divisional Commissioner dated 7th May 2010. He has vehemently submitted that the appellant was required to report for duty in the office of the Commissioner which he did not do. His salary for the above period has, therefore, rightly been refused.
We do agree with Mr. Umakant Shukla. The aforesaid facts are not in dispute. The appellant was under order of transfer to Muzaffarpur and was relieved from Sitamarhi. If his joining at Muzaffarpur were not accepted, he could not have gone back to Sitamarhi and joined there. It was the duty of the Divisional Commissioner to make appropriate posting order. The appellant had, on refusal to accept joining by the District Magistrate, Muzaffarpur, immediately approached the Commissioner for appropriate posting order. It was the duty of the Divisional Commissioner to make the order of posting promptly which he failed to do for some 10 months until 26th May 2006. After the posting order was made on 26th May 2006, the appellant immediately joined the duty under the District Magistrate, Sitamarhi on 5th June 2006. The appellant, therefore, cannot be held guilty for any lapse or for not reporting for duty. The stand of the Commissioner that he ought to have reported for duty in the office of the Commissioner is totally wrong and unsustainable. It Patna High Court LPA No.1591 of 2011 (7) dt.04-12-2013 5/5 was he who failed to make proper posting order on the representation made by the appellant for more than 10 months. The said period of 10 months is, therefore, required to be treated as a compulsory waiting period for which the appellant is entitled to pay and allowances as if he were on duty.
For the aforesaid reasons, Appeal is allowed.
Impugned order dated 9th August 2011 made by the learned single Judge in CWJC No.7425 of 2011 is set aside. CWJC No.7425 of 2011 is allowed. The order dated 7th May 2010 made by the Commissioner, Tirhut Division, Muzaffarpur is quashed and set aside.
The appellant is entitled to pay and allowances for the period from 6th July 2005 (the date on which he was relieved from the office of the District Magistrate, Sitamarhi) till 5 th June 2006 (the date on which he reported for duty in the office of the District Magistrate, Sitamarhi pursuant to the order of posting dated 26th May 2006 made by the Commissioner, Tirhut Division, Muzaffarpur). The amount of pay and allowances will be paid to the appellant within one month from today. In the event, the respondents fail to pay the amount of arrears of pay and allowances within one month as directed, the appellant will be entitled to a cost of Rs.5,000.00.
The Registry will send copy of this order to the respondent nos. 2 and 4 forthwith.
(R.M. Doshit, CJ) (Ashwani Kumar Singh, J) Sunil/-