IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2087 of 2001 SHIV NANDAN PRASAD s/o Late Mangal Mahto resident of village/PO Pokari Guria District- Gaya at present retired Headmaster Gyan Bharti High School Jaglal Nagar, Pakari Guriya, Gaya …. Petitioner. Versus 1. THE STATE OF BIHAR through the Commissioner-cum- Secretary, Department of Secondary Education, Bihar, Patna. 2. The Director Secondary Education, Bihar, Patna 3. The Regional Deputy Director Education, Magadh Division, Gaya. 4. District Education Officer, Gaya. 5. District Education Officer, Jehanabad. 6. Accountant General, Bihar, Patna. 7. Treasury Officer, Gaya. 8. Sub Treasury Officer, Tekari, Gaya. .. Respondents. ----------- 4. 19.08.2010 Heard Mr. M. P. Shukla, learned counsel for the petitioner, Mr. Sunil Kumar Mandal, learned Standing Counsel 15 for the State as also Mr. J. P. Karan, learned Senior Advocate for the Accountant General. The prayer of the petitioner in this writ petition reads as follows:- “1. That this is an application for issuance of a writ of certiorari for quashing the paragraph 3 of page 2 of the order of the Director Secondary Education Bihar regularizing the services of the petitioner for the period 3.3.94 to 9.7.1996 as extra ordinary leave without pay with the letter no. 1147(Vidhi) dt the 6th December 2000. It is prayed to issue mandamus directing payment of the salary etc. after regularizing the services. It is further prayed to allow the 2 interest for the delayed payment and the cost of litigation amounting to Rs.10,000/.” As would be apparent from the aforementioned prayer, the grievance of the petitioner is only with regard to regularizing the service for the period 3.3.1994 to 9.7.1996 which in the impugned order of the Director, Secondary Education has been treated to be the period of unauthorized absence and resultantly the petitioner entitled only for leave without pay/extraordinary leave Mr. Shukla in support of his submission would straightway refer to a report of the District Education Officer dated 23.1.1996 on the basis of which he is of the view that the impugned order of the Director Secondary Education dated 6.12.2000 cannot be sustained. In this context, he has submitted that when the petitioner was transferred from Jaglalnagar to Rajauli on 30.8.1993 and his joining could not be accepted in Rajauli and led to his subsequent order of transfer dated 10.12.1993 to Daudpur where also his joining was not accepted he cannot be blamed if a similar third order of his transfer dated 3.3.1994 to High School Kako in the district of Jehanabad 3 was not complied by the petitioner inasmuch as it is the report of the District Education Officer that the said chain order of transfer as a whole was also not implemented on account of a general order of stay passed by the Director, Secondary Education on 12.4.1994. Proceeding further Mr. Shukla would submit that as a matter of fact it was only in the light of the report of the District Education Officer dated 23.1.1996 that ultimately the petitioner was posted back to his old post of Headmaster at Jaglalnagar on 10.7.1996 and ultimately retired from the said post on 31.7.1996 and as such it cannot be said that the petitioner was unauthorisedly absent from his duty. He has therefore assailed the impugned order passed by the Director, Secondary Education, to the extent the period of 3.3.1994 to 9.7.1996 has been held to be period unauthorized absence of the petitioner and its being regularized only by way of grant of leave without pay/ extraordinary leave. As usual there is no counter affidavit on behalf of the respondents and Mr. S. K. Mandal, learned S.C. 15 appearing on behalf of the State would simply rely on the averments made in the impugned order to justify the ultimate conclusion drawn thereon as with regard to the 4 unauthorized absence of the petitioner for the period 3.3.1994 to 9.7.1996. In such a situation when the averment made by the petitioner in the writ petition has not been controverted, this Court will have to proceed on the basis of the averments made therein. From the reading of the impugned order it would now become clear that there is no longer any dispute with regard to the petitioner’s so-called non-compliance of his first two transfer orders namely, Jalalnagar to Rajauli and again Jalalnagar to Daudnagar inasmuch as said period 1.9.1993 to 2.3.1994 has been held to be the period spent on duty by the petitioner. The real issue in controversy is after 2.3.1994 and in this regard if the report of District Education Officer dated 23.1.1996 is also accepted in its entirety, the same cannot be a proof of the fact that the petitioner in compliance of the order dated 3.3.1994 had made an attempt to join the post at Kako. As a matter of fact, this aspect of the matter has been conveniently ignored by the District Education Officer who has relied on the order of the Director Secondary Education dated 12.4.1994 to cover up the period of posting of the petitioner at Kako. The question 5 will be when the petitioner having been relieved for joining at Daudpur could not join at Daudpur in between 1.9.1993 to 2.3.1994 and subsequently a fresh order of posting was issued on 3.3.1994 transferring the petitioner to High School at Kako in the district of Jehanabad, how did he choose to comply that order?. The report of District Education Officer is completely silent on this aspect save and except that he has referred to an order of the Director dated 12.4.1994 to suggest that the chain order of transfer including that of the petitioner at Kako could not be implemented due to a general order of stay. It is however not the case of the petitioner that the post of Headmaster at Kako High School was already occupied and thus when went to join on any day after 3.3.1994 his joining at Kako could not be accepted till 12.4.1994 when the general stay of order of transfer was made by the Director. Infact the said letter of the District Education Officer is itself a proof that such posting of a fresh incumbent namely Prabhu Singh on the post of Headmaster at Kako was made only on 30.12.1995. Therefore it becomes clear that from 3.3.1994 to 30.12.1995 the post of Headmaster in the High School at Kako was vacant and in that background the 6 finding of the Director Secondary Education in the impugned order, reading as follows:- Þbuds }kjk izLrqr vfHkys[kksa@lk{;ksa rFkk ftyk f'k{kk inkf/kdkjh }kjk izf"kr rF;ksa ds leh{kksijkUr ;g ik;k x;k fd Jh izlkn 1-9-93 ls 30-9-93 rd mPp fo|ky;] txyky uxj ;ksxnku ugha gksus@izHkkj ugha feyus ds dkj.k ifjfLFkfro'k drZO; ij ugha jgs ijUrq 3-3-94 dks tc bUgsa mPp fo|ky;] dkdks] tgkukckn esa inLFkkfir fd;k x;k rc ;s LosPNk ls ;ksxnku ugha fn;s vkSj tc yEcs le; rd bUgksaus ;ksxnku ugha fn;k rc buds inLfkkiu ds fo|ky; ;Fkk mPp fo|ky;] nkmnuxj ,oa mPp fo|ky;] dkdks ls inLFkkiu dk vuqjks/k fd;k A Jh izlkn us 3-3-94 ds inLFkkiu vkns'k ds vuqikyu esa ;ksxnku dk bUgksaus iz;kl Hkh ugha fd;k vkSj u gh buds }kjk 3-3-94 ls 9-7-96 rd ;ksxnku nsus@dk;Z djus dk dksbZ lk{; izLrqr fd;k vkSj u gh bl vk'k; dk gh izek.k izLrqr fd;k fd mUgsa izHkkj ugha feyk ;k ;ksxnku ugha djk;k x;k bl izdkj ;g izekf.kr gksrk gS fd 3-3-94 ls ;s 9-7-96 rd LosPN;k dRrZO; ls ckgj jgs gSaAÞ itself answers the aforesaid lame plea of the petitioner. There is infact no averment in the writ petition that the post of Headmaster at Kako was occupied by some other incumbent and when the petitioner went to comply the order of transfer dated 3.3.1994 he was not allowed to join the said post. A reference of subsequent order of the Director dated 12.4.1994 therefore will be of no avail inasmuch as the general order was with regard to such of the persons who were not relieved from his earlier school or their order of transfer could not be executed. In the case 7 of the petitioner, between 3.3.1994 to 12.4.1994 there was no such impediment and in fact to that extent, the subsequent report of the District Education Officer dated 23.1.1996 must be held to be a self serving report obtained by the petitioner. The petitioner, in fact, was adamant to remain in his old school i.e. school at Jagalalnagar and that is how he having posted on 10.7.1996 on the eve of retirement and continued upto 31.7.1996 had retired from that very school. In that view of the matter, this Court does not find any error in the impugned order passed by the Director Secondary Education and accordingly, this writ application, being devoid of any merit, is hereby dismissed. kancahn (Mihir Kumar Jha, J.)