LPA/163/1994 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 163 of 1994 In SPECIAL CIVIL APPLICATION No. 4729 of 1992 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M. THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DISTRICT PRIMARY EDUCATION OFFICER - Appellant(s) Versus H H BAWA & 2 - Respondent(s) ========================================================= Appearance : MR. HS MUNSHAW for Appellant(s) : 1, [Absent] RULE SERVED BY DS for Respondent(s) : 1 – 3. Ms. V.S. Pathak, AGP for respondents No. 2. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 04/02/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) LPA/163/1994 2/8 JUDGMENT This Appeal, preferred under Clause 15 of the Letters Patent, arises from the judgment and order dated 2nd December, 1993, passed by the learned Single Judge in above Special Civil Application No. 4729 of 1992. 2. The respondent, writ petitioner, was employed as “Primary School Teacher” under the District Primary Education Committee, Banaskantha. At the relevant time, he was serving in primary school at Village Thalwada, Taluka-Vadgam. By order dated 21st June, 1988, the petitioner came to be transferred to Village Piplivalivav, Taluka Danta. It appears that, against the said order of transfer, the petitioner had made a representation. Considering his representation, by order dated 11th August, 1988 made by District Primary Education Officer, Banaskantha, the petitioner was transferred from Village Piplivalivav to Village Motipura, Taluka Vadgam. Nevertheless, the petitioner did not report for duty. He insisted that his posting be continued in Primary School at Village Thalwada. Inspite of his transfer, first to Village Piplivalivav and then to Village Motipura, the petitioner did not report for duty. He went on moving the higher authorities, i.e., Director of Primary Education, certain Ministers, etc., for posting LPA/163/1994 3/8 JUDGMENT him at Village Thalwada. Considering his continuous absence without leave since June, 1988, the District Primary Education Officer gave him notices to resume duty at the place of his posting at Village Motipura. Nevertheless, the petitioner continued to remain absent from service. In view of his long absence from service and on certain other charges, the disciplinary proceeding was initiated against the petitioner. By order dated 21st October, 1989, made by the District Primary Education Officer (the disciplinary authority), the petitioner was removed from service. The said order of punishment was challenged by the petitioner before the District Primary Teachers Tribunal, Banaskantha. The said tribunal, by its order dated 22nd January, 1990 (copy is not placed on record), allowed the appeal to the extent that the order of punishment made by the disciplinary authority was set aside. Instead, the petitioner was visited with punishment of withholding of 3 increments with future effect. The said order came to be challenged by the petitioner before the Gujarat Civil Services Tribunal, Gandhinagar, in Appeal No. 104 of 1990. The said Appeal came to be allowed on 28th December, 1990. According to the said tribunal, the order of the disciplinary authority made on 21st October, 1989 and the order of the District Primary Teachers LPA/163/1994 4/8 JUDGMENT Tribunal made on 22nd January, 1990 were both illegal. The said tribunal set aside both the said orders. However, the District Primary Education Officer was reserved liberty to initiate fresh proceedings against the petitioner for unauthorised absence etc., in accordance with the Gujarat Panchayat Service [Disciplinary and Appeal] Rules, 1964. The matter rested there. It further appears that, even after the orders made by the tribunals below, the petitioner refused to join duty at Motipura. He insisted that he be posted at Thalwada. 3. The petitioner preferred above Special Civil Application No. 4729 of 1992 for directions to the District Primary Education Officer to reinstate the petitioner in service on the post of Primary School Teacher at Thalwada and to pay him the wages since 22nd June, 1988 with interest at the rate of 18% p.a. The said petition has been allowed by the learned Single Judge. The learned Single Judge has relied upon the communications sent by the Director, Primary Education, Secretary to the Chief Minister etc., and has held that the District Primary Education Officer had failed to carry out the orders made by the higher authority. The learned Single Judge has issued direction to the District Primary LPA/163/1994 5/8 JUDGMENT Education Officer to repost the petitioner in Primary School at Thalwada; to treat the petitioner to be on duty all throughout as if he had never been transferred away from Thalwada; the petitioner be paid all backwages and benefits including increments etc., as if he had never been transferred away from Thalwada; the backwages be paid from 6 weeks from the date of the order. In case of failure to pay backwages within six weeks, to pay interest at the rate of 12% p.a. Feeling aggrieved, the District Primary Education Officer has preferred the present Appeal. 4. We are of the opinion that the learned Single Judge was not justified in relying upon the communications addressed by the Director of Primary Education, Secretary to the Chief Minister etc., in holding that the petitioner had a right to be posted as teacher in the Primary School at Thalwada. It should be noted that the power to make posting of the primary school teachers is vested in the District Primary Education Officer, the appellant. In exercise of the said power, the appellant had ordered transfer of the petitioner from Village Thalwada to Village Piplivalivav. As noted by the learned Single Judge, it was one of several general transfers made during the Summer Vacation. Further, the order of transfer was not LPA/163/1994 6/8 JUDGMENT the subject matter of challenge before any authority or before the tribunals below. The challenge before the tribunals below was against the order of punishment. At the request made by the petitioner, by order dated 11th August, 1988 the petitioner was posted at Village Motipura, in Taluka Vadgam, i.e., in the same Taluka as Village Thalwada. The petitioner was, therefore, duty bound to report for duty at the place of his posting. Merely because the petitioner had moved the higher authorities, i.e., Director of Primary Education, some Ministers etc., he was not absolved from his liability to report for duty at the place of his posting. Neither the Primary Education Tribunal nor the Gujarat Civil Services Tribunal ever held that the petitioner had a right to posting at Village Thalwada nor a direction or even a recommendation to that effect was made by the tribunals below. The learned Single Judge has clearly erred in interfering with the order of posting of the petitioner at Village Motipura, years after the order was made. In absence of right to posting at Village Thalwada, the petitioner's claim for backwages was also unsustainable. Though the tribunals below had set aside the order of punishment made against the petitioner, neither of the said tribunals had awarded backwages to the petitioner. Indisputably, the petitioner did not report for duty LPA/163/1994 7/8 JUDGMENT at the place of his posting on his own volition and because of his recalcitrant attitude. The petitioner, therefore, had no right to the backwages. 5. In view of the above discussion, we allow the Appeal. The impugned judgment and order of the learned Single Judge, passed on 2nd December, 1993, in Special Civil Application No. 4729 of 1992, is quashed and set aside. The Special Civil Application No. 4729 of 1992 is dismissed. The parties will bear their own cost. 6. At this stage, learned advocate Mr. GP Baghel has appeared for Mr. Munshaw. He has submitted that, pending the Letters Patent Appeal, the order of the learned Single Judge was stayed. The petitioner did not report for duty at Motipura pending the petition or pending the present Appeal. He reached the age of superannuation in the month of June, 2005. In view of the liberty reserved by the tribunal below, a fresh disciplinary proceeding was held against the petitioner. By order dated 27th June 2005 made LPA/163/1994 8/8 JUDGMENT by the disciplinary authority, he has once again been ordered to be removed from service. [ Ms. R.M. Doshit, J. ] rmr. [ K.M. Thaker, J. ]