IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5067 of 2002 KRISHNA KUMARI PANDEY wife of Ramesh Kumar Singh, Resident of Manik Sarkar Chowk, P.S. Kotwali, District- Bhagalpur. Versus 1.THE STATE OF BIHAR 2.The Commissioner cum Secretary, Primary Education, Government of Bihar, Patna. 3.The Director, Primary Education of Human Resources, Govt. of Bihar, Patna. 4.The District Superintendent of Education, Bhagalpur, District- Bhagalpur. 5.The Block Education Extension Officer, Sabour, at Sabour, District Bhagalpur. 6.The Head Master, Primary School, Agarpur Khas, P.S. Sabour, Anchal Sabour, District Bhagalpur. 7.The Head Mistress, Ramvati Girl Middle School, Rampur Nath Nagar, District Bhagalpur. 8.The Head Master, Middle School Shanker Bal Vikash, Naya Chak, Ishak Chak, Bhagalpur Cum Drawing and Disbursing Authority through Rajkiye Adarsh Middle School, Maheshpur Nagar Nigam, Bhagalpur. ----------- 6 3.8.2010 Heard Mr. Shivendra Kishore, learned counsel for the petitioner and learned counsel for the State. Pursuant to the order of this Court dated 7.7.2010 Mr. Amerika Prasad, the District Superintendent of Education, Bhagalpur had appeared in person both Yesterday and also today. The explanation filed by him in his show cause reply as with regard to non compliance of order of this Court dated 26.4.2010 is not satisfactory, but then taking into account that the earlier order dated 30.9.1996 in C.W.J.C. No. 5248 of 1995 was passed at the point of time when he was not posted as the District Superintendent of Education, Bhagalpur, this Court would drop the matter by recording that in future the said District Superintendent of Education, Bhagalpur shall be more careful and 2 vigilant in the matter of compliance of order of this Court. As a matter of fact on 26.4.2010 some other person was posted as the District Superintendent of Education, Bhagalpur and therefore it was he who had to file counter affidavit by 26.5.2010, but such counter affidavit was filed only Yesterday, i.e, on 2.8.2010 by the present D.S.E and that too in view of subsequent order dated 7.7.2010 of this Court directing his personal appearance with these words, the personal appearance of the District Superintendent of Education, Bhagalpur is accordingly dispensed with. Coming to the merits of this case, this Court would find that prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of an appropriate writ, order, direction commanding the respondent for payment of arrears of salary of the petitioner from 1.7.85 to 8.10.96 as the salary for the period was not paid to the petitioner due to the laches of the respondents itself.” As with regard to the aforementioned prayer Mr. Shivendra Kishore, learned counsel for the petitioner would submit that when in the order of the authority dated 27.6.1997 it has been admitted that non acceptance of joining of the petitioner was on account of fault in the office of the District Superintendent of Education as also her controlling authority, the petitioner would be entitled at least for payment of salary for the period she had remained waiting for acceptance of her joining. In this regard reliance has been also placed to the order of this Court dated 30.9.1996 in C.W.J.C. No.5248 of 1995, wherein a direction was 3 issued by this Court for taking a decision on the joining report submitted by the petitioner within a period of two months. Counsel for the State, on the other hand, would submit that in terms of order of this Court dated 30.9.1996 joining of the petitioner was accepted w.e.f. 8.10.1996 and she has also been paid her salary from 8.10.1996 onwards. He would submit that the claim for payment of salary of the petitioner for the period she had remained unauthorisedly absent from duty can not be allowed on the principles of „No work no pay.‟ Two things are absolutely clear as with regard to claim of the petitioner. Earlier the petitioner moved this Court in C.W.J.C. No. 5248 of 1995 seeking a writ of mandamus directing the respondents to accept joining report of the petitioner and to grant consequential relief of payment of her salary. Such writ petition was dismissed by order dated 30.9.1996 with the only observation/direction that a decision should be taken on her joining report. The joining report of the petitioner thereafter, as noted above, had been accepted and she had been paid her salary from the date of acceptance of her joining. The earlier order passed by this Court on 30.9.1996 therefore by itself would stand in the way of the petitioner for claiming any other relief for the period which was already covered therein for the same cause of action on the basis of the well established principles of resjudicata and constructive resjudicata. On that date i.e. 30.9.1996 this Court did not find the 4 petitioner entitled for payment of salary for the period 1.7.1985 to 8.10.1996 and had merely observed for taking a decision on joining report of the petitioner. That would by itself be a bar for the petitioner to claim any relief unless she had successfully assailed the consequential order dated 27.6.1997 as contained in Annexure-5 passed in light of observation made by this Court in the order dated 30.6.1996. As noted above, there is no such prayer for quashing of the aforesaid order dated 27.6.1997 and thus being beneficiary also in terms of such order by way of acceptance of her joining, she cannot now overcome the same in an indirect manner. There is no difficulty in understanding the grievance of the petitioner that when she was transferred from the Primary School, Belari, Shambhuganj to Primary School, Agarpur Khas in Sabour Circle in the month of June, 1985 she did not submit her joining report from June, 1985 up to 1.12.1994. Whatever be the reason for her for not reporting at the transferred place of posting the petitioner would not have remained absent without there being any leave sanctioned to her or the order of transfer rescinded in any manner. The petitioner ultimately choose to join in that very School at Agarpur Khas on 1.12.1994 and therefore the same would be sufficient to hold that the petitioner was conscious of the consequences for not joining at the transferred place. As the said transfer order of the petitioner had never been cancelled, absence of the petitioner from 1.7.1985 to 1.12.1994 without approved 5 leave therefore has to be treated to the period of her unauthorized absence. As with regard to the period after 1.12.1994, this Court would find that the Headmaster of the School had not accepted her joining on 1.12.1994 by informing that there were only two posts in the School and both of them had been occupied when the petitioner had failed to join in pursuance of her transferred order. Thus, on 2.12.1994 if the petitioner had reported this fact to the controlling authority as is mentioned in the order dated 27.6.1997, the petitioner at best would be entitled for extra- ordinary leave from 2.12.1994 till acceptance of her joining, i.e, 7.10.1996. If the petitioner would therefore apply for leave for this period from 2.12.1994 to 8.10.1996, the District Superintendent of Education with his comments will place the matter before the District Education Establishment Committee which will then take the necessary decision for grant of extraordinary leave to the petitioner so that the said period can be computed towards the qualifying service in terms of Rule 103 of Bihar Pension Rules. The period of 1.7.1985 to 30.11.1994 will however be treated as break in her service, but as the respondents till date had not taken any action against the petitioner for this misconduct by initiating a departmental proceeding, no punitive action will be taken against her now on this score. It is also made clear that if for the period 1.12.1994 to 8.12.1996 the petitioner has prayed for any other admissible leave that may also be granted and adjusted before 6 granting her extraordinary leave without pay for the rest of period. With the aforementioned observation/direction this writ application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)