IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8828 of 2001 Rita Sahay, W/O Sri Akhauri Bipin Bihari Prasad, resident of Harijee Compound, at and P.S. Dumraon, District- Buxar …….. Petitioner Versus 1.The State Of Bihar 2.The Secretary, Secondary Education, Bihar at Patna 3.The Regional Deputy Director of Education, Veer Chand Patel Road, Patna 4.The District Education Officer, Buxar 5.The Head Mistress, Maharani Usharani Girls High School, Dumraon, District- Buxar …….. Respondents ----------- For the Petitioner : M/s Alok Kumar Sinha-1 and Bhola Kumar,Adv. For the Respondents: Mr.Sunil Kumar Mandal, S.C.15 and Mr.Bipin Kumar,A/C to S.C.15 ----------- 10. 18/09/2009 Petitioner filed this writ application for a direction to the respondents for payment of arrears of her salary of the period October, 1999 to October, 2001 as well as for payment of bonus, dearness allowance, financial benefits of time bound promotion and salary of the strike period. A counter affidavit has been filed in the case by the respondent District Education Officer, Buxar, wherein it has been disclosed that amount of dues of the petitioner under various heads were paid during the pendency of the writ application and necessary - 2 - orders/cheques in that respect were annexed with the counter affidavit as Annexures-A,B,C and D. It has been disclosed in the counter affidavit that so far payment of salary of the petitioner of period 29.2.2000 to 2.8.2000 is concerned, necessary clarification has been sought for from the Director, Secondary Education as the petitioner had not worked in any school during this period and the clarification from the Director is awaited. Subsequently, a supplementary counter affidavit was filed by the respondent District Education Officer, along with which clarification from the Director dated 4.9.2006 has been annexed as Annexure-B and follow up order of respondent District Education Officer dated 25.7.2008 has been annexed as Annexure-C. As per letter of the Director, petitioner was sanctioned leave without pay for the period 29.2.2000 to 2.8.2000 and her services were regularized for the period which was notified by the respondent District Education Officer. Therefore, after filing of the supplementary counter affidavit by the District Education Officer, dispute in this case boils - 3 - down to the issue as to whether petitioner is entitled to her full salary for the period 29.2.2000 to 2.8.2000 or not. Facts of the case emerging from the pleadings of the respective parties, in nutshell, is that the petitioner, while working as Sanskrit Teacher in Usharani Balika Uchcha Vidyalaya, Dumraon in Buxar, was transferred to High School, Manikpur in Buxar vide Memo No.2432 dated 31.12.1999 on the ground that petitioner was a surplus teaching staff in the school and working beyond sanctioned strength. The said order was challenged by petitioner in this Court in C.W.J.C.No.1724 of 2000 which was heard and finally disposed of by this Court by order dated 10.3.2000 vide Annexure-1. This Court after noticing the stand of the petitioner that she was not a surplus teaching staff in the school as she was working there from before one Janardan Roy, who had joined the school later on, (who had intervened in the writ matter but was not heard), disposed of the writ application, and gave liberty to the petitioner to represent the matter before the Secretary of the Department, who was directed to make enquiry - 4 - and determine as to who was surplus teaching staff in the school and to pass appropriate orders within two months. Pursuant to the said order of this Court, enquiry was held and an order was passed by the then Secretary of the Department vide Annexure-2 dated 4.9.2000, in which it was held that the petitioner was the only teacher of Sanskrit subject in the school and as per the staffing pattern she was not surplus. Hence her transfer order was cancelled. However, since it was found that she was working in the School for the last more than ten years, it was directed that, after payment of salary etc., her case should be placed before the next meeting of the Establishment Committee for consideration of her transfer outside the Sub Division. However, she was not paid her dues and hence she filed representation to the Secretary of the Department vide Annexure-3, with copy of the same to the other subordinate authorities of the Department. Accordingly, direction was issued by the Regional Deputy Director of Education vide Annexure-4 dated 22.2.2001 to the Headmistress of the Dumraon School for immediate payment of - 5 - dues of the petitioner. Since in spite of the said communication dues of the petitioner were not paid, she filed this writ application before this Court. As noticed earlier, during the pendency of this writ application, all the dues of the petitioner have been paid except for the salary of the period 29.2.2000 to 2.8.2000. As per liberty granted earlier in this case, respondent District Education Officer has filed supplementary counter affidavit and the Director, Secondary Education has also filed counter affidavit in the case. A common stand has been taken by the respondents in both the affidavits that, in respect of the aforesaid period, a clarification was sought for by the District Education Officer from the Director, Secondary Education who, vide his letter dated 4.9.2006, clarified that the aforesaid period of the petitioner was to be adjusted against her admissible leave without pay and her period of service was to be regularized. The said letter of the Director has been produced by the District Education Officer in the supplementary counter affidavit as Annexure-B. Follow up order - 6 - issued by the respondent District Education Officer dated 25.7.2008 is also annexed with the supplementary counter affidavit as Annexure-C. In addition, Director, Secondary Education in paragraph 12 of his counter affidavit has taken a stand that, as per Notification No.4575 dated 29.10.1997, petitioner had an alternative remedy by way of appeal against order of her transfer after joining at the transferred place. But petitioner neither joined her transferred place nor attended the previous place. In paragraph 13 thereof, it is stated that since petitioner was not present at either of the places, being a Government servant, she was not entitled for salary of the period. Learned counsel for the petitioner has filed reply to the said counter affidavit of the Director, Secondary Education. Along with the said reply, petitioner has produced certain documents to show that she had submitted her joining in the Manikpur School even prior to her relieving from Dumraon School, but she was informed that the post of Sanskrit Teacher was not vacant in the school. Annexure-7 is the letter of the petitioner dated 26.2.2000 - 7 - addressed to the Headmaster, Manikpur School in this regard. Petitioner had made query from the Headmaster as to whether post of Sanskrit Teacher was vacant in the School or not. On the said letter itself, there is endorsement by the Headmaster of the School that some Sanskrit Teacher had already joined in the School on 20.1.2000. However, it was also mentioned that if the District Education Officer issued some orders in this respect, he could accept the joining. Next document (Annexure-8) is a letter dated 25.4.2000 of the respondent Regional Deputy Director to the Headmistress of Dumraon School. This letter shows that the petitioner had reported the matter of non-availability of vacant post of Sanskrit Teacher in Manikpur School to the authorities. In view of that information received from the petitioner, letters were issued to the Headmaster of Manikpur School as well as to the District Education Officer, and pending further orders, the Headmistress of Dumraon School was directed not to relieve the petitioner and continue her in the School. However, as facts appear from the records, the Headmistress of Dumraon School had - 8 - already relieved the petitioner on 28.2.2000 from her School. Annexure-9 is the letter of respondent Regional Deputy Director to the Secretary dated 24.4.2000 in which it was intimated to the Secretary that he (respondent Regional Deputy Director) was in seisin of the matter and he had directed the Headmistress of Dumraon School to allow the petitioner to continue in the School. These documents show that during the pendency of the earlier writ application in this Court itself, petitioner had approached the Headmaster of Manikpur School in all bonafide for her joining there and had sought for information whether post of Sanskrit Teacher was vacant or not. When she was informed that somebody else had joined the said post in the School, she had promptly reported the matter to the higher authorities. In view of non- availability of vacant post of Sanskrit Teacher in the transferred School, the higher authorities had stayed the transfer of the petitioner and had issued necessary directions to the Headmistress of Dumraon School to allow the petitioner to continue there. It appears - 9 - that this state of affairs continued for quite some time and ultimately some orders were issued on the basis of which petitioner joined back in Dumraon School on 3.8.2000. It is also on record that the basis of transfer of the petitioner from Dumraon School was found as non est by the respondent Secretary in an enquiry held by him pursuant to the orders of this Court and she was not found surplus teacher in the School and therefore, her transfer was cancelled. All these factual matrix show that the petitioner was not at fault in having not joined and worked in any of the School during the period 29.2.2000 to 2.8.2000. Respondents have failed to point out any laches on the part of the petitioner for her having not performed her duties against any post in any School. They have also not asserted or established that any further order was issued by any authority directing the Headmaster of Manikpur School to accept the joining of the petitioner against any other vacant post of any other subject. From the documents annexed with the reply of the petitioner, it is also apparent that the respondents were all through aware about non-joining of the petitioner due to non- - 10 - availability of post of Sanskrit Teacher in Manikpur School but they delayed in passing any concrete order in respect of the petitioner. In the circumstances, this Court is of the view that the petitioner cannot be held responsible for her having not functioned against any post during the period 29.2.2000 to 2.8.2000. Hence, this Court is of the firm opinion that she cannot be deprived of the salary of the said period by the respondents. The stand of the Director, Secondary Education in paragraphs 12 and 13 of his counter affidavit, as noticed above, is ridiculous in the light of the fact that the transfer order of the petitioner stands already quashed by the respondent Secretary vide Annexure-2 and this writ application of petitioner is confined to payment of her dues. Moreover, the non- functioning of petitioner at either of the places is amply discussed herein and in fact the same occasioned due to own lapses of respondents. As a result, this writ application is allowed and the respondents are directed to release salary of the petitioner of the period - 11 - 29.2.2000 to 2.8.2000. From Annexure-10 to the reply of the petitioner, it appears that necessary fund has already been earmarked and allotted for payment of salary of the petitioner of the said period and necessary communication has been sent by the respondent District Education Officer to the Headmistress of the Dumraon School. Now that the services of the petitioner has been regularized by the order of the Director, Secondary Education dated 4.9.2006, respondents are directed to pay salary of the petitioner of the period in question within three months from the date of receipt/production of a copy of this order with other admissible and consequential benefits. Pradeep/ (J. N. Singh, J.)