WP(C) 4284/2007 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI JUDGMENT & ORDER (oral) 1. Heard Mr. H. K. Mahanta, learned counsel for the petitioner, Mr. R. K. B ora, learned Govt. Advocate, Assam appearing for the respondent Nos.2, 4 and 6 a nd Mr. D. Saikia, learned Standing Counsel, Health Department, appearing for the respondent Nos.1, 3, 5 and 7. 2. This writ petition has been filed seeking a direction from the Court for payment of unpaid salary of the petitioner for a period of 26 months commencing from 01.12.2001 to 01.02.2004. The detail facts in which the aforesaid relief h as been prayed for may be noticed at the outset though very briefly. 3. The petitioner was appointed under Regulation 3(f) of the Assam Public S ervice Commission (Limitation of Functions) Regulations, 1951, in the post of Me dical and Health Officer-I. On his appointment his service was placed at the dis posal of the Home Department for appointment in the vacant post in 16th Assam Po lice (IR) Battalion at Morigaon. The service of the petitioner having been place d at the disposal of the Home Department, by order dated 28.3.2001 issued by the Under Secretary to the Govt. of Assam, Home (A) Department, the petitioner was posted as the Medical & Health Officer-I in the 16th Assam Police (IR) Battalion , Barmanipur, Morigaon. According to the petitioner, he joined in the post in qu estion and while working as such his appointment under Regulation 3(f) along wit h others was regularized with effect from 18.7.2001 by an order dated 3.9.2001. Thereafter, on 12.11.2001 by an order issued by the Joint Secretary to the Govt. of Assam, Health and Family Welfare Department, the petitioner was transferred and posted in the 14th Assam Police (IR) Battalion at Daulasal in Nalbari. Pursu ant to the order dated 12.11.2001 of the Health Department, the Under Secretary to the Govt. of Assam, Home(A) Department, by order dated 28th of November 2001 posted the petitioner in the 14th Assam Police (IR) Battalion, Nalbari. Accordin g to the petitioner, he was released from the 16th Assam Police (IR) Battalion o n 1.12.2001. Thereafter, by an order dated 7th of December 2001, the transfer of the petitioner made by order dated 28.11.2001 was cancelled. However, by the sa id order dated 7th of December 2001 the petitioner was, once again, transferred and posted in the 14th Assam Police (IR) Battalion, Daulasal, Nalbari. 4. The materials on record indicate that, according to the petitioner, he j oined in the 14th Assam Police (IR) Battalion on 18th of December 2001 and worke d for two days whereafter he submitted a letter/representation dated 21.12.2001 requesting the Commandant of the 14th Assam Police (IR) Battalion to treat his j oining report dated 18.12.2001 as cancelled/withdrawn so as to enable him to tak e a fresh release from the Commandant of the 16th Assam Police (IR) Battalion in terms of the subsequent transfer order dated 7th of December 2001. According to the petitioner, the aforesaid course of action was adopted by him as the Comman dant of the 14th Assam Police (IR) Battalion insisted on a fresh release order b y the Commandant of the 16th Assam Police (IR) Battalion in terms of the subsequ ent transfer order dated 7th of December 2001. However, according to the petitio ner, the Commandant of the 16th Assam Police (IR) Battalion did not issue any su ch release order without which the Commandant of the 14th Assam Police (IR) Batt alion did not allow him to re-join. The petitioner by a series of representation s, copies of which have been enclosed with the writ petition, informed the autho rities of the Home Department at different levels of the aforesaid position. How ever, none of the said representations received any response from the authoritie s of the Home Department. The petitioner was finally recalled from deputation by the Health and Family Welfare Department in the year 2004 and he was given a po sting by the Health Department with effect from 01.02.2004. In such circumstance s, the petitioner has claimed payment of unpaid salary from 01.12.2001 to 01.02. 2004 (26 months). 5. The Health Department has filed an affidavit in the case wherein it has been stated that the release of the petitioner from the 16th Assam Police (IR) B attalion on 01.12.2001 was a unilateral act on the part of the petitioner inasmu ch the Officer who had relieved the petitioner had not signed the report of rele ase/handing over of charge. The Health Department, in the affidavit filed, has f urther stated that the petitioner was on deputation to the Home Department upto 01.02.2004 and therefore matters pertaining to his posting and payment of salary upto the said date is the concern of the Home Department and not of the Health Department. 6. The Deputy Secretary to the Govt. of Assam, Home Department, has filed a n affidavit in the case wherein the conduct of the petitioner in going on casual leave and over-staying until 01.12.2001 has been mentioned in paragraph 4 of th e affidavit. In the said paragraph of the affidavit it has been mentioned that t he petitioner reported for duties in the 16th Assam Police (IR) Battalion on 01. 12.2001 after remaining absent for about six months and relinquished charge on t he same day to enable him to join in the 14th Assam Police (IR) Battalion in ter ms of the transfer order dated 26.11.2001. It is further mentioned in the affida vit filed that the Commandant of the 16th Assam Police (IR) Battalion had sent c opies of the charge report, LPC etc. of the petitioner to the Commandant of the 14th Assam Police (IR) Battalion. The Home Department, in the affidavit filed, h as also stated that the petitioner joined duties in the 14th Assam Police (IR) B attalion on 18.12.2001 and worked for two days whereafter he submitted a letter/ representation dated 21.12.2001 to treat his joining report in the 14th Assam Po lice (IR) Battalion as cancelled/withdrawn, as already noticed above. Thereafter , according to the Home Department, the petitioner did not turn up for duties in the 14th Assam Police (IR) Battalion till 27.01.2004 on which date he was withd rawn from the Home Department by his parent department i.e. the Health and Famil y Welfare Department. The respondent-Home Department, therefore, has stated, in the affidavit filed, that the petitioner was unauthorisedly absent from duties w ith effect from 21.12.2001 to 27.01.2004. 7. In the affidavit of the Home Department no explanation, whatsoever, is f orthcoming as to why the order of transfer and posting of the petitioner in the 14th Assam Police (IR) Battalion dated 26.11.2001 had to be cancelled by the sub sequent order dated 7.12.2001 and the petitioner had again to be posted in the s ame place. Be that as it may, both the sets of respondents in their affidavits f iled have virtually admitted that pursuant to the transfer order dated 7.12.2001 the petitioner had joined in the 14th Assam Police (IR) Battalion on 18.12.2001 . Though the respondents do not admit, according to the petitioner, he had submi tted the letter/representation dated 21.12.2001 to the Commandant of the 14th As sam Police (IR) Battalion to treat his joining report dated 18.12.2001 as cancel led as the said Commandant insisted on a fresh release of the petitioner from th e 16th Assam Police (IR) Battalion in terms of the subsequent transfer order dat ed 7.12.2001. In this regard, the stand of the Home Department, as available in the affidavit filed, is that the petitioner had remained absent unauthorisedly a fter 21.12.2001. On due consideration of the materials available on record, the version offered by the petitioner, as noticed above, appears to be correct inasm uch the stand taken by the petitioner is supported by the contemporaneous docume nts available on record i.e. the representations filed to the Home Department po inting out the aforesaid facts and requesting the authorities of the Home Depart ment at different levels to issue directions to the Commandant of the 16th Assam Police (IR) Battalion to issue a fresh release order in the name of the petitio ner. 8. Notwithstanding the aforesaid representations of the petitioner, which a re several in number and repeated at frequent intervals, admittedly and evidentl y, there was no response from the Home Department at all. The aforesaid conclusi on has been reached by the Court in the absence of any averment in this regard i n the affidavit of the Home Department. The matter could have been easily dealt with by the Home Department by ensuring a fresh release order from the Commandan t of the 16th Assam Police (IR) Battalion or by a direction to the Commandant of the 14th Assam Police (IR) Battalion to allow the petitioner to rejoin; no such action was taken. The petitioner kept on running from pillar to post but his re peated requests had fallen on deaf ears. Consequently, the petitioner had to rem ain without a posting until the Health Department decided to terminate his deput ation in the Home Department and give him a fresh posting with effect from 01.02 .2004. In the above situation, the stand taken by the Home Department in the aff idavit filed that the petitioner must be deemed to be unauthorisedly absent from 21.12.2001 to 27.01.2004 can hardly merit acceptance. On the contrary, the inac tion of the Home Department in the matter and its failure, at all levels, to giv e a suitable posting to the petitioner would leave the Court satisfied that it i s the Home Department who must be held responsible for the predicament and hards hips that the petitioner must have suffered. 9. Though the Court would be normally reluctant to order payment of salary in a situation where services have not been rendered, such reluctance must fade away in a situation where an incumbent has been rendered unable to render servic e on account of the lapses of the State authorities. This is precisely the posit ion in the present case. The Court, therefore, is of the view that the present w ould be a fit case wherein intervention of the Court will be justified to direct the State Government to forthwith pay the unpaid salary and allowances of the p etitioner for the period from 01.12.2001 to 01.02.2004. It is ordered accordingl y. 10. The writ petition, consequently, is allowed as indicated above. 11. After the dictation of the judgment was complete another Govt. Advocate i.e. Sri B. J. Ghosh, who suddenly entered the Court, tried to place before the Court some communications received by him. As the judgment has already been pron ounced the Court has considered it improper to look into the said documents.