IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5087 of 2002 Smt. Chanchal Devi, Wife of Shri Tulsi Narayan Prasad, Resident of L.F.84, Block-2, Sector-6, Bahadurpur Housing Colony, Patna- 20, P.O. Kankarbagh, P.S. Agam Kuan, at present Assistant Teacher, Ghanshyam Girl’s High School, Khagaul, Patna. ------- Petitioner Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. The Secretary, Human Resources Development, Government of Bihar, Patna. 3. The Director, Secondary Education, Bihar, Patna. 4. Regional Deputy Director Education, Patna Range, Patna. 5. The District Education Officer, Patna. 6. Smt. Radhikar Sinha, Headmistress, Ghanshyam Girl’s High School, Khagaul, Patna. --------- Respondents ----------- 5 14.07.2010 Heard learned counsel for the petitioner and counsel for the State. Pursuant to the previous order of this Court dated 12.7.2010, the Director, Secondary Education is present and has filed counter affidavit. He has also in person assured this Court that it will be his personal responsibility that he will see to it that the counter affidavit/show-cause in each and every case relating to office of Director, Secondary Education shall be filed within a period of six months and that in the 2 writ application/contempt application received by him from today onwards, he will get such counter affidavit and show-cause filed within a period of four weeks of the receipt of the copy of writ application/contempt application in his office. In view of the aforesaid personal undertaking given by Mr. Kamal Kumar Sinha, his personal appearance is exempted. It is, however, made clear to him that if the aforementioned undertaking is found to have been flouted in any manner, he shall be held personally responsible and dealt with under the provisions of Contempt of Court Act. Coming to the merit of this case, this Court would find that in course of time, the grievance of the petitioner remains confined to payment of salary for the period from 3.10.1996 to 27.4.1997. The case of the petitioner in this regard is that though she was always willing to join the post after completing her maternity leave but then she was actually not allowed to join the post. This aspect of the matter in fact 3 had received attention of this Court in the earlier round of litigation of the petitioner in CWJC No. 1104 of 1996 and this Court by an order dated 12.5.1998 had directed the District Education Officer, Patna to consider such grievance. In compliance of the said order, the D.E.O., Patna has passed the impugned order dated 18.1.2002, relevant portion whereof reads as follows:- “¼x½ fnukad 3-10-96 ls 27-4-97 rd ds osrukfn ds nkos ds laca/k esa fon~;ky; ds rRdkyhu iz/kkuk/;kfidk nokjk izfrosfnr izfrosnu] fon~;ky; ds lgk;d f'k{kdksa ds n~okjk fn;s x;s O;ku] fon~;ky; ds fyfidksa n~okjk fujh{k.k ds nkSjku fyf[kr :i ls crk;k x;k fd Jherh papy nsoh] lgk;d f'kf{kdk fnukad 3- 10-96 ds ek/;ku 12 ¼ckjg½ cts ;ksxnku vH;kosnu ,oa fpfdRlk izek.k&i= ds lkFk fon~;ky; ds rRdkyhu iz/kkuk/;kfidk ds le{k mifLFkr gqbZ FkhaA iz/kkuk/;kfidk nokjk mUgsa funsf'kr fd;k x;k fd vkidk fpfdRlk&izek.k i= ¼fQVusl izek.k i=½ =qfViw.kZ gS] bls Bhd djkdj nwljs fnu vki lefiZr dj nsaA vkidk ;ksxnku fnukad 3-10-96 ls gh Lohd`r dj nh tk;sxh] vc vki fon~;ky; esa iBu&ikBu dk dk;Z 'kw: dj nsaA blds ckn Jherh papy nsoh] lgk;d f'kf{kdk] f'k{kd d{k esa pyh x;ha ,oa FkksM+h nsj :dus ds ckn vijkgu~ 1-00 ¼,d½ cts fcuk fdlh dks lwfpr fd;s gq, fon~;ky; esa ls pyh x;ha mlds ckn ls fon~;ky; ugha vk;ha vkSj fnukad 5-10-96 dks fon~;ky; esa muds nokjk fucaf/kr vH;kosnu] tks fnukad 3-10-96 dks fucaf/kr fd;k x;k Fkk izkIr gqvkA rRdkyhu iz/kkuk/;kfidk us vius dk;kZy; i=kad 102 fnukad 5-10-96 ds n~okjk muds vkoklh; irk ij i= nsrs gq, Li"Vhdj.k fd;k fd fdl ifjfLFkfr esa vki fon~;ky; ls 4 fnukad 3-10-96 ls fcuk lwpuk ds vuqifLFkr gks x;h gSA fnukad 7-10-96 dks Jherh papy nsoh] lgk;d f'kf{kdk] ?ku';ke ckfydk mPp fo|ky; [kxksy iVuk ds vf/koDrk Jh jkeg`n; izlkn n~okjk ,d odkyrukek uksVhl fn;k x;k fd muds eksofDdy Jherh papy nsoh dks ;ksxnku ugha djk;k tk jgk gS ftlds vkyksd esa fon~;ky; dh iz/kkuk/;kfidk n~okjk vius i=kad 103 fnukad 8-10-96 n~okjk mUgsa lwfpr fd;k x;k fd d`I;k vius Lrj ls Jherh papy nsoh dks lwfpr fd;k tk;s fd fon~;ky; dh esa mifLFkr gksaA iqu% fon~;ky; ds i=kad 116&117 fnukad 23-11-96 ds n~okjk muds vkoklh; irs ij Hkh fucaf/kr Mkd ls i= nsrs gq, Li"Vhdj.k iwNk x;k fd vki fcuk lwpuk ds fon~;ky; ls D;ksa vuqifLFkr gqbZA mlds ckn os fnukad 28-4-97 dks fon~;ky; esa mifLFkr gqbZ ,oa fnukad 28-4-97 ls gh mudk ;ksxnku djk fy;k x;kA ;gka ;g Hkh tkap ds dze esas rF; izdk'k esa vk;k fd Jherh papy nsoh fnukad 3-10-96 dks fon~;ky; esa ;ksxnku ugha ysus ds laca/k esa iz0 v0 dks tks i= fuca/fkr Mkd ls fon~;ky; ds fudV mkd?kj ls Hkstk x;k mldh izfr ftyk f'k{kk inkf/kdkjh] iVuk ,oa {ks=h; mi f'k{kk funs'kd] iVuk ize.My dks Hkh fucaf/kr Mkd ls gh mlh le; mlh frfFk dks fon~;ky; ds fudV ds mkd?kj ls fucaf/kr Mkd ls HkstkA ijUrq iz0v0 ds n~okjk ;ksxnku ugha djk;s tkus ij ml frfFk vFkkZr~ fnukad 3-10-96 ;k 4-10-96 ;k mlds ckn dh frfFk;ksa esa dHkh Hkh O;fDxr :i ls ftyk f'k{kk inkf/kdkjh ls ;ksxnku gsrq lEidZ ugha fd;kA blls Li"V gksrk gS fd os fon~;ky; esa vius ;ksxnku gsrq dHkh Hkh fpfUrr ugha jgh gSa vkSj fnukad 3- 10-96 dks [kxkSy Mkd?kj ls fucaf/kr mkd ,d lkFk fon~;ky; ds iz/kkuk/;kid] ftyk f'k{kk inkf/kdkjh] iVuk rFkk {ks=h; mi f'k{kk funs'kd] iVuk ize.My] iVuk dks Hkstk] ;g bldk ,d Li"V izek.k gSA vr% fon~;ky; ls izkIr izfrosnu] fon~;ky; vfHkys[kksa dh tkWp@lquokbZ ,oa f'k{kd@deZpkfj;ksa ds c;ku ls ;g izrhr 5 gksrk gS fd Jherh papy nsoh] l0 f'k0 fnukad 3-10-96 ls fnukad 27-4-97 rd fon~;ky; ls vuqifLFkr jgh gSa ,os mDr vof/k ds osrukfn dk nkok fof/kor leh{kksijkUr vLohd`r fd;k tkrk gSA” The gist of the aforementioned order passed by the D.E.O., Patna is that the petitioner was willfully absenting herself from the school. Learned counsel for the petitioner has tried to wriggle out of the situation by taking a plea that the petitioner was already insisting for acceptance of her joining and therefore, it would not stand to reason as to why she could have avoided to remain present in the school after acceptance of a joining report. This Court, first of all, would not be in a position to decide such a jinxed question of fact, inasmuch as, the same would require leading of evidence. Such recourse in fact was also taken by the D.E.O. who in presence of the petitioner had decided the whole issue by also examining the Headmistress of the school. In fact the petitioner does not dispute that after the alleged information was given to her on 8.10.1996, she was again asked by the 6 Headmistress of the school by a registered letter dated 23.11.1996 seeking explanation as with regard to her absence. The petitioner appeared only five months thereafter on 28.4.1997. Counsel for the petitioner very fairly has admitted that the petitioner was served with the aforementioned registered letter dated 23.11.1996 but she had appeared in the school only on 28.4.1997. The conduct of the petitioner, therefore, of remaining absent from duty even prior to 3.10.1996, may be on account of maternity leave and her again remaining absent for a period of five months despite receipt of the registered letter dated 23.11.1996 are sufficient to indicate that the petitioner was willfully absenting from the duty. That being so, this Court has no reason to interfere with the impugned order wherein the authority has considered all possible pleas of the petitioner as with regard to the payment of salary for the period in question. Accordingly, this application, being wholly misconceived, is hereby dismissed. 7 Personal appearance of Mr. Kamal Kumar Sinha, Director, Secondary Education is dispensed with. Rsh (Mihir Kumar Jha, J.)