SCA/7175/1995 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7175 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= P D CHAUDHURY - Petitioner Versus THE DIRECTOR & 2 - Respondent ========================================================= Appearance : MR BS SUPEHIA for Petitioner: RULE SERVED for Respondents : 1 - 2. MR KETAN DWIVEDI, LD. AGP for Respondent: 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 06/08/2007 ORAL JUDGMENT 1. Shri. Supehia, learned counsel appearing for the petitioner submits that he is not pressing this petition for any other prayers, except to that SCA/7175/1995 2/8 JUDGMENT of receiving salary for the months from January 1995 till 31st July 1995 which has remain unpaid. Shri. Supehia submits that this salary be paid to the petitioner. 2. The petitioner has approached this Court under Article 226 of the Constitution of India, making grievance that he was abruptly repatriated under the order dated 26/12/1994 to his parent department and that order was not sent to the parent department at all. The petitioner was on tour and in the meanwhile the concerned respondent no.2 took over charge of the post unilaterally, therefore the petitioner was constrained to address communication after returning back from his tour on 3/1/1995. This communication was addressed to the Director of Tribal Welfare Department, the authority who in fact transferred and repatriated the petitioner. Petitioner also sent reminder on 18/4/1995 and again on 8/6/1995. The repatriating authority sent letter to the petitioner through the respondent no.2, the officer concerned, calling upon his explanation as to why he has not reported to his parent department. Thereafter it appears that the petitioner was posted as Sr. Lecturer in District Education & Training Center, Surat by the Dy. Director, Education. This order was passed on 3/8/1995. In that letter it is shown that the petitioner was posted as Sr. Lecturer, District Education & SCA/7175/1995 3/8 JUDGMENT Training Center, Surat, from his post and center i.e. Ashramshala Officer, Surat. This letter is not withdrawn and this is therefore enuring till date. The petitioner submits that he has been left out without any salary for the interregnum period. 3. Shri. Supehia submitted that the order repatriating him was passed in hot haste and without appreciating the attending circumstances. The order repatriating him had never been received by the petitioner. The order of repatriation which has now come on record go to show that copy of the order was sent to Director, Primary Education, Gandhinagar. It deserves to be noted that the petitioner had never belonged to the office of Primary Education. He actually was serving in Commissionerate of Higher Education and therefore, this order can not be said to have validly been received by his parent department, i.e. Commissionerate of Education. Shri. Supehia has therefore submitted that the petitioner is entitled to the salary for the period from January 1995 to July 1995. 4. Shri. Dwivedi, learned AGP has submitted that the petitioner is not entitled to claim salary as he has not worked for the period for which he is claiming salary. The order of transferring the petitioner is not invalid in any manner and SCA/7175/1995 4/8 JUDGMENT therefore when the order of transfer and repatriation is on record and the petitioner was relieved from the Tribal Welfare Department he could not have claimed salary thereafter. Shri. Dwivedi however could not explain as to why the order; which was claimed to be never received by the petitioner, who wrote to the transferring authority i.e. Director, Adijati Vikas Vibhag right within 2 days from his return from tour, i.e. on 3/1/1995 could not be served upon the petitioner. The petitioner has thereafter also not been given copy of the order. Shri. Dwivedi could not reply as to what is the cause for sending copy of the transfer and repatriation order to Director, Primary Education where the petitioner never belonged. In absence of such explanation Shri. Dwivedi could not effectively resist this petition. However Shri. Dwivedi has submitted that looking to the conduct of the petitioner he may not be granted salary for the period. Shri. Dwivedi has submitted that it was the duty cast upon the petitioner to approach parent department and got himself posted pursuant to the order of transfer and repatriation. In view of this the order of transfer and repatriation is valid and therefore so far as Tribal Welfare Department is concerned, said order can not be said to be invalidated and therefore the salary can not be granted to the petitioner. SCA/7175/1995 5/8 JUDGMENT 5. This Court has perused the record and heard learned counsels for the parties. As it is observed herein above the order of transfer and repatriation was sent to the petitioner by Registered Post A.D. and xerox copy of said Registered A.D. Acknowledgment due is produced on record. Shri. Dwivedi was given time twice to produce the original. However original could not be produced till date. The xerox copy is not quite legible, however it appears that the order was received in the office by the clerk as the word “clerk” is legible. Shri. Dwivedi has submitted that it was signed by clerk only and it is the practice in the Government offices that the registered A.D. Letters are always received by inward clerks. This submission of Shri. Dwivedi coupled with the submission of the petitioner that he was on tour and returned back to the office only on 31/12/1994, the copy of order was first served upon the clerk, and in absence of any affidavit filed by the clerk indicating that he had passed on this order to Shri. Chaudhari-the petitioner, the petitioner's say that he did not receive the transfer order remains uncontroverted. Mere say of the deponent of the affidavit in reply that the order was served is not sufficient. By that as it may; the fact remains to be noted that the order of transfer and repatriation of the petitioner had not been sent to his parent Department, at Commissioner of Higher Education. Therefore the SCA/7175/1995 6/8 JUDGMENT petitioner could not be posted and ultimately he came to be posted wherein the posting order issued by parent department on 3/8/1995 also indicate that he was till then serving in the Ashramshala. This in itself goes to show that the petitioner's service during this period is to be treated with Tribal Welfare Department only. The petitioner therefore can not be left high & dry. If he has not received copy of the order he could not have been in a position to report. It deserves to be mentioned here that the Director of Education is party respondent no.3 and the State of Gujarat are party respondents. Shri. Dwivedi is representing both. Shri. Dwivedi has submitted that Education Department has in fact treated the petitioner to be working in Tribal Welfare Department till his posting order was issued i.e. on 3-8-1995. No affidavit in reply is filed on behalf of Education Department indicating otherwise. Therefore, for all purposes it should be treated as if he was serving in Tribal Welfare Department. The Adijati Vikas Vibhag which has filed affidavit has also not explained as to what attempts were made on their part to serve the petitioner the copy of the order transferring and repatriating him to his parent department when petitioner wrote to them right after his returning back i.e. 3/1/1995 itself. Despite that till date when the affidavit in reply is filed on 24/7/2007 no explanation is SCA/7175/1995 7/8 JUDGMENT coming forward as to when his parent department was in fact intimated by this department i.e. Adijati Vikas Vibhag about petitioner's repatriation, as it is clear from the order repatriating the petitioner, with copy actually marked to Director,Primary Education where petitioner never belonged to. This entire approach therefore deserves to be viewed in its proper perspective. Shri. Dwivedi's submission with regard to conduct of the petitioner deserves to be viewed in juxtaposition to the conduct of the Department as well. Therefore, this Court is of the view that the petitioner can not be denied the salary of the period. However, the prayer for interest is denied as it was always open to the petitioner to approach the parent department immediately. The non- approaching of the parent department by him also go to show that the petitioner had also been partly responsible for his non working. Therefore, the interest is not permissible while ordering payment of arrears of salary. 6. In view of above, this Petition is allowed partly. The arrears of salary for the period from January 1995 to 31st July 1995, i.e. for 7 months be paid to the petitioner within one month from the date of receipt of writ of this order by the respondents. Rule is made absolute to the aforesaid extent. No order as to cost. SCA/7175/1995 8/8 JUDGMENT [ S.R. BRAHMBHATT, J ] /vgn