Deenanath Prasad vs State of Jharkhand

Pramath Patnaik, J

In the instant writ application, the petitioner seeks for direction upon respondents for release of arrears of salary for the period from 09.07.2006 to

07.05.2007 and for direction upon the respondents for release of arrears of difference of salary which is due prior to 15.11.2000 amounting to

Rs.20,000/- alongwith interest and for payment of travelling allowance which the petitioner has incurred in course of transit to give his joining at

transferred place of posting i.e. to the tune of Rs.20,000/-. The petitioner has further prayed for quashing the order dated 28.11.2008 as contained in

memo no.3443 by which the District Education Officer Bhagalpur treated the period from 14.07.2006 to 07.05.2007 as (a) From 14.07.2006 to

26.10.2006 as a period of Earned Leave. (b) From 27.10.2006 to 07.05.2007 as extra ordinary leave.Â

The averments made in the writ application in a nutshell is that petitioner joined as Laboratory Assistant in the erstwhile State of Bihar and after

bifurcation, the petitioner’s cadre was allocated to the State of Bihar. Accordingly, the petitioner was relieved from the State of Jharkhand on

08.07.2006 to report the State of Bihar as per cadre bifurcation. After being relieved from the State of Jharkhand, the petitioner submitted his joining

before respondent no.9 on 14.07.2006. The petitioner was forced to remain at Headquarter fairly for pretty long period and vide order dated

07.05.2007 issued by respondent no.9, the petitioner was posted at Bhagalpur in Inter level Shree Marwari Pathshalla. In pursuance of the said order,

the petitioner joined in the place of posting and continued his duties. But the salary for the period from 09.07.2006 to 07.05.2007 has not been paid to

the petitioner. For which, the petitioner has submitted series of representations which failed to evoke any response. It has further been averred in the

writ application that the petitioner has not been given the benefit of difference of arrears of salary which is due prior to 15.11.2000 to the tune of

Rs.20,000/- for which he was also submitted representations and the order was passed vide order dated 28.11.2008 total period from 14.07.2006 to

07.05.2007 has been bifurcated into two parts i.e.   (i) 14.07.2006 to 26.10.2006 has been converted as Earned Leave and (ii) 27.10.2006 to

07.05.2007 as extra ordinary leave as evident from Annexure-6 to the writ application. Thereafter, the petitioner has been allocated the State of

Jharkhand cadre and after being relieved from Bhagalpur, the petitioner resumed his duty in Secondary Education Directorate, Jharkhand on

01.12.2008 and thereafter, joined at S.S.+ 2 High School, Bero, Ranchi. It has further been averred in the writ application that the petitioner is entitled

to arrear of salary from 09.07.2006 to 07.05.2007 as per Rule 14(b) of the Jharkhand Service Code and therefore, the impugned order dated

28.11.2008 being contrary to the said provision is liable to be set aside. Being aggrieved by the impugned order dated 28.11.2008, the petitioner left

with no other alternative, has been constrained to knock the doors of this Court under Article 226 of the Constitution of India for redressal of his

grievances.      Â

Learned counsel for the petitioner has strenuously urged that the action of the respondents in withholding the arrear of salary for the period from

14.07.2006 to 07.05.2007 by passing the impugned order dated 28.11.2008 being contrary to the provision of Rule 14(b) of the Jharkhand Service

Code is not legally sustainable. Learned counsel for the petitioner further submits that the respondents on flimsy and untenable grounds have passed

the impugned order on the pretext that the petitioner failed to put his signature in the attendance register but nowhere of employee while awaiting for

posting is supposed to make in the attendance register. Therefore, action of the respondents cannot be countenanced in the eye of law in view of Rule

14 (b) of the Jharkhand Service Code.

Controverting the averments made in the writ application, a counteraffidavit has been filed on behalf of respondent nos.7 to 10 (State of Bihar). In

the counter-affidavit, it has been submitted that in pursuant to bifurcation of State of Bihar altogether 18 Laboratory Assistants were relieved from

July, 2006 from the State of Jharkhand to join in the State of Bihar. All the Laboratory Assistants after being relieved joined in the Headquarter at

Patna where they were putting their signature in the attendance register being kept and maintained for them as per Annexure-A to the counter-

affidavit. It has further been submitted that from perusal of the peon book being Diary No.10747 that the petitioner submitted joining report but he did

never report in the Human Resources Development Department, Govt. of Bihar, Patna and he disappeared. That other colleagues of the petitioner

remained in the Headquarter and they used to put their signature in the Attendance Register but the petitioner did not turn up and he did not put his

signature even for a day. It has been submitted that the petitioner instead of putting his signature on the attendance register made a frivolous complain

in the welfare Department, Bihar, Patna. A report was furnished as evident from Annexure-B to the counter-affidavit. It has been submitted that the

petitioner did not put his signature in the attendance register meant for such Lab Assistant who was allocated State of Bihar after bifurcation of State

and hence he was not entitled for salary w.e.f. 27.10.2006 to 07.05.2007 on the principle of “No work No Payâ€​ basis.Â

Mr. Pankaj Kumar, learned associate counsel of G.A.(Bihar), by reiterating the submissions made in the counter-affidavit, has submitted that the

action of the respondents in passing the order vide Annexure-6 to the writ application is legally justifiable in view of his absentism.

A counter-affidavit has also been filed by respondent no.6 dated 01.08.2017 wherein it has been submitted that the petitioner is entitled for the

salary for the period from 14.07.2006 to 26.10.2006 and the period 27.10.2006 to 07.05.2007 which is treated as extra ordinary leave without pay.Â

Reply to the counter-affidavit filed on behalf of respondent no.6 has been filed by the petitioner on 11.05.2018 wherein it has been submitted that

the respondent authorities are trying to make out a case of unauthorized absence committed on part of petitioner and therefore, on account of

absenteeism on part of the petitioner, the proper opportunity could not have been given to ask for an explanation or to start a departmental proceeding.

As per Rule 14(a) of the Service Code, there is no specific provision to mark attendance. In this respect, learned counsel for the petitioner has

referred to letter no.1441 dated 13.03.2008 and circular dated 21.08.1993 which have been annexed as Annexures 8 and 9 to the said reply.Â

Before adverting to the rivalized submissions, it would be apposite to refer Rule-14(a) of the Service Code which is quoted hereinbelow:-

‘14(a) Duty includes,-

(i) service in India, as a probationer or apprentice, if such service is followed by confirmation or by appointment to Government service;

(ii) joining time;

(iii) extra leave on average pay granted to a Government servant undergoing treatment at a Pasteur Institute.            Â

(i) On perusal of the impugned order vis-a-vis the counter-affidavit filed on behalf of respondent no.6, it is quite evident that the petitioner is entitled to

earned leave salary for the period from 14.07.2006 to 26.10.2006 and the period for which he has been treated to be on earned leave but so far as

extra ordinary leave period 27.10.2006 to 07.05.2007 is concerned, that is treated as leave without pay. In order to appreciate the contentious issue the

relevant provision of the extraordinary leave is quoted hereinbelow:- “Rule-236 of the Service Code:- Extraordinary leave may be granted to a

Government servant in special circumstances:- (i) When no other leave is admissible under these rules;

(ii) When, other leave being admissible, the Government servant concerned applies in writing for the grant of extraordinary leave.â€​Â

(II) As per the aforesaid provision when no other leave is admissible on the account of an employee, in that eventuality, extraordinary leave can be

resorted to. Moreover, the period is to be regularized as per Rule-14(a) of the Service Code. Â

(III) Since, the respondents have failed to point out any provision in the service jurisprudence as to whether marking of attendance is a condition

precedent for grant of salary, when an employee joined in service in the headquarters. No satisfactory explanation has been given by the respondent.

(IV) It is a trite law that where the power is given to do a certain thing in a certain way the thing must be done in that way or not at all. This doctrine

has been well recognized in principle. The reference may be made to Privy Council AIR 1936 PC 253 in the case of Nazir Ahmad Vs. Emperor. Â

In such view of matter, this Court feels inclined to direct the respondents to pass appropriate orders so far it relates to period from 27.10.2006 to

07.05.2007 as mentioned in the impugned order in  Annexure-6 as per relevant provision of the Service Code and Leave Rules within a period of

8 weeks from the date of receipt/communication of a copy of this order.Â

With the aforesaid direction, the writ petition stands disposed of.Â