Jyoti Kumar vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner seeks a direction to the respondent to release his withheld salary for the months of November 2018 to March 2019. The petitioner has superannuated from service on 31.01.2020.

The facts presented are that vide notification dated 06.11.2018, the petitioner was transferred from Government Degree College Baijnath to Government Degree College Dharamshala. In compliance, the petitioner assumed the charge at Government Degree College Dharamshala on 12.11.2018. One Sunil Mehta, vice whom the petitioner was transferred to Dharamshala, challenged the notification dated 06.11.2018 before the erstwhile H.P. Administrative Tribunal. O.A. No. 6574 of 2018 filed by him was decided on 13.11.2018. The relevant part of the order reads as under :-

“4. In the facts and circumstances of the case, the original application is disposed of with a direction that the applicant may file a comprehensive representation for cancellation of his transfer or suitable adjustment alongwith certified copy of this order to 1st respondent through the Principal Secretary (Education) to the Govt. of Himachal Pradesh, within three days. 1st respondent shall decide the same after affording an opportunity of being heard to the applicant as well as private respondent 3, if so desired, by 28th November, 2018. The further action, pursuant to notification dated 6th November, 2018, Annexure A-1, shall stand deferred till decision of the representation.”

Learned Tribunal passed the order on 13.11.2018 directing Sunil Mehta to make a representation against his transfer order which was directed to be decided by the respondent on or before 28.11.2018 with further observation that till the decision of the representation, further action pursuant to transfer order/notification dated 06.11.2018 shall stand deferred. The important fact is that the petitioner had already assumed the charge at the transferred station on 12.11.2018.

The representation of Sunil Mehta was rejected by the respondent on 10.01.2019. He again approached the learned Tribunal by filing O.A. No. 513 of 2019. This O.A. was decided on 08.02.2019 whereby he was again permitted to make a representation to be decided by the competent authority by 28.02.2019. Till the decision of the representation, further action pursuant to the order dated 10.01.2019 was ordered to be deferred.

As observed earlier, the petitioner had already joined at his transferred station on 12.11.2018. Learned counsel for the petitioner submitted that the petitioner had been continuously working at Government Degree College Dharamshala, however, he was not paid his salary, in all for five months i.e. for the months of November 2018 to March, 2019. The representation made by the petitioner to the respondents for release of his salary has yielded no fruitful action. In the aforesaid background, the petitioner has prayed for a direction to the respondent for release of his withheld salary.

The stand of the respondent is that ‘as per instruction dated 17.06.2004, whenever a teacher is transferred to another institution and incumbent teacher obtains stay order from the Court, the other teacher is relieved by the Principal of that institution so that he could join back to his original place of posting and could draw his pay against that post’. It is further submitted that as per the standing instructions of the department, the petitioner being the Head of Department and Controlling Officer was required to relinquish the charge and join back at his previous place of posting i.e. Government Degree College Baijnath. The petitioner did not adhere to the instructions and for that reason, his salary was withheld. The respondent submitted that the Government had conveyed its approval on 24.08.2021 for regularizing the absence period of the petitioner by granting him leave of the kind due.

We have heard learned counsel for the parties and gone through the record.

It is not in dispute that pursuant to the transfer order dated 06.11.2018, the petitioner had assumed the charge of Principal, Government Degree College Dharamshala on 12.11.2018. In O.A. No. 6574 of 2018, decided by the learned Tribunal on 13.11.2018, joining of the petitioner at the transferred station was not stayed. It was only the further action on that date (13.11.2018), which was deferred till the decision of representation to be filed by Sunil Mehta. It is also not in dispute that the representation filed by Sunil Mehta was rejected by the competent authority on 10.01.2019, whereafter he filed second O.A. bearing No. 513 of 2019. This O.A. was disposed of by the learned Tribunal on 08.02.2019 by directing the respondent to decide his second representation by 28.02.2019. Till the decision of the representation, further action pursuant to the consideration order dated 10.01.2019 was ordered to be deferred. The order dated 08.02.2019 passed by the learned Tribunal also observed that this was to be done without disturbing private respondent No. 3 (present petitioner). It is thus apparent that the petitioner had continued to serve at Government Degree College Dharamshala pursuant to the transfer order dated 06.11.2018 and in terms of the judgment dated 13th November, 2018, passed by the learned Tribunal in O.A. No. 6574 of 2018, titled Sunil Mehta Vs. State of H.P. and others as well as the judgment dated 08.02.2019, rendered by the learned Tribunal in O.A. No. 513 of 2019, titled Sunil Mehta Vs. State of H.P. and others. Hence, the action of the respondent in withholding the salary of the petitioner for the period in question cannot be justified.

We accordingly allow this writ petition by directing the respondent to release the withheld salary of the petitioner for the months of November 2018 to March 2019 within a period of two months from today, failing which the amount shall carry interest @ 5% per annum. The writ petition stands disposed of, so also the pending applications, if any.