Manchaiah vs Director of Medical Edn.

The Petitioner a Stenographer in the Department of Medical Education has presented this writ petition praying for the issue of a writ of mandamus directing the respondent to pay salary and allowances due to the petitioner for the period commencing from 9.5.1980 to 6.8.1982.

This petition has come up for preliminary hearing after notice to the respondent. By consent of both the counsel it is taken up for final hearing.

The facts of the case in brief are as follows: The petitioner was working as Stenographer in the department of Health and Family Welfare Service of the State Government. The department was reorganised as per Government order dt. 18.11.1978. According to the said order, a separate Directorate of Medical Education was created and placed under the Director of Medical Education. The petitioner was then working in the Mysore Medical College. The said college came under the administrative control of the Directorate of Medical Education. This bifurcation came into force on 9.4.1978. The petitioner was transferred by an order dt. 7.5.1980 issued by the Administrative officer of the Directorate of Health and Family Welfare Services. The petitioner questioned the legality of the said order on the ground that he had come under the control of the Directorate of Medical Education, the Administrative office of the Directorate of Health and Family Welfare Services had no authority to transfer him. This contention of the petitioner was upheld and the order of transfer was quashed in W.P.No. 8992/1980 on 18th Feb. 1982.

Thereafter the petitioner has been taken on duty pursuant to the said order. He claimed that the period commencing from 9.5.1980 to 15.8.1988 during which period he had not joined duty should be treated as on duty and he should be paid salary and allowances. His request was rejected as per the endorsement dated 21.2.1982 (annexure ''C''). The view taken by the Directorate of Medical Education was that there was no direction from this Court to pay salary and allowances for the said period and therefore the same cannot be granted. It is the legality of the said order that is challenged in this writ petition.

In the earlier writ petition the order of transfer was quashed. The consequence of the said order was that the period during which he was out of duty should have been treated as duty as if the order of transfer had not been made. However, as the respondents have issued the endorsement dated 12.8.1982 it has become necessary for the petitioner to file this writ petition.

Learned counsel for the State submits that as there was no stay of the transfer in the earlier writ petition, the petitioner ought to have joined duty at the place he was posted and as he failed to do so, he cannot claim that the period should be treated as duty. A similar situation had come up for consideration after the disposal of the case, in S.B. Surappa vs. State of Mysore, (1966) 2 Mys.L.J. 372. In the said case, the petitioner therein was transferred from the office of the Public Service Commission to the Judicial department by an order made on 17.12.1964, on the, ground that his lien was in the Judicial department and therefore he was being repatriated and transferred. The legality or the said order was questioned in the said writ petition. The prayer for stay had been rejected. The writ petition was allowed on 31st May 1960. Thereafter, when the petitioner therein made a representation for treating the period commencing from 17.12.1964 on which date he was relieved pursuant to the said transfer order and 9th July 1966 on which date he reported back to duty in the office of the Public Service Commission after the decision in the writ petition, should be treated as on duty. As the said request was not complied with on the ground that there was no specific direction in the writ petition, an application was filed seeking clarification of the said order. The application was allowed on 16-4-1969 and the Division Bench of this Court held that if for any reason the petitioner had failed in the petition, he would have taken the consequence of not reporting for duty and the State would have been right in treating the period, as absent from duty. But when the writ petition had been allowed and the order of transfer was quashed, the period was bound to be treated as duty. The ratio of that order applies to this case also. In this case also, if the transfer order had been upheld, the petitioner had to suffer but not when the order had. been set aside.

In the result, I make the following order:

(i) The writ petition is allowed.

(i) A writ in the nature of mandamus shall issue to the respondents to treat the petitioner as having been on duty during the period commencing from 9.5.1980 till 16.8.1982 and to regulate his salary, periodical, increments, leave and other matters on that basis.

(iii) Sri. Devadas learned High Court Government Pleader is permitted to file his memo of appearance within two weeks.