Rita Devi vs State Of Himachal Pradesh

Ajay Mohan Goel, J

By way of this petition, the petitioner has prayed for the following substantive reliefs:

"(i) That the impugned Annexures-PH and PI dated 20.03.2006, 04.08.2006 and 22.12.2006 may kindly be quashed and set aside by issuing a writ of certiorari.

(ii) That a writ of mandamus may kindly be issued directing the respondents to regularize the period of absence w.e.f. 1st February, 2000 to 24th August, 2000 and to directed the respondents to release the salary for the aforesaid period and also to grant all consequential benefits like seniority etc. in favour of the petitioner.

(iii) That the respondents may be directed to consider and give placement to the petitioner as Head Teacher w.e.f. 22.12.2006 from the date the persons juniors to the petitioner have been promoted as Head Teachers and to assign the seniority of Head Teachers accordingly."

Brief facts necessary for the adjudication of this writ petition are that the petitioner, who was serving as a JBT Teacher, vide Annexure P-A, dated 01.12.1999 was transferred from Government Primary School, Jia (Palampur Block) to Government Primary School, Chandrot (Kangra Block). The petitioner did not join the school to which she was transferred immediately, purportedly on account of ill health. Thereafter, vide Annexure P-B, she submitted her joining report on 01.02.2000 to respondent No. 4 regarding Government Primary School, Chandrot. Pursuant to this, a communication was addressed on 01.02.2000 (Annexure P-C) by Block Primary Education Officer, Kangra to Deputy Director of Elementary Education, Kangra, in which, it was mentioned that on account of rationalization which had taken place in Government Primary School, Jia, the strength of JBT Teachers stood reduced from three posts to two posts of JBT Teachers and as no vacancy of JBT Teacher was available in the school, the petitioner cannot be accommodated/ adjusted. This communication also bears a note from the office of District Primary Education Officer, Kangra to the effect that as no vacancy of JBT Teacher was available at GPS Jia, the petitioner was proposed to be adjusted somewhere else.

Thereafter, vide Annexure P-F, the petitioner was ordered to be adjusted at GPS Gatiri (Dharamshala), in the month of August, 2000, i.e. 24th August, 2000, as has been pointed out by learned Counsel for the petitioner.

The contention of the petitioner is that as she had made herself available for serving in the transferred school pursuant to her transfer vide Annexure P-A on 01.02.2000, therefore, she is entitled for her wages from 01.02.2000 till 24th August, 2000 and the act of the respondents of denying the same to her is arbitrary and not sustainable in law.

The stand of the State is that as far as the factual matrix narrated by the petitioner is concerned, though, there is no dispute on that, however, as the petitioner did not join her duties at school in issue pursuant to transfer order dated 01.12.1999, and thereafter, as she also did not report for duty in any school post the month of February, 2000 also, she is not entitled for the reliefs prayed for.

I have heard learned Counsel for the parties and also gone through the pleadings as well as documents appended therewith.

At the outset, it is pertinent to mention here that with the passage of time, now only relief (i) prayed for by the petitioner survives. It is not in dispute that after her transfer from Government Primary School, Jia, Palampur, to Government Primary School, Chandrot, Kangra, vide order dated 01.12.1999, the petitioner did not join her duties immediately and submitted her joining report only on 01.02.2000. There is also not any dispute that this period of absence has been subsequently regularized by the department concerned.

Now the issue is as to whether the respondent-department is justified in not paying the petitioner the wages of a JBT Teacher from 01.12.1999 till her transfer to GPS Gatiri, Dharamshala, vide Annexure P-F?

In my considered view, the act of the respondent-State of not releasing pay to the petitioner from 01.02.2000 up to 24th August, 2000, is arbitrary and not sustainable in law. This I say so for the reason that despite the petitioner having submitted her joining report on 01.02.2000 to respondent No. 4 for joining at GPS Chandrot, the reason as to why the petitioner was physically not permitted to join her duties at Government Primary School, Chandrot, was that there was no vacancy available at the said school. If that was the case, the onus was upon the employer to have had passed an order of posting of the petitioner in some other school, which admittedly was not done by the respondents-State till 24th August, 2000. In these circumstances, the petitioner cannot be made to suffer for the acts of omission on the part of the respondent-department. Had it been the case that immediately after the petitioner had submitted her joining report, an order stood passed by the respondents asking the petitioner to join at a different school and yet the petitioner did not abide by said order, then respondents would have been justified in not releasing the salary to the petitioner. However herein, it is not the deliberate act of the petitioner of not joining the duties at a particular school between 01.02.2000 to 24.08.2000 and the reason why she could not physically perform her duties was that in the interregnum she was not posted at any other school and therefore, she could not perform her duties in any school. In these circumstances, the respondents are not justified in denying the wages to the petitioner.

Accordingly, this petition is allowed by directing the respondents to both regularize the period of absence of the petitioner from 01.02.2000 to 24.08.2000, in accordance with law and also to release her salary for the said period. It is clarified that this period shall also be counted for all consequential benefits, including seniority etc. It is further directed that in the event of salary for the period w.e.f. 01.02.2000 to 24.08.2000 being released in favour of the petitioner within a period of 60 days from today, the respondents shall not be liable to pay any interest on the same, but in case, salary pertaining to the said period is not paid within the period of 60 days from today, then, the same shall also entail interest at the rate of 6% per annum from the date of filing of this petition up to the date of payment of salary.

The writ petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.