Smt. Alka Saxena vs The State of M.P. and Others

Hon''ble Shri Justice K.K. Trivedi

This petition was filed as Original Application No. 718/2000 before the M.P. Administrative Tribunal, Bench at Bhopal, claiming the benefit of grant of salary for the period when the petitioner was not permitted to join and to perform the duty with effect from 30.7.1997 to 21.10.1997. It is contended that the petitioner was transferred vide order dated 15.7.1997 from Government Narmada College, Hoshangabad to Government MGM College Itarsi, on administrative reasons. The petitioner was relieved by the College at Hoshangabad on 29.7.1997 and after availing of the joining period, she gave the joining on 11.8.1997 at Itarsi. However, the joining of the petitioner was not accepted contending that there was some modification in the order of posting issued on 15.7.1997. The petitioner thereafter moved the application for permitting the joining at Hoshangabad College as also delivery of the order passed by the Competent Authority. Nothing was done. Ultimately, when the representations were made, a modified order of posting was issued on 16.10.1997 pursuance to which the petitioner gave the joining on 21.10.1997. The salary of the period with effect from 30.7.1997 to 20.10.1997 was not paid to the petitioner despite making repeated representation, therefore, the Original Application was required to be filed. The respondents in their return have contended that the petitioner was aware of the order passed with respect to making change in the posting of the petitioner and in place of Itarsi, the petitioner was posted at Babai, District Hoshangabad. This order though came to the notice of the petitioner was not complied with, therefore, the salary of the said period was not paid to her. Only when the order modifying the posting of the petitioner to Hoshangabad was issued, the joining was given by the petitioner and from the date of joining, the salary has been paid. It is contended that since the petitioner has deliberately not complied with the order she is not entitled to grant of benefit of salary.

Refuting the allegations made by the respondents, the petitioner has filed a rejoinder which was served on the respondents on 23.2.2001. In the rejoinder, it is categorically contended that the modified order of posting was never served on the petitioner even when the application was made before the Competent Authority. That being so, it was not possible for the petitioner to carry out the order as modified by the respondents. It is further contended that since the joining of the petitioner was not accepted at Hoshangabad, she was not in a position to discharge the duty. For the lapses of the respondents, the salary cannot be denied to the petitioner.

Heard Learned Counsel for the parties at length and examined the record.

There is nothing available on record to indicate that the modified order of posting was served on the petitioner at any time. How the petitioner came to know about such an order, is stated in the return of the respondents, wherein, it is said that while the joining at Itarsi was not accepted, the petitioner was informed about the modified order passed by the authority and such a fact was recorded in the joining memo of the petitioner. Merely because something was recorded by the Principal of the College at Itarsi in the joining memo of the petitioner, how could it be said that the petitioner was actually served with the modified order of posting. If the petitioner was not served with the modified order of posting, no blame can be put on the petitioner nor can she be denied the benefit of salary. When it is also to be seen that in the rejoinder such fact was very categorically pleaded by the petitioner and despite the service of the said copy of the rejoinder, no rebuttal has been filed by the respondents by filing any additional affidavit, or even an acknowledgement of service of such order on petitioner. Consequently, it has to be held that the petitioner was not served with the copy of the modified order of posting and, therefore, she cannot be denied the benefit of salary for the said period. One more important aspect is that on 10.1.2001, while entertaining the Original Application, the Tribunal itself had passed the order for making payment of the salary of the period aforesaid to petitioner and this order was never called in question by the respondents.

Consequently, the petition is allowed. The payment of salary for the period with effect from 30.7.1997 to 21.10.1997 be calculated and paid to the petitioner within two months from the date of receipt of certified copy of the order passed today. With the aforesaid, the writ petition stands disposed of finally. There shall be no order as to costs.