SWARN KANTA vs STATE & ORS

The writ petition is of the year 2008. Notice in this case was issued on 22.10.2008, however, the same was admitted on 01.06.2010

Through the present writ petition, the petitioner seeks the following reliefs in the nature of:-

“Certiorari quash Order No.GGHSBM-1169-72 dated 04.10.2007 passed by respondent No.4 whereby it has been ordered to settle the

intervening period of the petitioner from 27.06.2003 to 03.12.2004 as on leave whatever kind is due to her; & Mandamus command the respondents to

treat the intervening period i.e. 27.06.2003 to 03.12.2004 as on duty with a direction to the respondents to release all the due service benefits accrued

in favour of the petitioners w.e.f. 01.07.2003 to 03.12.2004 and also reflect them consequentially in the retiral benefits of the petitioner.â€​

Learned senior counsel appearing for the petitioner states that the petitioner is a Teacher and by order dated 16.06.1999, she was transferred from

Government Girls High School Bakshi Nagar, Jammu to Middle School, Malpur Doomi, (Kot Bhalwal).

Thereafter, another order (Annexure-B) dated 25.06.1999 was issued by the Chief Education Officer, Jammu, whereby the petitioner was retained in

Govt. High School Bakshi Nagar till further orders and she served in the said school with effect from 25.06.1999 to 27.06.2003. Thereafter, pursuant

to Government order No.661-Edu of 2003 dated 21.06.003 and Chief Education Officer, Jammu’s No. CEOJ/11410-581 dated 24.06.2003, the

petitioner was relieved on 27.06.2003 from Govt. Girls High School Bakshi Nagar, Jammu and directed to report at Govt. High School, Arnia by an

order (Annexure-D) dated 26.06.2003 issued by the Headmaster, Govt. Girls High School, Bakshi Nagar Jammu.

Learned senior counsel further states that pursuant to the order dated 27.06.2003, the petitioner reported before the Headmaster, Boys High School,

Arnia where the Headmaster did not permit her to join. The petitioner, not knowing what to do, submitted a representation (Annexure-F at Page-35)

dated 02.07.2003 to the Chief Education Officer, Jammu, however, there is no acknowledgement for the same but thereafter the petitioner has been

pursuing her representation to the Director School Education, Jammu by way of an application (Annexure-F at Page 36) dated 19.09.2003. Petitioner

has made another representation (Annexure-F at Page 38) dated 03.10.2003 to the Chief Education Officer, Jammu and thereafter one more

representation (Annexure-G) dated 02.01.2004 through M.L.A. has been submitted to the Hon’ble Education Minister, J&K State. However,

nothing happened and as a result, the period w.e.f. 27.06.2003 to 03.12.2004 has been treated as leave. Thereafter, the petitioner was forced to file

SWP No.372/2005 which was disposed of vide order dated 11.07.2007 directing the Head Master, Government High School, Burj Mandir Zone, Marh

to pass a speaking order. Consequent to that decision, the Head Master passed an order (Annexure-A) dated 04.10.2007 which is impugned in the

present writ petition.

A perusal of the order dated 04.10.2007 shows that the petitioner was given an opportunity to attend the office of the Head Master and submit full

particulars of the period where she remained during the said period and on what authority. In the impugned order, it is held that the petitioner failed to

produce any of the documents to prove that she was available at some office during the intervening period on duty. In the absence of any proper

explanation, it was held that this period i.e. w.e.f. 27.06.2003 to 03.12.2004 should be treated as period on leave of whatever kind as per service

records.

Mr. Raina, learned senior counsel assisted by Mr. Arun Kumar, pleads that none of the representations made, as indicated above, were considered

by the authority. Learned counsel submits that it is true that on 09.08.2007, a notice was issued by the Headmaster calling upon the petitioner to

appear in his office alongwith details. In response to that, the petitioner has submitted a detailed explanation (Annexure-L to the writ petition) where

the petitioner reiterates in various representations explaining that she was not allowed to join at High School Arnia nor she was adjusted in any other

place till 03.12.2004 and this adjustment came only because of the orders of this Court which is self explanatory. The fact that the petitioner was not

able to report at any place, as is evident from the fact that only based on the Court orders, she was given permission to rejoin on 03.12.2004. She has

submitted a detailed representation (Annexure-L) dated 21.08.2007 to the Principal, Government Girls High School, Burj Mandir, Jammu and a

registered Letter (Annexure-M) dated 18.09.2007. The letter reads as follows:-

ToÂ

   The Principal,

   Government Girls High School,

   Burj Mandir, Jammu.

Subject:-Â Notice No.GGHSBM-1138-41 dated 09.08.2007.

Reminder on behalf of Swarn Kanta, Teacher for consideration of reply dated 23.08.2007.

Ref:-

 Judgment passed by Hon’ble High Court of J&K in SWP No.372 of 2005 titled Swarn Kanta Vs. State of J&K & Ors.

Sir, Â

With reference to subject and reference cited herein above, it is to remind you that despite lapse of consideration period of time, the undersigned has

not been intimated regarding any orders passed and as such the judgment dated 11.7.2007 passed by the Hon’ble High Court in SWP No.372/05

still remains un-implemented and unsatisfied.

It is, therefore, once again intimated you to kindly dispose of the above said notice dated 9.8.2007 in the terms as provided in the judgment dated

11.07.2007, after due consideration of the reply dated 23.08.2007 and strictly abiding by principle of natural justice.

Thanking you.

Yours Sincerely,

(Swarn Kanta),

Teacher

At present

Govt. High School Gas Mandi, Jammu.Â

Dated:18.09.2007

A bare reading of the impugned order, however, shows that none of the representations nor the reply, as indicated above, has been considered

except a bald statement that the petitioner failed to produce the documents. The scope of the order passed by the Writ Court directing the authority to

settle the period of petitioners’ absence makes it abundantly clear that the petitioner was not allowed to join and only thereafter, on 03.12.2007,

she was allowed to join. None of these explanations appear to have been taken into consideration by the authority. Therefore, no purpose has been

served by allowing the Head Master of Govt. High School, Burj Mandir Zone, Marh Jammu to decide the claim of the petitioner because he is neither

concerned School Head Master nor was he got the relevant material to consider the claim.Â

In this view of the matter, while setting aside the impugned proceedings, a direction is issued to the Chief Education Officer, Jammu, to decide the

claim of the petitioner for treating the period w.e.f., 27.06.2003 to 03.12.2004, as a period ‘in service’ and not a period ‘in absence’. The

authority will decide the issue based on the representations of the petitioner and the Court orders that have been passed whereunder she was allowed

to resume her duties. These material facts should be discussed by the Chief Education Officer, Jammu in his order and decide the case on its own

merits.Â

The petitioner is directed to make a fresh representation alongwith copy of this order to the Chief Education Officer, Jammu, who shall decide the

same on its own merits in accordance with law applicable expeditiously, preferably within a period of eight to twelve weeks thereafter. Â

The writ petition alongwith connected MPs, if any, stands disposed of in the above terms.