1. IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1044 of 2014 ---- Umran Ahmad Khan, S/o Late M. Sallaudin Khand “Warsi” Moh. Shah Ganj Benta, P.O.- P.S.Darbhanga, District-Darbhanga, Bihar and at present Junior Engineer, Road Construction Department, Lesliganj, Daltonganj Division, Jharkhand …. ….. …. Petitioner -Versus- 1.State of Jharkhand 2.Secretary, Road Construction Department, Government of Jharkhand, P.O. & P.S.-Dhurwa, District-Ranchi 3.Deputy Commissioner, P.O.& P.S.-Dumka, Dumka 4.Deputy Development Commissioner, P.O.& P.S.-Dumka, Dumka 5.Executive Engineer, Road Construction Department, Road Division, P.O.& P.S.-Daltonganj 6.Block Development Officer, P.O. & P.S.-Jarmundi, Jarmundi, Dumka 7.The State of Bihar, through Secretary, Road Construction Department, Government of Bihar, Patna, Baily Road, Patna, P.O.& P.S.-Patna. …. .... .… Respondents …. CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ------ For the Petitioner : Mr. Manoj Tandon, Advocate Mr. Ranjit Kumar, Advocate For the State : Mr. Binod Singh, S.C(L/C) Mr. Vishal Kumar Singh, JC to SC(L/C) For State of Bihar : Mr. Binit Chandra, JC to GA(Bihar) ----- 6/ 10.11.2016 Legality of rejection of the petitioner's claim for payment of salary for the period between May, 2006 to January, 2008 is the issue in the writ-petition.
3. The petitioner, who was appointed in the year 1987, was posted at Jarmundi Block, Dumka from 13.07.2004. He was allocated Bihar cadre vide Notification dated 03.05.2015. On his request for treatment of his wife, an order was issued for not relieving him for 6 months. This order is dated 01.12.2005. The petitioner asserts that after March, 2006 his salary was not released however, on his repeated request respondent no.6 released his salary. He submitted representations dated 30.05.2006, 05.06.2006, 22.06.2006 and 03.08.2006 for payment of salary and for relieving him for joining under 2. the Government of Bihar. In the meantime, his application for mutual transfer was accepted and the petitioner was transferred and posted to Road Division, Lesligang, Daltonganj vide order dated 24.01.2008. Finally, on 29.01.2008 his joining was accepted by the Executive Engineer, Road Construction Department, Government of Jharkhand. The petitioner has brought on record several other representations. The last one was submitted on 23.03.2007. When the representations for payment of salary between the period May, 2006 to January, 2008 were not considered, constrained, the petitioner approached this Court in W.P.(S) No.5016 of 2008, which was disposed of on 04.03.2009 with a direction to the respondent no.4 to take a decision in the matter and pass appropriate order. However, again no decision was taken by respondent no.4, which compelled the petitioner to file Contempt Case (Civil) No.604 of 2009. During the proceeding of the aforesaid contempt case, it was brought to the notice of the petitioner that vide orders dated 16.01.2010 and 27.07.2012 his claim for payment of salary for the aforesaid period has been rejected. Orders dated 16.01.2010 and 27.07.2012 are impugned in the present proceeding.
4. Mr. Manoj Tandon, the learned counsel for the petitioner submits that the petitioner, in view of the final cadre allocation order, gave his joining before the Under Secretary, Road Construction Department, Government of Bihar, however, he refused to accept his joining and in turn, asked the petitioner to first get the relieving order. It is contended that in the aforesaid facts, the petitioner must be deemed to be continuing and discharging his duty at Jarmundi Block. It is further contended that various representations submitted by the petitioner go to show that he was continuing on his post at Jarmundi Block till he was finally posted at Road Division, Lesliganj and therefore, he is entitled for salary for the 3. period between May, 2006 to January, 2008.
5. Referring to the stand taken in the counter-affidavit, the learned State counsel submits that the petitioner who was allocated Bihar cadre, 6 months after 01.12.2005 when he was permitted to stay at Jarmundi Block for 6 months, was required to report for duty under the Government of Bihar and the plea that he continued on his post at Jarmundi Block is not reflected in any official record there.
6. A perusal of order dated 16.01.2010 discloses that in compliance of orders passed by this Court in W.P.(S) No.5016 of 2008, Contempt Case (Civil) No.696 of 2008 and Contempt Case (Civil) No.604 of 2009, the Executive Engineer, Road Construction Department called for the records from the Block Office, Jarmundi. The respondent-authority has recorded a finding that from 01.06.2006 the petitioner was not working in the said Block. Order dated 27.07.2012 records that the Government of Bihar vide letter dated 14.12.2011 informed that after cadre allocation the petitioner never joined the Government of Bihar. It further records that there is no evidence of presence of the petitioner on duty between 01.06.2006 and 31.01.2008. It appears that vide order dated 04.02.2006, the petitioner was permitted to remain posted at Jarmundi till May, 2006. The petitioner has been paid salary till May, 2006, is not in dispute. The first representation submitted by the petitioner was on 30.05.2006. In the said representation the petitioner has made a prayer for relieving him and, in the writ-petition, the petitioner has asserted that he gave his joining before the Under Secretary, Road Construction Department, Government of Jharkhand however, he refused to accept his joining. No evidence in support of pleadings in paragraph no.16 of the writ-petition has been produced by the petitioner. Neither the name of the said Under Secretary has been disclosed nor the date on 4. which the petitioner alledgedly offered his joining before him has been stated in the writ-petition. In view of order dated 01.12.2005, whereby he was permitted to remain at his place of posting for next 6 months on the ground of treatment of his wife, the petitioner was required to leave his previous posting at Jarmundi. Neither the attendance register nor any other record at Jarmundi Block, where the petitioner remained posted till May, 2006 disclosed his presence on duty from 01.06.2006. In the present proceeding also the petitioner has not produced any document which would indicate that he had been discharging official duty there, after 01.06.2006. The petitioner has failed to rebut the findings recorded in orders dated 16.01.2010 and 27.07.2012, by producing any cogent evidence. It appears that the petitioner, who alongwith one Dinesh Kumar had submitted an application for mutual transfer, was waiting for final decision on the said application which was issued vide order dated 05.12.2007.
7. In the aforesaid facts, I find no infirmity in the impugned orders dated 16.01.2010 and 27.07.2012, whereby petitioner's claim for payment of salary for the period between May, 2006 to January, 2008 has been rejected. However, insofar as, regularization of the period between June, 2006 to January, 2008 is concerned, respondent no.2 shall take a decision in the light of various provisions “for leave” under the Jharkhand Service Code. (Shree Chandrashekhar, J.) SI/