Upendra Kumar Srivastav vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 11995 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 
Case :- SPECIAL APPEAL No. - 179 of 2023
 
Appellant :- Upendra Kumar Srivastav
 
Respondent :- State Of U.P. Thru. Prin. Secy. Child Development Service And Nutrition Development Lko. And Others
 
Counsel for Appellant :- Santosh Kr. Yadav Warsi,Rama Nand Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

(1) Heard learned counsel for the appellant and learned State Counsel.

(2) By instituting the proceedings of this Special Appeal under Chapter VIII Rule 5 of the Rules of the Court, the appellant-petitioner has assailed the order dated 28.03.2023 by the learned Single Judge whereby Writ-A No. 2524 of 2023 has been disposed of with a direction to the respondents to treat the period of absence of the appellant-petitioner from 01.07.2020 to 13.03.2022 as leave without pay for the purposes of releasing his retiral benefits. It has further been directed by the learned Single Judge that retiral dues to the appellant-petitioner shall be paid after calculation within three months from the date of the said judgment. However, the claim of the appellant-petitioner for payment of salary for the period from 01.07.2020 to 13.03.2022 has not been acceded to by the learned Single Judge.

(3) Before delving into the respective submissions made by the learned counsel for the respective parties, certain facts which are necessary for appropriate adjudication of the issues involved in the Special Appeal are being noted:-

(4) The appellant-petitioner was appointed in the Department of Social Welfare in the year 1986 on the post of Junior Clerk. In the administrative exigencies, the then existing Social Welfare Department was bifurcated and another department known as 'Bal Vikas Pustahar' was created in the year 1987-88. The Social Welfare Department issued a Government Order dated 15.06.1988 requiring therein that the employees who are working in the Woman Welfare and Bal Vikas Pustahar Scheme be adjusted/absorbed in the department of Women Welfare and Bal Vikas Pustahar and that such employees shall be under the administrative control of the Director, Women Welfare and Director, Bal Vikas Seva Evam Pustahar. Since there is a single cadre of employees working in the Bal Vikas Seva Evam Pustahar Directorate and in the districts, in the year 1998 options were invited from the employees in respect of the transfers, however, the appellant-petitioner did not give his option; rather, made a prayer by making an application on 29.04.1998 that he cannot be transferred out of the Directorate of Bal Vikas Seva Evam Pustahar and in case, he is to be transferred outside the Directorate in any district, he may be repatriated to the Social Welfare Department.

(5) It is not in dispute that there is only one cadre of the clerical staff in the Directorate as per the relevant Departmental Service Rules, 1992 and since the appellant-petitioner had been posted for 29 years in the Directorate, by means of an order dated 24.06.2020, the appellant-petitioner alongwith certain other Head Assistants was transferred to the district. The appellant-petitioner was thus transferred from the Directorate of the Department concerned to Lucknow District Office, however, he did not submit his joining pursuant to the Transfer Order dated 24.06.2020. The appellant-petitioner challenged the said Transfer Order dated 24.06.2020 by instituting Writ Petition No. 11102 (SS) of 2020, wherein an interim order was passed on 21.10.2020 that no coercive measures shall be taken against the appellant-petitioner. However, it is worth noticing at this juncture that the Court did not provide for any stay of the Transfer Order dated 24.06.2020. The said Writ Petition No. 11102 (SS) of 2020 was finally disposed of by means of an order dated 05.01.2022 without interfering in the order of transfer dated 24.06.2020. The Court while disposing of the said Writ petition vide order dated 05.01.2022 as corrected by means of order dated 28.01.2022 directed the competent authority to consider the objection raised by the appellant-petitioner against his Transfer Order dated 24.06.2020.

(6) In compliance of the said order dated 05.01.2022, as corrected by the order dated 28.01.2022 passed by this Court, the representation of the appellant-petitioner was considered, however, the same was rejected by the competent authority by means of order dated 10.03.2022. The appellant-petitioner after rejection of the said representation submitted his joining at the District Office of the department concerned on 13.03.2022, from where he retired on 30.06.2022. After his retirement, he instituted Writ-A No. 5329 of 2022, where a grievance was raised that the appellant-petitioner has wrongly been denied the salary of the period from 01.07.2020 to 13.03.2022. The said writ petition was finally disposed of by the learned Single Judge by means of order dated 31.08.2022, whereby the competent authority of the department concerned was directed to decide the representation made by the appellant-petitioner in accordance with law.

(7) It is in compliance of the said order dated 31.08.2022 passed by the learned Single Judge in Writ-A No.5329 of 2022 that the representation made by the appellant-petitioner was considered by the Director, who rejected the same by means of order dated 11.01.2023. The order dated 11.01.2023 was challenged by the appellant-petitioner by instituting the proceedings of Writ-A No. 2524 of 2023 which has now been disposed of. However, learned Single Judge while disposing of the said writ petition by means of the order dated 28.03.2022, which is under appeal in this case before us, did not accede to the prayer of the appellant-petitioner that he be paid salary for the period from 01.07.2020 to 13.03.2022.

(8) Submission of the learned Counsel for the appellant-petitioner is that the learned Single Judge has not taken into account the fact that in the writ petition filed by the appellant-petitioner, namely, Writ Petition No.11102 (SS) of 2022, which was filed against the order of transfer dated 24.06.2020, an order was passed by this Court for not taking any coercive measures against the appellant-petitioner on 21.10.2020. His further submission is that once the Court had already directed that no coercive measures shall be taken against the appellant-petitioner pursuant to the order dated 24.06.2020, denial to the appellant-petitioner of the salary for the period in question cannot be justified. According to him, however, the said aspect of the matter appears to have escaped the attention of the learned Single Judge. It has also been argued by the learned counsel for the appellant-petitioner that the appellant has been willing to join at the Lucknow Office pursuant to the Transfer Order dated 24.06.2020 and further that he has not been well for a certain period and accordingly, he was entitled to grant of Medical Leave and Casual Leave.

(9) On the other hand, learned State Counsel has argued that since there was no interim order operating against the order of Transfer dated 24.06.2020 and as such, it was incumbent upon the appellant-petitioner to have submitted his joining at the District Office pursuant to the Transfer Order and then he could have agitated the issues, if any. His submission, thus, is that the learned Single Judge has rightly rejected the prayer relating to grant of payment of salary for the period in question and hence, the order passed by the learned Single Judge does not warrant any interference by this Court in this Special Appeal.

(10) From the aforesaid arguments, what is noticeable is that though the appellant-petitioner had challenged the order of transfer dated 24.06.2020 on different counts and grounds, however, this Court while entertaining Writ Petition No.11102 (SS) of 2020, wherein a challenge was made to the said Transfer Order did not provide for any stay of operation of the Transfer Order; rather, what was provided as an interim measure in the said Writ Petition by the Court was that the State authorities shall not take any coercive measures against the appellant-petitioner. That would, in our considered opinion, mean that in case the appellant-petitioner did not submit his joining pursuant to the Transfer Order dated 20.06.2020, the same would not have entailed any disciplinary proceedings. However, in absence of any stay order/interim order staying the operation of the Transfer Order dated 24.06.2020 no immunity was available to the appellant-petitioner not to submit his joining at the place, where he was transferred by the said Transfer Order.

(11) Admittedly, the appellant-petitioner submitted his joining at the District Office of the department concerned only on 13.03.2022 and he has been unauthorizedly absent from duty from 01.07.2020 to 13.03.2022. In view of the order dated 21.10.2020 passed by this Court in Writ Petition No. 11102 (SS) of 2020, no departmental proceedings could have been initiated by the respondents against the appellant-petitioner and they have rightly not initiated any departmental proceedings for the unauthorized absence from duty. However, that in itself will not entitle the appellant-petitioner to claim salary of the period of the absence. There is nothing on record which can establish that the appellant-petitioner ever made any application for grant of Earned Leave or Medical Leave or any other leave. In absence of any such prayer, admittedly, the appellant-petitioner did not work at the place where he was transferred by means of the Order dated 24.06.2020, neither was any leave of any kind sanctioned to the appellant-petitioner.

(12) In the aforesaid view of the matter, so far as the order passed by the learned Single Judge denying payment of salary to the appellant-petitioner for the period in question is concerned, we do not find any infirmity in the said order passed by the learned Single Judge.

(13) So far as the payment of pension etc. to the appellant-petitioner is concerned, learned Single Judge in the order under appeal before us has already directed that the respondents shall treat the period of absence of the appellant-petitioner from 01.07.2020 to 13.03.2022 as leave without pay for the purposes of payment of post-retirement benefits.

(14) As a matter of fact, the question of regularization of the said period needs to be considered in view of the provisions contained in Fundamental Rules 81-B and 85 of the Financial Hand Book Vol II, Part II to IV for grant of extraordinary leave, otherwise the claim of the appellant-petitioner for payment of pension may be prejudiced. Learned Single Judge has already directed the respondents to treat the period of absence of as leave without pay for the purposes of payment of post-retirement benefits. Thus, the interest of the appellant-petitioner in respect of the regularization of the period of absence has already been protected by the learned Single Judge.

(15) For the reasons aforesaid, we are in complete agreement with the order passed by the learned Single Judge, which is under appeal herein. We direct that post-retirement benefits including the pension to which the appellant-petitioner is entitled, shall be released within the period stipulated by the learned Single Judge in his order dated 28.03.2023.

(16) The Special Appeal being devoid of merit is hereby dismissed.

 

 
Order Date :- 20.4.2023
 
akhilesh/
 

 

 
[Om Prakash Shukla, J.]       [D. K. Upadhyaya, J.]