Bombay High Court
Shaikh Mohd Quddus Abdul Qadeer vs The State Of Maharashtra And ... on 30 March, 2021
Bench: Ujjal Bhuyan, M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10433 OF 2019
Shaikh Mohd. Quddus Abdul Qadeer
age 48 years, occ. Service as
Secondary Teacher,
R/o Pensionpura, Hingoli
Tq. & Dist. Higoli Petitioner
Versus
1. The State of Maharashtra
Through its Principal Secretary
Rural Development Department
Mantralaya, Mumbai.
2. The Chief Executive Offcer
Zilla Parishad, Hingoli
3. The Education Offcer (Primary)
Zilla Parishad, Hingoli
4. The Education Offcer (Primary)
Zilla Parishad, Beed. Respondents
Mr. S.S. Thombre, Advocate for the petitioners.
Mr. S.P. Sonpawale, AGP for respondent No. 1.
Mr. V.M. Chate, Advocate for respondent No. 4.
WITH
WRIT PETITION NO. 10440 OF 2019
Kirankumar S/o Prabhakar Musale
Age 42 years, occ. Service as
Secondary Teacher,
R/o Kalamamba, Tq. Kai
Dist. Beed. Petitioner
Versus
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1. The State of Maharashtra
Through its Principal Secretary
Rural Development Department
Mantralaya, Mumbai.
2. The Chief Executive Offcer
Zilla Parishad, Hingoli
3. The Education Offcer (Primary)
Zilla Parishad, Hingoli
4. The Education Offcer (Primary)
Zilla Parishad, Beed. Respondents
Mr. S.S. Thombre, Advocate for the petitioners.
Mr. S.P. Sonpawale, AGP for respondent No. 1.
Mr. V.M. Chate, Advocate for respondent No. 4.
WITH
WRIT PETITION NO. 10539 OF 2019
Ramesh S/o Kisanrao Todkar
Age 40 years, occ. Service as
Secondary Teacher,
Zilla Parishad High School,
Pankanergaon,Tq. Sengaon
Dist. Hingoli Petitioner
Versus
1. The State of Maharashtra
Through its Principal Secretary
Rural Development Department
Mantralaya, Mumbai.
2. The Chief Executive Offcer
Zilla Parishad, Hingoli
3. The Education Offcer (Primary)
Zilla Parishad, Hingoli
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4. The Chief Executive Offcer
Zilla Parishad, Beed. Respondents
Mr. S.S. Thombre, Advocate for the petitioners.
Mr. S.P. Sonpawale, AGP for respondent No. 1.
Mrs. Shubhangi More, Advocate for respondents No. 2 and 3.
Mr. V.M. Chate, Advocate for respondent No. 4.
CORAM : Ujjal Bhuyan &
M.G. Sewlikar, JJ.
RESERVED ON : 19th March, 2021.
PRONOUNCED ON : 30th March, 2021.
JUDGMENT : ( Per M.G. Sewlikar, J.)
1. Rule. Rule made returnable forthwith.
2. By consent, heard both the sides for fnal disposal.
3. All these writ petitions are being disposed of by common
order as common question is involved in all these three writ petitions.
4. Factual matrix as set out in these three writ petitions is
as under :-
All the three petitioners were appointed as Assistant
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Teacher in Zilla Parishad, Hingoli. As per the policy of the
Government, all the three petitioners applied for inter-district transfer
from Zilla Parishad, Hingoli to Zilla Parishad, Beed. All the three
petitioners were relieved by the Zilla Parishad, Hingoli on 10.06.2016
and when they reported to the Zilla Parishad, Beed for joining the
duties on 01.07.2016, they were not allowed to join on the ground
that the posts were not available. Therefore, all the three petitioners
fled Writ Petition No.10996/2016 (Petitioner in Writ Petition No.
10433/2019), Writ Petition No. 11203/2016 (Petitioner in Writ Petition
No. 10440/2019) and Writ Petition No. 10995/2016 (Petitioner in Writ
Petition No. 10539/2019). In Writ Petitions No. 10995/2016 and
10996/2016, on 28.08.2018 following order was passed :-
. Under order dated 05.07.2018 we had
directed the Commissioner to resolve the
anomalous situation that has been created. The
petitioners were working with Zilla Parishad,
Hingoli. The petitioners were relieved on the
request of inter-district transfer and the
petitioners were directed to be absorbed with
Zilla Parishad, Beed.
2. It is the case of the Zilla Parishad, Beed
that vacancies does not exist and already 65
Assistant Teachers are in excess.
3. The Divisional Commissioner pursuant to
our order had considered the matter and had
directed the Chief Executive Offcer, Zilla
Parishad, Hingoli to allow the petitioners to join
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in Zilla Parishad, Hingoli.
4. Needless to state that as it is not fault of
the petitioners, the petitioners would be entitled
for the continuity in the service. As far as the
salary for the interregnum period is concerned,
the petitioner may apply to the Education Offcer,
Hingoli, which application shall be considered by
the Education Offcer on its own merits. The
Zilla Parishad, Hingoli shall take immediate
steps to join the petitioners pursuant to the
order passed by the Commissioner.
5. Writ petitions stand disposed of. No costs.
4.1 Similar order was passed in Writ Petition No. 11203/2016
5. Pursuant to this order, all the three petitioners were
allowed to join their duties on 09.10.2018. On 31.02.2018, all the
three petitioners fled application with Zilla Parishad, Hingoli for
release of their salary. Similar applications were fled on 05.12.2018,
09.04.2019 and 22.07.2019. Respondent No. 3, by communications
dated 05.07.2019 and 30.07.2019 informed all the three petitioners
that they had been granted continuity of service and the period
between the date of relieving from Zilla Parishad, Hingoli and the date
of joining the duties at Zilla Parishad, Beed would be treated as a
period of leave and leave admissible to them would be granted and, if
no leave is available to their credit, they would be granted extra
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ordinary leave. This communication is impugned in the instant writ
petitions.
6. Heard Mr. Thombre, learned counsel for the petitioners,
Mr. Sonpawale, learned AGP for the State, Mrs. More, learned
counsel for respondents No. 2 and 3 and, Mr. Chate, learned counsel
for respondent no. 4.
7. Learned counsel Mr. Thombre submitted that in terms of
the policy of the Government in regard to inter-district transfer, the
petitioners were relieved by Zilla Parishad, Hingoli. When they
reported for joining their duties at Zilla Parishad, Beed, they were not
allowed to join as there were no vacancies. He submitted that the
order of this Court in all the earlier three writ petitions clearly
demonstrate that the petitioners were not at fault. Therefore, to
deprive them of salary would be a sheer injustice on them. For no
fault of theirs, they are being penalised.
8. Learned counsel for respondents submitted that since
the petitioners did not render any work during this period, therefore,
they cannot be paid salary. They submitted that since the petitioners
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did not work the only option is to treat this period as leave period.
Therefore, this course was adopted. They, therefore, prayed for
dismissal of the writ petitions.
9. On perusal of the orders passed by this Court in Writ
Petitions No. 10995/2016, 10996/2016 and 11203/2016, it is clear
that Zilla Parishad, Beed did not allow the petitioners to join their
duties as no vacancy existed at that point of time and already 65
teachers were in excess. This Court, therefore, observed that it was
not the fault of the petitioners. The petitioners would be entitled to
continuity in service.
10. It is pertinent to note that in terms of the Government
policy in regard to inter-district transfer, the petitioners applied for
inter-district transfer which request was allowed and the petitioners
were relieved but they were not allowed to join their duties by Zilla
Parishad, Beed. This chronology of events clearly show that the
petitioners were not at fault. They were relieved on 10.06.2016 and
soon thereafter on 01.07.2016, they reported to Zilla Parishad, Beed
for joining the duties. This clearly shows that the petitioners cannot
be blamed for the anomalous situation created on account of inter-
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district transfer. Therefore, it was not justifed on the part of
respondent No. 3 to have issued the imugned directions. This
amounts to penalising the petitioners for no fault of theirs.
Therefore, the order passed by respondent No. 3 is unsustainable.
11. It is not the case of the respondents that the petitioners
were not ready to join the duties at Beed or at Hingoli. Therefore,
without there being any fault on their part, it will not be proper to
treat the period from the date of relieving from Hingoli and the date of
joining again at Hingoli as a period of leave. This period is from
10.06.2016 to 28.08.2018. The petitioners are, therefore, entitled to
the salary for this period since their continuity in service has been
ensured. It is impermissible for the State to say that salary cannot
be paid to them as they did not work. The petitioners were ready to
join the duties. Thus, they were not responsible for the anomalous
situation created by the respondents. For this reason, they cannot
be deprived of the salary for the aforesaid period. Therefore, the
impugned communication is arbitrary and capricious. It, therefore,
cannot be sustained. All the petitions, therefore, will have to be
allowed.
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12. In view of above, all the petitions i.e. Writ Petition Nos.
10433/2019, 10440/2019 and 10539/2019 are allowed in terms of
prayer clauses 'B' and 'C'. Rule made absolute in above terms.
( M. G. SEWLIKAR ) ( UJJAL BHUYAN )
Judge Judge
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