SUDESH ARORA Vs. STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) Present appeal, at the hands of dissatisfied plaintiff, is directed against the concurrent findings of fact recorded by both the learned courts below, whereby suit of the plaintiff was partly decreed by the learned trial court and her first appeal was dismissed by the learned first appellate court. Briefly put, facts of the case, as noticed by the learned Additional District judge in paras 2 and 3 of the impugned judgement, are that the plaintiff sought decree for declaration to the effect that plaintiff was entitled to be promoted as Lecturer in Hindi with all consequential benefits from the date, on which her juniors were promoted and a decree for mandatory injunction directing that the plaintiff sought decree for declaration to the effect that plaintiff was entitled to be promoted as Lecturer Hindi with all consequential benefits from the date on which her juniors were promoted and a decree for mandatory injunction directing the respondents to pay all her remaining salary from 1.9.2006 to 14.9.2006 and treating the period as duty leave from 15.9.2006 to 10.11.2006. It is pleaded that the plaintiff joined as JBT teacher on 24.4.1968 at Govt. Primary School, Nigana, District Rohtak, having ID No.048346. During her service, she obtained B.A., B.Ed and M.A. (Hindi) degree and promoted as Headmistress in October, 1986 and remained posted in different schools at different stations. In the month of June, 2006 the plaintiff was transferred from GGSSS, Gurgaon Village to GSSS, Garhi Harsaru and on 1.7.2006 transferred from GSSS, Garni Harsaru to GGSSS, Manesar. On 14.9.2006 she was relieved from GGSSS, Manesar and transferred to CMS, Rathiwas and then from there to Hathin. The factum of transfers was neither in the knowledge of Principal, GGSSS, Manesar and she also approached to District Education Officer. She orally objected regarding her frequent transfers and knocked the door of the civil court and on telephonic message received on 8.11.2006 with a condition that the respondents can change its earlier order if she withdraw her case and accordingly, she withdrawn her case. She made representation for payment of her salary for the period from 1.9.2006 to 14.9.2006 and from 15.9.2006 to 10.11.2006 treating the same as duty period. The case for extension in service of the plaintiff from the age of 55 to 58 years due w.e.f. 1.5.2005 was still pending. Her juniors were promoted and the plaintiff was ignored from her right of promotion.

(2.) Per contra denying, refuting, challenging and impugning the allegations, the averments in the plaint, which would run thus, the defendants filed their joint written statement by taking certain preliminary objections i.e. maintainability, jurisdiction, non-joinder of necessary parties, court fees, the plaintiff did not exhaust departmental remedy before filing the suit and denied all other allegations of the plaint. On merits, it is averred that it was the duty of the plaintiff to join at Hathin when she was relieved from GGSSS, Manesar on 14.9.2006. The plaintiff had not reported on her new place of posting and absented from her duty. As per provisions of Rule 9.18 of C.S.R. Volume-1, Part-1, a Government employee, who does not join his post within joining time is not entitled to pay and leave salary after the end of joining time. Willful absence from duty is to be treated as misbehaviour for the purpose of the Rule 3.17 of C.S.R. Indeed, showing leniency the period of her absence was treated as leave of the kind duty and admissible to her under the rules. The respondent no.2 was not competent to further transfer or cancel her transfer orders sic (since) the respondent no.1 being appointing authority was only competent to issue and modify transfer orders of the plaintiff. The plaintiff was in the cadre of Mistress and could be transferred anywhere in State of Haryana. Transfer is an incident of service and not a condition of service and no right of the plaintiff was infringed. The plaintiff was promoted as Lecturer vide order dated 14.8.2007 w.e.f. 6.6.2007 from the date when her juniors were promoted. Besides it, salary of the plaintiff from 1.9.2006 to 14.9.2006 was drawn and period of her willful absence from 15.9.2006 to 10.11.2006 was condoned as compulsory waiting period and considered on leave of the kind due and admissible and prayed for dismissal of the suit. On completion of pleadings of the parties, the learned trial court framed the following issues :-

(3.) In order to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on the record, the learned trial court came to the conclusion that the plaintiff was entitled for the salary for the period from 15.9.2006 to 10.11.2006, as she had already been promoted during the pendency of the civil suit. Accordingly, suit of the plaintiff was partly decreed, vide impugned judgement and decree dated 23.7.2011. Feeling aggrieved, plaintiff filed her first appeal, which came to be dismissed by the learned Additional District Judge, vide impugned judgement and decree dated 31.10.2011. Hence, this second appeal at the hands of the plaintiff.