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2012 Supreme(Mad) 599
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
P. Velayuthan
Versus
The Director Of Agriculture, Chennai & Another
W.P.No.2199 of 2007, (O.A.No.2543 of 2001)
Decided On : 06-02-2012
For the Petitioner:G. Elanchezhiyan, Advocate.
For the Respondents: R. Ravichandran, A.G.P.
The main legal point established is that the period of waiting for orders of posting should be treated as duty, entitling the employee to draw pay and special pay.
Headnote:
Compulsory Wait - Service Regularization - The court interpreted the legal provision of F.R. 9(6)(3) and held that the period of waiting for orders of posting should be treated as duty, entitling the employee to draw pay and special pay. The court also relied on a Supreme Court judgment to support the petitioner's claim.
Fact of the Case:
The petitioner sought to quash an order and obtain a writ for service regularization and salary payment for a specific period. The petitioner was transferred and challenged the transfer, which was stayed by the Tribunal. The petitioner filed representations for permission to join at the original place on posting, but the respondents did not accept the request and treated the period as leave.
Finding of the Court:
The court found in favor of the petitioner, holding that the period of waiting for orders of posting should be treated as duty, and the petitioner should be paid salary for the said period.
Issues: The issues involved the treatment of the period of waiting for orders of posting and the entitlement to salary during this period.
Ratio Decidendi: The court relied on the interpretation of F.R. 9(6)(3) and a Supreme Court judgment to decide that the petitioner should be entitled to salary for the period of waiting for orders of posting.
Final Decision: The writ petition was allowed, the impugned order was set aside, and a writ in the nature of mandamus was issued directing the respondent to treat the period as a period on duty and pay salary for the said period to the petitioner.
1. The petitioner has approached this Court with the prayer for issuance of a writ in the nature of Certiorari, to quash the order Pro.D.Dis.opsl/158507/96 dated 10.5.2000 passed by the first respondent, with consequential relief of issuance of a writ in the nature of mandamus, directing the respondent to regularise his service from 30.6.95 to 17.7.1995 as compulsory wait and to grant salary for the said period.
2. The petitioner was transferred on 22.6.1995. The petitioner challenged the order of transfer before the learned Tamil Nadu Administrative Tribunal on 1.7.1995. The Tribunal stayed the transfer. In pursuance to the interim order granted by the Tribunal, the petitioner filed representation for permission to join at the original place on posting.
The posting order was only issued to the petitioner on 17.7.1995. The petitioner therefore, filed representation for treating the period of absence i.e. 1.7.1995 to 16.7.1995 as waiting period. The respondents did not accept the request of the petitioner and ordered the period to be treated as leave of kind due.
3. The contention of the learned counsel for the petitioner that the action of the respondent is contrary to F.R. 9(6)(3) which reads as under:
"Compulsory Wait for orders of Posting
(3) When a Government servant has compulsorily to wait for orders of posting, such period of waiting shall be treated as duty. During such period, he shall be eligible to draw the pay plus special pay which he would have drawn had he continued in the post he held immediately before the period of compulsory wait or the pay plus special pay which he will draw on taking charge of the new post, whichever is less. For this purpose, no temporary post need be created.
The Compensatory allowances shall be reckoned at the rates admissible at the station in which he was on compulsory wait."
4. The petitioner filed representation against the decision of the respondent to treat the period of leave as waiting period, on the ground that in pursuance to the stay order, the petitioner had reported for duty, and it was the respondent who did not allow him to join duty till fresh order of transfer was issued. The representation filed by the petitioner stands rejected. The petitioner preferred an appeal against the order. The appeal was also rejected on 10.5.2005.
5. The petitioner has challenged the order rejecting the representation and the appeal, on the ground that once the order of transfer was stayed by the learned Tamil Nadu Administrative Tribunal and the petitioner had reported for duty along with copy of the stay order, it was not open to the respondent not to allow the petitioner to join duty.
6. The contention of the learned counsel for the petitioner therefore, is that once the fault was with the respondent in not allowing the petitioner to join duty, the petitioner cannot deny the salary for the said period, as the petitioner was not allowed to join duty inspite of presenting himself for the duty.
7. In support of this contention, the learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Electronic Corporation of India and others vs. Sateesh S.Rao Sonawalkar [(2004)11 SCC 550] wherein the Hon'ble Supreme Court was pleased to lay down that the period when an employee had reported for duty in pursuance to the stay order granted by the Court, and the respondent failed to take a decision on the joining report submitted by the employee that period has to be treated to be the period on duty, as the action of the respondent would be contrary to the stay order.
8. The case of the petitioner squarely covered by the decision of the Hon'ble Supreme Court referred to above.
9. Consequently, this writ petition is allowed. The impugned order is set aside. A writ in the nature of mandamus is issued directing the respondent to treat the period from 1.7.1995 to 16.7.1995 as a period on duty, and pay salary for the said period to the
