Case Note & Summary
The petitioner, Narayan Dattu Panchal, was employed as a Watchman in a special school for orthopedically handicapped children in Hanegaon, Nanded, which closed in 2000 due to discrepancies found during inspection. He was declared surplus and included in a state-level list. On 26/09/2007, the Commissioner for Disabled Persons (respondent No.2) issued an absorption order directing him to join a school at Paturda, Buldhana. However, when he reported for duty, the school authorities refused to allow him to join, stating that the post of Watchman was not sanctioned. The petitioner made several representations to respondent No.2 between December 2007 and August 2008, but no effective action was taken. Instead, respondent No.2 merely sought an explanation from the school, which confirmed the lack of a sanctioned post and requested that a post be created if absorption was to be effected. No further steps were taken. On 20/09/2012, respondent No.2 passed an order denying the petitioner's claim for salary for the period from 26/09/2007 to 27/03/2012, on the ground that he had not actually joined duty. The petitioner then filed a writ petition under Articles 14, 21, 226, and 227 of the Constitution seeking quashing of that order and release of his salary. The Court observed that the absorption order was valid and the petitioner was ready and willing to join, but was prevented by the respondents' failure to ensure a sanctioned post. The Court held that the State cannot take advantage of its own lapse and that the petitioner is entitled to salary for the said period. The impugned order dated 20/09/2012 was quashed, and the respondents were directed to pay the petitioner's salary for the period from 26/09/2007 to 27/03/2012 within three months.
Headnote
A) Service Law - Absorption of Surplus Employees - Salary for Period of Non-Joining - The petitioner, a surplus employee from a closed special school, was ordered to be absorbed on 26/09/2007 but could not join as the post of Watchman was not sanctioned in the absorbing school. The State failed to take further steps despite representations. The Court held that the State cannot escape liability for salary for the period from 26/09/2007 to 27/03/2012 as the lapse was on the part of the respondents. The order dated 20/09/2012 denying salary was quashed. (Paras 1-10) B) Constitutional Law - Right to Life - Article 21 - Right to Livelihood - The Court held that denial of salary for the period when the petitioner was ready and willing to work but was prevented by the State's inaction violates the right to livelihood under Article 21 of the Constitution of India. (Paras 8-10)
Issue of Consideration
Whether the petitioner is entitled to salary for the period from 26/09/2007 to 27/03/2012 when he was ordered to be absorbed but could not join due to non-sanctioned post, and whether the order dated 20/09/2012 denying salary is sustainable.
Final Decision
The writ petition is allowed. The impugned order dated 20/09/2012 passed by respondent No.2 is quashed and set aside. The respondents are directed to pay the petitioner his salary for the period from 26/09/2007 to 27/03/2012 within three months from the date of the order.
Law Points
- Absorption of surplus employees
- liability of State for salary during period of non-joining due to administrative lapse
- right to salary under Article 21
- duty of State to ensure effective absorption
