Decided on October 29,1973

State of Orissa and Ors. Respondents


B.K. Ray, J. - (1.) THIS is an appeal by the Plaintiff against the decree disallowing a part of his claim to arrear salary.
(2.) THE case of the Plaintiff may briefly be stated as follows : He was serving a (sic) teacher in the B.M. High School at Bhubaneswar. The school was closed for summer vacation from 23 -5 -1965 to 4 -7 -1965. On 24 -5 -1965, he received an order of transfer from the Circle Inspector of Schools, (Defendant No. 3) through the Headmaster of the school directing him to join in the, Nigamananda High School, Gop on 28 -6 -1965. From 28 -6 -1965 to 28 -10 -1965 he remained on leave on medical ,grounds, During this period of leave, he filed a writ application in this Court (vide O.J.C. No. 257 of 1965) challenging the order of transfer. Along with this application, he also filed a petition for stay of operation of the order of transfer. This Court by order dated 28 -10 -1965 granted stay of the impugned order. Thereafter, the Plaintiff, while his writ application was pending in this Court, made several attempts to join as a teacher in the B.M. High School without any effect as the authorities concerned did not allow him to join in spite of the order of stay granted by this Court. The writ application filed by the Plaintiff was ultimately allowed on 20 -11 -1968 and be impugned order of transfer was quashed. Thereafter, the Plaintiff was called upon to join his post in the B.M. High School, and accordingly, he joined there on 4 -12 -1968. After joining the post the Plaintiff claimed his leave salary from 5 -7 -1965 to 28 -10 -1965 with permission to prefix the summer vacation and also his salary from 29 -10 -1965 till 4 -12 -1968. His claim for leave salary from 5 -7 -1965 to 28 -10 -1965 with permission to prefix the summer vacation was allowed, but his salary from 29 -10 -1965 to 4 -12 -1968 was not paid. During the pendency of the writ application the Plaintiff filed a petition in this Court on 13 -4 -1966 claiming, full salary till the date of disposal of the writ application and this Court disposed of the application on 20 -11 -1968. In the final ,order disposing of the writ application this Court observed that it was open to the Plaintiff to seek his remedies for arrear salary according to law. According to the Plaintiff, as he was willing to perform his duty from 29 -10 -1965 to 4 -12 -1905, but could not do so being prevented by the authorities and as the impugned order, of transfer was quashed by this Court, he is entitled to full salary during this period. On these allegations the Plaintiff filed the suit on 10 -5 -1971 claiming Rs. 9, 220. 42 as his arrear salary from 29 -10 -1965 to 4 -12 -1968. The defence taken by all the Defendants is that the Plaintiff was not entitled to any amount as according to them during the period in question he being fully aware of the fact that he was to join at the Nigamananda High School.
(3.) THE trial Court has held that the Plaintiff was willing to perform his duty during the period between 29 -10 -1965 and 4 -12 -1968 and that he was prevented to do so ,by Defendant No. 3. In spite of this finding the trial Court only granted relief to the Plaintiff to recover arrear salary to the tune of Rs. 1,970. 32 for the period from 10 -5 -1968 till 4 -12 -1968 as according to it the rest of the Plaintiff 's claim was barred by limitation. It is against that part of the decree disallowing the Plaintiff 's claim from 29 -10 -1965 to 9 -5 -1968 the present appeal has been filed.;

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