The Secretary, cum Commissioner, Health and Family Welfare v. Department, Govt. of Bihar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14215 of 2007 ====================================================== Raj Kishore Prasad Agrawal, son of late Mani Lal Agrawal, resident of 205, Nilgiri Bhawan, West Boring Canal Road, P.S. Sri Krishnapuri, District Patna .... .... Petitioner 1. The State Of Bihar 2. The Secretary, cum Commissioner, Health and Family Welfare Versus Department, Govt. of Bihar, Patna 3. The Deputy Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Janardan Prasad Singh, Adv. Mr. Arvind Kumar Singh, Adv. For the Respondent/s : Mr. Ajay Behari Sinha, SC19 Mr. Rajesh Kumar, AC to SC19 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA C.A.V. ORDER 10 31-07-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “(a) That this is an application for issuance of an appropriate writ order or direction quashing that part of the order contained in Memo no. 74(2) dated 14.1.2006 issued under the signature of the Deputy Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna by which the petitioner has been treated on extra-ordinary leave from 12.4.1991 to 22.6.1997 and no pay has been given for this period, as contained in Annexure 10. (b) For issuance of an appropriate writ order or direction directing the respondent to pay full arrears of salary and other allowances for the period running from 19.4.1991 to 2 22.6.1997.” Mr. Janardan Prasad Singh, learned counsel appearing on behalf of the petitioner, in support of the aforementioned prayer has submitted that the impugned order denying payment of salary to the petitioner for the period 12.4.1991 to 22.6.1997 is wholly unsustainable both on fact and in law, inasmuch as the finding recorded therein that the petitioner did not work for the period 12.4.1991 to 22.6.1997 is contrary to the materials on record. Expanding his submission he has sought to place reliance on the note-sheet of a departmental file which according to him proves beyond doubt that the petitioner was not at fault in not discharging his actual duty on the post of Civil Assistant Surgeon, inasmuch as he had reported for joining at the transferred place on 9.4.1991 but his joining was not accepted by the Civil Surgeon, Singhbhum at Chaibasa, whereafter he had submitted his joining in the headquarters in the Secretariat and had submitted his joining in the Secretariat itself on 12.4.1991. According to the learned counsel for the petitioner after 12.4.1991 the petitioner‟s posting was made only on 18.6.1991 assigning him the post of Civil Assistant Surgeon in Referral Hospital, Ashthawan where he has submitted his joining on 31.6.1999 and thereafter there was no justifiable reason for the respondents to deprive him payment of salary for the 3 period 12.4.1991 to 22.6.1997 and giving him salary for the period 23.6.1997 to 18.6.1999.
Legal Reasoning
According to the learned counsel for the petitioner he had already been allowed to take his voluntary retirement with effect from 31.5.2006 and therefore, the grievance of the petitioner for payment of salary for the aforementioned period 12.4.1991 to 22.6.1997 has to be redressed in accordance with law. In this case a counter affidavit has been filed on behalf of respondents no. 1, 2 and 3 wherein it has been stated that since the petitioner had not taken charge of any post in between 12.4.1991 to 22.6.1997 the said period was regularized by sanctioning him extra-ordinary leave. In paragraph 11 it has also been stated that the department has never admitted that the Civil Surgeon, Chaibasa has refused to accept the joining of the petitioner and therefore, he was allowed to join in the Health Department as waiting for posting. A further stand has been taken in the counter affidavit of respondents no. 1, 2 and 3 that the petitioner himself did not comply the order of the Government by which he was transferred to Chaibasa and the same amounted to refusal of obeying the order of the Government and for this an explanation was also called for from him whereafter the aforementioned period of his absence was regularized by granting him extra-ordinary leave. 4 The respondents have also filed two further supplementary counter affidavits wherein it has been sought to be explained that the posting of the petitioner was made in the Primary Health Centre at Majhgaon by an order dated 29.3.1991 passed by the Civil Surgeon, Chaibasa and his such order of transfer was also regularized by the Department on 2.4.1991 and thus, the story of the petitioner joining in the office of the Civil Surgeon on 2.4.1991 or 9.4.1991 was wholly incorrect, inasmuch as the petitioner had never jointed at Majhgaon in the district of Chaibasa. It has further been explained that when a written request of a politician, Sri Lakhan Thakur, dated 23.6.1997 addressed to the Health Minister was received in the department as with regard to the grievance of the petitioner for non-payment of his salary, the petitioner was asked to file his show cause reply as to why the petitioner had not jointed at his transferred place in the district of Chaibasa and the circumstances in which he was claiming to have jointed the headquarter. In the supplementary counter affidavit an order dated 22.2.1999 has also been enclosed to show that his presence after verification of the record was found to be there in the headquarter only from 23.6.1997 and the salary for the period 12.4.1991 to 22.6.1997 was to be decided in the light of the Government order. In yet another supplementary counter affidavit the 5 department has brought on record the documents to show that the claim of the petitioner to have submitted his joining in the department on 12.4.1991 was incorrect, inasmuch as Mr. Sanjeev Kumar Sinha, the then Joint Secretary of the Health Department having verified his alleged signature on the said joining report of the petitioner dated 12.4.1991 had denied his such signature. As would be apparent from the aforementioned pleadings on record, the working of the petitioner between 12.4.1991 to 22.6.1997 or his remaining present on duty in the said period is a disputed question of fact. There is no authentic document to show that pursuant to the transfer order of the petitioner to Chaibasa district he had submitted his joining and such joining report was refused. In this regard it is very significant to note here that the petitioner was working in Patna Medical College and Hospital as a Medical Officer till 30.5.1990 whereafter he had joined the headquarters in the Secretariat and on 6.6.1990 he was posted in the Primary Health Centre, Ajawan, Naubatpur and on 30.6.1990 he was again transferred from the Addl. Primary Health Centre, Ajawan, Naubatpur to Primary Health Centre, Phulwari Sharif where one Dr. (Smt.) Leela Singh was working and since her transfer was stayed the petitioner could not get the charge of the post at Phulwari Sharif. It is thereafter that the petitioner‟s transfer 6 was made to Chaibasa district by the Government notification no. 123(2) dated 7.2.1991 and in compliance of the said transfer order when the petitioner was relieved by the Health Department‟s Notification No. 265(2) dated 13.3.1991, the Civil Surgeon, Chaibasa by his order contained in Memo No. 570 dated 29.3.1991 had posted the petitioner in the Primary Health Centre, Majhgaon. These facts are clear from Annexure A/1, the notification filed by the respondents in the supplementary counter affidavit, the relevant portion whereof reads as follows: ^^fcgkj ljdkj LokLF;] fpfdRlk f’k{kk ,oa i0 d0 foHkkxA vf/klwpuk iVuk] fnukad 2-4-91 la[;k& 342…2‰ @Lok0] mPp U;k;ky;] iVuk ds fu.kZ; ds vkyksd esa Mk0 jkt fd’kksj vxzoky fpfdRlkk ink0 izk0 Lok0dsUnz] Qqyokjh ’kjhQ] iVuk dks vf/klwpuk la[;k&123A2A fnukad 7-2-91 ds dzekad 63 ds dze esa flfoy ltZu flagHkwe pkbZcklk ds Kkikad 570 fnukad 29-3-91 }kjk fpfdRlk inkf/kdkjh] izk0 Lok0 dsUnz] e>xkao esa fd;s x;s inLFkkiu dh ;ksxnku dh frfFk ls fofu;fer fd;k tkrk gSA mUgsa Lok0 foHkkxh; vf/klwpuk la0 265A2A fnukad 13-3-91 }kjk iwoZ esa gh lfpoky; Lrj ls fojfer fd;k tk pqdk gSA fcgkj jkT;iky ds vkns’kkuqlkj g0@& latho dqekj flagk] ljdkj ds laa;qDr lfpoA** As a matter of fact the aforementioned notification dated 2.4.1991 was only confirmatory notification with regard to posting of the petitioner in the Primary Health Centre, Majhgaon by the 7 Civil Surgeon, Chaibasa vide his order dated 29.3.1991 but surprisingly the petitioner in the writ application and in fact everywhere in the world had sought to project that the transfer of the petitioner was made to Chaibasa by notification dated 2.4.1991 which would be also apparent from the statement made in paragraph 7 of the writ application which is quoted hereinbelow: “7. That again by notification no. 282(2) dated 2.4.91 the petitioner was transferred to Chaibasa (Singhbhum) when on 9.4.91 he submitted his joining to the Civil Surgeon Chaibasa but the same was not accepted by him and orally the petitioner was returned back and gave his joining in Secretariat headquarter, Patna on 12.4.91 in consultation with and as per the oral advice of the Joint Secretary, Health Department.” Once this aspect becomes clear that notification no. 382 dated 2.4.1991, Annexure A/1, is not the transfer order of the petitioner the entire superstructure built by the petitioner as with regard to his joining at Chaibasa on 9.4.1991 automatically crumbles. The petitioner‟s joining in fact was already accepted by the Civil Surgeon, Chaibasa once he was relieved from the Health Department on 13.3.1991 and that is how the Civil Surgeon on 29.3.1991 had allotted a place of posting in Primary Health Centre, Majhgaon in the district of Chaibasa in compliance of the Government notification No. 123 dated 7.2.1991. That document, 8 the first transfer notification dated 7.2.1991, has been deliberately withheld by the petitioner and the file of the respondents is said to be lost. In any event a document of the year 1991 is not supposed to be maintained by the Department till eternity because the life of every Government document has a fixed period and no employee can claim that all the documents from the date of his first joining and till his retirement should be kept in tact by the State Government. As a matter of fact when this writ application was filed in the year 2007 questioning an event of the year 1991 with an explanation that the Civil Surgeon, Chaibasa had refused to accept his joining, the onus will squarely be on the petitioner to produce the written order of the Civil Surgeon, Chaibasa that he had refused to accept his joining. As a matter of fact from the Government notification dated 2.4.1991 taking notice of the Civil Surgeon, Chaibasa‟s order dated 29.3.1991 whereby and whereunder the petitioner had already been posted by the Civil Surgeon, Chaibasa himself to Primary Health Centre, Majhgaon would itself make it clear that there was no question of the petitioner submitting his joining report to Civil Surgeon, Chaibasa on 9.4.1991. However, the petitioner‟s ingenious effort to project this case of non-acceptance of joining by the Civil Surgeon on 9.4.1991 for claiming payment of salary becomes fully exposed not only by his 9 absence to produce any order passed by the Civil Surgeon, Chaibasa on 9.4.1991 refusing to accept joining of the petitioner but even his own conduct of filing his application on 12.4.1991 to the Joint Secretary which has been made Annexure 3 to the writ application and reads as follows: ^^ fnukad 12-4-91 lsok esa] ljdkj ds la;qDr lfpo] LokLF; foHkkx] fcgkj] iVukA fo"k;& lfpoky; es a ;ksxnku ds lEcU/k esaA egk’k;] LokLF; foHkkxh; vf/klwpuk la0 342121 fnukad 2-4-91 ds vkns’kkuqlkj esa vlSfud ’kY; fpfdRld lg eq[; fpfdRlkk inkf/kdkjh] flagHkwe] pkbZcklk dks viuk ;ksxnku fnukad 9-4-91 dks fn;k ijUrq mUgksaus ysus ls bUdkj dj fn;kA dkj.k iwNus ij crk;k x;k fd foHkkx dk ncko gSA eS iqu% iVuk vkdj vkils feyk ,oa oLrqfLFkfr dks crk;kA vkids dgs vuqlkj esa vkt fnukad 12-4-91 ds iwokZgu esa lfpoky; esa ;ksxnku ns jgk gwWA d‘ik dj eq>s tYn ls tYn inLFkkiu djus dh d‘ik djsaA vkidk fo’oklHkktu g0@& vLi"V g0@& vLi"V 12-4-91 12-4 Mk0 jktfd’kksj izlkn vxzoky** From a bare reading of the aforementioned application of the petitioner dated 12.4.1991 it would be clear that the petitioner is claiming his transfer notification No. 342(2) dated 2.4.1991 to be the basis for his submitting of joining before the Civil Surgeon, 10 Chaibasa on 9.4.1991 but then the said notification dated 2.4.1991, already quoted above, if read carefully it becomes clear that the same was only confirmatory with regard to the Civil Surgeon, Chaibasa‟s order posting the petitioner at Primary Health Centre, Majhgaon. It is here that the petitioner‟s effort to mislead this Court as in continuation of his efforts of misleading the official of the Head Department gets exposed to the brink. As a matter of fact after this Court had noticed that there was something hanky panky as with regard to the claim of the petitioner it had passed orders on 30.11.2011 directing the respondents to produce the original record and files containing joining report of the petitioner dated 12.4.1991 and in response thereof initially the Department had taken a plea that the file had been lost but later on File No. 2/R-49/2005 has been produced which goes to show that by the notification dated 7.2.1991 the petitioner‟s transfer was made from Phulwari Sharif to Chaibasa, Singhbhum as would be apparent from the copy of the notification dated 7.2.1991 which was circulated subsequently by Memo No. 2046 dated 13.3.1991 with a clear stipulation that the District Committee shall issue the order of posting as per its own need and requirement. The aforementioned notification dated 7.2.1991 as contained in Memo No. 2046 dated 13.3.1991 available in the file is also extracted hereinbelow: 11 ^^fcgkj ljdkj LokLF; fpfdRlk f’k{kk ,oa ifjokj dY;k.k foHkkx] vf/klwpuk iVuk] fnukad 7-2-91 la02@Vh2&2&34@91 &123…2‰ Lok0] fuEukafdr fpfdRlk inkf/kdkfj;ks a dk LFkkukUrj.kh; jkr ds muds uke ds lkeus vafdr ftyk@LFkku esa izHkkj xzg.k djus dh frfFk ls inLFkkfir fd;k tkrk gSA dzekad fp0ink0 dk uke ,oa inLFkkiu LFkku LFkku@ftyk 1- 62- Mk0 ,0ch0>k fp0ink0] izk0Lok0dsUnz Qqyokjh’kjhQ iykew 63- Mk0 jktfd’kksj vxzoky] fp0ink0izk0Lok0dsUnz pkbZcklk flagHkwe Qqyokjh’kjhQ] iVuk 97- Mk0 lqjsUnz dqekj pkS/kjh] fp0ink0]izk0Lok0dsUnz pkbZcklk fodze] iVukA 98- Mk0 ih0,u0eygks=k] fp0ink0 iVuk flVh vLi0 LFkkukUrfjr LFkku iVuk ij ;ksxnku djsaA 100- Mk0…Jherh‰ dqedqe feJ] v0j0in0 flfoy ltZu rFkSo dk;kZy;] iVuk lEizfr izfrfu;qfDr iVuk flVh vLirky] iVukA ftyk Lrj ij xfBr lfefr vko’drkuqlkj fjDr inksa ij inLFkkfir djsxhA fcgkj jkT;iky ds vkns’kkuqlkj g0@& ljdkj ds mi lfpoA** In view of the aforementioned notification it becomes very clear that the plea of the petitioner of refusal of acceptance of joining report by the Civil Surgeon, Chaibasa is creation of own mind of the petitioner because he had never produced any order of the Civil Surgeon, Chaibasa to this effect and in fact when the small initial of the Joint Secretary on the joining report dated 12.4.1991 12 has been categorically denied by the aforementioned Joint Secretary vide Annexure „H‟, this Court will have no other option but to hold that the petitioner had never submitted his joining report on 12.4.1991 in the Health Department. As a matter of fact this conclusion can also be arrived at in view of the fact that the petitioner‟s transfer notification had already been issued on 7.2.1991 and when he had not complied the said transfer order and had developed a story of his joining being refused by the Civil Surgeon, Chaibasa on 9.4.1998, a show cause notice was issued to the petitioner on 23.1.1998, wherein it was specifically mentioned that the petitioner‟s transfer was made by notification No. 123(2) dated 7.2.1991 and not by notification No. 342(2) dated 2.4.1991. The petitioner despite receipt of the show cause notice dated 23.1.1998, as contained in Annexure 5, when he had filed his reply by Annexure 6 he did not claim that there was no transfer notification No. 123(2) dated 7.2.1991 and his show cause reply dated 6.4.1998, as contained in Annexure 6, is itself a proof that the petitioner after remaining happily absent for more than six years had created a forged joining report containing the small initial of Sanjeev Kumar Sinha, the then Joint Secretary but ultimately this also got exposed by the clear stand taken by Sanjeev Kumar Sinha in his letter dated 23.3.2012 when an enquiry to this effect was 13 made from him. In view of above, this Court will have no difficulty in holding that the petitioner‟s case of his either refusal of joining report by the Civil Surgeon on 9.4.1991 or his submission of the joining report in the Secretariat on 12.4.1991 are not at all established by him with the help of any document. The reliance of the petitioner on a note-sheet of the Government file will be of no avail because whatever the petitioner was writing in his representation was at a lower level was being repeated but then such note-sheet by itself cannot be an evidence of the petitioner either being refused joining at Chaibasa or his submission of joining report in the headquarters for which there can be only two persons apart from the petitioner to prove this fact, one being the Civil Surgeon, Chaibasa who had allegedly refused acceptance of joining report of the petitioner on 9.4.1991 and second being Mr. Sanjeev Kumar Sinha, the Joint Secretary. This the petitioner cannot expect to be done in a writ proceedings and if he is so sanguine about filing of his joining report on 9.4.1991 before the Civil Surgeon, Chaibasa and its refusal by the Civil Surgeon on the same day i.e. 9.4.1991 and his reporting to the headquarters on 12.4.1991 by submitting his joining report to Sanjeev Kumar Sinha, Joint Secretary, he had the better recourse of filing a civil suit wherein both he and the Government could have 14 got adequate opportunity to lead both oral and documentary evidence. Such disputed question of fact, however, cannot be decided in the writ proceedings. In view of above, this Court will have no difficulty in also accepting that all the documents created by the petitioner by way of reminder, as contained in Annexures 4 series, dated 4.12.1991, 2.12.1992, 4.5.1993, 2.12.1993, 2.5.1994, 4.8.1994, 4.1.1995 and 9.5.1995 are self created documents with no authentic proof of its being ever received in this regard. As a matter of fact it was when political Pairvi was received as with regard to the grievance of the petitioner of not being paid his salary, that issue was examined and it was found that the petitioner had never submitted his joining in the department and for which a show cause notice was issued on 23.1.1998 reading as follows: ^^la[;k&2@Vh 2&2&263@97 fcgkj ljdkj Lok0 fp0 f’k0 ,oa i0d0foHkkxA izs"kd] Jh ,y0 fl;kaXrs] ljdkj ds voj lfpoA lsok esa] Mk0 jktfd’kksj vxzoky] fpfdRlk ink0] inLFkkiu dh izfr{kk esa] Lok0 foHkkx] fcgkj] iVukA iVuk] fnukad 23-1-98 fo"k;& inLFkkiu ds lEcU/k esA 15 egk’k;] mi;qZDr fo"k; ds lanHkZ es a funs’kkuqlkj eq>s dguk gS fd vkils lEcfU/kr izkIr ;ksxnku ds lEcU/k esa izkIr dkxtkr ds voyksdu ls Li"V gksrk gS fd vkius eq[;ky; esa ;ksxnku nsus dk nkok fd;k gS rFkk inLFkkiu ugha fd;s tkus dk Hkh mYys[k fd;k gSA tcfd vkidh inLFkkiuk 123A2A fnukad 7-2-91 }kjk flagHkwe] pkbZcklk fd;k x;k gSA vr% vki Li"V djsa fd vki viuk ;ksxnku flagHkwe pkbZcklk flfoy ltZu dks fn;s vFkok ugha rFkk vxj ugha fn;s rks fdl fdl ifjfLFkfr esa vkius eq[;ky; esa ;ksxnku fn;k tks vfu;fer gSas rFkk vuq’kklughurk dk ?kksrd gSs rFkk ljdkjh vkns’k dk vogsyuk gSA vr% mi;qZDr fLFkfr esa vius iwoZ lk{; ds lkFk v/kksgLrk{kjh dks voxr djkosa] rkfd vxzRrj dkjZokbZ dh tk ldsA fo’oklHkktu] g0@& vLi"V ljdkj ds voj lfpoA** In this regard the petitioner‟s explanation dated 6.9.1998 would itself go to show that the petitioner was aware of his transfer notification dated 7.2.1991 wherein his name was at serial no.63 with regard to his transfer in the office of the Civil Surgeon, Chaibasa and his posting by the Civil Surgeon, Chaibasa on 29.3.1991 as Medical Officer, Primary Health Centre, Majhgaon and therefore, where was the occasion for the petitioner to submit his joining report to the Civil Surgeon, Chaibasa on 9.4.1991. The petitioner had to go to Majhgaon Primary Health Centre and if his joining in any way was refused at Majhgaon Primary Health Centre, he could have a grievance. Thus, the petitioner‟s own explanation submitted on 6.4.1998 (Annexure 6), relevant portion whereof 16 reads as follows: ^^LokLF; foHkkx ds vf/klwpuk la[;k&342A2A fnukad 2-4-91 esa Hkh ns[kk tk ldrk gS fd esa pkbZcklk flagHkwe ;ksxnku djus fnukad 9-4-91 dks x;k Fkk ijurq esjk vf/klwpuk la[;k&123A2A fnukad 7-2-91 ds dzekaad 63 ds dze esa flfoy ltZu] pkbZcklk ds Kki la[;k&570 fnukad 29-3-91 }kjk fpfdRlk inkf/kdkjh] izkFkfed LokLF; dsUnz] e>xkao esa fd;s x;s inLFkkiu dks ;ksxnku dh frfFk ls fofu;fer dj fn;k x;k FkkA esjs ;ksxnku nsus dh frfFk ds igys gh esjk fofu;fer fd;k tkuk ;g n’kkZrk gS fd dksbZ vKkr ’kfDr eq>s ijs’kku djus esa yxh gqbZ FkhA …Nk;kizfr layXuA mijksDr ifjfLFkfr esa eSa fnukad 12-4-91 ls gh lfpoky; esa ;ksxnku dj inLFkkiuk dh izfr{kk esa vkt rd cSBk gqvk gwWA vr% Jheku~ ls uez fuosnu gS fd esjs bl Li"Vhdj.k dks Lohd‘r djrs gq, ;Fkk’kh?kz esjk inLFkkiu djus dh d‘ik dh tk;A** by itself would be an evidence that neither the petitioner had filed a series of representation as claimed by him in this writ application vide Annexures 4 series nor there was any documentary evidence to show that his joining was rejected at Chaibasa. In that view of the matter, this Court would also not find any error in the Government decision of denying salary to the petitioner for the period 12.4.1991 to 22.6.1997. It has to be noted that the petitioner had already been relieved by the Health Department vide notification no. 265 dated 13.3.1991 but the petitioner is not claiming salary from 13.3.1991 rather he is claiming salary from 12.4.1991 on the ground of his submission of joining report in the headquarters after alleged refusal of his joining by the Civil Surgeon, Chaibasa. In that view of 17 the matter, this Court would also not find any error in fixation of the date of 23.6.1997 which was the first possible date in the Government file when Mr. Lakhan Thakur, M.L.A. and Sachetak of the Ruling Party had brought to the notice of the Health Minister with regard to the petitioner waiting for posting. The Health Department in fact has been kind enough to give this date of 23.6.1997 as the date of waiting for posting otherwise it could have very well fixed the date of 22.2.1999 when the following order was passed: ^^fcgkj ljdkj LokLF;] fpfdRlk f’k{kk ,oa ifjokj dY;k.k foHkkx lafpdk la&2@Vh2&2&263@97 &&& 97…2‰ izs"kd] d‘".k eksgu izlkn] ljdkj ds voj lfpoA lsok esa] Mk0 jktfd’kksj vxzoky] fpfdRlk ink0] inLFkkiu dh izrh{kk esa] LokLF; foHkkx] fcgkj] iVukA iVuk] fnukad 22-2-99 fo"k;& inLFkkiu ds laca/k easA egk’k;] mi;qZDr fo"k;d vki vius i=kad ’kwU; fnukad 11-1-99 dk d‘i;k funsZ’k djuk pkgsaxsA foHkkx us vkids lanHkZ esa ;g fu.kZ; fy;k gS fd& AdA vkids lanHkZ esa fnukad 23-697 ls vkSicaf/kd :i ls mifLFkfr ekurs gq, inLFkkiu dh izrh{kk ls lacaf/kr iath esa mifLFkfr cukus ij lgefr bhl ’kRrZ ij nh tkrh gS fd iwoZ dh vof/k ds laca/k esa tks Hkh foHkkxh; fu.kZ; gksxk] og ekU; gksxkA vxj foHkkxh; ’kRrZ ekU; gks] rks vki viuk ;ksxnku nsa aA 18 fo’oklHkktu g0@& Ads0,e0izlknA ljdkj ds vij lfpoA** As a matter of fact the petitioner had accepted the terms and conditions of his marking attendance with effect from 23.6.1997 as would be evident by the application dated 29.7.2005 wherein he had requested for regularizing his service for the period 12.4.1991 to 20.6.1999 and the department having made enquiry from the relevant records had ultimately found the petitioner‟s absence from duty to be writ large on the face of record as a result whereof the petitioner was issued a show cause notice on 29.11.2005 vide letter no. 1668(2) dated 29.11.2005 as with regard to his unauthorized absence which reads as follows: ^^la[;k 1668…2‰ fnukad 29@11@05 lsok eas] Mk0 jktfd’kksj izlkn vxzoky] lhfu;j jsftMsUV ,u0 ,e0 lh0 ,p0 iVuk fo"k;& fnukad 12-4-91 ls 22-6-97 rd dh vof/k esa dfFkr vukf/kd‘r vuqifLFkfr ds laca/k es a Li"Vhdj.kA egk’k;] funs’kkuqlkj mi;qZDr fo"k;d fnukad 12-4-91 ls 20-6-99 rd dh vof/k fofue;u laca/kh vkids vkosnu ds izlax esa dguk gS fd fnukad 12-4-91 ls 22-6-97 rd dh vof/k izFke nz"V;k vukf/kd‘r vuqifLFkfr dh izrhr gksrh gS ,oa bl laca/k esa vkids }kjk dksbZ Bksl lk{;@vfHkys[k miyC/k ugha djk;k x;k gSA mYys[kuh; gS fd foHkkxh; vf/klwpuk la0 123…2‰ fnukad 7-2-91 }kjk vkidk LFkkukUrj.k pkbZcklk fd;k x;k rFkk flfoy ltZu] pkbZcklk ds KkIkad 19 570 fnukad 29-3-91 }kjk izk0 Lok0 dsUnz] e>xkao esa inLFkkfir fd;k x;k ,oa foHkkx }kjk bls fofu;fer Hkh dj fn;k x;kA ckotwn bu lHkh dkjZokbZ esa vkids }kjk bl vk/kkj ij iwu% inLFkkiu dh izrh{kk eas ;ksxnku fn;k x;k fd flfoy ltZu pkbZcklk }kjk ;ksxnku Lohdkj ugha fd;k x;k] tcfd bl lk{; dk dksbZ vkns’k miyC/k ugha djk;k x;kA bUgha dkj.kksa ls iwoZ esa Hkh foHkkxh; i=kad 26…2‰ fnukad 23-1-98 }kjk Li"Vhdj.k iwNk x;k Fkk ftlesa izR;qRrj esa vkidk Li"Vhdj.k fujk/kkj gSA vr,o i= izkfIr ds ,d lIrkg ds vUnj viuk Li"Vhdj.k ns fd D;ksa ugha mDr vof/k dks LosPNk ls ,oa eux<ar vk/kkj ij vukf/kd‘r :i ls vuqifLFkr djrs gq, vuq’kklfud dkjZokbZ ds fufgr vkids fo:n~/k foHkkxh; dkjZokbZ pyk;h tk;A fo’oklHkktu g0@& ljdkj ds mi lfpoA** The petitioner in reply to the same on 2.12.2005 had taken a plea that he did not want to continue in service and was eager to take his voluntary retirement for which the period of his previous service was required to be regularized. In fact the petitioner had also in his aforementioned reply dated 2.12.2005 clearly mentioned that it was open for the department to regularize his service in any manner that was found to be fit in the facts and circumstances of this case. The said reply of the petitioner dated 2.12.2005, which was followed by another letter dated 15.12.2005, reads as follows: ^^izs"kd& MkW0 jkt fd’kksj izlkn vxzoky] flfu;j jsftMsUV ltZu] ,u0,e0lh0,p0iVukA lsok eas] ljdkj ds mi lfpo] 20 LokLF; foHkkx] fcgkj] iVukA fo"k;& vkids i=kad 2@vkj&49@05&1668A2A Lok0 ds vkyksd es a Li"Vhdj.kA egk’k;] esjs }kjk fnukad 6-4-98 ,oa 29-7-05 dks fyf[kr :i ls ekaxs x;s Li"Vhdj.k dk tcko fn;k Fkk ftls ns[kk tk ldrk gSA ANk;kizfr layXuA foHkkx ds vf/klwpuk la[;k 342A2A fnukad 2-4-91 ds vkyksd esa eSa pkbZcklk] flagHkwe fnukad 9-4-91 dks ;ksxnku djus x;k Fkk ,oa ;ksxnku fn;k Fkk] ijUrq ;ksxnku Lohd‘r ugha fd;k Fkk] dkj.k iwNus ij crk;k x;k fd foHkkx dk ncko gSA iVuk esa iqu% ykSV dj la;qDr lfpo] LokLF; ls 12-4-91 dks feyk ,oa oLrqfLFkfr ls voxr djk;kA muds vkns’k ij gh eSA lfpoky; esa 12-4-91 dks ;ksxnku fn;kA ANk;kizfr layXuA lfpoky; es a ;ksxnku djus ds ckn eSsus LokLF; vk;qDr ls vusdksa ckj feyk vkSj LokLF; vk;qDr dks inLFkkiu ds lEcU/k esa vkosnu Hkh fn;kA ANk;kizfr layXuA ftls lEcfU/kr lafpdk esa ns[kk tk ldrk gSA inLFkkiuk ugha gksus ij ykpkjhcl esa Jh y[ku Bkdqj] fo/kku lHkk tks gekjs ,d fe= ds ifjfpr gSa ds ’kj.k esa tkuk iM+kA mUgksaus ekuuh; LokLF; ea=h dks esjs ckjs esa i= fy[kkA ekuuh; ea=h us LokLF; vk;qDr dks vius izLrko esa rqjUr izLrko ns] vkns’k fn;kA ea=h ds i=kad 1169 Avkj-A fnukad 23-6-97 ANk;kizfr layXuA LokLF; ea=h ds vkns’k ds ckotwn esjh inLFkkiuk esa nks o"kZ le; yx x;sA mi lfpo egksn; izR;sd o"kZ vius dk;ZLFky ls vuqifLFkr MkDVjksa dks v[kckj esa uke fudyrk gS&esjk dHkh ughas vk;kA pkbZcklk ls flfoy ltZu us Hkh esjs dksbZ f’kdk;r foHkkx dks ugha fy[kkA esjs fo:n~/k foHkkx esa dgha ls fyf[kr f’kdk;r ugha vk;kA foHkkx us Hkh dHkh eq>ls iwNrkN ugha dhA bu lc gkykrkas ij vki xkSj djsaxs rks vki ik;saxs fd eSa foHkkx esa gh Fkk vukf/kd‘r vuqifLFkr ugha FkkA vxj Kkikad 570 fnukad 293-91 }kjk izkFkfed LokLF; dsUnz e>xkao esa eq>s inLFkkfir fd;k x;k Fkk rks D;ksa esjk ;ksxnku vLohd‘r fd;k x;kA vxj esjk pkbZcklk esa ;ksxnku Lohd‘r dj fy;k tkrk rks esa lfpoky; esa dSls ;ksxnku djrkA fnukad 23-1-98 i=kad 26A2A }kjk eq>ls inLFkkiu ds lEcU/k es a 21 Li"Vhdj.k ekaxk x;k Fkk tks eSa fnukad 6-4-1998 dks ljdkj ds voj lfpo] LokLF; foHkkx dks fyf[kr fn;kA ANk;kizfr layXuA eSus muls ;g Hkh vuqjks/k fd;k Fkk fd esjs Li"Vhdj.k dks Lohd‘r djrs gq, ;Fkk’kh?kzz esjk inLFkkiu djus dh d‘ik djsaA blds tcko es a eq>s dksbZ lwpuk ugha nh xbZ] ugha dksbZ dkjZokbZ dh xbZ&ijUrq vkt vkids i=kad 1668A2A Lok0 fnukad 29-11-05 }kjk dgk tk jgk gS fd esjk Li"Vhdj.k fujk/kkj gSA ;g tcko yxHkx lkr o"kksZa ds ckn eq>s feykA mi lfpo egksn; vxj esjk Li"Vhdj.k fujk/kkj jgrk rks i= la[;k 97A2A fnukad 22-2-99 }kjk ljdkj ds vij lfpo Jh ds0,e0 izlkn us eq>s 23-7-97 ls inLFkkiu dh izrh{kk ls lEcfU/kr iath esa mifLFkfr gsrq vkns’k D;ksa nsrs vkSj 18-6-99 ds vf/klwpuk la[;k 314A2A Lok0 fp0 f’k0 ,oa i0 d0 }kjk esjk inLFkkiu jsQjy vLirky] vLFkkoka] ukyUnk esa D;ksa djrsA eSa vxj LosPNk ls ,oa eux<Ur vk/kkj ij vukf/kd‘r :i ls vuqifLFkr jgrk rks fQj ls eq>s inLFkkiu ugha fd;k tkrkA fnukad 12-4-91 ls yxkrkj esa vk;qDr egksn; ls feyrk jgk ,oa inLFkkiu gsrq vkosnu i= nsrk jgkA foHkkx mlh oDr esjs vkosnu i= ij fopkj djrh rks vkt os gkykr ugha gksrk] ftlls lacaf/kr lafpdk esa ns[kk tk ldrk gSaA mi lfpo egksn; eSus ljdkjh vkns’k dk dHkh Hkh vogsyuk ugha fd;k ,oa lnk ikyu djrk jgkA iwoZ esa esjs }kjk Li"Vhdj.k esa mu lkjh ckrksa dk mYys[k fd;k x;k gSA d‘i;k Jh lfPprkuUn Ayksd uk;d ts0ih0 ds lfpoA ekuuh; jkT;ea=h] LokLF; Jh eaxy flag ykek;s ds fyf[kr i=ksa ij xkSj djsaxs rks vki ik;saxs foHkkx }kjk u flQZ eq>s ijs’kku gh fd;k x;k gS cfYd vlaoS/kkfud :i ls LFkkukUrj.k Hkh fd;k x;k gSa ANk;kizfr layXuA mi lfpo egksn;] LokLF; foHkkx esjk Hkfo"; gh [kjkc dj fn;kA vki lksap ldrs gS fd eSsus ,e0,l0 AltZjhA djus ds ckn LokLF; foHkkx esa ukSdjh Tokbu fd;k FkkA jsftMsUV ltZu ds :i esa djhc pkj o"kZ esa ltZjh foHkkx] iVuk esfMdy dkWyst vLirky eas dke fd;kA eSus tqfu;j MkDVjks a dks i<+k;k ,oa izf’k{k.k Hkh fn;k tks foHkkx esa ,l0,l0 dh i<+kbZ dj jgs FksA vkt ogh twfu;j MkDVj gels cgqr mPps in esa fojkteku gSa vkSj eSa muds vUMj dk;Z dj jgk gwwWA vxj foHkkx esjs Hkfo"; esa f[kyokM+ ugha djrk rks vkt esa Hkh ,lksfl;sV izksQslj ;k izksQslj ltZjh foHkkx esfMdy dkWyst 22 esa dk;Zjr jgrkA mi lfpo egksn; eSus foHkkx es a ;ksxnku 12--1991 dks fn;k vkSj foHkkx dks yxkrkj ;kn fnykrk jgkA inLFkkiuk esa foyEc foHkkx }kjk gqvk blesa ge nks"kh dgka gSA esjk dk;Z foHkkx es a ;ksxnku nsdj foHkkx dks [kcj djrs jguk FkkA inLFkkiuk rks foHkkx dks djuk FkkA vxj eSa LosPNrk ls ,d eux<+Ur vk/kkj ij vukf/kd‘r vuqifLFkr jgrk rks foHkkx eq>ls iwNrkN djrhA v[kckjksa ds }kjk lwpuk nsrh ij ,slk dqN ugha fd;k x;kA vxj esjs }kjk vukf/kd‘r vuqifLFkfr gksrh vkSj esjk Li"Vhdj.k fujk/kkj gksrk rks foHkkx eq>s 23-6-97 ls inLFkkiu dh izrh{kk ls lacaf/kr iath esa mifLFkfr cukus gsrq vkns’k ugha nsrh vkSj 18-6-99 dks inLFkkiuk ugha djrhA mi lfpo egksn; mijksDr ckrksa ij xkSj djsa vkSj laacaf/kr i=ksa dk voyksdu djrs gq;s mfpr fu.kZ; ysaA fo’oklHkktd vkj- ds- vxzoky 2-12-05 AMkW0 jktfd’kksj iz0 vxzokyA flfu;j jsftMsUV ltZu] ,u-,e-lh-,p- iVukA** In view of above, when the petitioner himself had conceded with regard to his remaining unauthorized absent for the period 12.4.1991 to 22.6.1997 he cannot now question the Government decision of granting him extra-ordinary leave for the period 12.4.1991 to 22.6.1997, inasmuch as had he the courage to substantiate his case, he could have very well faced the departmental proceeding relating to charge of unauthorized absence, but then he having easily conceded issue of his application dated 15.12.2005, whereafter the impugned order was passed giving him extra-ordinary leave for the period of 12.4.1991 to 23 22.6.1997 for enabling him to take his voluntary retirement which also was allowed with effect from 31.5.2006, he cannot now turn around and come out with a plea of payment of his salary for the aforesaid period. The very fact that the petitioner had submitted his joining report in terms of the order dated 22.2.1999 will leave no option for him but now to accept the decision of the department, especially when there is no documentary evidence of the petitioner remaining waiting for posting in the headquarter from 12.4.1991 to 23.6.1997. It has to be noted that the petitioner was undergoing without salary from March, 1991 and yet he did not move this Court till the year 2007 and in fact having happily accepted his voluntary retirement with effect from 31.5.2006 he has now come out to assail an order dated 14.1.2006 by filing the writ application on 7.11.2007 wherein he has claimed that the decision of the Government for treating the period of 12.4.1991 to 22.6.1997 as extra-ordinary leave is bad. The question would be is the Government supposed to pay the salary to a doctor who had never worked and complied the transfer order? The petitioner‟s plea of his joining at Chaibasa and its rejection by the Civil Surgeon on 9.4.1991 having been found to be wholly incorrect, this Court will have no difficulty in holding that the petitioner cannot claim salary in the period he had remained 24 unauthorizedly absent. The payment of salary to a Government servant is not a gratis but in fact remuneration for the work done by him. There being no evidence on record to show that the petitioner had remained waiting for posting from 12.4.1991 and at lest till 22.6.1997, this Court would not find any error in the Government decision of granting him extra-ordinary leave, in absence whereof there could have been break in service denying the petitioner of pensionary benefits. It has to be kept in mind that under Rule 101 of the Bihar Pension Rules the maximum period of condonation of break in service is only two years and the petitioner has been granted extra-ordinary leave from 12.4.1991 to 22.6.1997. He should be thankful to the Government because had it not been done so the petitioner on account of break in service in terms of Rule 101 of Bihar Pension Rules could have been not only denied from the pensionary benefit but could have also been proceeded for his unauthorized absence for a period of six years in terms of Rule 76 of Bihar Service Code, leading even to his dismissal from service. Thus, for the reasons indicated above, this Court would find no merit in this application and the same is accordingly
Decision
dismissed. There would be, however, no order as to costs. (Mihir Kumar Jha, J) Patna High Court Dated the 31st July 2013 N.A.F.R./surendra/-