Arti v. 1. The State of Jharkhand, through the Secretary, Department of Health and Family Welfare
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1503 of 2013 ------ Arti ... ... … Petitioner Versus 1. The State of Jharkhand, through the Secretary, Department of Health and Family Welfare, Government of Jharkhand, Ranchi 2. Civil Surgeion-cum-Chief Medical Officer, Dumka 3. District Leprosy Eradication Officer, Dumka ... ... ... Respondents -------
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner For the State ------ : Mr. Sumeet Gadoia, Advocate : Mr. Soumitra Baroi, J.C. to G.P. VI ------- 06/04.12.2013 The petitioner has approached this Court challenging order dated 13.08.2012. 2. Heard the learned counsel appearing for the parties and perused the documents on record. 3. The petitioner was appointed on the post of Physiotherapist on 27.05.1998 and she joined the office of the District Leprosy Eradication Officer, Dumka on 09.06.1998. The petitioner after joining the post, was not allowed to mark her attendance by the District Leprosy Eradication Officer, Dumka on the ground that her appointment was not confirmed. The service of the petitioner and two others were terminated by order dated 11.02.1999 and challenging the said order, C.W.J.C. No. 3341 of 1999 was filed, which was allowed by order dated 24.07.2000. The petitioner and others were held entitled for all other consequential benefits also. Since the period 2 between 10.06.1998 to 09.12.1998 was treated as break in service, the petitioner approached Patna High Court in C.W.J.C. No. 5354 of 2004 which was withdrawn and thereafter, the petitioner approached this Court in W.P.(S) No. 1801 of 2006. This Court by order dated 08.02.2012 permitted the petitioner to approach the respondent- authority who was directed to decide the claim of the petitioner within a period of two months. 4. A counter-affidavit has been filed stating as under, 10. “That it is stated that the fact of the case
Decision
is that the writ petitioner Arti was appointed on the post of Physiotherapist along with others as per the order dated 27.05.1998 by the Director-in-Chief, Health Services, Department of Health, Medical Education, Family Welfare and Indigenous medicine, Government of Bihar, Patna and has joined in the office of the District Leprosy Eradication Officer, Dumka on 09.06.1998. In pursuant to the representation of the writ petitioner dated 14.12.1998 the Civil Surgeon-cum-Chief Medical Officer, Dumka wrote a letter dated 19.12.1998 to the District Leprosy Eradication Officer, Dumka stating therein that the appointment of the petitioner has been confirmed by the Health Directorate. 11. That it is stated that thereafter by an order dated 19.02.1999 passed by the Director in chief, Helath Services, Bihar, Patna, the services of the writ petitioner Arti along with two others were terminated due to irregular appointment on the basis of forged and fabricated documents. The writ petitioner along with two others had filed a writ application against such 3 termination order being C.W.J.C. No. 3341/1999 (Manoj Kumar and others Vs. State of Bihar and others) before the Hon'ble High Court at Patna who vide order dated 24.07.2000 allowed the writ application in favour of the writ petitioner with all consequential benefits. 12. That it is stated and submitted that after such order the writ petitioner again joined her service and started working but no salary for the period of her initial joining till her termination was paid so the writ petitioner had filed contempt petition being M.J.C. No. 279/2001 before Hon'ble High Court at Patna in which the respondent authorities sought allotment from the competent authority for payment of salary and allowance. 13. That it is stated that on receipt of allotment salary and allowance and other dues payable to the writ petitioner were paid except for the period from 10.06.1998 to 09.12.1998 on the ground that the writ petitioner was absent from her duty during such period and had not performed her duty. 14. That it is stated that earlier this writ petitioner had filed W.P. (S) No. 1801/2006 Arti Vs. State and others before Hon'ble High Court of Jharkhand at Ranchi in which Hon'ble Court has passed the order on 08.02.2012 observing that “the petitioner is at liberty to file representation within four weeks from the date of this order before the respondent authority with proper justification in respect of her claim including that of raised in the present petition. Upon receipt of such representation submitted by the petitioner the respondent authority shall 4 consider the same in accordance with law within two months thereafter and final decision shall be conveyed to the petitioner. With the aforesaid observation this writ petition stands dismissed”. 15. That it is stated and submitted that after such order, the writ petitioner filed her representation on 05.03.2012 before the respondent authority who in the light of Sankalp no. 3014 dated 31.07.1980 of Finance Department, Bihar vide Memo no. 2307 dated 13.08.2012 came to the conclusion that the period of 10.06.98 to 09.12.98 which is the period of break in service of the writ petitioner shall not be counted for pension and communicated it to the writ petitioner also. So the writ petitioner is not entitled to get any relief as claimed for.” 5. The learned counsel appearing for the petitioner has submitted that, though the service of the petitioner was approved and confirmed, the period between 10.06.1998 and 09.12.1998 was not regularised and it was treated as a break in service. The petitioner has approached this Court in W.P. (S) No. 1801 of 2006 and pursuant to the direction passed by this Court, the impugned order dated 13.08.2012 has been passed in complete disregard to the law in this behalf. 6. As against the above, the learned counsel appearing for the respondents has supported the impugned order on the grounds taken in the counter-affidavit. 7. On a perusal of the impugned order dated 13.08.2012, I find that the only ground which has been 5 taken for rejecting the claim of the petitioner is, the provisions under resolution dated 31.07.1980. From the impugned order itself it would appear that only under three circumstances, the period of service can be treated as break in service namely, (i) the employee has resigned, (ii) the employee has been discharged or removed from service and, (iii) the employee has participated in a strike. It has further been stated that any other break in service except, the conditions mentioned in resolution dated 31.07.1980, would be automatically condoned. The allegation against the petitioner is not that, she had participated in any strike. The petitioner has neither resigned nor she has been removed from service. Admittedly, no proceeding was initiated against the petitioner for the alleged absence from duty. The petitioner has taken a specific plea that she had attended the office however, she was restrained and not permitted to mark her attendance. In my opinion the respondent authority misconstrued the provision in resolution dated 31.07.1980 and thus, the impugned order cannot be sustained. 8. Accordingly, this writ petition is allowed to the extent that the period between 10.06.1998 and 09.12.1998 would be counted for grant grant of pension. Amit/N.A.F.R. (Shree Chandrashekhar, J.)