CIVIL APPEAL 4969 of 2005 on 31 March 1978

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.4969 of 2005

======================================================

Dr.Ajay Kumar Gupta .... .... Petitioner/s Versus The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance :For the Petitioner/s : Mr. Shivendra Kishore Mr. Sanjeev Shankar Mr. Nishant Kumar

.... .... Petitioner/s .... .... Respondent/s For the Respondent/s : Mr. (Sc2)

====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGHORAL ORDER

17 07-08-2013 Heard counsel for the petitioner and the State.

The petitioner was appointed as Medical Officer vide notification no.568(2) dated 31.3.1978 in the State Health Service Cadre and thereafter vide notification no.269(1) dated 8.3.1983 he was appointed as Registrar in the Department of Ophthalmology, Darbhanga Medical College & Hospital, Darbhanga where he continued up to 30.4.1986. Thereafter, the petitioner was posted as Resident, Department of Ophthalmology, Patna Medical College & Hospital, Patna vide notification no.321(17) dated 24.4.1986 where he continued up to 11.2.1990. The petitioner was again appointed as Assistant Professor (Eye), Nalanda Medical College & Hospital, Patna vide notification no. 129(17) dated 27.2.1991 where he continued up to 11.3.1994. The petitioner was posted as Assistant Professor (Eye) in Patna Medical College & Hospital, Patna vide notification no. 107(17) dated 9.3.1994 where he remained posted from 11.3.1994 to 19.12.1995. It is stated that while the petitioner was posted as Assistant Professor (eye), P.M.C.H., Patna the respondents came out with notification no.112(17) dated 19.3.1994 partially modifying the earlier notification no.107(17) dated 9.3.1994 transferring him from Patna Medical College & Hospital, Patna to A.N.M. Medical College, Gaya and in place of the petitioner one Dr.Shiv Shankar Chaudhary was posted. Being aggrieved, the petitioner challenged the said notification in C.W.J.C. No.3059 of 1995 in which this Court by order dated 20.5.1994 granted interim stay of the impugned notification. The writ application was ultimately dismissed by order dated 14.3.1995. After dismissal of the writ application, the petitioner was relieved from Patna Medical College & Hospital on 19.12.1995. The petitioner was finally allowed to join as Assistant Professor in the A.N.M. College, Gaya on 26.12.1995 where he continued up to 9.8.2000. The petitioner was put under suspension vide notification dated 21.9.1996 issued by the Government of Bihar for direction of duty which was revoked vide notification dated 17.2.1997 on reconsideration of the matter.

Further more, a departmental proceeding was initiated against the petitioner vide resolution dated 16.1.1997 for unauthorized absence from 19.3.1994 to 26.9.1995 in which he was ultimately exonerated.

The petitioner in the month of June 1998 submitted an application seeking Earned Leave for the period commencing from 17.6.1998 to 24.6.1999 and proceeded on leave. After availing the leave, the petitioner submitted his joining in the Secretariat on 25.6.1999 which was rejected vide letter no. 509(17) dated 4.11.1999 as would be evident from Annexure-13 annexed with I.A. No.3989 of 2007. However, the communication of rejection was communicated to the petitioner only on 2.2.2000. In support of his submission, the petitioner has annexed postal receipt contained at page 26 of I.A. No.3989 of 2007. It is the adjustment of this period which is in dispute in this writ application.

I have heard counsel for the parties.

Before I take up the issue for consideration, it is relevant to state that the petitioner sought voluntary retirement from service w.e.f. 9.8.2000 which was allowed vide notification no.805 (17) dated 12.10.2001. Initially, the petitioner sought various reliefs

including payment of arrears of salary and regularization of leave for different periods. All these disputes stand now resolved. As noted above, the question before this Court is whether the period from 20.6.1999 to 17.2.2000 be taken as period on duty or whether the said period be treated as Extra-ordinary leave without pay.

The petitioner submits that this period should be considered as period on duty as he gave his joining on 23.6.1999 soon after returning from leave, which he took against his earned leave.

On the other hand, counsel for the State submits that the petitioner instead of giving his joining in the Headquarter, ought to have given his joining at A.N.M. College, Gaya as before proceeding on leave he was on duty at A.N.M.C.H., Gaya.

It appears from the pleadings that petitioner proceeded on leave from 17.6.1998 for a year while he was posted at A.N.M.C.H., Gaya. He returned from leave and gave his joining at the Head Quarter on 25.6.1999. The joining was rejected on 4.11.1999 (Annexure-13) which according to the petitioner was communicated to him on 2.2.2000. A copy of postal envelope is annexed as Annexure-13. The department has rejected the representation of joining on the ground that the petitioner has not annexed any approval of competent authority granting the said ‘leave’. Further more, the petitioner should have given his joining at the College from where he proceeded on leave.

I am in agreement with the reasoning stated in order dated 4.11.1999 rejecting the joining that petitioner should have given his joining at the place from where he proceeded on leave.

In this view of the matter, the period from 25.6.1999 to 21.11.1999 cannot be treated on duty and the respondents rightly treated it as Extraordinary leave without pay. It appears that the joining of the petitioner was rejected on 4.11.1999 which as per petitioner was communicated to him on 2.2.2000. Once he received the order rejecting the joining at headquarter, he submitted his joining this time at A.N.M. College, Gaya.

It appears from postal paper appended as Annexure-13 that the respondents themselves communicated the rejection order dated 4.11.1999 belatedly on 2.2.2000. In such circumstances, the petitioner should not be deprived of his salary for the said period provided that petitioner produces the relevant documents before the respondent to show that the communication was issued belatedly which he received on 2.2.2000.

In the result, the impugned order bearing memo no.1259

(17) dated 4.12.2013 contained in Annexure-14/1 is modified to the extent mentioned above. It would be open for the petitioner to make a representation with relevant documents for payment of salary for the period from 5.11.1999 to 2.2.2000.

With the aforesaid observation and directions, this writ application stands disposed of.

(Samarendra Pratap Singh, J)

KHAN/-