IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4231 of 2009 Smt.Kumari Prem Lata, wife of Shri Anand Mohan Prasad, E-40, P.C.Colony, Kankarbagh, Patna 800020 … Petitioner Versus 1. The State Of Bihar through the Principal Secretary to Government, Health Services (Family Welfare) Department, Vikas Bhavan, (New Secretariat), Patna 2. Director-in-Chief, Health Services (Family Welfare) Department, Bihar, Vikash Bhavan, (New Secretariat), Patna 3. Addl. Director, Health Service (Family Welfare) Department, Bihar, Vikas Bhavan (New Secretariat), Patna 4. Regional Deputy Director, Health Services, Patna Division, Patna 5. Civil Surgeon cum Chief Medical Office of Patna District, Patna 800004 6. Deputy Superintendent, Rajendra Nagar Hospital, Rajendra Nagar, Patna- 800016 … Respondents ---------------------------------- 7. 25.11.2011 Heard counsel for the parties. The prayer in this writ application by the petitioner, a retired lady Health Visitor, is for making payment of her arrears of salary, allowances etc. The petitioner had retired from service on 31.3.2009, whereafter this writ application was filed on 6.4.2009 in which she had made the following claim by annexing a chart contained in Annexure 18 which for the sake of convenience is quoted hereinbelow: “S.N. Items Periods Amount Remarks (in Rs.) 1. Arrear of revised 1.4.1997 to 25844.00 Annex.11 pay scale Sept. 1999 2. Payment of salary 12.1.1999 to 2190.00 -do- of strike periods 7.5.1999 3. Arrear of pay 19.2.1996 to 1038.00 -do- 24.2.1996 4. Bonus 1998-99 2419.00 -do- 5. Dress Allowances 1999-2000 300.00 -do- 6. Arrear of increment Sept.1996 to 4214.00 -do- pay and arrear of pay Oct.1997 and May,2000 to Jan.2001 7. Arrear of salary Feb. 2001 and - Annex.10 of earned leave March, 2001 8. Arrear of pay and June, 2001 - -do- 2 9. Arrear of pay Dec.2005 - Annex.11 10. Payment of one 14.11.2006 - -do- day salary 11. Dress allowances 2006-2007 - -do- 12. Arrear of salary June, 2005 to - Annex.13 & Nov.2005 14 13. Benefit of 3rd stagnation increment including arrear 14. Benefit of ACP 9.8.1999 - Annex. 16 (1st and 2nd ACP)” In this writ application a number of interim orders have been passed directing the authorities to consider the claim of the petitioner. On 9.8.2011 this Court in fact having noted the grievance of the petitioner had observed that the Director-in-Chief of the Health Services should make all efforts for collecting necessary information/ detail for passing necessary order with regard to payment of monetary benefit for which the present writ application has been filed. Subsequently when a rejoinder affidavit was filed sworn by the Deputy Superintendent of Rajendra Nagar Hospital, Rajendra Nagar, where the petitioner was posted last prior to her retirement, this Court had directed the said authority to appear in person in view of the rejoinder filed by the petitioner denying the claim made in the supplementary counter affidavit as with regard to full and final settlement of all the claims of the petitioner. In compliance of the aforementioned order another supplementary counter affidavit has been filed by the Deputy Superintendent of Rajendra Nagar Hospital wherein it has been stated that the payment on the following heads had already been made to the petitioner: 3 Sl. Head Amount in Rs. Bill No. Date of payment Annx. 1 Provisional gratuity 2,75,342/- 9/09-10 4.5.09 Anx-1 2 Group Insurance 1,12,083/- 16/09-10 23.6.09 Anx-2 3 GPF 3,91,865/- 23/09-10 14.5.11 Anx-3 4. Total amount of revised pay from 1.4.97 to Sept.09 Arrears of salary of Feb. 01,Mar.01 and June 01 Arrears of salary of Apl. 05 and from 8.12.05 to 31.12.05 31,690/- 34750 40,175/- Cheque no.170448 dated 14.5.11 for total 1,96,651/- 14.5.11 Anx-4 5 Uniform Allowance for the year 1999-2000 & 2006-07 600/- 59/11-12 14.9.11 Anx-5 6 Yearly increment for 1996-97 1527/- 61/11-12 19.10.11 Anx-6 7 Balance amount of strike period from 12.1.99 to 7.5.99 1943/- 60/11-12 9.10.11 Anx-7 8 Bonus of FY- 1998-99 2419/- 58/11-12 9.10.11 Anx-8 9 Unutilized leave 80,498/- 63/11-12 14.11.11 Anx-9 10 Leave encashment from 17.10.04 to 5.11.04, from 1.6.06 to 13.605, from 14.6.05 to 7.12.05 and 15.11.06 96,498/- 57/11-12 14.11.11 Anx- 10 4 Counsel for the petitioner in view of the aforementioned affidavit has submitted that the claim of the petitioner at Item Nos. 12, 13 and 14 of Annexure-18, the self complied chart of arrears payable to him have not yet been settled. He has in this regard explained that the respondents in stead of paying arrear of salary for the period June, 2005 to November, 2005 have treated the said period to be an earned leave and have only paid the amount of salary which in effect would deprive the petitioner from claiming leave encashment. It has also been submitted that though the petitioner was entitled for grant of third stagnation increment and both ACP I and ACP II, the respondent Deputy Superintendent of Rajendra Nagar Hospital has not made any payment on the aforementioned heads. In the considered opinion of this Court the aforesaid grievance of the petitioner as with regard to payment of salary by treating certain period to be an earned leave will have to be gone afresh, inasmuch as it is the claim of the petitioner that she had joined at the transferred place while complying the transfer order, whereas the respondents have found from the records that the petitioner had not worked in the aforementioned period and as such, payment of her salary could have been only made by treating the aforementioned period of earned leave. Considering that there is a dispute with regard to working of the petitioner in the aforementioned period for which she has been sanctioned earned leave in order to enable her to draw salary of the said period, this Court would give liberty to the petitioner to file her separate 5 representation only with regard to issue of leave encashment vis-à- vis payment of salary by treating the period of absence from duty as an earned leave. The Director-in-Chief of the Health Services would ensure that an order on this claim of the petitioner is passed separately within a period of six months from the date of filing of the representation by the petitioner enclosing evidence to show that she had actually performed her duty in the said period and as such, she will be entitled to get salary for the said period in stead of treating the said period to be one under earned leave. There is also no dispute that a formal order for grant of stagnation increment and/or first and second ACP has not been passed and issued by the authorities and as such, they cannot be said to be admitted claim for which alone this Court could have issued a direction by treating them to be part of the admitted claim of arrears of payment of salary of the petitioner. Counsel for the petitioner has fairly accepted that reference to Annexure 16 would not be relevant for the purposes of payment of dues of ACP to the petitioner, inasmuch as Annexure 16 does not contain the name of the petitioner. In that view of the matter, this Court would direct the Director-in-Chief to consider the claim of the petitioner for grant of stagnation increment and also benefit of ACP and if she is found to be legally entitled to such benefits, necessary order should be passed by the Director-in-Chief in order to enable the petitioner to get payment on the head of stagnation increment and/or first and second ACP. This exercise also shall be completed by the Director-in-Chief within a period of six months from the 6 date of receipt of filing of a representation by the petitioner. Considering the fact that the petitioner herself had raised a number of stale claim of the year 1996 onwards as shown in Annexure 18 quoted above, this Court is satisfied that the payment of Rs. 11 lacs and odd by way of payment of arrears would amount to substantial compliance of the order of this Court dated 9.8.2011. It has to be always kept in mind that if any entitlement of the petitioner was already decided its payment had to be made but if such entitlement is itself in dispute, that may not be claimed as a matter of right unless the authority has addressed himself and adjudicated such claim. That being so, this writ application is disposed of with the aforementioned observations and directions. The personal appearance of the Deputy Superintendent of Rajendra Nagar Hospital is hereby dispensed with. (Mihir Kumar Jha,J.) Surendra/