IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 4367 of 2009 DR. NAVJEEVAN, S/O LATE NARYAN PRASAD OF CHOTI KHANJHAR, P.S. – BARAI, DISTRICT – BHAGALPUR ………………….. PETITIONER VERSUS 1. THE STATE OF BIHAR 2. COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HEALTH MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR 3. JOINT SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, BIHAR, PATNA 4. DEPUTY SECRETARY, DEPARTMENT OF HEALTH MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA ……………… RESPONDENTS ----------- 04. 26.08.2011 Heard learned Counsel for the petitioner and the State. Petitioner is presently posted as Senior Resident, Department of Pediatrics, Jawahar Lal Nehru Medical College and Hospital, Bhagalpur. Initially he was appointed as Medical Officer-cum-Civil Assistant Surgeon and while posted as Child Specialist at Garaul Referral Hospital, in the district of Vaishali, he applied for leave for joining on Child Specialist’s post at Libia. His application was processed but final notification allowing long leave for accepting international job could not be issued due to on going strike. Petitioner’s case is that in anticipation of grant of leave, he proceeded for giving joining at Libia on 20.11.1988, as his VIZA, otherwise, would have expired. 2 He came back and gave his joining before Commissioner-cum-Secretary, Department of Health on 03.07.1993. Again he applied for three months leave for bringing his family from Libia, which was sanctioned, but he stayed in Libia for complete one year and joined service on 20.09.1994. Despite his joining, till 1997, he was kept on waiting for posting. In this regard, he submitted several applications and reminders, but nothing was done. Finally after two years and 10 months of his waiting for posting, the Deputy Director, Health Services (Establishment), Bihar issued letter dated 19.06.1997, whereby petitioner’s joining was accepted since 29.09.1994. Thereafter, vide letter dated 16.07.1997, he was transferred and posted as Registrar, Jawahar Lal Nehri Medical College Hospital, Bhagalpur, where he gave his joining on 17.07.1997. Subsequently, a Departmental Proceeding was also initiated against him for the charge relating to unauthorized absence from his service. The Departmental Proceeding was finally decided, awarding certain punishments, vide order, contained in Memo No. 744, dated 26.05.2005. The petitioner was awarded following punishments: (i) The period running from 21.11.1998 to 02.07.1993 was considered as unauthorized absence. 3 (ii) Period in between 20.08.1993 to 20.09.2994 was treated as leave without pay and not countable for payment of pension. (iii) Period in between 03.07.1993 and 19.08.1993 as well as 19.08.1993 and 20.09.1994 were treated as period, waiting for posting. Counsel for the petitioner submits that this order was passed after holding a Departmental Proceeding against the petitioner in accordance with law and punishment order was also approved by the Cabinet, as such it was a final order. Petitioner filed his appeal in the Department against final order passed in the Departmental Proceeding, which is still pending and not disposed of. In this circumstance, there was no reason for issuance of impugned notification, contained in Memo No. 81 (17), dated 24.01.2008 by the Deputy Secretary, Department of Health Medical Education and Family Welfare, whereby the period in between 21.09.1994 to 16.07.1997 has been treated as extraordinary leave. Counsel for the petitioner submits that on account of the passing of an order completely illegal and without jurisdiction, as well as issued in violation of the rules of natural justice, the petitioner will have to suffer 4 huge monetary loss. It has also been stated that since Departmental Proceeding has come to an end and the punishment order was approved by the Cabinet, there was no obvious reason for issuance of this order, even without issuing any show-cause-notice to the petitioner, especially when an appeal preferred, is yet to be finally decided by the Department. Counter Affidavit has been filed on behalf of Respondent Authorities, stating that the petitioner’s unauthorized absence has been regularized by the impugned order. In fact the Department has shown mercy in the case of the petitioner, otherwise he would have had to face a very serious consequence for remaining absent from his service unauthorizedly for such a long time. The statement made in the Counter Affidavit can not be accepted for the reason that the period, during which the petitioner had remained absent from his service, even unauthorizedly, for that a Departmental Proceeding had already been initiated and final order passed by the Disciplinary Authority, and it was approved by the Cabinet. There was no obvious reason for amending this order by issuing the impugned order, especially when the appeal preferred by the 5 petitioner is still pending for consideration before the authorities. For all these reasons, I find that the impugned order has been issued illegally, arbitrarily and in violation of the rules of natural justice, as such, fit to be quashed. Accordingly, the order, contained in Memo No. 81 (17), dated 24.01.2008 (Annexure – 5) is quashed. This Writ Application is allowed. Since in the Departmental Proceeding this period had been treated as period waiting for posting, petitioner is entitled for his salary and the Respondents will take all steps for payment of salary for this period to the petitioner. Necessary orders must be passed in this regard within eight weeks from the production / communication of this Order. SKM (Mridula Mishra, J.)