IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4078 of 2004 DR.NAWAL KISHORE KUMAR, son of late Baikunth Prasad Kumar, resident of at & P.S. Naugachia, District Bhagalpur … Petitioner Versus 1. THE STATE OF BIHAR 2. The Director Health Services, Govt. of Bihar, Patna 3. Regional Deputy Director, Health Services, Patna Division, Patna 4. The Medical Officer, Incharge, Primary Health Centre, Mokama, P.S. Mokama, District Patna … Respondents ----------- 5. 28.9.2010 Having heard Mr. Siyaram Shahi, learned counsel for the petitioner and the counsel for the State as with regard to the following relief: “(I) For issuance of an appropriate writ in quashing the order dated 7.10.2003 passed by Director, Health Service, Bihar, Patna contained in Annexure 10. (II) For issuance of an appropriate writ commanding the respondents to pay the salary and other allowances with due increments from July 1996 till date. (III) For issuance of an appropriate writ commanding the respondents to grant due time bound promotions to the petitioners with all the consequential benefits as per various recommendation of the pay Revision Committee.” this Court is of the considered opinion that the impugned order passed by the Director of 2 Health Services on 7.10.2003 pursuant to an order of remand by this Court cannot be interfered as with regard to denial of payment of salary to the petitioner for the period July, 1996 to 22.9.2003, inasmuch as the same is based on a cogent reason and a valid circumstance of their being no actual proof of working of the petitioner. The authority has discussed the matter from all possible angles and in fact while giving all possible relief to the petitioner in the same order he has held the petitioner not entitled for payment of salary for the aforementioned period on the ground that the solitary evidence produced by the petitioner being an attendance register containing only signature of the petitioner was not worth reliance, especially when the petitioner had failed to produce any material to show that such attendance register was opened under the orders of the controlling authority, namely, In-charge Medical Officer. The payment of salary to a Government employee can only be directed by this Court if there is no dispute as with regard to his working in the concerned 3 period. The principle of law also is well settled that an employee shall be entitled for salary for the work done. In the present case when the authority has found it from the contemporaneous record of their being no proof of actual working of the petitioner and the petitioner has also failed to produce any cogent evidence, a dispute as now being sought to be raised and pressed by the counsel for the petitioner that the sole evidence, the attendance register of the petitioner opened only for marking his attendance should have been accepted as a valid piece of evidence does not stand to the logic and reasoning of this Court. It has to be noted that even if the submission of the counsel for the petitioner is accepted that the petitioner holding a post of Epidemic Officer, which was a non- gazetted post, as per initial order of his engagement dated 16.10.1976 on adhoc basis and as such, he was not allowed to mark his attendance with the doctors holding a gazetted post or with the other regularly employed non-gazetted employees the same still require some sort of support from any 4 authentic document of the concerned establishment including absentee statement prepared by the controlling Officer on the basis of attendance marked in attendance register. It is not in doubt that there is no absentee statement of the petitioner for the period July, 1996 to 22.9.2003 and the petitioner also had never made a grievance against his In-charge Medical Officer that though he had directed for opening a new attendance register only for the petitioner, the same was not acted upon by the In-charge Medical Officer for the purposes of submission of absentee statement. In that view of the matter, this Court would find it difficult to direct for payment of salary for the period of almost six years three months only on the basis of the alleged attendance register whose authenticity itself has been doubted by the authority in the impugned order. None-the- less since the petitioner has claimed to have worked in the said period as an Epidemic Officer and also has his case that such attendance register was opened with the prior approval and permission of the In- 5 charge Medical Officer and these facts, however, have been categorically denied by the respondents in the counter affidavit and also a finding to this effect has been recorded against the petitioner in the impugned order and therefore, for resolution of this disputed question of fact, the writ jurisdiction of this Court under Article 226 of the Constitution of India will be wholly inappropriate, inasmuch as such disputed question of fact cannot be adjudicated by this Court in a writ petition. This question of fact requiring both oral and documentary evidence can be effectively gone into in a properly constituted civil suit wherein the petitioner and the respondents will have an adequate opportunity to adduce evidence in support of their case. That being so, the prayer of the petitioner for direction of payment of salary for the period July, 1996 to 22.9.2003 cannot be allowed by this Court in this writ petition. If and when the petitioner would file a suit he will be also definitely entitled to raise the question of limitation under section 14 of the 6 Limitation Act setting out the circumstance in which the suit was filed belatedly after expiry of period of limitation. The next question would be as with regard to claim of the petitioner for payment of his salary in the prescribed pay scale of Rs. 5000-8000 with annual increments from 1977 in which he is said to have received payment of his salary for the period 23.9.2003 to 31.1.2004, prior to his retirement with effect from 1.2.2004. This Court, however, would find from the order of appointment of the petitioner dated 16.10.1976 that his such appointment on a non-gazetted post of Epidemic Officer was on a fixed salary of Rs. 610/- for a period of three months only. There was no pay scale attached with the appointment of the petitioner nor there was any concept of grant of annual increment beyond the fixed pay. There is also nothing on record to show that such appointment of the petitioner in the fixed pay scale was ever brought into regular establishment by placing him a particular pay scale. The petitioner, however, claims that when at least he had 7 been paid his salary for the last four months of his salary in the pay scale of Rs. 5000-8000 he would be also entitled for full salary and allowances the prescribed pay scale alongwith annual increments from 16.10.1976 to 31.1.2004. This Court would find it difficult to decide this dispute as with regard to the claim of the petitioner for payment of his salary right from the beginning in a prescribed pay scale with annual increment in absence of relevant materials and documents inasmuch as the petitioner has nowhere made even a statement much less supported the same with any contemporaneous documents which could lend strength to the oral submission of the learned counsel for the petitioners that the adhoc appointment of the petitioner dated 16.10.1996 was regularized with the benefit of a pay scale prescribed for the post of Epidemic Officer. This aspect of the matter, therefore, can be looked into by the Director-in-Chief by making verification from the service records of the petitioner as to when and with what conditions, his 8 service earlier being a fixed tenure and fixed salary appointment was converted or changed to an appointment on regular basis in prescribed pay scale. If it is found that the petitioner’s appointment was regularized in the prescribed pay scale by the competent authority in a prescribed manner, the petitioner will definitely be entitled for grant of increment from the date the petitioner was given such pay scale. The last prayer of the petitioner as with regard to grant of benefit of time bound promotion would also squarely depend on the outcome of issue as to whether the petitioner’s service was ever regularized or he was appointed in the prescribed pay scale so as to be conferred the status of a regular employee of the State Government. As is well known the concept of time bound promotion was only a substitute for a regular employee who could not have earned his promotion due to stagnation. Therefore, if the petitioner had become a regular employee and was also granted prescribed pay scale, that could be the beginning point for computing the period of ten years or 25 9 years for grant of time bound promotion under the decision of the State Government dated 30.12.1981 which remained in vogue till 1.1.1996. The further ancillary grievance of the petitioner as with regard to being given benefit of ACP will also depend on the findings recorded by the authority as with regard to regular appointment of the petitioner and if it is found that the petitioner’s regular appointment was made, the period of 12 years and/or 24 years shall be computed from the date of such regular appointment so as to confer on him the benefit of ACP. Thus, while this Court has not expressed any opinion on the claims of the petitioner with regard to pay scale, annual increments, time bound promotion and ACP, while remitting the matter back to the Director-in-Chief of the Health Services, it would expect that the petitioner, who has retired on 31.1.2004 is given his due whatever it be, at the earliest possible point of time by deciding the claim of payment of salary in the prescribed pay 10 scale with increment, time bound promotion and ACP within a period of six months from the date the petitioner would file his representation enclosing a copy of this order giving details of each of the claim to be placed by him. It is also made clear that the period of July, 1996 to 22.9.2003 shall be taken into account by way of extraordinary leave without pay till the petitioner establishes his claim for grant of salary in the manner indicated above. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/