IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2796 of 2006 DR.LAKHINDRA PRASAD, S/O Late Jagdish Paswan, R/O Village Bishunpur Gidha, P.S. Maniari, Distt- Muzaffarpur. ……..Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary, Department of Health and Family Welfare, Government of Bihar, Patna. 2. Under Secretary, Department of Health and Family Welfare and Indigenous Medicine, Government of Bihar, Patna. 3. Accountant General, Bihar, Patna. ……..Respondents. ----------- 3 18.01.2011 Heard learned counsel for the petitioner and learned counsel for the State and its authorities. The writ application has been filed for quashing the order issued vide memo no. 1439(3),dated 25.11.2004 passed by respondent no. 2 as contained in Annexure 8, by which the period from 24.08.2002 to 25.08.2002 has been treated as transit leave whereas from 26.08.2002 to 18.09.2002 has been treated as waiting for posting and the period from 19.09.2002 to 28.07.2003 has been treated under admissible leave and also for direction to the respondents to regularize the period from 19.09.2002 to 28.07.2003 as waiting for posting. Though the petitioner could not join due to the latches on the part of the authorities. The petitioner has also prayed for being posted on a higher post, as per his seniority as several persons junior to the petitioner are 2 posted on higher post. On 17.08.2002 the petitioner was posted as Additional Chief Medical Officer, Sitamarhi (Sadar Hospital). On 18.08.2007 the petitioner was transferred to the post of Deputy Superintendent, Sadar Hospital, Buxar as he was working as Additional Chief Medical Officer, Sitamarhi. The transfer order dated 17.08.2002 was challenged by the petitioner in CWJC No. 9660 of 2002 on the ground that the petitioner had been posted on junior post whereas several junior persons were working on the senior post at the place of transfer. The said writ application was disposed off by quashing the transfer order dated 17.08.2002 whereby the petitioner was transferred from the post of Additional Chief Medical Officer, Sitmarhi to the post of Deputy Superintendent, Sadar Hospital Buxar on a lower post, whereas the juniors were posted higher posts such as Civil Surgeon . The writ application was disposed off with a direction to the authorities to give appropriate posting to the petitioner, within the period of four weeks from the date of receipt/production of the copy of the order, according to the seniority and keeping in view that juniors to the petitioner have been posted as Additional Chief Medical Officer in the other districts. On 3 28.09.2002 petitioner represented before the Commissioner-cum-Secretary Health Department, Bihar Patna for giving appropriate posting in pursuance to the directions issued by this Court in CWJC No. 9660 of 2002. In the mean time, on 19.09.2002 vide memo no. 1172(3), dated 18.09.2002 the petitioner was again posted on the post of Deputy Superintendent, Sadar Hospital, Siwan. It appears that vide the aforesaid order the petitioner was posted on the same junior post without considering the directions of this Hon’ble Court’s order dated 16.09.2002 passed in CWJC No. 9660 of 2002. The petitioner again represented before the authorities with regard to the non-compliance of the order of the Hon’ble Court and for issuance of posting on the same post at Siwan. Ultimately, the petitioner again filed CWJC no. 5258 of 2003 for payment of salary and appropriate posting, whereby vide order dated 22.07.2003 the Secretary Health Department was directed to appear on 28.07.2003 with full facts of the case. The petitioner was posted as Additional Chief Medical Officer, Kaimur, vide Memo no. 813(3), dated 26.07.2003, as contained in Annexure 5. Subsequently the petitioner joined on 29.07.2003 at Kaimur. On 17.12.2003 the petitioner represented for regularization of service from 24.08.2002 to 28.07.2003. Subsequently 4 the Accountant General was informed by the Additional Secretary Health, vide memo no. 1439(3) dated 25.11.2004 by which it was intimated that the period from 24.08.2002 to 25.08.2002 has been treated as transit period whereas the period from 26.08.2002 to 18.09.2002 has been treated as waiting for posting and the period from 19.09.2002 to 28.07.2003 has been treated as admissible leave. The petitioner is aggrieved by the manner in which the period from 19.09.2002 to 28.07.2003 wherein he was kept under waiting for posting, had been regularized as admissible leave whereas the petitioner could not join at Siwan in pursuance to order dated 18.09.2002 whereby the petitioner was directed to join on the post of Deputy Superintendent, Sadar Hospital, Siwan which was a junior post, whereas the High Court had specifically directed for posting the petitioner on the appropriate post keeping in view that the juniors to the petitioner have been posted as Additional Chief Medical Officer in other districts and thus the petitioner claims that the said period should also be treated as period waiting for posting. The petitioner is not pressing the other relief for being posted as Civil Surgeon as at present the petitioner is posted as Civil Surgeon. Counter affidavit has been filed on behalf of 5 respondent nos. 1, 2 and 3. The stand of the respondent nos. 1 and 2 is that since the petitioner did not join at Siwan in pursuance of the notification dated 18.09.2002 hence that period has been regularized as admissible leave. It is admitted situation that the High Court passed the order on 16.09.2002 in CWJC No. 9660 of 2002, after hearing the counsel for the State, the posting of the petitioner as Deputy Superintendent in Sadar Hospital, Buxar was quashed on the ground that the petitioner was posted on senior post of Assistant Chief Medical officer at Sitamarhi and juniors to the petitioners were posted as Additional Chief Medical Officer, hence in such circumstances the issuance of the transfer order of the petitioner on 18.09.2002 on the same lower post of Deputy Superintendent, Sadar, Siwan was an order which was issued by the authorities without considering the directions of the Hon’ble Court. Hence for the said latches the petitioner cannot be allowed to suffer and the petitioner cannot be held responsible for not joining at Siwan and the delay in issuance of ultimate posting of the petitioner as Additional Chief Medical Officer was issued by the respondent authorities on 26.07.2003 after filing of the second round of the writ vide CWJC No. 5258 of 2003. Hence the period from 19.09.2002 to 28.07.2003 6 cannot be treated under admissible leave head, rather the authorities should also regularize this period under waiting for posting head. Hence, Annexure 8, to the extent whereby the period from 19.09.2002 to 28.07.2003 is treated to be a period under admissible leave, is quashed. Let the authorities pass appropriate order within a period of six months and transmit appropriate orders to the office of Accountant General so that the consequential relief including all financial benefits should be paid to the petitioner within a period of six weeks from the date of passing of the order. With the aforesaid observation, this writ application is allowed. Bhardwaj/- ( Dinesh Kumar Singh, J.)