IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9603 of 2008 *** In the matter of an application under Article 226 of the Constitution of India. *** Dr.Muzaffarul Islam son of Late Hakim Jainul Abedin, at present posted as Unani Medical Officer, Government Tibiya College and Hospital, Kadam Kuna, P.S. Kadam Kuan, District Patna……………………………………..….Petitioner Versus 1. The State Of Bihar. 2. The Under Secretary, Health, Medicine Education and Family Welfare Department, Bihar, Patna. 3. The Commissioner – cum - Secretary, Health Department Indigenous Medicine) New Secretariate, Patna-800001. 4. The Director (Indigenous Medicine) Health Department, New Secretariate, Patna- 800001. 5. The Deputy Secretary, Health, Medical Education & Family Welfare Department, Government of Bihar, Patna……………Respondents ------- For the Petitioner: Mr. M.S. Hoda, Advocate For the State: Mr. Neeraj Kumar, A.C. to S.C. 22 *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH *** O R D E R J.N.Singh, J. Heard learned counsel for the petitioner as well as learned counsel for the State. Petitioner has filed this writ application for quashing of the order of the Department of Health dated 09.07.2001, as contained in Annexure-8, by which he has been denied salary of the period from 05.03.1993 to 30.12.1993, which period has otherwise been adjusted against his admissible extraordinary leave. He has also prayed for quashing of another order of the Department dated 2 21.08.2007, as contained in Annexure-10, by which his representation filed for the same purpose, pursuant to the orders of this Court dated 08.03.2007 passed in CWJC No. 5373 of 2001, has been rejected. He has further prayed for counting of his service period from the date of his joining on 05.03.1993 upto 30.12.1993 with all consequential benefits. The claim of petitioner for monetary benefits of the period from 05.03.1993 to 30.12.1993 is on the sole basis of equal treatment vis-à-vis one Dr. Syed Md. Eqbal. Facts of the case are that, on the recommendation of the Bihar Public Service Commission, a notification was issued by the Department contained in Memo No.149 dated 24.02.1993/02.03.1993 by which a large number of eligible candidates were appointed in the Health Service of the Government on the post of Unani Medical Officers. Petitioner’s name was at serial no.26 of the Notification and he was posted at Additional Primary Health Centre, Ramchandrapur, Tantnagar, West Singhbhum. By the same Notification, the said Dr. Syed Md. Eqbal was also appointed and posted at Additional Primary Health Centre, Gauna in Bikram Block of Patna District. There were some litigation in this Court and this Court, by order passed on 3 12.03.1993 in CWJC No. 7475 of 1992, stayed the Notification. Against the said order, affected parties moved the Hon’ble Apex Court and the Apex Court, by its order dated 28.10.1993 passed in Civil Appeal Nos. 5520 and 5521 of 1993, set aside the order of this Court, thus allowing the respondents to make appointment and accept their joining and posting as per the Notification. Thereafter petitioner, by Notification dated 22.12.1993, was posted as Unani Medical Officer in Government Tibbi College, Patna where he joined on 31.12.1993. The case of the petitioner is that pursuant to the Notification of place of posting (Annexure-1), he submitted his joining in the office of the Civil Surgeon, Singhbhum on 05.03.1993. Civil Surgeon, on submission of his joining, found that there was no Additional Primary Health Centre at Ramchandrapur in Tantnagar. Hence, through his letter dated 09.03.1993, vide Annexure-2, he informed the Department of Health about the fact and requested for modification of the Notification of posting of the petitioner. Thereafter petitioner remained waiting for his new place of posting which was finally notified by the Department by the said Notification dated 22.12.1993. 4 Learned counsel for the petitioner submits that once when petitioner submitted his joining in the office of the Civil Surgeon, Singhbhum at Chaibasa he had performed his part of duty by joining the Government service. Hence, if the State Government delayed in issuing a notification in respect of his new place of posting, he cannot be penalized for the same. Hence for this period petitioner was entitled for payment of his salary and other benefits. Learned counsel for the petitioner further submits that petitioner remained waiting for new place of posting in the office of the Civil Surgeon, Singhbhum himself and it was only by office order dated 27.12.1993, he was relived by the Civil Surgeon, Singhbhum for joining his new place of posting. Learned counsel for the petitioner submits that the said Syed Md. Eqbal had also submitted his joining in the office of the Civil Surgeon, Patna. But since due to some reasons, he could not be posted at the place of posting notifying by Annexure-1, he was relieved by the Civil Surgeon, Patna, finally by letter of the Civil Surgeon contained in Memo No.5202 dated 05.08.1993. He remained waiting for posting during the period which was finally notified by the Department through Notification no.197 dated 5 22.02.1994, by which he was posted in an Additional Primary Health Centre, Bhelwa Bazar, East Champaran, where he joined on 23.02.1994. Learned counsel submits that said Syed Md. Eqbal was paid his salary of the intervening period while he remained waiting for his new place of posting, whereas the same has been denied to the petitioner for no fault of his. Thus, learned counsel for the petitioner has tried to make out a case of discrimination and violation of Article 14 of the Constitution of India. A counter affidavit has been filed in this case by the Department in which observations made in impugned Annexure-11 have been reproduced and relied upon. After going through the materials available on record of the case and the facts emerging from the same, this Court is of the view that the case of the petitioner is not identical to the case of Dr. Syed Md. Eqbal. It is true that petitioner had submitted his joining in the office of the Civil Surgeon, Singhbhum at Chaibasa on 05.03.1993. But Civil Surgeon through his letter had informed the Department that there was no Additional Primary Health Centre at the place mentioned in the notification as posting the petitioner. Hence, a request had been made by the Civil Surgeon for 6 modification of the notification. It is an admitted position that petitioner remained waiting in the office of the Civil Surgeon, Singhbhum for notification of his new place of posting and he did not report in the Department and did not himself request for fresh place of posting. His stand is that the Civil Surgeon, Singhbhum did not relieve him. Hence he could not submit his joining in the Department, which relieving was given to him by the Civil Surgeon, Singhbhum only on 27.12.1993, after his fresh place of posting was notified. Even if this is accepted as correct, fault lies with the then Civil Surgeon, Singhbhum, if at all it was technically required from him to relieve the petitioner immediately for reporting back in the Department, which he did not do. It is obvious that, as per his own case, petitioner was sitting in the office of the Civil Surgeon, Singhhum, for almost nine months, without any salary, without any posting, without making any request to relieve him, and without reporting and requesting in the Department to give him another place of posting as quickly as possible. So far as the case of Syed Md. Eqbal is concerned, from the information received by the petitioner under the Right to Information Act, 7 vide Annexure-12 with the reply to the counter affidavit, it is evident that on being relieved by the Civil Surgeon, he had immediately submitted his joining in the Department, where he remained waiting for posting, which was finally notified on 22.02.1994. Since the delay was caused on the part of the Department in his posting, even after he had submitted his joining there, the Department considered it appropriate to allow salary to him of the intervening period. Petitioner remained waiting for fresh place of posting in the office of the Civil Surgeon, Singhbhum and not in the Department. Therefore, the grievance of the petitioner could only be from the then Civil Surgeon, Singhbhum and not from the Department. In the circumstances, this Court does not find any error in the reasoned order passed by the Department rejecting representation of the petitioner, as contained in Annexure-11. Therefore, this Court does not find any merit in this writ application. The same is, accordingly, dismissed. Patna High Court, Patna The 30th November, 2011 N.A.F.R. (B.T.) (Jayanandan Singh, J.)