IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8781 of 1997 DR ABHAY KUMAR SINHA, Civil Asst. Surgeon, S/o Shri Krishna Prasad, at present attached to the office of Civil Surgeon cum Chief Medical Officer, Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. Health Commissioner, Bihar, Patna 3. Director, Medical Service, Bihar, Patna 4. Joint Secretary to the Government, Department of Health, Bihar, Patna 5. Secretary to the Government, Finance Department, Govt. of Bihar, Patna … Respondents ----------- 8. 22.7.2010 No one appears for the petitioner. Counsel for the State is present. The prayer of the petitioner in this writ application reads as follows: “(i) An appropriate writ, order or direction commanding the respondents to regularize the petitioner’s service from 3.5.1991 to 13.2.1992 spent as waiting for posting, be issued. (ii) An appropriate writ, order or direction commanding the respondents to make payment of the salary and other emoluments for the period from 3.5.1991 to 13.2.1992 and granting all other benefits within the time allowed by this Hon’ble Court, be issued.” The aforementioned simple prayer, however, on being dissected with the help of materials on record would reveal that the 2 petitioner immediately after his fresh appointment had proceeded on study leave without its being sanctioned. The respondents in fact have explained this aspect in the counter affidavit and in the supplementary counter affidavit wherein it has been stated that an employee of the Government is not entitled for grant of extra-ordinary leave/ study leave unless he would complete the period of one year service. In this context paragraph 5 of the counter affidavit completely answers all possible plea of the petitioner which is quoted hereinbelow: “ With regard to the statements made in paragraph no. 3, 5, 6, 7, 12, 16, 17, 19, 29 and 21 of the writ petition under reply it is stated that it came to the notice of the Govt. that large number of newly appointed medical officers have proceeded on leave to complete their (before) post graduate course, which is against the rule 143 of Bihar Service Code. It is also against the public interest because public service would be disturbed due to large number of medical officers going on study leave. So their leave have been 3 cancelled. Then some newly appointed medical officers filed writ petition and subsequently M.J.C. before this Hon’ble Court of Patna against the cancellation of study leave. The Hon’ble Court passed an order on 10.9.1991 in M.J.C.No. 767 of 1991 to grant study leave to newly appointed medical officers. The Health department filed S.L.P. in the Hon’ble Supreme Court against the judgment of the Hon’ble High Court, simultaneously the Govt. allowed the newly appointed medical officers to post graduate their rest of the P.G. course subject to the judgment of the Hon’ble Supreme Court vide memo No. 873(3) dated 13.9.1991. After completing the rest P.G. course when they joined in the department their joining was conditionally accepted that the judgment of the said S.L.P. would be acceptable to all concerning medical officers. The Hon’ble Supreme Court passed an order on 15.10.1997. That the contesting respondent could not avail the benefit of the judgment of the High Court and it will not be possible for them to take advantage of the judgment also. Since the newly appointed medical officers prima facie violated the rule 243 of the 4 Bihar Service Code and Govt. order and due to violation of this rule and order the problem of waiting for posting is created. In all such cases the finance Department disagreed to approve the proposed of the administrative department for regularized the waiting for posting period. Now in the light of the judgment of the Hon’ble Supreme Court and as per advice of the Finance Department question does not arise to regularize the claimed waiting for posting period.” As a matter of fact this aspect of the matter has been further clarified in paragraphs 5, 6, 7 and 8 of the supplementary counter affidavit which also for the sake of clarity is reproduced hereinbelow: “5. That with regard to the fact enquired by Hon’ble High Court it is stated that such appointed Medical Officers in the State Health service cadre in the year 1990, who went in P.G. study leave before completion of one year of service, their leave has been cancelled according to the Rule 243 of Bihar Service Code by the order dated 28.6.1991 of Commissioner cum Secretary, Health Department. 6. That leave for study was not 5 granted to Dr. Abhay Kumar Sinha according to letter No. 837(3) dated 13.9.1991 but successful newly appointed Medical Officers in P.G. M.A.T. 1990-91 were permitted to go in study on their own risk and it was condition that whatever the judgment of Hon’ble Supreme Court will be admissible to them and not any grievance will exist. 7. That Civil Appeal No. 1108-09/92 has been disposed of by the Hon’ble Supreme Court and the right has been given to Department to follow the rule of the Government. 8. That due to violation of the Rule 243 of Bihar Service Code by the successful newly appointed Medical Officers in the year 1990- 91, the problem of regularization of waiting for posting is created. In all such cases including the petitioner Dr. Abhay Kumar Sinha, the Finance Department disagreed to approve the proposal of the administrative department to regularize the waiting for posting period. According to Finance Department as long as regularization of study leave will not happen, till then the regularization of waiting for posting will remain pending. In the light of above mentioned matters the period of regularization of 6 waiting for posting from 3.5.1991 to 13.2.1992 is pending as yet of Dr. Abhay Kumar Sinha.” As a matter of fact the petitioner having answered to both the counter affidavits filed by the respondents had himself filed a supplementary affidavit on 31.8.2001 wherein he had come out with the following plea: “ 2. That during the pendency of the aforesaid writ petition, the petitioner was transferred w.e.f. 27.9.1997, but he was not given posting, rather, he was kept waiting for posting which continued for about 1½ years and that is why the petitioner filed I.A.No. 2682/98 amending the main writ application seeking further relied for payment for the period spent on waiting for posting. 3. That thereafter the respondents made payment of the salary for the period commencing from 21.9.1997 upto date and regularized his services. 4. That in view of the changed circumstances, the question of regularization of the petitioner’s services in the original writ petition still survives and therefore, the petitioner has been advised to confine his relied as 7 originally sought for in the main writ application. 5. That so far as the question of regularization of the period in question is concerned, the matter is concluded by the Division Bench decision of this Hon’ble Court in C.W.J.C.No. 4658/91 dated 19.8.1991 as well the order dated 4.7.2001 passed in C.W.J.C.No. 549/2001. Both the decisions apply with full force to the petitioner’s case.” The aforementioned pleadings would, therefore, now make this case one of regularization for the period he had remained absent on account of his being on alleged study leave. As noted above, that has not been allowed either by this Court or by the Apex Court. Thus, due to efflux of time this application has become infructuous and is dismissed accordingly. (Mihir Kumar Jha,J.) Surendra/