IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11950 of 2002 Dr. Md. Usman, son of Late Md. Iliyas, Resident of Village Deogachhi, Kasba, District Purnea, at present residing at & P.O. Khajanchi Hat, P.S. Purnea Sadar, District Purnea. ------- Petitioner Versus 1. The State Of Bihar. 2. Commissioner-cum-Secretary, Department of Health, Government of Bihar, Patna. 3. Joint Secretary, Department of Health, Government of Bihar, Patna. 4. Director, Health Services, Bihar, Patna. 5. Under Secretary, Health Department, Government of Bihar, Patna. 6. Accountant General, Bihar, Patna. ---------- Respondents ----------- 5 28.06.2010 Heard Mr. Ritesh Kumar, learned counsel for the petitioner and counsel for the State as also counsel for the Accountant General. In this writ application, the petitioner has prayed for following relief:- “1. That this application is being filed for the quashing of the order dated 6.9.2002 issued under Memo No. 111413 under the signature of Under Secretary, Health Department, whereby he has treated the period from 29.11.74 to 16.7.75 as leave without pay and not pensionable as also he has not treated the period 17.7.75 to 6.2.79 as waiting for posting and the same has been treated as leave without pay and non-pensionable, besides the period 4.3.79 to 30.11.97 has also 2 been treated as leave without pay and non-pensioanble and for a further direction to treat the aforesaid period as on duty and to pay the salaries for the aforesaid periods and to treat them as pensionable and to regularize the aforesaid periods and for ad interim order to treat the said three periods as on duty and all the benefits be allowed to the petitioner and for grant of relief or reliefs to which the petitioner be found entitled to.” Mr. Ritesh Kumar, learned counsel for the petitioner, with reference to the aforementioned prayer, would submit that the petitioner was not at fault if the joining report of the petitioner was not accepted or the charge to the post wherein he was assigned duty was not given to him. He would, therefore, submit that irrespective of the fact that the petitioner could not work on the post assigned to him, he would be entitled for payment of salary as also pensionary benefit. In this case, a counter affidavit has been filed on behalf of the respondents wherein it has been explained that the petitioner earlier for some relief had moved this Court in CWJC No. 3813 of 2001 which was 3 disposed of on 26.3.2001 with a direction to the Secretary of the Health Department to consider the grievance of the petitioner in terms of Rukmini Devi case. It appears that thereafter the petitioner was given a notice and an opportunity of hearing by the Secretary of the Health Department who had passed a reasoned order on 12.4.2002, wherein, it was held that the petitioner was absent from duty in various stretches and that his total service rendered was for a period of nine years seven months and five days only with the following breakup:- “(i) 22.5.65 to 31.7.74 – 9 years, 2 months 10 days. (ii) 1.8.74 to 28.11.74 : 4 months only. (iii) 7.2.79 to 22.2.79 : 16 days only. (iv) 23.2.79 to 3.3.79 : 9 days only. Total 9 years, 7 month, 5 days only.” The Secretary to the Health Department has also categorically held that the petitioner was absent from duty almost for a period of more than four years between 1.9.74 to 1979, he again disappeared after 3.3.1979 to have surfaced only in the year 2000 by claiming that he had kept waiting for 4 posting and therefore, would be entitled for payment of salary and as also retirement benefit. The reasoned order given by the Commissioner that there was no chit of paper to show at least substantiate such claim of the petitioner cannot be interfered by this Court specially when there is no documentary proof of actual working of the petitioner and in fact there is not even a clear assertion of the petitioner with regard to his working in any period in which he is reported to be absent from duty. Even otherwise, it will be difficult for this Court to believe that the petitioner would remain waiting for posting between 1974 to 1979 and while going without salary, he would not have approached any court of law. Similarly his continued silence between 1979 to 1990 again is a clear proof of the fact that the petitioner had never worked on any post. The overemphasized reliance placed by the counsel for the petitioner on a notification of transfer of the year 1990 to show that the petitioner was waiting for 5 posting and his appointment on the post of District Malaria Officer is to be only noted for its being rejected. Nowhere in the writ application there is a clear statement that the petitioner had joined the post of District Malaria Officer or that the petitioner had ever approached the authority in the event of non-acceptance of joining. A notification of transfer issued by itself cannot be a proof of working of a gazetted officer. The petitioner was holding the post of a gazetted officer with a power of being drawing and disbursing authority and therefore, he cannot expect gratis by way of salary or retirement benefit when he had actually not worked on the post. That being so, this Court would not find any error in the impugned order which only deprived the petitioner of getting retirement benefit and pension, inasmuch as, his total length of service has been found to be less than qualifying service as prescribed in the Bihar Pension Rules i.e. ten years. However, the petitioner must be qualifying for grant of other retirement benefit such as 6 leave encashment or provident fund and if that has not been paid to him earlier, such amount, being the personal accumulation of the petitioner, has to be paid to the petitioner with statutory interest. Subject to the aforementioned observations and directions, this application is dismissed. Rsh (Mihir Kumar Jha, J.)