IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10653 of 1997 DR.M.P.VISHWAKARMA, son of late D.P. Vishwakarma, resident of village Raghunathpur, P.S. Brahampur in the district of Buxar … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner & Secretary to Govt., Health Medical Education and Family Welfare Department, New Secretariat, Bihar, Patna 3. The Addl. Secretary to Govt., Health, Medical Education and Family Welfare Department, New Secretariat, Bihar, Patna 4. The Dy. Director, Health Services, Health Medical Education and F.W. Department, New Secretariat, Bihar, Patna 5. The Director-in-chief, Health Services, New Secretariat, Bihar, Patna 6. The Civil Surgeon cum Superintendent of Sadar Hospital, Aurangabad … Respondents. ----------- 5. 10.8.2010 No one appears for the petitioner. Counsel for the State is present. In this writ application the prayer of the petitioner reads as follows: “Through this application the petitioner seeks leave to invoke the writ jurisdiction of this Hon’ble Court for issuance of an appropriate writ, order or direction for quashing Memo No. 160(3) dated 15.3.1996 at Annexure 13 issued under the signature of respondent no.3, the Addl. Secretary to Govt. whereby the petitioner on the alleged ground of unauthorized absence has been arbitrarily and illegally denied leave salary for the period 27.5.1983 to 19.6.1988 during which 2 he was on medical leave and has also been denied duty pay for the period 20.6.1988 to 31.1.1992 during which the petitioner after giving his joining report on 20.6.1988 at the headquarters waited for the orders of posting which was never given to the petitioner till the date of his retirement i.e. 31.1.1992.” From the records it is clear that the petitioner had earlier moved this Court in C.W.J.C.No. 4091/1995 and again in C.W.J.C.No. 5953/1996 and on both the occasions this Court had remitted the matter back to the Health Commissioner for deciding the claim of the petitioner which also included his regularization of the period of absence from 27.6.1983 to 31.1.1992. It appears that an order was passed thereafter by the Health Commissioner on 15.3.1996 (Annexure 13), whereby and whereunder such claim was rejected by causing break in service of the petitioner for the period 27.6.1983 to 19.6.1988 and again from 20.6.1988 to 31.1.1992. This Court has gone into the reasons as also the other pleadings which 3 have to be considered in the light of the fact that there is no counter affidavit filed on behalf of the State. From the reading of the impugned order itself it becomes clear that for the period 27.6.1983 to 19.6.1988 the Health Commissioner has rejected the prayer of the petitioner for grant of medical leave on the ground that the leave is not a matter of right and that such leave was never sanctioned by the Department. It has to be noted that it is not the finding of the Health Commissioner that the petitioner had not submitted such leave applications nor it is the finding of the Health Commissioner that the petitioner was claiming feigned illness. The admitted position, therefore, is that the petitioner initially proceeded on sanctioned leave and thereafter had to continue on leave on the ground of alleged illness. The department had in fact sought an explanation from the petitioner by a letter dated 30.12.1988 and the petitioner had promptly submitted its reply which was never disposed of. The petitioner even at that stage had to produce 4 the copy of the leave applications as also prescription showing his illness. None of these materials have been taken into consideration by the Health Commissioner while passing the impugned order. Similarly, the ground for treating the period between 20.6.1988 to 31.1.1992 to be the period of unauthorized absence and thus, break in service this Court would find that the Health Commissioner has ignored the fact that the petitioner had submitted his joining on 20th June, 1988 and in fact the same was also responded by the department by seeking an explanation on 30.12.1988. No action was taken on such explanation and in fact the request made by the petitioner for his posting was also not acceded to and the petitioner in fact remained in limbo for the period 20.6.1988 to 31.1.1992. The reasonings given by the Health Commissioner that the petitioner did not put his signature in the attendance register has to be only noted for its being rejected. Any person joining the Health Department awaiting his posting in Secretariat is not a regular employee posted over for whom there 5 is an inbuilt provision of marking attendance and at least nothing has been produced before this Court to substantiate this aspect. Moreover, the finding recorded by the Health Commissioner that as to whether the petitioner had submitted such joining on 20.6.1988 cannot be decided because the petitioner had not proved the particular mode in which such joining report was submitted by him, would by itself make the order of the Health Commissioner dated 15.3.1996 (Annexure 13) wholly unsustainable on fact and in law because she has not even cared to look into her own official records wherein a letter dated 30.12.1988 (Annexure 7) was issued to the petitioner by the Health Department only on acknowledgment of submission of joining report by him on 20.6.1988. It is thus clear that the Health Commissioner has not at all considered the case of the petitioner in an appropriate manner. Moreover, when the counsel for the State is also not in a position to justify such order of the Health Commissioner in absence of instruction and a counter 6 affidavit on the specific issues raised by the writ petitioner there would be no other alternative but to quash the impugned order, as contained in Annexure 13, and remit the matter back to the Principal Secretary (Health), who now after issuing notice to the petitioner and giving him an opportunity of hearing would take a fresh decision in the light of the earlier direction given by this Court in C.W.J.C.No. 5953/1996. Such exercise must be completed by the Principal Secretary of the Health Department within a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, this writ application, to the extent indicated above, is allowed. (Mihir Kumar Jha,J.) Surendra/