Letters Patent Appeal No.1577 OF 1999 ************ Against the Judgment and Order 10th November, 1999 passed in C.W.J.C. NO.11878 of 1998 SHAIL KUMARI------------------------------------- (Appellant) Versus THE STATE OF BIHAR & ORS.---------------(Respondents) ------- For the Appellants : Mr. P.N. Shahi, Mr. Ritesh Kumar, No.I and Mr. Nishant Choudhary. For the Respondents: Mr. Anil Kumar Jha, G.A-II, Mr. Sanat Kumar Mishra, J.C. to G.A.-II. ----- P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. The appellant was a Lady Health Visitor. Since 1970 she was working at the Referral Hospital, Ghoshi, District Jehanabad in the post of A-Grade nurse. After a regular A-Grade nurse was posted in the said Referral Hospital, the appellant was relieved by the Civil Surgeon, Jehanabad on 21st February, 1990 with a direction to her to join at Secretariat on 22nd February, 1990. By an order dated 21st October, 1992, the appellant was posted once again at the Referral Hospital, Ghoshi, District 2 Jehanabad against the post of A-Grade nurse. On 22nd October, 1992 she joined the said post. In the writ petition, which has been disposed by the judgment and order under appeal, she claimed salary for the period of 22nd February, 1990 to 21st October, 1992. In paragraph 5 of the writ petition, the appellant contended that in compliance with the directions contained in the Order dated 22nd February, 1990 she submitted her joining in the afternoon of 22nd February, 1990 in the Health Directorate, before the Deputy Director, Health Services (Training), Government of Bihar, Patna, who was respondent No.5 to the writ petition. As Annexure-2 to the said writ petition, a copy of the joining letter dated 22nd February, 1990 was annexed. A counter affidavit was filed by the respondent No.5 to the writ petition. In clause-A of paragraph-5 of the counter affidavit it was stated that the appellant did not join at Secretariat on 22nd February, 1990. In Clause-5 of paragraph-5 of the said counter affidavit it was stated that according to official records it appears that the appellant joined at Secretariat on 27th March, 1992. It was then stated 3 that no proof has been submitted by the appellant in support of joining on 22nd February, 1990. It was lastly contended that being relieved, the appellant absconded from 22nd February, 1990 to 26th March, 1992 and joined at Secretariat on 27th March, 1992. In the said counter affidavit the respondent No.5 did not say a word as regards Annexure-2 to the writ petition. In paragraph-6 of the writ petition, the appellant stated that by an order dated 13th May, 1992 she was posted at Deoghar as Lady Health Visitor. However, joining of the appellant at Deoghar was not accepted on account of non-existence of any vacancy. Paragraph-6 of the writ petition was also dealt with by the respondent No.5 in paragraph-5 of the counter affidavit where it was stated in clause-C thereof that the appellant did not join at Deoghar and had put political pressure. Nowhere in the said affidavit the assertion of the appellant that at Deoghar at the time of her posting by the order dated 13th May, 1992 there was no vacancy of a Lady Health Visitor, had been dealt with. A learned Single Judge, who dealt with the 4 writ petition and passed the judgment and order under appeal, in the background of the above pleadings, opined that Annexure-2 to the writ petition had been manufactured and the appellant did not join her new place of posting at Deoghar and instead she kept on manoeuvring in order to change her posting. The official record, which, according to the respondent No.5, depicts joining of the appellant at Secretariat on 27th March, 1992, was not called for. The learned Judge by the judgment and order under appeal concluded the matter by holding that the appellant remained absent since 22nd February, 1990 until 21st October, 1992 and, accordingly, directed that such period of absence of the appellant should be appropriately adjusted with the leave available to the appellant and issued a further direction to transfer the appellant to another suitable place. In the present appeal, the appellant contended that official records contained in file 102/92 of Section 6 of the Health Department, Government of Bihar would depict that the appellant acted strictly in accordance with the directions given to her from time to time for reporting to the Secretariat on 22nd February, 1990, for reporting at 5 Deoghar, upon her transfer by the order dated 22nd May, 1992, non-acceptance of joining of the appellant at Deoghar by the officer concerned in view of the non-availability of vacancy of the Lady Health Visitor, etc. In the circumstances, we directed production of such official records. Accordingly, the Director-in-Chief, Health Services, Government of Bihar has filed an affidavit, wherein it has been stated that the said file is not available and he suspects that the said file has been destroyed in the fire broke out in the Health Department in 1992. While making such statement, the official record depicting joining by the appellant on 27th March, 1992 had not been produced. Learned counsel appearing on behalf of the Health Department of the Government submitted that the file referred to above may the official record mentioned in the counter affidavit filed by the respondent No.5 to the writ petition. The counter affidavit to the writ petition was affirmed on 26th March, 1999 and much prior thereto the file may have had been destroyed by fire in the year 1992. In the circumstances, the logical conclusion would be that the 6 statements made by the appellant in the writ petition, having regard to the nature of pleadings in the writ petition and the counter affidavit and having regard to the materials brought on record, are true and correct, and the insinuations contained in the counter affidavit filed to the writ petition are incorrect and untrue. In the circumstances, the appeal stands allowed. The judgment and order under appeal is set aside and at the same time the writ petition of the appellant is allowed with a direction upon the State to release, if not already released, the salary payable to the appellant for the period from 22nd February, 1990 to 21st October, 1992. In the event acting on the basis of the judgment and order under appeal any leave adjustment has been made, the same is also quashed hereby. (Barin Ghosh, J) Patna High Court, The 6th August, 2008. Mkr/(NAFR) (C.M. Prasad, J) 7