IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3556 of 2004 Lalita Kumari, Wife of Deo Ranjan Singh, A.N.M. Present posted at Paliganj, Primary Health Centre, P.S. Paliganj, District Patna. --------- Petitioner Versus 1. The State of Bihar through its Commissioner cum Secretary, Health Services, Government of Bihar, office at New Secretariat, Bailly Road, Patna. 2. The Director, Health Services, Government of Bihar, office at New Secretariat, Bailly Road, Patna. 3. The Dy. Director in Health Services, Government of Bihar, Officer at New Secretariat, Bailly Road, Patna. 4. The Civil Surgeon cum Chief Medical Officer, Nalanda. 5. The Civil Surgeon cum Chief Medical Officer, Patna. 6. The Incharge Medical Officer, Primary Health Centre, Paliganj, Patna. 7. The Director in Chief, Government of Bihar, Patna, office at New Secretariat, Bailly Road, Patna. ------- Respondents ----------- 3 23.09.2010 Having heard Mr. Khurshid Alam, learned counsel for the petitioner and counsel for the State as with regard to the following prayer:- “1. That petitioner seeks indulgence of this Hon’ble Curt for issuance of a writ in the nature of certiorari for quashing the order contained in memo no. 1118(6) Health Patna dated 10.11.2003 by which the claim of the petitioner for salary from the period of 1.8.2000 to 15.1.2002 has been rejected on nonest ground and further commanding the respondent to pay the salary for the period of 1.8.2000 to 15.1.2002 i.e. the period waiting for posting.” this Court is of the considered opinion that 2 the petitioner cannot get salary for the period 1.8.2000 to 15.1.2002, inasmuch as, in this period, there is no proof of actual working of the petitioner at any place. The petitioner was holding the post of Auxiliary Nurse Midwifery (A.N.M.) and was transferred from Katihar to Nalanda on her own request. Subsequently in the light of the order of the Director-in-Chief dated 8.7.2000, she was posted from Nalanda district to Bhagalpur district and when she had challenged the said order before this Court in CWJC No. 7571 of 2000 that also do not yield the desired result, inasmuch as, the order of posting of the petitioner at Bhagalpur was not disturbed. In fact, by this time, as the petitioner had already stood relieved from Nalanda district, she ought to have joined at Bhagalpur but then she did do so and kept on representing her case for transfer from Bhagalpur to some other place. Ultimately, the Director-in-Chief had transferred the petitioner on 31.12.2001 to Patna district, whereafter, the petitioner had also submitted her joining and upon its acceptance, the 3 petitioner’s salary has been made from 16.1.2002. The petitioner, in fact, having been denied salary for the period 1.8.2000 to 15.1.2002 had moved this Court in CWJC No. 6967 of 2003 and this Court had remitted the matter back to the Director-in-Chief of the Health Department to re-consider the claim of the petitioner as with regard to the payment of her salary for the aforesaid period of 1.8.2000 to 15.1.2002. The Director-in-Chief in the impugned order dated 6.11.2003 has held that the petitioner having been relieved from Nalanda district with effect from 31.7.2000 and having not joined and worked at any place could not have claimed for payment of salary inasmuch as her subsequent transfer from Bhagalpur district to Patna district either at Bhagalpur or at Patna was allowed only on 31.12.2001 in pursuance of which she had reported on duty on 16.1.2002. In the opinion of this Court, such findings of fact recorded by the Director-in- Chief is unexceptional both on fact and in 4 law. Payment of salary of an employee can only be made for the work done by him or her. Admittedly, the petitioner had not worked in the said period and, therefore, she would not be entitled for payment of salary. The submission of Mr. Khurshid Alam, learned counsel for the petitioner that since there was corrective order modifying the transfer notification of the petitioner dated 31.12.2001 showing the petitioner to have been earlier posted not at Bhagalpur but at Nalanda and therefore, the petitioner will be deemed to be continuing at Nalanda, is a very far fetched conclusion. In this regard, learned counsel for the State has rightly pointed out to Annexure-A to the counter affidavit which is the representation of the petitioner filed to the Director-in-Chief on 30.5.2002 i.e. after her joining on 16.1.2002. The petitioner in fact while working in Patna district and acknowledging her transfer notification dated 31.12.2001, had requested for modification of her transfer order for claiming payment of salary in Patna district because if the petitioner 5 was shown to be posted at Bhagalpur before being transferred to Patna, she had to produce the relieving order of Bhagalpur district whereas the fact remained that the petitioner had never joined in Bhagalpur district and as such, the last relieving of the Nalanda district alone could have been the basis for payment of salary to the petitioner in Patna district. That is how, when the petitioner had made the said representation dated 30.5.2002 (Annexure-A), the corrective notification was issued on 23.7.2002 and apparently that has nothing to do with the actual working of the petitioner in the said period of 1.8.2000 to 15.1.2002. At this stage, Mr. Khurshid would submit that if the petitioner is not paid salary for the period 1.8.2000 to 15.1.2002, that may be treated to be unauthorized absence or become an impediment by way of break in service and therefore, the said period should be at least regularized by the respondent so as to rule out any adverse consequence at the time of retirement of the petitioner. 6 For this purpose, the petitioner may approach the competent authority by filing a representation and if the petitioner is entitled for any leave, the same may be sanctioned such leave or otherwise the respondents will consider for grant of extraordinary leave so that the aforesaid period may not become a break in service. In the light of the aforementioned observation and liberty, this application being devoid of any merit is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)