IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13984 of 2001 AROTI KUNDU & ORS Versus THE STATE OF BIHAR & ORS ----------- 11. 18.07.2008 Heard the learned Counsel for the respondents and the petitioner no. 3 with regard to whom fresh Vakalatnama has been filed on 6.4.2003 after obtaining no objection from the previous Counsel. No one appears on behalf of petitioners 1, 2 and 4. The petitioner no. 1 is stated to have retired. The application is therefore dismissed for non prosecution in so far as petitioners 1, 2 and 4 are concerned. Petitioner no. 3 was initially appointed as an Auxillary Nurse Midwife after selection in the Health Department of the Government of Bihar and posted as Lady Health Worker with the concerned Civil Surgeon cum Medical Officer. On 28.2.1980 she was sent on deputation in the Employees State Insurance Scheme of the Labour Department of the Government of Bihar. This deputation was not limited in time. Options were then invited from her if she wanted to be absorbed in the ESI. The controversy thereafter becomes academic since in the ongoing tussle it is now not in controversy that the petitioner has gone back and joined in the Health Department on 26.7.2003. The only issue for adjudication now is her claim for salary between the period 30.6.2001 when her services were repatriated, which according to the petitioner was contrary to her option for absorption till her joining in the Health Department on 26.7.2003. This period remains an issue of fact as to whether the petitioner was discharging her duty or not and/or whether she was making herself available for discharge of duty but was being denied. In both events if she was discharging her duty or if she was present for duty but prevented from discharging her duty, she is entitled for salary. This writ application is disposed with a liberty to the petitioner to file a representation before the respondent no. 2 who shall examine her claim in the light of above observations for the salary for the period in question and pass appropriate orders thereupon within a maximum period of two months from the date of receipt and/or production of a copy of this order. Snkumar/- (Navin Sinha,J.)