IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5926 of 2006 DR.RAMADHAR ISHWAR . Versus THE STATE OF BIHAR & ORS . ----------- 3 22.2.2011 Heard counsel for the petitioner and the counsel appearing for the State. Prayer of the petitioner is for quashing of the order contained in Notification no. 4271 dated 18.11.2005 (Annexure-15) issued by the Joint Secretary, Department of Animal Husbandry and Fisheries. By this notification the period in between 1.7.1996 to 25.5.1998 has been treated as an extra- ordinary leave. This notification has been challenged by the petitioner on the ground that the impugned order has been issued completely in violation of Rule 236 of the Bihar Service Code as well as the direction issued in CWJC No. 4946 of 2000. Further prayer of the petitioner is for a direction to make payment of salary for the period from 1.7.1996 to 25.3.1998. For commanding the Respondents to pay him the salary for discharging his duties as Touring Veterinary Officer, Chandrapura (Begusarai). Petitioner while posted as Touring Veterinary Officer, Ballia (Begusarai) was transferred to the post of Block Animal Husbandry Officer, Bausi ( Purnea). 2 He represented before the concerned authority against this transfer order for changing his place of posting. Before any change could have been made in the transfer order, he was relieved but could not join at transferred post as he had been made In-charge Veterinary Officer of Chandrapura. He represented before the Director, Animal Husbandry informing him the reason for his non-joining and for changing his place of posting to Khagaria. Subsequently his place of posting was changed from Bausi ( Purnea) to Bahadurpur, Khagaria. Petitioner joined his new place of posting on 26.3.1998 but for the period in between 1.7.1996 to 25.3.1998, he was not paid his salary. In this regard he made several representations. He also filed CWJC No. 4946 of 2000 which was disposed off by an order dated 22.9.2005 directing the respondent authorities to take a final decision with regard to adjustment of the period from 1.7.1996 to 25.3.1998 as per service rule, within a period of three months from the date of communication of the order. Finally by the impugned order contained in Annexure-15 the order has been passed by the Joint Secretary, Department of Fisheries and Animal Husbandry, whereby the entire period has been treated as an 3 extra-ordinary leave. This means that petitioner will not get any salary for this period. Counsel appearing for the petitioner submits that the direction of the High Court in the writ application was to take final decision as per the service rules. Rule 236 of the Bihar Service Code deals with the provision relating to extraordinary leave. Extraordinary leave can be granted to a Government Servant not as a general rule but only in some special circumstances. The special circumstances for granting extraordinary leave are (i) When no other leave is admissible under these rules; secondly when, other leave being admissible, the Government servant concerned applies in writing for the grant of extra-ordinary leave. In the present case there were other leaves admissible in the account of the petitioner but that was not considered and so far petitioner’s case is concerned he himself never applied for extra-ordinary leave before any authority. Counter affidavit has been filed on behalf of the State in which it is stated that the order has been passed in compliance of the direction of this Court. Since the petitioner himself was responsible for not 4 joining at the place of posting, as such the period in question has been treated as extra-ordinary leave. There is no whisper in the counter affidavit that extra- ordinary leave has been granted to the petitioner in consonance with the rule 236 of the Bihar Service Code. It is not mentioned in the counter affidavit that in the leave account of the petitioner no other leave was admissible. It has also not been stated that petitioner himself had filed application with a request that the period during which he could not join at transferred place of posting, should be treated as extra-ordinary leave. Representation filed by the petitioner has been annexed with the writ application, Placing reliance on that, counsel appearing for the State has submitted that petitioner himself had filed a representation considering which the period of absence from place of posting was treated as an extraordinary leave. I fail to understand how a representation filed for payment of salary could have been treated as an application under Rule 236 (ii) of the Bihar Service Code. Since the order impugned has been passed completely in violation of the provisions under Rule 236 of the Bihar Service Code as well as the direction 5 of the High Court in CWJC No. 4946 of 2000, the impugned order is fit to be quashed. Earlier writ application filed by the petitioner had been disposed of with a direction to pass an order as per the service conditions rule. That was completely ignored and the period in between 1.7.1996 to 25.3.1998 was treated as an extra- ordinary leave, ignoring the report of immediate controlling Officer( Annexure 14/A). The order contained in Annexure-15 dated 18.11.2005 vide notification no. 4271 has been passed, without considering that during this period petitioner was discharging duty at Chandrapura, as In-charge Veterinary Officer. Accordingly the impugned Annexure-15 is quashed. The Joint Secretary, Department of Animal Husbandary and Fisheries is directed to pass fresh order, in consonance with Rule 236 of the Bihar Service Code. Petitioner should be paid his arrears of salary for the period in between 1.7.1996 to 25.5.1998, considering the report of immediate controlling Officer, Annexure-14/A. Necessary order must be passed within 12 weeks from the date of production/communication of this order. 6 While passing such order the respondent authorities will consider this fact that the period which has been treated as a period of absence from duty was actually the period during which the petitioner had discharged his duty at Chandrapura, though relieved from Balia (Begusarai). Necessary order for payment of salary must be passed as per direction. A. Kumar ( Mridula Mishra, J.)