IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. NO.3549 OF 2007 BASISHT KUMAR, S/O LATE GHOGHAN MANDAL, R/O VILLAGE JAHAR MOHRA, P.S RAJ NAGAR, DISTRICT MADHUBANI AT PRESENT POSTED AS MALARIA INSPECTOR IN THE OFFICE OF THE DISTRICT MALARIA OFFICER, MUZAFFARPUR. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE CHIEF MALARIA OFFICER, SWASTH BHAVAN, SULTANGANJ, PATNA. 3.THE ADDITIONAL DIRECTOR, HEALTH SERVICES CUM CONTROLLING OFFICER MALARIA, STATE MALARIA OFFICE, SWASTH BHAVAN. 4.THE DISTRICT MALARIA OFFICER,SADAR HOSPITAL, MUZAFFARPUR. ………………………RESPONDENTS. ---------- 02/ 11.08.2011 Having heard counsel for the parties and taking into account that the impugned order passed by the Additional Director, Health Services, Bihar Patna, the controlling Authority of the State Malaria Authority does not suffer from any error so far it relates to payment of salary from 17.10.2000 to 03.06.2001, the prayer of the petitioner to the aforementioned effect must be rejected. It is a well settled principle of service jurisprudence that the payment of salary can only be made if a person has worked in the relevant period or he was illegally deprieved from working by the concerned controlling authority. In the present case, the 2 petitioner’s transfer by way of allocation of his service from the State of Bihar to the State of Jharkhand having been notified and the petitioner also relieved on 17.10.2000, if he did not report in the State of Jharkhand, and did not discharge his duty on any post either in the State of Bihar or Jharkhand he cannot claim salary at least for the period till his posting was again made by the competent Authority. Admittedly, the petitioner had been directed to join in the State of Bihar by an order dated 18.05.2001 in pursuance of which he had submitted his joining on 04.06.2011. That being so, the petitioner cannot claim payment of salary for the period from 17.10.2000 to 03.06.2001. Reliance placed by the petitioner on an order of the Home, Special Department, Government of Bihar dated 24.09.2000 is also wholly misplaced, inasmuch as, it was after only after that the petitioner was relieved from service of the State of Bihar on 17.10.2000. As a matter of fact, the petitioner cannot now raise this new plea especially when the same was not allowed in his earlier writ 3 petition being C.W.J.C No. 363 of 2001, wherein, he had assailed his order of allocation to the State of Jharkhand as also his relieving order. It has to be also noted that this Court in its interim order dated 11.01.2001 in C.W.J.C. No. 363 of 2001 had made it clear that the petitioner shall not be relieved if he had not already been relieved by that date (11.01.2001). It is however on admitted fact that the petitioner had already been relieved on 17.10.2000 and therefore, this Court in its final order dated 30.01.2001 in C.W.J.C. No. 363 of 2001 also did not interfere with the impugned orders and had left the petitioner to agitate his grievance with regard to reallocation of the cadre by filing a representation. The petitioner therefore cannot claim payment of salary of the interregnum period inasmuch as he had not worked in the aforesaid period. Admittedly, the petitioner was also never illegally deprived from working on the post and therefore if the petitioner did not report on duty to the State of Jharkhand as per the earlier order, he must pay the 4 consequences of at least being deprived of payment of his salary. As with regard to the claim of payment of salary for the period from August 2000 to 16.10.2000, learned counsel for the petitioner has submitted that despite a direction in the impugned order to the District Malaria Officer, Muzaffarpur to make verification with regard to the working of the petitioner in the aforementioned period and also make payment of salary to the petitioner if he had worked in the aforementioned period, the same has not been decided as yet. This Court fails to understand the inaction on the part of District Malaria Officer, Muzaffarpur, inasmuch as, when the petitioner was himself relieved on 16.10.2000, there should be no difficulty in holding that the petitioner was working against his post till 16.10.2000. This Court would however immediately clarify that if the petitioner from 1.8.2000 to 16.10.2000 had actually not reported on duty and had not worked on his post at Muzaffarpur and his relieving order has to be passed in view of the reallocation of 5 services on 16.10.2000, the District Malaria Officer, Muzaffarpur should have also no difficulty in passing the order to this effect for the purposes of deprivation of salary of the petitioner for the aforementioned period in terms of the direction given by the Additional Director of Health Services in the impugned order dated 08.12.2006. There is however no explanation whatsoever in the counter affidavit on this aspect relating to the claim of payment of salary of the petitioner for the period in question namely 1.8.2000 to 16.10.2000. In that view of the matter, this Court would direct the District Malaria Officer, Muzaffarpur to decide the issue, if not already decided, as with regard to the claim of payment of salary to the petitioner for the period from 1.8.2000 to 16.10.2000 at an early date but in no event, later than six months from the date of receipt/production of a copy of this order. It goes without saying that if the petitioner is found to be working in the aforementioned period, his payment of 6 Ranjan salary for the period 1.8.2000 to 16.10.2000 or part thereof as the case may be, must be made to the petitioner within a month from the date of passing of the order by the District Malaria Officer, Muzaffarpur. Before parting with this Court would also observe that as the impugned order has not decided with regard to treating the aforementioned period of the absence of the petitioner while depriving him the payment of salary from 17.10.2000 to 03.06.2001, the competent Authority may consider to grant extra ordinary leave without pay to the petitioner for the aforesaid period so that he is not prejudiced in any manner at the time of his retirement on account of break in service. With the aforementioned observations and direction, this application is disposed of. (Mihir Kumar Jha, J)