IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1394 of 2007 Rameshwar Prasad, son of late Sohan Prasad, resident of Mohalla Lalganj, Chandi, Police Station Chandi, Dist. Nalanda, at present posted as Acting Headmaster of Bapu High School, Chandi, Police Station Chandi, Dist. Nalanda. ------- Petitioner Versus 1. The State of Bihar. 2. The Director, Secondary Education, Office of Secondary Education, Budh Marg, Patna. 3. The District Education Officer, Nalanda at Bihar-Shariff. ------- Respondents ----------- 2 26.7.2011 Heard Mr. Tej Bahadur Singh, learned senior counsel for the petitioner and Mr. Manoj Priyadarshi, learned counsel for the State (SC-17). The prayer of the petitioner in this writ application reads as follows:- “1. That this is an application for issuance of a writ/writs for a direction to the respondents to modify the order dated 31.3.2006, bearing letter No.978 issued and passed by the Director, Secondary Education and its consequential order dated 31.8.2006 passed by the District Education Officer, Nalanda to the extent that the earned leave granted to the petitioner for 27 days under Rule 227 and 228 of the Bihar Service Code, 1952 (hereinafter referred to as “the Code”), be converted into “Half Pay Leave” under Rule 232 of the Code from 07.07.2005 to 02.08.2005, total for the period of 27 days, during which period the petitioner 2 was kidnapped by the antisocial elements, with respect to such kidnapping a case was registered as Chandi P.S. Case No. 179/2005 dated 8.7.2005 under section 364(A) and 34 of the Indian Penal Code. It is further prayed that respondents be directed that after conversion of the Earned Leave period into that of Half Pay Leave, be granted and they should pay the arrears of salary for 27 days to the petitioner for the period, he remained absent from duty because of kidnapping and joined his duty after recovery due to pressure and practice adopted by the police upon the kidnappers.” Learned counsel for the petitioner would submit that when the petitioner was kidnapped on account of the then prevailing law and order situation, he would be entitled for special leave and, therefore, the respondents ought to have not treated the period of his absence by way of regularizing it by grant of earned leave.Mr. Singh in this regard explains that on account of the aforesaid period treated as earned leave, the petitioner has suffered in the matter of leave encashment of the earned leave. Mr. Priyadarshi would explain that leave, being part of the service condition 3 and defined in the Bihar Service Code, the petitioner would be entitled for leave only as per the provisions laid therein. In this context, he would explain that there is no provision for special leave under Bihar Service Code and the concept of half pay leave is well restricted, which cannot be given to a person, who had never sought such leave before leaving his duty. He would, accordingly, submit that as the petitioner’s absence from duty without sanctioned leave could have been led to the break in his service adversely affecting him in grant of pension, this period was regularized by grant of earned leave else the petitioner could have been subjected to forfeiture of his pension on account of such break in service. In the considered opinion of this Court, the order passed by the authority in treating the period of absence as earned leave has no error, inasmuch as, the petitioner was not entitled for grant of half pay leave. Rule 232 of the Bihar Service Code as with regard to grant of half pay leave reads as follows:- “232. Half pay leave will be earned without any restriction to the limit of accumulation, in the course of 4 service, at the following rates, for each completed year of service:- (a) 20 days in case of a Government servant in superior service; and (b) 15 days in the case of a Government servant in inferior service. Such leave can be availed of on private affairs as well as on medical certificate. There will be no limit on the half pay leave that can be availed of at a time on medical certificate and this will apply even when such leave is taken preparatory to retirement: Provide that no half pay leave may be granted unless the authority competent to sanction leave has reason to believe that the Government servant will return to duty after its expiry.” From reading of the aforesaid Rules, it would be clear that the pre-requirement of grant of such leave is the satisfaction of the competent authority sanctioning such leave on the return of the incumbent on duty. It would necessarily mean that a person can claim half pay leave either on the medical ground or personal ground by seeking prior permission. That being so, the petitioner was not entitled for grant of half pay leave. The other leave such as commuted leave and leave of due or extraordinary leave will not be also applicable in the case of 5 the petitioner, inasmuch as, he had earned leave to his credit and, therefore, the authorities have rightly allowed the petitioner to get benefit of continued service of granting earned leave. That being so, this application is wholly misconceived and the same is hereby dismissed. Rsh (Mihir Kumar Jha, J.)