IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.990 of 2009 Ramcharitar Mahto Versus The State Of Bihar & Ors ***** For the Petitioner: Mr. Ajay Kumar Gautam, Adv. For the State: Mr. M. K. Ambastha, G.P.-14 ----------- 02. 27.06.2011 Heard learned Counsel for the petitioner and the State. This is the second round of litigation, for similar relief. Earlier also, petitioner had filed C.W.J.C. No. 10495 of 1998 for payment of his due salary. At that time, the period for which the petitioner had prayed for his due salary was in between November, 1993 to January, 1998. Now that period has been reduced to November, 1996 to October, 1997. Petitioner was transferred from Gohari Middle School, Lakhisarai to some other School. He was relieved in the year 1993 itself, but he never joined at his transferred place and continued in the same School from where he was transferred and finally superannuated, remaining in that very School on 31st of December, 2000. The earlier Writ Application filed by the petitioner was disposed of, giving direction to the Director, Primary Education, Government of Bihar to 2 consider the representation of the petitioner and dispose it of in accordance with law, by a speaking order. The Director, Secondary Education, vide order dated 25.05.2005, contained in Memo No. 932, disposed of the representation filed by the petitioner. In para 4 of this order, it is mentioned that different stands have been taken by the Headmaster of the School, so far non- joining of the petitioner to the transferred post is concerned. At one place he has stated that petitioner tried to influence, in connivance with the villagers, for continuing in the same School from where he had been relieved. At another point of time, the Headmaster of the School had communicated the District Magistrate, Lakhisarai that considering villagers’ request and educational interest of students, petitioner was allowed to continue in the same School. In October, 1993, when the School was inspected, petitioner was found teaching in that very School. For all these reasons, the Director passed an order for making payment of salary to the petitioner for the period November, 1993 to October, 1997. No direction was issued for payment of salary for the period November, 1996 to October, 1997. The District Superintendent of Education was directed to consider the case of the petitioner for this period and 3 pass necessary order after looking into the connected records, including attendance register. In this Writ Application, petitioner has prayed for quashing of the order of DSE, whereby the period in between November, 1996 to October, 1997 has been treated as extraordinary leave. Counsel for the petitioner submits that the order regarding treating this period as extraordinary leave is completely in violation of Rule 236 of the Bihar Service Code. Rule 236 provides that any period of absence of an employee can be treated as extraordinary leave only in two circumstances: (1) when no other leave is admissible to the employee; and (2) when the employee himself has given his consent in writing for treating this period as extraordinary leave. Petitioner had never consented for it. Other leaves were also admissible to him. Even otherwise for the period in between November, 1993 to October, 1996, he was allowed payment of salary, on consideration of this fact that he discharged his duties, looking into the attendance registers. There is no reason for not making payment of salary for the period November, 1996 to October, 1997, when admittedly Headmaster himself has written the letters to the District Magistrate that in the 4 interest of the students and on the request of the villagers, despite the fact that petitioner was relieved, he was allowed to continue teaching in the same School. Petitioner continued to teach in the School but he was not allowed to sign register. This can not be a fault on the part of the petitioner. Facts of the case do not indicate that there was no special circumstance, due which this period could have been treated as extraordinary leave. Respondent DSE, Lakhisarai is directed to make payment of salary to the petitioner for the period November, 1996 to October, 1997 and the impugned order treating this period as extraordinary leave, is quashed. This application is allowed. SKM (Mridula Mishra, J.)