IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3026 of 2005 RAM SAGAR MAHTO son of late Mangal Mahto, resident of village- Senduari P.S. Hajipur Sadar, District-Vaishali, retired Block Education Extension Officer, Paroo-2, Deoraia, Muzaffarpur, at present, Advocate, Patna High Court, residence-Sheopuri, Road No.1/A House No. 10, Patna-23 Versus 1. THE STATE OF BIHAR through the Chief Secretary, Old Secretariat, Patna. 2. The Secretary, Primary, Secondary and Adult Education Government of Bihar, Patna. 3. The Director, Primary Education, Government of Bihar, Patna. 4. The Deputy Director, Primary Education, Government of Bihar, Patna. 5. The Regional Deputy Director of Education, tirhut Division, Muzaffarpur. 6. The District Education Officer, Muzaffarpur. 7. The Accountant General, Bihar, Patna. 8. The Treasury Officer, Muzaffarpur ----------- 25 23.02.2010 Heard Dr.M.P. Shukla learned counsel appearing on behalf of the petitioner, Mr. S. P. Verma learned A.C. to G.P.5 for the State and learned counsel representing the Accountant General. The only issue which remains pending for consideration is whether the petitioner is entitled to payment of salary for the period 17.11.1970 to 20.6.1975 which was treated to be a period of deemed suspension by the respondent authorities, post facto, upon conclusion of the criminal proceeding. The said issue is not an issue raised 2 in the writ petition nor any such relief is claimed by the petitioner rather the issue came to be considered at the level of the respondent authorities under an order of this Court dated 31.8.2005 and whereafter the matter has been examined at the level of the respondent authorities and rejected Brief facts of the matter is that the petitioner was involved in the criminal case giving rise to Hajipur P.S. Case No. 17 of 1990 for the offences punishable under the Indian Penal Code. As a consequence of the institution of the criminal case, the petitioner absented himself with effect from 17.11.1970 and was subsequently arrested on 13.4.1974 only to be released on 14.9.1974. All along the said period except writing letters, the petitioner did not bother to attend the office. He kept on representing the authorities for extending his leave. A period of almost four years having passed the petitioner upon release, tried to join the office on 16.1.1974. It is alleged that the joining was not allowed and that he was allowed to join on 20.6.1975 only to be suspended with effect from 21.6.1975. The petitioner was 3 acquitted in the criminal case on 16.2.1979 by order as contained in Annexure-5. The respondent in purported exercise of power under Rule 97(2) of the Bihar Service Code have allowed full salary to the petitioner for the period since after 21.6.1975 until 31.8.1979 i.e. the period of suspension. As the earlier period during which the petitioner had absented himself i.e. 17.11.1970 until to 20.6.1975 no order was passed by the authorities hence under the directions of this Court an order dated 3.1.2006 (Annexure A to 2nd Supplementary counter affidavit of respondent No.6) was passed by the Director, Primary Education whereunder the period of unauthorized absence of the petitioner i.e. 17.11.1970 to 20.6.1975 was treated to be a period of deemed suspension. The Director, Primary Education in fact taking a very lenient view of the matter also treated the said period to be service period for calculation of his pension and other pensionary entitlements. The petitioner still not being satisfied by the order whereunder not only his unauthorized absence was regularized by taking a lenient view by the authorities but even the 4 break in service was condoned and the period was treated as service period for the purpose of pension and pensionary entitlements, still maintained his relief for payment of the salary for the said period i.e. 17.11.1970 to 20.6.1975 by invoking the provisions of Rule 97 (2) of the Bihar Service Code. The authorities being directed to examine the said claim under the order passed on 31.8.2006 have come out with an order date 25.1.2010. The Director, Primary Education upon examining the claim of the petitioner under Rule 97(2) of the Bihar Service Code has decided the claim of the petitioner and has held that since the petitioner unauthorisedly absented himself during the said period, hence on the principles of no work no pay, he has allowed the petitioner only suspension allowance for the said period being a period of deemed suspension. The order dated 25.1.2010 has been brought on record by supplementary counter affidavit filed on 10.1.2010 by the respondent, Director of Primary Education. Dr. M.P. Shukla, being dissatisfied with the order aforesaid has submitted that the petitioner was entitled for payment of salary 5 for the period aforesaid under the provisions of Rule 97(2) of the Bihar Service Code. The contention of the learned counsel is only taken to be rejected for the reason that the said provisions are only applicable within the parameters set out therein. The pre requisite for invoking the said provision, requires a person to be either dismissed, removed or suspended and then reinstated and which may entitle him claim for salary for the period under gone. Admittedly, the petitioner did not undergo either of the situations. He was neither dismissed or removed or suspended. Rather he unauthorisedly absented himself. It is a different matter that this period of unauthorized absence was subsequently regularized by the authorities taking a lenient view of the matter but that would not create any right in the petitioner in seeking salary for the said period having absented himself from duty. The claim of the petitioner is misconceived. The writ petition is dismissed. Bibhash (Jyoti Saran, J. )