IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9035 of 2008 DR.BINOD KUMAR MAHAJAN, S/O Late Shyam Sundar Mahajan, Resident of Khairat Ahmad Road, Murarpur Mohalla, P.S. Kotwali, District- Gaya ……………..Petitioner. Versus 1. THE STATE OF BIHAR through its Chief Secretary, Old Secretariat, Patna. 2. The Secretary, Health Government of Bihar, Patna. 3. The Additional Secretary, Health, Government of Bihar, Patna 4. The Civil Surgeon, Aurangabad ……………………..Respondents. ----------- For the petitioner: Mr. Vivek Prasad For the State: A.C. to AAG-I 2. 05.02.2009 Heard the counsel for the petitioner and the state. This is the second time when the petitioner has come before this court for same relief. The relief which has been prayed for is for a direction to the respondent to pay arrears of salary with interest for the period 27.11.2000 to 05.01.2004. The facts of the case are that the petitioner was transferred from referral hospital, Dumri, Giridih to Kustha Niyantran Unit, Rafiganj, Aurangabad vide a general transfer contained in Memo No. 530(2) dated 14.2.2000 issued by Health Department, Government of Bihar , Patna. The petitioner was relieved by the Civil Surgeon, Giridih after handing over the charge to the incumbent who was transferred in his place. The petitioner, thereafter, came to give his joining at his transfer place in compliance of the transfer order (Annexure-1) He was informed that there is no vacancy at Kustha Niyantran Unit, Rafiganj, Aurangabad. Accordingly, he gave his joining 0n 27.11.2000 in the office of Civil Surgeon, - 2 - Aurangabad. The Civil Surgeon, Aurangabad sought for a guideline from Additional Secretary, Health, Government of Bihar, Patna in this regard and vide notification of the Health Department under Memo No. 586(2) dated 20.12.2000, the petitioner was again transferred from Kustha Niyantran Unit, Rafiganj, Aurangabad to Primary Health Centre, Dawdnagar. Again the place where the petitioner was transferred was not vacant. The Civil Surgeon, Aurangabad again sought for some guideline from the Government. Finally, the petitioner kept on waiting for his posting at some place. He also made several representations in this regard and finally, by the Notification of the Health Department, under Memo No. 2341(2) dated 29.11.2003, he was adjusted at Sadar Block, Aurangabad. The petitioner gave his joining on 06.01.2004 and still continuing there. Petitioner’s grievance is that he has not been paid his salary for the period 27.11.2000 to 05.01.2004. This is the period during which he was transferred and retransferred on such posts which were not vacant. He kept on waiting for his posting at such place where there was vacancy. Finally, he was adjusted against vacant post and since then he is discharging his duties. Earlier the petitioner had moved before this court for a direction to the respondents for payment of arrears of salary. The writ application was disposed of, by a common order. The petitioner was directed to file a representation before the - 3 - authority concerned. The representation was filed by the petitioner and vide order dated 20.02.2008 contained in Memo No. 232(2) , the Secretary, Department of Health has rejected the claim of the petitioner giving the reference of Rule 60 of Bihar Service Code. Rule 60 of Bihar Service Code provides that no government servant (other than police officer acting within his legal powers or any excise officer acting under the order of the collector) is entitled to pay and allowances for any time, he may spend outside his sphere of duty without proper authority. Counter affidavit which has been filed on behalf of respondent therein reliance has been placed on Rule 60 of Bihar Service Code. The order passed by the Secretary, Department of Health shows that the representation of the petitioner was rejected in total disregard of this fact that the period for which the petitioner is asking for arrears of salary is not other period than the period during which he kept on waiting for his posting. Every time, he was posted at such places where there were no vacancy. He was not allowed by the concerned Civil Surgeon to discharge his duty. The petitioner had no option either to remain thereon to discharge his duty at such places on account of posts being not vacant. In no case, this period can be treated as a period during which he spent his time outside his sphere of duty without proper authority. Rule 60 of Bihar Service Code is not applicable in this case. - 4 - Considering this fact, the order passed by the Secretary, rejecting representation of the petitioner is quashed. The respondent- Secretary, Department of Health, Govt, of Bihar as well as the Civil Surgeon, Aurangabad is directed to make payment of arrears of salary to the petitioner for the period 27.11.2000 to 05.01.2004. Payment must be made within a period of three weeks from the date of production/communication of the order. The petitioner has also prayed for payment of interest on this amount. Since the petitioner has remained deprived of his salary for a long period on account of laches on the part of the respondents, he is entitled for interest at prevalent bank rate of 8 % . The interest should also be paid to the petitioner within the same period as indicated for payment of arrears of salary. This application is allowed. AKV/ (Mridula Mishra,J.)