IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10817 of 2007 Kumari Sumitra @ Sumitra Jha, wife of Binod Kumar Jha, resident of village Sabia Katsari, P.S. Sheohar, District Sheohar … Petitioner Versus 1. The State Of Bihar through the Commissioner cum Secretary, Department of Health and Family Welfare, Vikash Bhawan, Patna 2. Director-in-Chief, Health Services, Govt. of Bihar, Patna 3. Dy. Secretary, Health and Family Welfare Department, Govt. of Bihar, Vikash Bhawan, Patna 4. Superintendent, Patna Medical College and Hospital, Ashok Raj Path, Patna … Respondents ---------------------------------- 2. 25.10.2011 Heard counsel for the parties. In the considered opinion of this Court a person like the petitioner, who was appointed on the post of Nurse and posted in P.M.C.H., would normally not be required to be retained in service, inasmuch as from the records it becomes clear that she has hardly rendered her service ever since she was appointed in the year 1982. Even in the period of three years that her counsel would claim continued service, there are materials to show that she had to be sanctioned extra-ordinary leave with warning. There is no dispute that since 14.11.1985 the petitioner had been unauthorizedly absent. The claim of the petitioner that she had returned back on duty after five years in the year 1990 also would not inspire confidence, inasmuch as her joining report is not only denied by the authorities in the counter affidavit but even her conduct would show that she had not returned back on duty in the year 1990. As a matter of fact her writ application for acceptance of joining was filed in the year 2005 which would mean that she could realize the significance of her job after remaining absent for 2 20 years. In that view of the matter, when the earlier writ application of the petitioner was dismissed on 2.8.2006 and her prayer for acceptance of joining was rejected, this Court would find no reason to allow the petitioner to raise the same cause of action in this writ application. The only other explanation of the petitioner for maintaining this writ petition that the respondents have passed the impugned order, as contained in Annexure 1, dated 5.5.2006, is also not acceptable to this Court because in the order 5.5.2006 the respondents having examined the explanation of the petitioner have merely held that her conduct went to show that she was not interested in continuing with the Government service. This order definitely cannot be read as an order of termination of service of the petitioner, a person who had voluntarily remained out of service being absent for a period of 20 years. In that view of the matter, this Court would find it difficult to direct for acceptance of joining of the petitioner especially when her prayer to this effect was already rejected by this Court in the order dated 2.8.2006 in C.W.J.C.No. 11655/2005 which has also stood affirmed by the conduct of the petitioner, who had chosen to withdraw the connected L.P.A.No. 617/2006 on the ground of passing of a fresh order dated 5.5.2006. As noted above, there is no order of termination of service of the petitioner and Annexure 1, the order dated 5.5.2006, definitely cannot be read as an order of termination. The long and short, therefore, of the case of the petitioner is that she was 3 appointed as a Nurse in the year 1982 and having continued with intermittent interruption till 1985 she had remained out of service in next 26 years i.e. 1985 till date. The petitioner is a qualified Nurse and her counsel says that the petitioner is still interested in continuing in service and she will not claim payment of salary for the period she had remained absent from duty. Learned counsel for the petitioner says that if this Court is not accepting the order as contained in Annexure 1 as an order of termination of service, the petitioner will be deemed to be at least continuing in service as there is no order passed by the respondents with regard to termination of service. Considering all these aspects this Court would give liberty to the petitioner to approach the Director-in-Chief of the Health Services for allowing the petitioner to resume her duty on an undertaking that she will neither claim any service benefit nor would claim continuity in service for the period she had remained out of service. If, however, the respondent Director-in-Chief would find that the petitioner’s service would be in the interest of the institution, P.M.C.H., and that the petitioner is physically and mentally fit to resume her duty, she may be allowed to rejoin the post of Nurse on any reasonable undertaking with regard to her not claiming any benefit of service for the period she had remained absent from duty. If, however, the Director-in-Chief will find that the petitioner is not fit for the job of Nurse and that her continuity of service will be of no use for the institution, and as such, her 4 joining cannot be allowed he will proceed to initiate a departmental proceeding for the unauthorized absence of the petitioner in terms of Rule 76 of the Bihar Service Code and pass his final order within a period of six months from the date of filing of the representation by the petitioner alongwith a copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/