IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2807 of 2003 BINAY KUMAR SINGH, Aged about 36 years, Son of Sri Awadh Bihari Singh, Resident of Village Kurpat, P.O. Parghari, P.S. Sabaur, District Bhagalpur, at present posted as Clerk, Primary Health Centre, Patory, Samastipur. Versus 1.THE STATE OF BIHAR 2.TheCommissioner and Secretary, Health Department, Government of Bihar, Patna. 3.The Director in Chief, Health Services, Bihar, Patna. 4.The Additional Director, Health Services (Family Welfare), Bihar, Patna. 5.The Regional Deputy Director, Health Services, Darbhanga Division, Darbhanga. 6.TheCivil Surgeon Cum Chief Medical Officer, Samastipur. 7.The Incharge Medical Officer, Primary Health Centre, Patory, District Samastipur. ----------- 3 6.8.2010 Heard counsel for the parties. Prayer of the petitioner in this writ application reads as follows:- “(I)For commanding the respondents to pay arrears of salary for the period 1.12.1988 to 26.4.1994 and 28.4.1994 to 3.2.1997, for the month of February 2000 and May 2001 to till the date due to the petitioner. (II)For commanding the respondents to pay bonus for the year 1999, traveling allowances from 1997 to 2001 and difference of amount of pay on account of revision of pay scale from 1.4.1997 to 31.8.1999. (III)For holding that the impugned non- payment of arrears of salary and other dues due to the petitioner as well as current salary to the petitioner are illegal, arbitrary and without any lawful justification.” Mr. Shayama Prasad Mukherjee, learned senior counsel appearing on behalf of the petitioner with reference to the 2 aforementioned relief would submit that the petitioner was duly appointed initially on the post of Vacinator and after his termination of service again on the post of Clerk and therefore for the period in question for which prayer for payment of salary has been made, the respondents are duty bound, having take work from the petitioner, to pay salary to him. In this case a counter affidavit has been filed which depicts very sorry state of affairs. The respondent, Civil Surgeon, Samastipur has taken a plea that appointment of the petitioner was illegal and as such was in the zone of enquiry set up by the Chief Secretary of Bihar. In the said counter affidavit, however, the Civil Surgeon, Samastipur in paragraph 13 has taken the following stand:- “That so far the payment of arrears of salary is concerned the deponent has ordered to make payment order for duty period in Samastipur District. The periods of waiting for posting in other District and Department has not been decided by the Department and deponent is not competent to pass such order.” In view of the aforementioned stand, the petitioner’s salary for the period he has remained posted in the Samastipur District and has actually performed the duty on the post of which he was appointed becomes payable. The date of posting of the petitioner in the Samastipur District is dated 4.10.1997 and it appears that the petitioner’s salary thereafter also have been paid baring for the month of February, 2000 and from May, 2001 onwards. 3 In that view of the matter, the Civil Surgeon, Samastipur, as he himself has undertaken to pay the salary of the petitioner for the period of posting and functioning of the petitioner in Samstipur District, is directed to examine the claim of the petitioner and make payment of his salary if the petitioner has worked against the post his joining was accepted by the Civil Surgeon. As with regard to the earlier part of payment of salary from the month of December, 1988 to February, 1997 is concerned, the Director-in-Chief, Health Services is hereby directed to examine such claim of the petitioner, who after having obtained report of actual working of the petitioner would take appropriate decision for payment of salary within a period of six months from the date of receipt/production of a copy of this order. Let it be noted that neither of the parties are aware of the present status of the petitioner whether he is still in service or not and therefore the direction for consideration of payment of salary, as stated above, would not amount to reopening the chapter of service history of the petitioner if he has been removed from service. It is, however, made clear that the petitioner must be paid salary for the period he had actually worked under valid or invalid order. The Director-in-Chief, Health Services is at liberty to recovery the amount of salary paid to the petitioner from the persons who are found to be responsible for making such rank illegal appointment of the petitioner, inasmuch as, Minister of 4 Health had no jurisdiction to get the petitioner appointed as is clear from the second appointment letter of the petitioner on the post of Clerk. With the aforementioned observation/direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)