IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12544 of 2007 DR. BINOD KUMAR MISHRA, SON OF DR. LAKSHMI KANT MISHRA, RESIDENT OF MOHALLA-RAJENDRA NAGAR, P.S. KADAMKUAN, DISTRICT-PATNA. ………………………………………………….........PETITIONER. Versus 1. THE STATE OF BIHAR, THROUGH THE SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA. 2. DEPUTY SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA. 3. UNDER SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA. 4. CIVIL SURGEON CUM CHIEF MEDICAL OFFICER, MUZAFFARPUR. 5. ACCOUNTANT GENERAL, BIHAR, PATNA. ………………………………………………………Respondents. ----------- For the Petitioner : M/s. Banwari Sharma and Shiv Kumar, Advocates. For the State : M/s. Tej Bahadur Singh, Sr. Advocate- AAG-VII and Ranjan Kumar Singh, AC to AAG-VII. For the Accountant : Mr. Binod Kumar Labh, Standing General (A & E), Counsel, I.A. and A.D. Bihar, Patna. ---------- 3. 25.2.2011. Heard learned counsel for the petitioner, for the State and for the Accountant General (A & E), Bihar, Patna. The petitioner seeks quashing of part of the letter issued vide Memo No.579(2) dated 13.4.2007 under the signature of the Under Secretary, Government of Bihar, Patna as 2 contained in Annexure-‘10’ to the writ application, whereby though the petitioner’s services have been regularized for the concerned period, however, the period from 10.1.1997 to 31.5.1998 has been regularized as extraordinary leave without pay. The petitioner had earlier approached this Court by filing C.W.J.C. No.6141 of 2003 for regularization of his services from January, 1997 to May, 1998 and also for the payment of salary and other emoluments. However, during the pendency of the aforesaid writ application, the aforesaid letter issued vide Memo No.579(2) dated 13.4.2007 came into existence as a result of which, the service of the petitioner for the concerned period was regularized. However, the period from 10.1.1997 to 31.5.1998, has been regularized as extraordinary leave without pay. The petitioner, during the pendency of the aforesaid writ application, had preferred the present writ application for quashing the part of the letter, whereby the petitioner is aggrieved. C.W.J.C. No. 6141 of 2003 was disposed of on 29.7.2010, noticing the fact that the grievance of the petitioner to the extent for regularizing his service for the concerned period has already been redressed vide Memo No.579(2) dated 13.4.2007 and also that for the quashing 3 of the part of the aforesaid letter, by which the petitioner is aggrieved, he has already filed a subsequent writ application bearing C.W.J.C. No.12544 of 2007, i.e. the present one, rendering the earlier writ application infructuous. It is submitted on behalf of the petitioner that it would be evident from Annexure-‘10’ to the writ application itself that vide Notification dated 13.12.1996, the petitioner was transferred and posted at the Additional Primary Health Centre, Paru, Muzaffarpur, and he has given his joining on 9.1.1997 before the Civil Surgeon, Muzaffarpur but since the aforesaid post was not vacant there, he was adjusted in the District Leprosy Eradication Office, Muzaffarpur, and a proposal for approval of the same was sent to the Department of Health. However, the petitioner was not given charge at that office and, thus, continued to remain there. However, subsequently, vide Notification dated 28.5.1998, the petitioner was posted at Public Health Institute, Patna, and, ultimately, he was relieved on 30th of May, 1998 and, thereafter, he immediately joined there. Therefore, it is contended that the petitioner was not at any fault as he joined the office, where he was transferred but there was difficulty as no such post was available and as such he was adjusted somewhere else and a proposal for approval of the 4 same was also sent to the Government. However, that appears not to have been given and the petitioner was later on posted at Public Health Institute, Patna. Learned counsel also drew attention of this Court towards the letter contained in Memo No.3639 dated 14.12.2000 written to the Director-in-Chief, Health Services by the Civil Surgeon concerned informing him that the petitioner has joined at his office on 10.1.1997 and on 28.5.1998, after his transfer, he has given charge for joining at the new place aforesaid and the relieving order has also been brought on record as Annexure-‘6’. The petitioner has also placed reliance upon the letter written by the Civil Surgeon, Muzaffarpur, to the Additional Secretary, Health Department, dated 19.12.2006, wherein it has been informed to the Government that the petitioner has been transferred to the Additional Primary Health Centre, Paru, Muzaffarpur, however, since there is no such Additional Primary Health Centre, the petitioner was directed to resume the charge at Dr. Jai Prakash Narayan Singh District Leprosy and Eradication Office at Muzaffarpur and this was informed to the Government vide letter dated 18.1.1997 also. In the above view of the matter, it is urged that since there was no fault on the part of the petitioner, the period from 10.1.1997 to 31.5.1998 cannot be regularized as 5 an extraordinary leave without pay, rather the petitioner is entitled for his full salary and other emoluments. A counter affidavit has been filed on behalf of the State taking the stand that though the petitioner was posted at Additional Health Primary Centre, Paru, but he had not worked there from 10.1.1997 till 31.5.1998. Thus, he cannot be entitled for the salary for the period he has not worked. In support of its submission, certain documents have been brought on record to show that he did not work from 9.1.1997 till 31.5.1998 at his place of posting. Learned counsel for the petitioner has placed reliance upon an unreported decision of this Court dated 18.1.2005 rendered in C.W.J.C. No.7803 of 2004 (Sachchidanand Pandey Vs. The State of Bihar and others) and reported decisions of this Court rendered in Shashi Bhushan Pandey Vs. The State of Bihar and others {2007(3) PLJR 176} and Jitendra Kumar Singh Vs. The State of Bihar and others {2010(4) PLJR 419} to impress upon this Court that since the work was not taken from the petitioner due to the reasons mentioned above, for which he cannot be blamed, the principle of no work no pay would not come in the way of his case. The petitioner cannot be denied the salary and other emoluments for 6 the period concerned. I find force in the submissions raised on behalf of the petitioner. The petitioner was transferred as a Medical Officer at the Additional Primary Health Centre, Paru. However, the letters of the concerned Civil Surgeon goes to show that such Primary Health Centre was not in existence and, as such, the petitioner was also tried to be adjusted by the Civil Surgeon as District Leprosy Eradication Officer, Muzaffarpur, but according to the petitioner, the charge was not handed over to him and from Annexue-‘9, it appears that the Civil Surgeon has stated that the petitioner remained on duty in his office as an Officer without any charge. The stand has been taken by the State that since the petitioner did not work for the concerned period he cannot be allowed salary and emoluments. However, in view of an unreported decision of this Court dated 18.1.2005 rendered in C.W.J.C. No.7803 of 2004 (Sachchidanand Pandey Vs. The State of Bihar and others) and reported decisions of this Court rendered in Shashi Bhushan Pandey (Supra) and Jitendra Kumar Singh (Supra), this Court is of the opinion that the petitioner being a permanent employee cannot be denied salary on such technical ground even if no 7 work was taken from him. Learned counsel for the State could not point out that there has been any lapse or laches on the part of the petitioner. Thus, in my view, in the present case, the respondents can consider the case of the petitioner on the same footing as in the aforesaid cases. They can allow the period concerned as earned leave or pass necessary orders for payment of salary to the petitioner under the provisions of the Bihar Service Code as well as different Government Circulars/provisions. Accordingly, the part of the letter, whereby the period from 10.1.1997 till 31.5.1998 has been regularized as extraordinary leave without pay is hereby quashed and set aside. Let the authority concerned consider the case of the petitioner and pass a fresh order within a period of three months from the date of receipt or production of a copy of this order in accordance with the observations and findings of this Court as above and communicate such decision taken to the petitioner. Accordingly, this writ application stands allowed. P.S. ( Dr. Ravi Ranjan, J)