IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13652 of 2002 DR.BINOD KUMAR SINGH, son of Sri Ramnandan Singh, resident of village Matauna, P.s. Sursand, Post Sursand, District Sitamarhi, at present posted as Civil Assistant Surgeon, Sadar Block, Munger, P.S. Post and District Munger … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Health Department, Govt. of Bihar, Patna 3. The Deputy Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna 4. The Under Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna 5. The District Magistrate, Jamui, District Jamui 6. The Civil Surgeon cum Chief Medical Officer, Jamui, District Jamui 7. The Civil Surgeon cum Chief Medical Officer, Munger, District Munger … Respondents ----------- 4. 12.7.2010 Heard Mr. Rajendra Prasad Singh, learned Senior counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This is an application for issuance of appropriate writ(s)/direction(s) for quashing of the order contained in Memo No. 722(2) dated 16.5.2002 issued by respondent no.4. So far it relates to petitioner and further for payment of arrears of salary to the petitioner with effect from May, 2001 to till date with Bank interest rate and further for current salary to him on month to 2 month basis. And/or for any other appropriate relief(s) to the petitioner for which he may be found entitled in the eye of law.” Mr. Singh in relation to the aforementioned relief would submit that true it is that the petitioner was on transfer initially from the district of Jamui to the district of Sheikhpura and thereafter again from the district of Jamui to the district of Munger but then he had not complied the aforementioned order of transfer. The defence of the petitioner is that the Collector of Jamui District by his order dated 12.5.2001 had made a request to the Secretary of the Health Department to allow the petitioner to continue in service in Jamui District and to that extent he had also nullified the order of relieving already issued by the Civil Surgeon of Jamui District. The question of payment of salary, as raised in this writ application, has a direct bearing on the actual working of the petitioner. If the petitioner under an impression of request made in the letter of the Collector of the District had continued 3 to disobey his order of transfer despite being relieved by his immediate and direct controlling authority and could/did not perform the actual duty in the concerned period, he cannot make out a case for claiming payment of his salary. The respondents in the impugned order in this regard have clearly held that the petitioner was not on duty between 3.4.2001 to 13.4.2002 and as such, would not be entitled for payment of salary. In fact the period of absence between 3.4.2001 to 13.4.2002 for this reason has been sought to be regularized as leave without pay. The respondent Civil Surgeon of Munger District in this regard has also taken the following categorical stand in paragraphs 4 and 5 of the counter affidavit, as is quoted hereinbelow: “4. That at the out set it is submitted that the Health Department, Bihar, Patna vide his notification No. 330(2) dated 27.3.2001 had transferred the petitioner from District T.B.Centre Jamui to Additional Primary Health Centre, Bhadausha, District Shekhpura. This notification of 4 transfer was for the doctors posted at one place continuously for 10 years or above, as per the direction of the Hon’ble High Court Patna in the C.W.J.C.No. 4036 of 1999 (Ram Prakash Kushwaha vs. State of Bihar). The Health Department, Bihar, Patna had mentioned the direction of Hon’ble High Court in the aforesaid notification that if controlling officer does not relieve the transferred doctor in time or the transferred doctor does not join at the transferred place of posting, both will be liable for contempt of court and departmental proceeding may be initiated against them. The petitioner disobeyed the aforesaid notification by not joining his place of posting at Additional Primary Health Centre, Bhadausha, in spite of the unilateral relieving order of Civil Surgeon, Jamui (letter No. 578 dated 24.4.2001) with effect from 30.4.2001, without any stay order from his competent authority. 5. That it is further submitted that the petitioner thereafter was again transferred from District T.B.Centre, Jamui vide Memo No. 1374(2) dated 15.10.2001. This notification dated 15.10.2001 was issued without amending the 5 previous transfer order of the petitioner dated 27.3.2001. The petitioner submitted his joining application in duplicate in the office of the undersigned and got one copy received by the receipt clerk, and then appeared before the undersigned and requested to accept his joining application. The joining application of the petitioner was without the relieving order of Civil Surgeon, Jamui and without the charge report of handing over charge of District T.B.Centre and with reference to notification No. 1374(2) dated 15.10.2001. At the same time the petitioner did not disclose about his transfer to Additional Public Health Centre Bhadausha and also bout his unilateral relieving with effect from 30.4.2001 vide letter no. 587 dated 24.4.2001 Civil Surgeon Jamui. The deponent made his (Dr.Singh) very clear that till the relieving order from Civil Surgeon Jamui with reference to notification No. 1374 dated 15.10.2001 and charge report of handing over charge of District T.B.Centre Jamui is produced his joining can not be accepted. Then Dr.Singh left my office and gone away. When Dr.Singh did not produced the said two document till 6 8.11.2001, the undersigned vide letter no. 2450 dated 9.11.2001 (Annexure 6 to writ) requested respondent no.6 to relieve the petitioner from there as he was transferred from there to Sadar Hospital Munger. But Dr.Singh remained absent from Munger till 12.1.2002 to 14.1.2002. This is clear cut unauthorized and illegal absence of the petitioner.” It has to be kept in mind that despite service of the aforementioned counter affidavit on the counsel for the petitioner, there is no rejoinder to the same controverting the aforesaid facts and therefore, the facts stated by the Civil Surgeon, Munger would deem to have been admitted by the petitioner. In such a situation, while it is difficult for this Court to direct for payment of salary to the petitioner for the period in question but then as the petitioner has already retired from service and he would be gravely prejudiced on account of non-payment of salary for the aforementioned period, this Court would give him one more opportunity to establish before the Civil Surgeon, Munger with the help of authentic document/ proof 7 that he had actually worked discharged duty of his post in Jamui District despite being relieved. In the event the petitioner would adduce such evidence of his actual working in the relevant period the respondents shall reconsider their decision as with regard to denial of payment of salary for the aforementioned period. Let it be made clear that this Court has not expressed any opinion on the merits of such claim of the petitioner and has chosen to simply remit the matter for once again deciding the issue of actual working of the petitioner vis-à-vis his entitlement for payment of salary for the period 3.4.2001 to 13.4.2002. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/