IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11749 of 2001 Abhay Kumar Prabhaker, Son of late Hirday Narain Sah, Resident of Village Ekdara, P.S. Kahalgaon, District Bhagalpur. -------- Petitioner Versus 1. The State of Bihar through the Commissioner cum Secretary, Department of Health Education and Family Welfare and Deshi Chikitsa Govt. of Bihar, Patna. 2. The Director (De, Chi) Directorate of Indigenous Medicine Government of Bihar, Patna. 3. The District Magistrate cum Chairman Establishment Committee, Begusarai. 4. The District Indigenous Medical Officer, Begusarai. 5. The Homeo Medical Officer, State, Homeopathic Hospital Nagadh, Begusarai. 6. The State of Jharkhand through Secretary cum Commissioner, Health Services, Govt. of Jharkhand. --------- Respondents With CWJC No.11481 of 2000 Abhay Kumar Prabhaker, Son of late Hirday Narain Sha, Resident of Village Ekdara, P.S. Kahalgaon, District Bhagalpur. -------- Petitioner Versus 1. The State of Bihar through the Commissioner cum Secretary, Department of Health, Medical Education and Family Welfare and Deshi Chikitsa Govt. of Bihar, Patna. 2. The Director (De, Chi) Directorate of Indigenous Medicine Government of Bihar, Patna. 3. The District Magistrate cum Chairman, Establishment Committee, Begusarai. 4. The District Indigenous Medical Officer, Begusarai. 5. The Homeo Medical Officer, State, Homeopathic Hospital Nagadh, Begusarai. --------- Respondents ----------- 9 17.08.2010 Heard learned counsel for the petitioner and counsel for the State in both the cases. In the first writ application CWJC No. 11481 of 2000, the petitioner had prayed for the following relief:- “1. That this petition is for issuance 2 of writ of Certiorari for quashing the order dated 6.9.2000 comnicated vide memo No. 835 (2.M) Health Patna dated 8.9.2000 issued by the Director, Indigenous Medicine, Bihar, Patna whereby and whereunder the services of the petitioner has been transferred from Stato Homeopathic Hospital Nagdah, Begusarai, to state Homoeopathic Hospital Janum Singhbhum under the namely created Jharkhand State without consent of the Petitioner.” As would appear, the challenge to the said order of transfer dated 8.9.2000 was passed on the assumption of the petitioner that he, being a compounder of Homeopathy and posted in a dispensary having no cadre, was holder of a single unit post and hence his services were not transferable. It is not in doubt that the petitioner subsequently had sought to comply the said order of transfer by submitting his joining report on 7.4.2001 but, his joining was not accepted in the transferred dispensary at Jamun, Chaibasa in the district of Singhbhum on the plea of the Chief Medical Officer of the dispensary that by that time the erstwhile State of Bihar had already been bifurcated and as such, the joining of the 3 petitioner after such bifurcation could not have been accepted. Subsequently, the petitioner had filed the second writ application CWJC No. 11749 of 2001, wherein, the prayer made by him reads as follows:- “1. That this writ petition is for issuance of appropriate writ or writ directing the respondents for payment of the salary to the petitioner from the month of August 2000 to onwards mainly on the ground that there is no laiches on the part of the petitioner who is running from pillor to post for his posting after the transfer order by which the petitioner was transferred from Nagdhah Begusaai to Jamun (Chaibasa) (Singhbhum), against the notification of the Central Govt. as well as the State Govt. and for that purpose a separate writ has been filed by this petitioner bearing C.W.J.C. 11481 of 2000 which has been admitted in this Hon’ble Court.” During pendency of these two writ applications, the Director, Indigenous Medicine, Bihar, Patna on account of the subsequent developments had gone to pass a reasoned order on 12.2.2002, whereby and whereunder, the earlier order of transfer of 4 the petitioner dated 8.9.2000 was superseded by posting him in the State Homeopathy Dispensary, Nagdah in the district of Begusarai with immediate effect i.e. 12.2.2002 with a direction that the petitioner should join to his transferred place of posting within one week from the date of the order. Though the State has brought the aforementioned order dated 12.2.2002 on record by way of supplementary counter affidavit in CWJC No. 11749 of 2001, the same has not been challenged by the petitioner even when it envisages the following action:- ^^3- vr% of.kZr fLFkfr esa Jh vHk; dqekj izHkkdj] gksfe;ksiSfFkd feJd] dk foHkkxh; Kkikad 835¼ns0fp0½ fnukad 8-9-2000 }kjk fd;k x;k LFkkukUrj.k rRdkyhd izHkko ls foyksfir djrs gq,] bUgsa jktdh; gksfe;ksiSfFkd vkS"k/kky;] ukxng] csxqljk; ls rRdkyhd :i ls inLFkkfir fd;k tkrk gS rFkk mUgsa vkns'k fn;k tkrk gS fd os mDr gksfe;ksiSfFkd vkS"k/kky; esa gksfe;ksiSfFkd feJd ds in ij vfoyEc ;ksxnku nsdj dk;Z vkjEHk djsaA 4- pqWfd Jh izHkkdj }kjk foHkkxh; vkns'k dk vuqikyu ugha fd;k x;k rFkk vf/kd`r :i ls fnukad 21-9-2000 ls 6- 4-2001 rd vkSj iqu% fnukad 8-4-2001 ls vkt rd fcuk lwpuk ds vuf/kd`r :i ls vuqifLFkr jgsA 5 vr% buds fo:) visf{kr dkjZokbZ djus dh Hkh fu.kZ; fy;k x;k gSA buds ;ksxnku ds mijkUr muds fo:) vxzsRrj okafNr dkjZokbZ dh tk;sxhA** In fact the same has been also explained by the State in the supplementary counter affidavit in the following terms:- “3. That in pursuance of the observations made by the Hon’ble Court during course of argument on 31.1.2002, the petitioner has been temporary posted in Government, Homeopathic Hospital, Nagdah, Begusarai temporarily the place from where he was transferred to join in Singhbhum District, so that proceeding against the petitioner could be started for disobeying the earlier transfer order. A decision to this effect has been taken on 12.2.2002 and the Director, Indigenous System of Medicine issued necessary order vide memo no. 148 dated 12.2.2002 and a copy of the same has been served upon the petitioner.” In that view of the matter, both the writ applications have now become infructuous on account of subsequent order dated 12.2.2002, which not only has sought to make a fresh posting of the petitioner in the State Homeopathy Dispensary at Nagdah in the district of Begusarai but has also made clear 6 that further action for the period of unauthorized absence will be taken in accordance with law. Admittedly till date, no such action has been taken, inasmuch as, the petitioner has not brought on record any order of the State Government showing adverse decision for the period of his unauthorized absence. Nonetheless, the aforementioned period from 21.9.2000 when he was relieved for joining at a transferred place in terms of the earlier order of transfer on 8.9.2000 up to the aforesaid order dated 12.2.2002 and in fact till the date of actual joining of the petitioner in terms of the aforesaid order dated 12.2.2002 being more than one year, a final decision has to be taken so that the petitioner, even in the event of going without salary, does not suffer at the time of his retirement in the matter of payment of retirement benefit on account of break in service. For this limited purpose, this Court would direct the Director, Indigenous Medicine to take a final decision as with 7 regard to the aforementioned period of 21.9.2000 to 12.2.2002 in terms of the office order contained in memo no. 148 dated 12.2.2002 preferably within a period of three months from the date of receipt/production of a copy of this order. Let it be made clear that this Court has not held that the order of transfer of the petitioner challenged in CWJC No. 11481 of 2000 was bad and therefore, the respondents would be at liberty to take their own independent decision treating the said transfer order to be valid. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)