IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.8745 OF 2007 DR.MD.ASLAM HUSSAIN, S/O MD. DEEN, R/O VILLAGE AND POST SISAI, P.S GOERA KOTHI, DISTRICT SIWAN. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE SECRETARY HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE DEPUTY SECRETARY, HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA. 4.THE ADDITIONAL SECRETARY, HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA. ………………………RESPONDENTS. ----------- 03/ 29.09.2011 Heard counsel for the parties. Initially, when this writ application was filed on 20.07.2007, the prayer of the petitioner was to quash the order dated 30.03.2005, whereby and whereunder his joining on the post of Medical Officer was refused. Subsequently, the petitioner during the pendency of this writ application, when certain developments had taken place, has filed I.A No. 6479 of 2011, whereby and whereunder he has assailed the order of punishment dated 23.06.2009 with a consequential direction for payment of his salary for the period from 24.03.2000 to 10.07.2009. Learned Counsel for the petitioner 2 would submit that since the petitioner had gone to pursue his post-graduation (M.D Course) and such obtaining of a post graduate degree could have led to a better performance of the petitioner in the Government service, the Authorities ought to have been condoned the absence of the petitioner in the interregnum period and should have also granted salary instead of punishing him on the ground of unauthorized absence. In the considered opinion of this court, the petitioner has lot of misconception about himself. The petitioner was a Government Servant when he had become unauthorisedly absent from duty and therefore, his joining could not have been accepted after a period of four years when he made allegedly returned and had required to allot duty to him. Accordingly, if he had submitted his joining and the same was rejected by the impugned order dated 30.03.2005 and he was placed under suspension on 24.10.2007 in contemplation of departmental proceeding, he cannot claim any protection from this Court. Moreover in 3 the aforesaid departmental proceeding conducted against the petitioner, the Authorities had found no plausible answer/defence for the petitioner for remaining absent from duty and accordingly, after giving him full opportunity to defend himself, the order of punishment was passed on 23.06.2009 on recording censure and also withholding of two increments without cumulative effect and the period of absence to be treated as extra ordinary leave. The impugned order had also recorded that the petitioner will not get anything beyond subsistence allowance. This Court in such circumstances had asked the learned counsel for the petitioner as to whether the petitioner had ever been granted study leave before he became absent from duty but his answer was that the petitioner had only filed an application for this purpose before proceeded to join his post-graduation Course (M.D Course). A Government servant in whatever rank may be, he cannot straightway claim study leave as a matter of right. In absence of study leave granted 4 to the petitioner, his absence has to be treated as unauthorized and therefore, this Court would not find any error in the order of punishment dated 23.06.2009 as assailed in I.A No. 6479 of 2011. The next question would be as to the payment of salary for the period of his absence. The law in this regard stands well settled that a person who has not performed his duty will not be entitled for his payment of salary. In fact when the competent Authority had placed the petitioner under suspension on 24.10.2007, they had also granted him subsistence allowance and therefore, the petitioner would not be entitled for anything more beyond the subsistence allowance in view of the charge of unauthorized absence against him to have been proved, leading to the order of punishment dated 23.06.2009. In such circumstances, the petitioner would also not be entitled for payment of salary for the period he was found unauthorizedly absent from duty. The submission of the learned counsel for the petitioner that he was not 5 even paid the amount of subsistence allowance can, however be verified by the Authorities, as to whether the headquarters of the petitioner was fixed in the suspension period and if it is found by the Controlling Authority that the petitioner had reported himself and remained present in the headquarters fixed during the period of his suspension, his subsistence allowance must be released. Such an exercise by the competent Authority would be completed within a period of six months from the date of filing of the representation by the petitioner along with a copy of this order and a proof that he was through out present in the headquarters during the period of his suspension. Subject to aforementioned observation, liberty and direction, this application is dismissed. Ranjan (Mihir Kumar Jha, J.)