IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.918 of 2010 DR.MAHENDRA SHARMA S/O SEI NAND DEB SHARMA R/O VILL SAHWARA, P.O.MAHIMAPUR, P.S.MOYU, DISTT-GAYA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY CUM HEALTH DEPARTMENT BIHAR, PATNA 3. DIRECTOR -IN-CHIEF, DEPARTMENT OF HEALTH GOVT. OF BIHAR ----------- 2/ 20.05.2010 Heard counsel for the petitioner and the counsel appearing for the State. Petitioner’s prayer is for quashing of the order dated 5.5.2008 contaiend in Letter No. 2/M-90/07677(2), issued under the signature of Director-in-Chief, Health Services, Government of Bihar, whereby the leave sanctioned for higher studies, allowed to the petitioner has been regularized by adjusting it as an extra-ordinary leave, but, at the same time it has been mentioned that it will not be counted for the purpose of pensionary benefit. Counsel for the petitioner has assailed the order passed by the Director-in-chief, Health Service, placing reliance on the decision in L.P.A. No. 810 of 2007 (Dr. Sunil Kumar Vs. The State of Bihar and Ors), Similar, issue was under consideration before the L.P.A. Bench and finding recorded is as follows:- “Extraordinary leave will entail payment of salaries and allowances have not been provided in the Service Code. The Service Code, however, entails payment of salaries and allowances for other kinds of leave dealt with in the Service Code. At the same time, Rule 93 of the Bihar Pension Rules, 1950 has - 2 - provided that time passed on leave without allowances does not count for pension. In such view of the matter, a dispute cropped up as to whether a Government employee on extraordinary leave is entitle to count the time spent on such leave for pension or not. The Government by an order dated 4th September, 1962 decided that all kinds of leave, including extraordinary leave will count for pension without any restriction with effect from 1st August, 1962. Therefore, in the event it is decided to grant extraordinary leave to a Government employee, in view of the decision of the Government dated 4th September, 1962, if such leave has been granted after 1st August, 1962, such leave shall count for pension without any restriction. In such view of the matter, even if, in view of Rule 243 of the Code, the appellant was not entitled to extraordinary leave for the period spent by him for the purpose of undergoing study for the period between 7th September, 1991 and 2nd September, 1993, but while granting extraordinary leave to the petitioner for the said period, in view of the aforementioned decision of the Government, a rider could not be put that the period spent on such leave shall not be counted for pensionary benefits”. The decision of the Division Bench is fully applicable in case of the petitioner, since the study leave was granted to him much after appointed date i.e. 1st August, 1962, and same has been adjusted as extraordinary leave. Same principle will apply in his case. Part of the order dated 5.5.2008, contained in Letter - 3 - No. 2/M-90/07677(2) (Annexure-1), whereby it is stated that the period of extraordinary leave will not be counted for the purposes of pensionary benefits, is quashed. This application is allowed. Sanjeet/ (Mridula Mishra, J.)