IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6868 of 2006 Shailesh Kumar, son of Late Dadan Prasad, resident of Mohalla Mahadeva Road, P.O. Arrah, P.S.Arrah Town, District- Bhojpur, presently residing at Hospital Complex, P.S. Arrah Town, District- Bhojpur(Arrah) ………… Petitioner Versus 1.The State Of Bihar 2.The Commissioner-cum-Secretary, Department of Health, New Secretariat Building, Patna 3.The District Magistrate, Arrah 4.The Additional District Magistrate, Bhojpur, Arrah 5.The Civil Surgeon-cum-Chief Medical Officer, Bhojpur, Arrah 6.Incharge, Medical Officer, Shahpur, Bhojpur 7.Incharge Medical Officer, Rajpur, Buxar 8.The District Malaria Officer, Bhojpur, Arrah 9.The Additional District Malaria Officer, Rajpur, Bhojpur …………. Respondents. ----------- 4. 03/03/2010 Heard learned counsel for the petitioner and learned counsel for the State. The original petitioner had challenged his termination order dated 25.5.1990 passed by the Incharge, Medical Officer, Sahpur in the district of Bhojpur, as contained in Annexure-5. The order shows that a general order was received from the office of Commissioner Health, Government of Bihar, contained in letter no.428(3) dated 30.4.1990, directing the Civil Surgeon, Bhojpur to cancel all appointments made in the district after 1.11.1989. As the petitioner was appointed on 17.1.1990, Incharge Medical Officer, Shahpur at Bhojpur (Respondent - 2 - No.6) issued office order terminating the services of the petitioner. Learned counsel for the petitioner submits that the original petitioner had initially joined the service under the respondents on 9.12.1960 and since then, off and on, he served the respondents. Therefore, the order by which petitioner was allowed to join on 17.1.1990 was not an order of appointment rather an order of his adjustment. From Annexure-6 it appears that sometime in 1994 the Collector, Bhojpur had made enquiries from the Civil Surgeon in respect of nature of appointment of petitioner, in response to which Civil Surgeon, through this Annexure-6 dated 27.2.1994, informed that petitioner was initially appointed on 9.12.1960 and continued till 23.3.1964. Thereafter he was again appointed vide office order no.2792 dated 13.9.1980 for three months and by memo no.659 dated 19.12.1980 his services were dispensed with. Finally by Memo no.177 dated 17.1.1990 he was again appointed as night-guard and was directed to join his duties in Shahpur Referral Hospital. - 3 - These facts show that from 1960 to 1964 petitioner was in service with the respondents. Thereafter, there was break of almost sixteen years and he was appointed for three months again in 1980 and by specific order dated 19.12.1980 his services were dispensed with. Almost ten years after dispensing with his services, he was again appointed vide memo no.177 dated 17.1.1990. In view of these facts, it cannot be accepted that the appointment of the petitioner on 17.1.1990 was adjustment and not fresh appointment. By no stretch of imagination, any incumbent can be adjusted in service after ten years of dispensing with his service. Earlier period of sixteen years is also good enough to negative the claim of the petitioner that he was in service of respondents which ultimately culminated with his adjustment by order dated 17.1.1990. Therefore, order dated 17.1.1990 has to be treated as fresh appointment of petitioner in whatever capacity he may be. Said date of appointment fell beyond 1.11.1989 and thus petitioner is squarely hit by the said order of the Commissioner Health dated 30.4.1990. - 4 - Learned counsel for the petitioner submits that the original petitioner has died and his son has been substituted. Therefore, his son may be given liberty to stake his claim before the respondents. In view of the service history of the original petitioner, it is difficult for this Court to issue any positive direction to the respondents in favour of son of the original petitioner. However, he will be at liberty to represent the respondents for consideration of his claim as he may be entitled in law. In the circumstances, this Court does not find any merit in this writ application and the same is accordingly dismissed. Pradeep/ (J. N. Singh, J.)