IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 1399 of 2009 Nand Kishore Sinha, son of Late Girija Nandan Singh, resident of village – Harpali-Saghhari, Police Station – Siwaitpatti, District – Muzaffarpur …………………. Petitioner Versus 1. The State Of Bihar through Principal Secretary, Human Resources Development Department, Government of Bihar, Patna 2. Director, Primary Education, Vikash Bhawan, Patna 3. Regional Deputy Director of Education Tirhut Division, Muzaffarpur, District – Muzaffarpur 4. District Education Officer, Muzaffarpur, District – Muzaffarpur 5. District Superintendent of Education, Muzaffarpur, District – Muzaffarpur 6. Area Education Officer, Kanti, Muzaffarpur, District – Muzaffarpur ……………………… Respondents ---------------------------------- 06. 12.09.2011 Heard learned counsel for the petitioner and the counsel appearing for the State. Prayer of the petitioner in this Writ Application is for a direction to respondents to accept his joining on the post of Assistant Teacher in Primary School, Chakki Rasulganj in the district of Muzaffarpur with effect from 19.07.1995 and to pay his salary and other monetary benefits. Admitted facts of this case is that petitioner joined as Assistant Teacher on 27.09.1974 and continued to work till 31.10.1987. On 31.10.1987, petitioner proceeded on leave due to illness. He applied for medical leave by filing an application 2 before Guchchh Head, Government Middle School, Nakta, Motipuar. Time to time he continued to apply for continuing on medical leave, till he was completely cured. On 19.07.1995, he came to give his joining at the School. He filed his application along with all prescriptions relating to his ailment, for which he had undergone treatment. The application for joining along with entire records connected with his treatment was filed before the District Superintendent of Education, Muzaffarpur on 20.07.1995. Since the date of his intimation regarding joining, till the date when his joining has been accepted during the pendency of the Writ Application on 3rd of September, 2011, the records indicate that there has been laches and lacunae on the part of the respondents. Petitioner’s joining was not accepted on 20.07.1995. The District Superintendent of Education, Muzaffarpur instead of accepting his joining, started communicating with the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur and Director, Primary Education, Government of Bihar. In the year 2001, a letter was issued by the Director, Primary Education, to the District Superintendent of Education, asking the D.S.E., Muzaffarpur to file 3 show-cause as to why, no steps have been taken against the petitioner under Rule 76 of the Bihar Service Code, even though he remained on leave for more than five years. The District Superintendent of Education, Muzaffarpur, thereafter initiated a departmental proceeding against the petitioner, framing a charge on 13.07.2001. The Conducting Officer submitted his enquiry report in the departmental proceeding on 17.12.2001 with a recommendation that the charges framed against the petitioner have not been proved, rather petitioner has been able to show that he proceeded on leave intimating the superior authorities time to time, applied for extension of leave and on being cured, came to give his joining. The Conducting Officer further recommended that his joining may be accepted on humanitarian ground. Despite the recommendation of the Conducting Officer, the District Superintendent of Education, Muzaffarpur did not pass any order, either accepting or rejecting the joining of the petitioner. Petitioner submitted his representation before Director, Primary Education that also remained pending without any action. This communication and exchange of letters in between 4 the District Superintendent of Education, Muzaffarpur and the Director, Primary Education, Bihar continued without any final out come, till a direction was issued by this Court in the Writ Application filed by the petitioner, for filing Counter Affidavit. The Director, Primary Education was also asked to appear personally before this Court. In the Counter Affidavit of the Director, Primary Education, it is stated that DSE being the competent authority for passing any order in such case should have passed order. The Director has no role to play, in case there is any inaction, for that only the DSE is responsible. However, contrary to the stand taken in the Counter Affidavit, the Director himself has passed an order on 30.08.2011, annexed as Annexure-B to the Supplementary Counter Affidavit. Finally an action has been taken by Respondent No. 2 in the pending matter of the petitioner and by this order, entire period in between 01.11.1987 to 19.07.1995, that is the period when the petitioner was on medical leave as well as the period in between 20.07.1995 till date of petitioner’s joining on 03.09.11 have been treated as extraordinary leave. Petitioner’s joining has been 5 accepted on 03.09.2011. I fail to understand that how entire period in between 01.11.1987 to 19.07.1995 has been considered as extraordinary leave. The order does not show that the concerned authority had applied his mind with regard to the medical leave as provided under Rules in Bihar Service Code. There is no consideration as to how the period, for which the petitioner would have been entitled, in case of grant of medical leave, regarding payment of salary, matter should have been decided. For what period, petitioner would have been entitled for full salary, for half salary, for 1/4th salary and for no salary. There is no consideration for the period in between 20.07.1995 to 03.09.2011, as this period also has been considered as extraordinary leave, illegally and arbitrarily in complete violation of the Service Rules. Petitioner came to give his joining on 20.07.1995, and this is not denied in the Counter Affidavit. There is nothing to show that for entire period petitioner did not make himself available for giving his joining and for discharging his duties as an Assistant Teacher in the School. The laches and lacunae was on the part of the District Superintendent 6 of Education, Muzaffarpur and the Director, Primary Education, since they did not take any action. They did not decide the issue and for this the petitioner kept on waiting for acceptance of his joining, for several years. Counsel appearing for the State submits that petitioner is not entitled for his salary for this period as per the policy of the State Government “No Work No Pay”. This policy has no application in the case of the petitioner. The petitioner made himself available for discharging his duties, but it was respondents who did not take work from him. Petitioner, as such, is entitled for full salary for this period. The respondent State in the Human Resources Development Department has to make, payment of entire salary with all consequential benefits to the petitioner for the period 20.07.1995 to 03.09.2011. The salary for this period, paid to the petitioner, due to inaction of the respondents, shall be adjusted from the salary or any other monetary benefits payable to the then District Superintendents of Education, Muzaffarpur, who remained posted there in between the period 20.07.1995 to 03.09.2011. The order passed by the Director, Primary Education, Human Resources 7 Development Department, contained in Memo No. 935, dated 30.08.2011 annexed as Annexure-B to the Supplementary Counter Affidavit is quashed, to the effect that entire period has been adjusted as extra- ordinary leave. The matter is remitted back to the Director, Primary Education for reconsideration of the payment of salary mater and adjustment of period in between 01.11.1987 to 19.07.1995, applying the relevant rule in Bihar Service Code relating to medical leave. So far the period in between 20.07.1995 to 03.09.11 is concerned, petitioner will be deemed to have continued in service and entitled for his salary and other benefit. Payment of arrears of salary for the period in between 20.07.1995 to 03.09.2011 must be paid to the petitioner within eight weeks from the date of production / communication of this order. Monetary benefits, for the period 01.11.1987 to 19.07.1995 will be paid after an order is passed in this regard by Director, Primary Education, Bihar. Order must be passed within 12 weeks from the date of production / communication of this Order. Accordingly, this Writ Application is allowed. SKM (Mridula Mishra, J.)