IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10505 of 2006 RAMJEE RAM, son of Sri Lal Mohan Ram, resident of village Gorari, P.S. Gogri, District Rohtas … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of Health, Govt. of Bihar, Patna 3. The Director-in-Chief, Health Services, Govt. of Bihar, Patna 4. The Deputy Director, Health Services, Govt. of Bihar, Patna 5. The Deputy Director (Tuberclosis), Agam Kuan, Patna 6. The Civil Surgeon cum Chief Medical Officer, Rohtas, Sasaram 7. The District Magistrate, Rohtas at Sasaram 8. The Treasury Officer, Rohtas, Sasaram … Respondents ----------- 2. 20.8.2010 Heard Dr. M.P.Shukla, learned counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “(A) That by issuance of an appropriate writ in nature of mandamus the respondents be directed to make payment of the salary of the petitioner from the date of joining his service as driver of jeep in the Health Department under the Civil Surgeon cum Chief Medical Officer, Rohtas on 1.4.2005. (B) That the respondents be further directed to pay 18% Annual compound interest on the arrears of salary from the date of its being arrear 2 upto the date of actual payment.” Dr. Shukla with regard to the aforementioned prayer would submit that when the Directorate of Health by an order dated 19.3.2005 had issued an order of appointment of the petitioner and others and in compliance of the said order the petitioner had also submitted his joining report before the Civil Surgeon cum Chief Medical Officer of Rohtas at Sasaram on 1.4.2005, the petitioner would be definitely entitled for payment of salary from 1.4.2005 and therefore, the decision of the Civil Surgeon cum Chief Medical Officer, Rohtas at Sasaram to make payment of salary to the petitioner with effect from February, 2007 is wholly arbitrary. In this context great emphasis was laid on the petitioner‟s repeatedly knocking the door of the Civil Surgeon for acceptance of his joining and the allocation of duty to him. In this context Dr. Shukla has submitted that the petitioner could not be penalized if the Civil Surgeon had to make certain enquiry from the Directorate of Health or had consumed time in acceptance of his joining of the petitioner and that he 3 would be entitled for payment of his salary w.e.f. 1.4.2005, the date on which he had submitted his joining report. In this case a counter affidavit has been filed wherein the respondents have explained that the joining report submitted by the petitioner on 1.4.2005 was not accepted by the Civil Surgeon on account of awaiting completion of certain formalities by the petitioner and also due to want of clearance of roaster from the Collector of Rohtas district. In this context it has been explained that the post of driver is a Class III post and the appointing authority of the said post is Civil Surgeon and therefore, when on the recommendation of the Commission, the Director-in-Chief had sent his list of selected candidates to different district heads the Civil Surgeon, Rohtas had to make necessary verification of certificates testimonials and driving licence from their respective original as also obtain roaster clearance from the concerned authority before issuing formal letter of appointment and posting to the petitioner whereafter only his joining could 4 be accepted. In fact the respondents have enclosed the formal order of appointment of the petitioner dated 31.1.2007 (Annexure „E‟) which would go to show that after the petitioner had produced all his original certificates and driving licence and a clarification from the office of the Director-in-Chief was received in the office of the Civil Surgeon and roaster clearance from the office of the Collector was obtained, the petitioner was appointed on the post of driver and was posted at Primary Health Centre, Dawath in the district of Rohtas. From the reading of Annexure „E‟, the appointment letter of the petitioner dated 31.1.2007, therefore, it is clear that Annexure 1 the order dated 19.3.2005 issued by the Directorate is not the actual appointment letter of the petitioner rather it is only by way of forwarding of the names recommended by the Commission as accepted by the Government to the different appointing authorities, namely, the Civil Surgeon of the District for issuing formal appointment letter. Annexure 1, therefore, could not 5 have vested any right in the petitioner for getting appointment unless a formal appointment letter was issued in his favour. In this context it may also be found from the so called joining report of the petitioner dated 1.4.2005 (Annexure 6 to the rejoinder Affidavit) that the same was not accepted by the Civil Surgeon who on 1.4.2005 itself on the said joining report of the petitioner had made an endorsement that when the original letter of the Health Department dated 19.3.2005 would be received further consideration thereon could be made. From the perusal of the order of Director-in-Chief dated 19.3.2005 and especially its Clause Nos. 4, 7, 9 reading as follows: Þ4- thi pkyd ds in ij ;ksxnku nsus okys uo fu;qfDr pkydks dks flfoy ltZu ds le{k ngst laca/kh ?kks’k.kk i=] ;ksX;rk laca/kh izek.k i=] tUe frfFk izek.k i= ,oa fpfdRlk izek.k i= ,oa vkjf{kr mEehnokj ds fLFkfr esa tkfr izek.k i= Hkh izLrqr djuk vfuok;Z gksxkA ;ksxnku djus okys uo fu;qDr thi pkyd dk nks ikliksVZ lkbZt dk QksVks ,oa gLrk{kj dk uequk Hkh izkIr djsaxs rFkk Lo;a izfrgLrk{kfjr dj lEiqf’V gsrq Hksts tkusokys i= ds lkFk layXu djsaxsA 7- vlSfud “kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh viuh v/;{krk esa ,d lfefr dk xBu dj uo fu;qDr thi pkydks ds in ij ;ksxnku djus okys meehnokjks ds lHkh izek.k i=ksa dh tkWp iqu% dj larq’V gks ysaxsA 9- funs”kky; LokLF; lsok,W ds lEiqf’V@lR;kiu ds ckn osru dk Hkqxrku fd;k tk;sxkAÞ it becomes more than clear that when the Directorate had issued the order dated 6 19.3.2005 for appointing the petitioner and others from a consolidated list of the Commission by allocating them the restrictive district cadre, all the necessary verification prior to issuance of formal order of appointment had to be made by the concerned Civil Surgeon being the district head and appointing authority of the post of Driver. As a matter of fact this Court would also find from the uncontroverted statements in the counter affidavit filed on behalf of the Civil Surgeon of Rohtas District that soonafter the receipt of the letter dated 19.3.2005 the Civil Surgeon had made necessary verification of the documents relating to qualification and fulfilling eligibility conditions by constituting a Board on 27.4.2005. The said Board while examining the papers of the petitioner had recorded that he had not submitted the declaration regarding his not taking dowry in the marriage as prescribed in Clause 4 of the Directorate‟s letter dated 19.3.2005. The Board had also found that the petitioner had not furnished even the original certificate 7 of Madhyama/ Matric for recording of his date of birth and in fact had produced only the Admit card of Madhyama examination. Additionally the Board was of the view that the driving licence and the educational qualification certificate produced by the petitioner were required to be verified from their original source for which communications were also made by the office of Civil Surgeon, Rohtas. The Civil Surgeon, Rohtas in fact had also taken up the matter relating to roaster clearance with the Directorate by sending a letter dated 19.5.2005 to the Director-in-Chief, Health Services, Bihar, Patna reporting therein that as per available vacancy under the roaster policy of the Government the appointment of the petitioner in Rohtas district for want of vacancy of Schedule Caste category was not possible and as such, a fresh instruction may be issued by the Directorate in this regard. Soon thereafter the Civil Surgeon had also made a communication to the Collector of the District by his letter dated 23.6.2005 seeking roaster clearance of Rohtas district 8 for appointment of the petitioner on a district cadre post of driver and when certain informations in this regard were sought for by the office of the Collector its compliance was made by the office of Civil Surgeon by submitting necessary papers in the prescribed proforma on 30.8.2006, whereafter only the Collector by his letter dated 3.10.2006 had informed the Civil Surgeon as with regard to absence of sanction of post of driver by the State Government for the establishment under the Civil Surgeon of Rohtas District. It is therefore clear that the Civil Surgeon of the district had not lagged behind in his efforts for getting the necessary instruction and clarification from the Directorate and Collectorate, inasmuch as he had also repeatedly written letters to the Director-in-Chief as is evident from the perusal of his letter dated 3.12.2005, wherein apart from the other things it was clearly indicated that it was not possible for him to issue appointment letter of the petitioner till clarification with regard to roaster clearance was issued by the 9 Directorate. Under such circumstances, this Court would not find any fault in the delay of issuance of formal letter by the Civil Surgeon, Rohtas on 31.1.2007 accepting joining of the petitioner after roaster clearance was received from the Directorate and the office of the Collector. It is, therefore, clear that the petitioner‟s acceptance of joining on 31.1.2007 by the office of Civil Surgeon was delayed only because he was specifically directed to issue an order of appointment of the petitioner after completing verification and enquiry in the letter of the Directorate dated 19.3.2005. It also becomes clear that the joining of the petitioner was not accepted on 1.4.2005 as claimed by him because by that period the required verification could not have been completed especially when the petitioner himself had not produced all the documents as contemplated in the order of the Directorate dated 19.3.2005. Thus, the prayer of the petitioner for his payment of salary from 1.4.2005 is wholly misconceived, inasmuch as he himself 10 had not complied the directions given in the order of the Directorate dated 19.3.2005. The appointing authority at the level of the district being bound by the Government instruction regarding strict observance of the Rules of reservation and roaster as also instruction of the superior authority for making full verification of original educational qualification certificate, driving licence and other declarations required to be submitted by the petitioner on the eve of his first appointment in Government service, could not have accepted joining of the petitioner in prevailing circumstances where the every appointing authority has to remain extra vigilant and cautious for avoiding any illegal appointment. The safeguards thus taken by the Civil Surgeon of Rohtas district in the case of appointment of the petitioner, therefore, cannot be faulted either on fact or in law. There is also no denial to the fact that the petitioner started working on the post of Driver only after issuance of his formal appointment letter and acceptance of 11 his joining on 31.1.2007 and thus, he would not be entitled for payment of salary for the period 1.4.2005 to 30.1.2007 during which he had never worked as a driver even for a single day. In a case of fresh appointment unless all verifications are made before acceptance of joining, an incumbent does not become entitled for payment of salary merely by submitting his joining report which, as noted above, could have been accepted only on fulfilment of specific terms and conditions as prescribed in the order of the Director-in-Chief dated 19.3.2005. In the given circumstances, the principle of „no work no pay‟ will also be applicable which would by itself disentitle the petitioner from being paid his salary for the period in which his joining report could not be accepted for the reasons well explained in the counter affidavit. That being so, the solitary relief of payment of salary of the petitioner with effect from 1.4.2005 cannot be allowed by this Court. This writ application being thus devoid of any merit is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/ 12