IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13500 of 2008 DR.MITHILESH KUMAR, S/O LATE PT.KAPILDEO SHARMA, R/O B-6, BUDHA COLONY, P.O.-G.P.O. AND P.S.-BUDHA COLONY, DISTRICT-PATNA. …………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE ADDITIONAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR-IN-CHIEF-CUM-SPECIAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. …………RESPONDENTS. ----------- 2 07.09.2011 In view of submissions of learned counsel for the petitioner advanced today, the facts of the case do not need much notice. Suffice it to mention that, on account of alleged unauthorized absence from duty from 29.07.1997 to 29.12.2003, a proceeding was initiated against the petitioner and, after completion of the same, he was punished. Petitioner moved this Court earlier which writ application was disposed of by order dated 25.06.2002, as contained in Annexure-2, with liberty to the petitioner to seek his remedy before the 2 concerned departmental authorities in accordance with law. Thereafter, it appears that the petitioner represented in the department and he was posted initially in the Additional Primary Health Centre, Nayagaon, Saran and thereafter at Sadar Hospital, Chapra. It is admitted that the petitioner joined in Sadar Hospital Chapra and thereafter he was paid his salary. Hence, his subsequent writ application was disposed of by order dated 14.01.2004, as contained in Annexure-3, with liberty to him to file a representation in respect of his claim for arrears of salary. The representation, which he filed, has been disposed of by the impugned order of the Secretary of the Department dated 18.04.2008, as contained in Annexure-1. The representation of the petitioner could not find favour in the Department and the period of absence i.e. 29.07.1997 to 29.12.2003 was ordered to be treated as leave without pay and it was directed that this period shall be treated as break in service and shall not be counted for pension etc. The departmental proceeding was finally closed accordingly. 3 The case of the petitioner, in short, is that while working in the office of Civil Surgeon, Vaishali, under notification of the Government dated 28.06.1997, he was transferred to a Primary Health Centre in the district of Ranchi. It is his case that when he went to Ranchi he did not find that primary Health Centre and therefore he could not submit his joining. He returned and informed the Civil Surgeon, Vaishali about the same. But the same was not informed to the Department and his place of posting was not changed nor the order of his transfer was withdrawn. Ultimately he filed writ application in this Court namely, CWJC No.5940 of 2002 which was disposed of by order as contained in Annexure-2. This Court earlier requested learned counsel for the petitioner to seek instructions and inform this Court whether petitioner had any proof to satisfy this Court that after he returned from Ranchi he gave any information to the office of the Civil Surgeon, Vaishali or in the Department about his inability to join at Ranchi on account of non-existence of the Primary Health Centre where he had 4 been posted. Learned counsel for the petitioner today submits that petitioner has no such evidence in respect of the said stand. Hence, he very fairly confines his prayer for payment of salary from the date of order passed in his first writ application i.e. 25.06.2002 to 30.12.2003 after which, on the basis of orders of the Department, petitioner joined in Sadar Hospital, Chapra and started getting his salary. He also prays that the order for treating the period as break in service of the petitioner may completely wipe out his previous service for the purposes of pension and gratuity which may adversely affect him financially. Hence, only for the purposes of calculation of pension and gratuity, he submits that it may be directed that his actual period of service rendered prior to 29.07.1997 may also be taken into account. Learned counsel for the respondents also fairly submits that since the copy of the earlier writ application was served in the office of Advocate General with the information with regard to non-joining of 5 the petitioner, he may be entitled for salary from that period. With regard to period of absence being treated as break in service, he submits that the said period of about five years cannot be counted so as to make the petitioner entitled for monetary benefits. Considering the submissions of learned counsel for the parties, this Court considers that it will be appropriate that the petitioner is paid his salary from the date of order passed in his first writ application i.e. 25.06.2002 up to 30.12.2003, after which he joined his service on the orders of the Department and started getting his salary. This Court also considers it appropriate that, for the purposes of pension and gratuity, the earlier period of service rendered by him prior to 29.07.1997, should be counted and taken into account, upon his retirement, so that the said period may not stand wiped out completely on account of the impugned order for treating the period of his absence as break in service. This Court orders accordingly. The benefits of this order 6 should be released to the petitioner positively within three months from the date of receipt/production of a copy of this order. The writ application is disposed of. Arvind/ ( J.N. Singh, J.)