IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.241 of 2002 DR.VIVEKANAND SHARMA, S/O LATE SATYA NARYAN RAI, R/O VILLAGE-DIGHRA, P.S.-PUSA, DISTRICT-SAMASTIPUR, PRESENTLY POSTED AS SECOND MEDICAL OFFICER, PRIMARY HEALTH CENTRE, RAXAUL, P.S.-RAXAUL, DISTRICT-EAST CHAMPARAN. ………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY/COMMISSIONER, HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE SECRETARY/COMMISSIONER, HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMET, GOVERNMENT OF BIHAR, PATNA. 3. THE SECRETARY/COMMISSIONER, FINANCE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE DEPUTY SECRETARY, FINANCE (PERSONAL CLAIM FIXATION CELL) DEPARTMENT, GOVERNMENT OF BIHAR, PANT BHAVAN, BAILEY ROAD, PATNA-1. 5. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, EAST CHAMPARAN, MOTIHARI, DISTRICT-EAST CHAMPARAN. 6. THE ACCOUNTANT GENERAL, BIHAR, PATNA. …………………RESPONDENTS. ----------- 6 09.09.2009 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing of order dated 9.8.2001, as contained in Annexure-8, by which the Deputy Secretary of the Finance Department (Personal Claim Fixation Cell), Government of Bihar, Patna has rejected the representation of the petitioner for grant of non-practising allowance to him on the ground that the declaration of the petitioner required under the - 2 - law was not received in the Cell prior to the cut off date. The petitioner has also prayed for a direction to the respondents to issue pay slip to him by adding non-practising allowance as admissible to him in terms of the notification of the Government. Petitioner has also prayed for payment of arrears as well as interest on the arrear amount. It appears that by a notification dated 26.5.1998 (Annexure-1) the Department of Health, Medical, Education and Family Welfare declared the post of Doctors in the Bihar Health Services as non-practising post. The notification contemplated non-practising allowance to be admissible to such Doctors who submitted their declaration about their decision in respect of refraining from practising. A follow-up notification was issued by the Finance Department dated 28.3.2000 (Annexure-2) by which such non-practising allowance was made admissible with effect from 1.4.2000. The notification also laid down for submission of declaration by a fixed date which was later on extended up to 30.9.2000. The case of the petitioner is that, in - 3 - response to such offer of the Government through the notifications, he submitted required declaration intimating his decision to stop private practice and, therefore, making himself entitled for non-practising allowance. It is stated that the said declaration was submitted by the petitioner to the concerned In-charge Medical Officer on 27.5.2000, a copy whereof is annexed as Annexure-3. It is submitted that the said declaration was forwarded by the In-charge Medical Officer to the concerned Cell through his letter no.156 dated 28.5.2000. However, when the non-practising allowance was not started to the petitioner, he moved this Court through C.W.J.C. No. 6198 of 2001. The said writ application was heard on 9.5.2001 and was disposed of with liberty to the petitioner to file a representation before the concerned respondent for his grievances, who was directed to dispose of the same by a speaking order within a period of three months from the date of receipt/production of a copy of the order. In compliance to the said order of this Court, the petitioner filed representation which was considered by the Deputy Secretary of the - 4 - Finance Department, In-charge of the Cell and was rejected by reasoned order as contained in impugned Annexure-8. Challenging the said order, the petitioner has filed this writ application. Along with the writ application petitioner has annexed a letter of the In-charge Medical Officer namely letter no. 333 dated 14.12.2000 (Annexure-4) addressed to the Deputy Secretary of the Cell in which the In-charge Medical Officer has certified that the declaration of the petitioner filed on 27.5.2000 was forwarded to the Cell through his office letter no. 156 dated 28.5.2000. Learned counsel for the petitioner submits that once he had filed the declaration within time and the same was forwarded to the Cell by the concerned In-charge Medical Officer, the requirement as per the said resolution in this regard stood complied and petitioner was absolved of the responsibility of filing the declaration within time. Therefore, he submits that, delayed receipt of the said declaration in the Cell or its non-receipt can not frustrate the claim of the petitioner in respect of grant - 5 - of such non-practising allowance, since the same having been sent to the Cell through official channel it was not within the control of the petitioner to get it delivered there in time. A counter affidavit has been filed in the case in which pleadings have been made in support of the impugned order of the Deputy Secretary on the ground that the declaration of the petitioner had not been received in the Cell till the cut off date and, therefore, claim of the petitioner could not be considered for grant of non-practising allowance. It is stated that it was mandatory on the part of the concerned incumbents to submit their declaration in the Cell by the cut off date failing which they became disentitled for grant of such non- practising allowance. In view of the rival pleadings, the matter boils down to the issue as to whether the In-charge Medical Officer had forwarded the declaration of the petitioner through his letter no. 156 dated 28.5.2000 to the Cell or not. From Annexure-4, it appears that the In-charge Medical Officer has certified that he had forwarded the said declaration to the Cell. Once - 6 - the petitioner had submitted his declaration for being sent to the concerned Cell through proper channel, the petitioner can not be held responsible for delayed receipt or non-receipt of the said declaration in the Cell. When the case was heard earlier, learned counsel for the State was directed to seek instructions from the concerned In-charge Medical Officer with regard to authenticity of said letter no. 156 dated 28.5.2000. However, inspite of repeated opportunity to the learned counsel for the State no affidavit has been filed disputing the authenticity or genuineness of the said letter issued from the office of the concerned In-charge Medical Officer to the Cell purported to be enclosing the declaration of the petitioner. Counter affidavit and supplementary counter affidavit has been filed by the authorities of the Finance Department in which the same stand as taken in the impugned order (Annexure-8) for rejection of the representation of the petitioner has been reiterated showing that for the first time any intimation with regard to declaration of the petitioner was - 7 - received in the Cell through letter no. 333 dated 14.12.2000 of the In-charge Medical Officer on 19.12.2000. Considering the rival submissions and the documents available on record and the pleadings of the parties, this Court is of the view that once the petitioner had submitted his declaration to the In-charge Medical Officer and the In-charge Medical Officer has certified that he had sent the declaration through his letter no. 156 dated 28.5.2000, the petitioner stands absolved from the responsibility of furnishing his declaration in time for making him eligible for grant of such non-practising allowance as admissible to him under the policy decision of the State Government. In view of any material to the contrary disputing the authenticity of letter no. 156 dated 28.5.2000 of the office of the concerned In-charge Medical Officer, sent to the Cell with the declaration of the petitioner as certified by him through Annexure-4 dated 14.12.2000, it is held that the petitioner becomes entitled for grant of non-practising allowance under the policy decision of the State - 8 - Government as emanating from Annexures-1 and 2. In the circumstances, this writ application is allowed, impugned order (Annexure-8) is quashed and the respondents are directed to consider the case of the petitioner for grant of non-practising allowance in terms of resolutions as contained in Annexures-1 and 2 treating the submission of the declaration for the purpose by him as within time and pass appropriate orders for revising his pay slip and grant of arrears on that account. So far as claim of the petitioner for interest is concerned, since the respondents do not appear to have acted malafide and they refused the claim of the petitioner earlier on the ground of non-receipt of declaration, which may be a fact, the prayer of the petitioner for interest is rejected. The writ application is accordingly allowed to the extent indicated above. Arvind/ (J. N. Singh, J.)