IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13293 of 2005 DR.KALIKA SHARAN SINGH Versus THE STATE OF BIHAR & ORS ----------- 07/ 12.05.2010 Heard Mr. Shailendra Kumar Singh, learned counsel appearing on behalf of the petitioner, Mr. Rakesh Ambashtha, assisting counsel to A.A.G. 5 for the State and Mr. L.P.K. Rajgrihar for the Accountant General. The petitioner was appointed on the post of Medical Officer vide notification dated 12.3.1979 on which post he joined on 19.7.1979 and took voluntary retirement with effect from 28.04.2003 while holding the said post. The writ petition was filed for payment of the post retiral benefits as found admissible and set out in paragraph-5 of the writ petition relating to pension, gratuity, G.P.F., group insurance, unutilized leave and last month salary etc. after calculation of the entire service period rendered by the petitioner and fixation of the last salary drawn on the said post. It so appears that certain periods of service rendered by this petitioner were not regularized and the details of which have been given in paragraph-7 of the writ petition. By reason of non-regularization of the said period(s) mentioned in paragraph-7, according to the petitioner, the determination of the post retiral benefits have not been made in a correct manner. No decision being taken on the same, the writ petition came to be filed for the reliefs aforesaid. - 2 - Learned counsel submits that the moment a decision is taken as regarding the break period referred to in paragraph-7, it would have a direct bearing on the last salary drawn by the petitioner as also on his post retiral benefits. He submits that the delay being caused by the authorities in taking a final decision on the said break period has resulted in adverse consequence to the petitioner. Learned counsel for the petitioner admits to the payment of part of the post retiral benefits relating to G.P.F., Group Insurance and also pension on the basis of his tenure period of 20 years. Learned counsel thus submits that though he has drawn his post retiral benefits on the basis of 20 years service but once the decision on the break period is taken by the authorities, the post retiral benefits would require re-calculation and a fresh authorization by the Accountant General. During the course of the proceedings several sets of counter affidavits and rejoinder have been filed. From perusal of paragraph 6 of the supplementary counter affidavit filed on behalf of the Respondent nos. 2, the Deputy Director, Health Services, Government of Bihar, Patna, it appears that the onus has been shifted on the petitioner for not submitting a proper application and supporting papers for regularization of the period(s) in question. Learned counsel for the petitioner submits that in terms of the requisition made by the department, he has already submitted the required papers demonstrating his continuation in service. He further submits that for the period he was awaiting posting and no posting order were issued, he cannot be held at fault and cannot be denied - 3 - salary for the said period. Learned counsel submits that one of the grounds for non- payment of salary is non-allotment of funds but the same would become relevant only after any final decision is taken by the authorities on the break period. From the statement made in the counter affidavit(s) and the supplementary counter affidavit(s) it manifestly appears that some steps have been taken in this regard but no order has been passed. Admittedly the petitioner has rendered a total service period of almost 24 years before taking a voluntary retirement. In that view of the matter, there appears no cogent reason for fixation of his pensionary benefits on the basis of 20 years of service. Once the petitioner has been allowed to continue in service and take voluntary retirement after completion of 24 years, the said period becomes a relevant factor for the purpose of determination of pension and pensionary entitlements. The regularization or non- regularization of the break period at best either entitles him to salary for the period or non-payment thereof on grounds of ‘No work no pay’ but that cannot be a factor for delaying the final determination of the post retiral benefits of the petitioner, on the basis of the notional fixation of the last drawn salary of the petitioner, on the date of his voluntary retirement. In that view of the matter, taking into consideration the submissions of the learned counsel for the parties, the writ petition is disposed of with a liberty to the petitioner to file a detailed - 4 - representation together with descriptive details and supporting documents before the respondent no. 2, the Commissioner-cum- Secretary, Health and Family Welfare, Government of Bihar and who shall consider and dispose of the grievance of the petitioner in accordance with law by a speaking order to be passed within a period of three months from the date of filing of the representation by the petitioner and after giving him an opportunity of personal hearing. S.Sb/- (Jyoti Saran, J.)