IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9590 of 1997 Aruni Kant Isser, S/o late Uma Kant Isser, Resident of Village Konaila, P.O. Kamarao, P.S. Dalsingsarai, District Samstipur, at present residing at Naya Bazar, Saharsa, District Saharsa. ------ Petitioner Versus 1. The State of Bihar. 2. Director of Health Services, Government of Bihar, Patna. 3. Commissioner and Secretary, Health Department, Government of Bihar, Patna. 4. Joint Secretary, Department of Health, Government of Bihar, Patna. -------- Respondents ----------- 4 29.07.2010 Heard Mr. B.N.P. Singh, learned counsel for the petitioner and Mr. Sanjay Prakash Verma, learned A.C. to G.A.5. The prayer of the petitioner in this writ application reads as follows:- “1(i) Certiorari : For setting aside the order as contained in Memo No. 1014(3) dated 10.9.97 (Annexure-14) purported to be passed in pursuance of the order of this Hon’ble High Court dated 21.11.96 (Annexure-12) passed in C.W.J.C. No. 6615 of 1996. (ii) Certiorari : For setting aside the departmental proceeding initiated through letter No. 766(2) dated 21.7.1983 (annex-6) by the order of the Joint Secretary (Respondent No.4). (iii) Mandamus : For directing the Respondents to treat the petitioner’s absence from work from 29.4.78 to 15.3.83 as 2 extraordinary leave. (iv) Mandamus : Directing the Respondents to make the petitioner’s services to be continued from the date of departmental proceeding from 21.7.83 up to the date of his retirement dated 31.1.1997 as continuous service. (v) Mandamus : Directing the Respondents to pay the arrears of salary admissible in law and also to fix the petitioner’s pension with effect from 31.1.1997 and the payment thereof including all retirement benefits.” Mr. Singh, learned counsel for the petitioner would submit that during pendency of this writ application, the petitioner has filed I.A. No. 5946 of 1997, wherein, an additional relief has been sought for quashing of the letter no. 2009 dated 6.9.2005, whereby and whereunder, the petitioner has been directed to submit the paper for the purposes of fixing the pension treating the service of the petitioner up to 28.4.1978. Mr. Singh, in support of the aforementioned prayer, would submit that the order passed by the authority in this writ 3 application is absolutely incorrect, inasmuch as, the petitioner after remaining absent from duty from 29.4.1978 to 15.3.1983 had submitted his joining in the Secretariat on 16.3.1983 and having remained waiting for posting from 16.3.1983 to 6.1.1984 when nothing was done, the petitioner had ultimately filed a writ application in this Court in the year 1996, CWJC No. 6615 of 1996 disposed of with a direction to the authority to re-consider the grievance of the petitioner in the light of the representation filed by him along with supporting documents showing his absence to be authorized. He has also submitted that the petitioner had always remained under a bonafide impression that his joining would be allowed by the authority, inasmuch as, the petitioner had also filed a show-cause reply on 6.8.1983 to a show-cause notice sent to him by the Joint Secretary to the Government dated 21.7.1983 but no action was taken even on that show-cause notice and therefore, the petitioner will be deemed to be continuing in service till the date of his superannuation i.e. 31.1.1997 on the basis of 4 his date of birth being 15.1.1939. Counsel for the State on the other hand with reference to the fact asserted in the counter affidavit has submitted that the petitioner was unauthorizedly absent between 29.4.1978 to 15.3.1983 and though the petitioner claims to have joined the Secretariat on 16.3.1983 but he was also found absent from the Secretariat and therefore, the entire period of absence of the petitioner had to be taken to be unauthorized absence. It has further been explained that as the order of this Court was passed in CWJC No.6615 of 1996 for disposing of the representation of the petitioner with regard to the grievance of non-joining, non- payment of salary etc., the authority, after looking into the official records, had found the petitioner to be absent from duty and since on the date of passing of the order, the petitioner did not continue in service as he had already attained the age of superannuation, there was no question of either acceptance of the joining or making payment of any salary. 5 In the opinion of this Court, if everything as submitted by the learned counsel for the petitioner is accepted, even then the prayer made by the petitioner in this writ application cannot be allowed for a simple reason that the petitioner’s absence from duty without sanction of leave from 29.4.1978 to 15.3.1983 even as per his own case will be an unauthorized absence. Admittedly, for this period, the leave was never sanctioned to the petitioner and therefore, in terms of Rule 103 of the Bihar Pension Rules and instructions issued thereunder, such break in service exceeding a period of two years could not have been condoned. The first part of the order of the authority with regard to break in service is complete and therefore, the petitioner cannot get any benefit of the so-called service rendered by him by keeping himself waiting for posting in the Department on 16.3.1983. It is also very difficult for this Court to believe that the petitioner kept on waiting for posting from 16.3.1983 for next thirteen years before filing of the writ application 6 in the year 1996 for acceptance of his joining. It would be in fact clear from the attending facts that when the petitioner had found that his date of retirement of 31.1.1997 had drawn close, he came before this Court in the month of May, 1996 so that he would stake his claim for payment of retirement benefit by compelling the authority to at least count his service for the entire period. This Court, however, had not allowed such claim and had merely remitted the matter back to the authority which has now in his order dated 10.9.1997 found that the petitioner was actually throughout absent from 1978 to 1997 and there was also no proof of the fact that the petitioner was waiting for posting for the period of almost thirteen years. The plea taken by the learned counsel for the petitioner that the petitioner’s reply dated 6.8.1983 to the show-cause notice dated 21.7.1983 to the Joint Secretary of the Department should be treated to be an evidence of the petitioner as with regard to his claim for waiting for 7 posting in the Headquarter or his being in readiness to join his post, has to be again noted for its being rejected. The petitioner’s reply dated 6.8.1983 as contained in Annexure-7 would go to show that he was somehow confident that even after submission of his joining on 16.3.1983 after remaining unauthorized absent for more than four years and ten months, he wanted his posting to be made only at Saharsa and therefore, to say that he was waiting for posting at the Headquarter cannot be accepted. A person waiting for posting in the Headquarter in the event of itsbeing disputed will have to at least show his claim by way of authentic documents that he had actually reported on duty and was, therefore, entitled to count his service while remaining in the corridors of the Secretariat. There is however nothing of this sort on the record and therefore, this Court would not be in a position to accept that the story of the petitioner that he was waiting for posting for a period of nearly thirteen to fourteen years and was thus also entitled to count the 8 aforesaid period towards the qualifying service for earning his pension. The Government in fact is not supposed to pay salary or pension to a person who has not actually performed his duty for a period of almost 18-19 years. In that view of the matter, this Court would also not find any flaw in the notice given by Civil Surgeon, Darbhanga to the petitioner for submitting his pension papers on the basis of his service rendered for the period 1965 to 1978, inasmuch as, in the impugned order it was clearly mentioned that the petitioner will be entitled to earn his retirement benefit on the basis of his earlier service. Since the petitioner has worked for more than ten years and therefore, he would be entitled for proportionate payment of the retirement benefit including pension and gratuity strictly in accordance with the Bihar Pension Rules. That being so, if the petitioner would submit his pension papers to the Civil Surgeon of the district, the same would be processed and the consequential payment, if 9 not already paid, will be paid to him preferably within a period of six months from the date of filing of the pension papers by the petitioner. With the aforementioned observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)