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2002 DIGILAW 1121 (PAT)

Joycee Jones v. State of Bihar

2002-10-10

CHANDRAMAULI KR.PRASAD, S.N.JHA

body2002
ORDER This letters patent appeal arises from the judgment of a learned Single Judge of this Court dated 23.8.2001 in CWJC No. 4363/2001. The dispute relates to regularisation of the period from 6.5.93 to 30.11.95 as leave. The appellant had earlier moved this Court in respect of the same dispute in CWJC No.3778/99 which was disposed of with a direction to the Secretary, Department of Health to consider whether the petitioner is entitled to any leave under the Bihar Service Code against which the period of absence could be regularised. After the Secretary again rejected the claim of the petitioner, she filed the connected writ petition which was dismissed by judgment under appeal. 2. The facts of the case, briefly stated, are as follows. The petitioner, who was a member of the Bihar health Service and at the relevant time posted as Sub-divisional Medial Officer, Bhagalpur, was transferred to Patna City hospital on the post of Deputy Superintendent on 30.12.92. She made representation which was rejected on 15.4.93. After she was relieved from her erstwhile post at Bhagalpur on 30.4.93 she submitted joining report in Path a City Hospital on 5.5.93. After handing over charge report to the Head Clerk she proceeded on casual leave from 6.5.93 to 9.5.93. She claims to have sent applications for extension either on the ground of illness of her mother or her own illness from 10.5.93 to 8.9.93 and 9.9.93 to 6.9.94. She claims to have submitted joining in the Health Department on 6.3.95 with application for extraordinary leave for the earlier period from 7.9.94 to 5.3.95. She further claims to have filed application for posting and have remained waiting for such posting till she superannuated from service on. 3. While disposing of her earlier writ petition, viz. CWJC No. 3778/99, by order dated 31.7.2000. this Court disapproved her conduct observing that her absence from duty was wilful, that she did not want to be transferred from Bhagalpur, and even after she was relieved from the post at Bhagalpur she remained unauthorisedly absent from duty. 3. While disposing of her earlier writ petition, viz. CWJC No. 3778/99, by order dated 31.7.2000. this Court disapproved her conduct observing that her absence from duty was wilful, that she did not want to be transferred from Bhagalpur, and even after she was relieved from the post at Bhagalpur she remained unauthorisedly absent from duty. However, further observing that as no action had been taken against her for such absence, and action could not be taken after retirement, the only question was whether the period could be regularised against leave due provided under Service Code, the Secretary, Department of health was directed to consider her case as to whether the period of absence could be regularised against leave due, if any. 4. The Secretary, Department of Health, took the view that the petitioner cannot claim leave as a matter of right. The Service code provides for different kind of leave but they all are subject to Rule 152. Before the learned Single Judge, as it appears from the order, it was argued that it was a case of overstay and, therefore, the case is covered under Rule 155(1) of the Service Code. The learned Single Judge rejected the contention observing that there was no record of petitioner's sending any application for leave nor there was any order of competent authority sanctioning such leave after she was relieved, from Bhagalpur on 30.4.93 and, therefore, it was not a case of overstay after expiry of the leave period. Hence Rule 165 was not attracted. The learned Single Judge also rejected the petitioner's case as coming under Rule 180 observing that it provides for extraordinary leave which may be granted in special circumstances when no other leave is admissible under the Rules, but even the provision of Rule 180 was subject to Rule 152 which cannot be claimed as a matter of right. As a matter of fact, it may be recalled that the application for extraordinary leave was filed only for part of the period from 7.9.94 to 5.3.95, though the petitioner claims to have joined the Health Department on 6.3.95. As a matter of fact, it may be recalled that the application for extraordinary leave was filed only for part of the period from 7.9.94 to 5.3.95, though the petitioner claims to have joined the Health Department on 6.3.95. She did so only after the post of Deputy Superintendent ,Patna City Hospital had been filled up in the meantime, but even then she did not express her volition for her posting at Patna City or any alternative posting at Patna, she ultimately applied for posting at Bhagalpur which admittedly was a closed chapter. Thus, her plea does not seem to be bonafide. In the circumstances, the rejection of her claim by the department as well as by the learned Single Judge of this Court does not appear to suffer from any error to justify interference in letters patent jurisdiction. 6. We, therefore, do not find any merit in this appeal, which is accordingly dismissed.