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2004 DIGILAW 930 (PAT)

Anzar Hassan Ibrahimi v. State of Bihar

2004-09-09

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JUDGMENT C.K. PRASAD, J.- Prayer of the petitioner in this writ application filed under Article 226 of the Constitution of India is to quash the order dated 28.1.1999 (Annexure-1) passed by the Commissioner-cum-Secretary. Health, Medical Education & Family Welfare Department, Govt. of Bihar whereby the prayer made by the petitioner for grant of leave for the period from 3.6.1982 to 9.7.1986, has beer turned down. Further prayer made by the Petitioner is to issue a writ in the nature of mandamus commanding the respondents to grant leave for the said period . 1. Shorn of unnecessary details, facts giving rise to the present application are that the petitioner joined the Bihar State Health Services in the year 1964. Later on he was posted in the department of Medicine in the S.K. Medical College, Muzaffarpur. In the year, 1980, while he was working as such, applied for grant of two years leave to enable him to join Health Services at Iran. By order dated 7.5.1980, two years leave was sanctioned to the petitioner and in view of aforesaid the petitioner was relieved in the afternoon of 3.6.1980 to join at Iran. Before the expiry of the period of two years, he applied for extension of leave on 8.3.1982. No leave was sanctioned. Nonetheless petitioner was appointed and joined as a Medical Officer in the Kingdom of Saudi Arabia after the expiry of the period of leave. From there also, he applied twice for extension of leave. No leave was sanctioned and the petitioner continued to serve in the Kindgom of Saudi Arabia. Ultimately, after serving the Kingdom of Saudi Arabia, the petitioner returned to his country and submitted his joining to the State Government on 9.7.1986 but was not given any place of posting initially but lateron, by notification dated 31.12.1988, he was posted at Ranchi Mental Hospital, Kanke where he joined on 9.1.1989. Petitioner ultimately retired from service on 31.8.1993 on attaining the age of superannuation. 2. After retirement, petitioner requested the State Government for payment of post retiral dues after regularising the period from 3.6.1982 to 9.7.1986 by granting him leave. The State Government did not take any decision on the prayer of the petitioner. Left with no option, petitioner filed C.W.J.C. No. 2193 of 1994 (Dr. Anzar Hassan Ibrahimi Vs. 2. After retirement, petitioner requested the State Government for payment of post retiral dues after regularising the period from 3.6.1982 to 9.7.1986 by granting him leave. The State Government did not take any decision on the prayer of the petitioner. Left with no option, petitioner filed C.W.J.C. No. 2193 of 1994 (Dr. Anzar Hassan Ibrahimi Vs. The State of Bihar & ors) and this Court, by order dated 31.10.1995 (Annexure-18) disposed of the writ application with a direction to the respondents to consider the applications of the petitioner in accordance with law and dispose of the same by a speaking order. In view of the direction aforesaid the State Government by order dated 18.6.1996 resolved to treat the period from 3.6.1982 to 8.7.1986 as break in service, which shall not be counted as pensionable service. Aggrieved by the same petitioner preferred C.W.J.C. No. 9676 of 1996 before this Court. This Court, by order dated 27th of March 1998 (Annexure-21), set aside the decision of the State Government whereby the petitioner's absence from 3.8.1982 to 8.6.1986 was held to be break in service and not pensionable and remitted the matter back to the State Government for reconsideration. In the light of the aforesaid order, the Secretary considered the case of the petitioner and by the impugned order, the prayer for grant of leave for the period from 8.6.1982 to 8.7.1986 had been turned down and while doing so, it observed that the case of Dr. Hari Kishore Prasad Verma and Dr. M.M. Dubey, which according to the petitioner is similar to his case, are distinguishable. 3. Mr. Shyama Prasad Mukherjee, Senior Advocate, appearing on behalf of the petitioner submits that 'In similar circumstances, the State Government had granted extra ordinary leave to Dr. M.M. Dubey. Dr. Hari Kishore Prasad Verma and Dr. Saroj Anis and as such, the action of the respondents in denying the petitioner the extra ordinary leave is discriminatory in nature Junior counsel to Additional Advocate General No. II, however, submits that the cases of Dr. Dubey, Dr. Verma and Dr. Anis stand on different footing, altogether and hence, the petitioner's plea of discrimination is absolutely misconceived. 4. Having considered the rival submission, I do not find any substance in the submission of Mr. Mukherjee So far as the case of Dr. M.M. Dubey is concerned, the period for which he was waiting for posting has been regularised. Verma and Dr. Anis stand on different footing, altogether and hence, the petitioner's plea of discrimination is absolutely misconceived. 4. Having considered the rival submission, I do not find any substance in the submission of Mr. Mukherjee So far as the case of Dr. M.M. Dubey is concerned, the period for which he was waiting for posting has been regularised. Failure on the part of the State to provide Dr. Dubey a place of posting led it to decide that period for which Dr. Dubey was waiting for posting shall be regularised. In fact, period for which the petitioner was waiting for posting has also been regularised. 5. So far as the case of Dr. Saroj Anis is concerned, same is also distinguishable. It seems that Dr. Anis was on leave and on a notice given by the State Government to join within a stipulated period, said Dr. Anis joined within the period given in the notice. In such circumstance, her service was regularised. As regards the case of Dr. Hari Kishore Prasad Verma, as disciplinary action was taken against him, which was found to be bad by this Court by order dated 5.12.1994 passed in C.W.J.C. No. 4770 of 1995 (Dr. Hari Kishore Prasad Verma Vs. The State of Bihar & ors) and on account thereof he was granted extra ordinary leave. From what has been stated above, it is evident that the action of the respondents does not suffer from the vice of discrimination. In any view of the matter, I am of the opinion that even in a case in which some person is wrongly granted leave, same cannot be claimed by another person on the plea of discrimination. 6. Mr. Mukhrjee, then submits that the petitioner is entitled for grant of extra ordinary leave under Rule 180 of the Bihar Service Code. He points out that the petitioner is entitled for extra ordinary leave when no other leave under the Bihar Service Code is admissible 7. Junior Counsel to AAG-II, however, submits that in view of Rule 76(A) of the Bihar Service Code, a government servant cannot be granted leave of any kind for a continuous period exceeding five years and in case, the prayer of the petitioner is accepted, same would be in breach of Rule 76(a) of the Bihar Service Code. Junior Counsel to AAG-II, however, submits that in view of Rule 76(A) of the Bihar Service Code, a government servant cannot be granted leave of any kind for a continuous period exceeding five years and in case, the prayer of the petitioner is accepted, same would be in breach of Rule 76(a) of the Bihar Service Code. This submission necessitates examination of Rule 180 and Rule 76 of the Bihar Service Code. Rule 180 of the Bihar Service Code reads as follows: "180. (a) In special circumstances and when no other leave is under these rules admissible, extraordinary leave may be granted. Such leave is not debited against the leave account. No leave-salary is admissible during such leave. (b) The authority empowered to sanction leave may grant extra-ordinary leave in combination with, or in continuation of any leave that is admissible, and may' commute retrospectively period of absence without leave into extra-ordinary leave." 7. It is well settled that this Court can issue a writ in the nature of mandamus only when it is shown that the petitioner has the legal right and the respondents a corresponding legal obligation. 8. From a plain reading of the aforesaid provision, it is evident that in special circumstances, when no other leave is admissible, extra ordinary leave may be granted but no leave salary would be permissible during such leave. Rule 180 of the Code is enabling provision which empowers the authority to grant extra ordinary leave but the same cannot be claimed as a matter of right. In my opinion, Rule 180 of the Code is enabling provision conferring the authority the power to grant extra ordinary leave but the same cannot be claimed as a matter of right and in that view of the matter, the mandamus sought for is not fit to be granted. 9. It is often said that justice should be tampered with mercy and Mr. Mukherjee states that in the facts of the present case, the equity demands that extra ordinary leave be granted to the petitioner. There is no difficulty in accepting the proposition that justice should be tampered with mercy but showing mercy to doctors who remain absent from his duty without leave affects the poor people of the State who need more care and sympathy than any body else. There is no difficulty in accepting the proposition that justice should be tampered with mercy but showing mercy to doctors who remain absent from his duty without leave affects the poor people of the State who need more care and sympathy than any body else. It is high-time that the State Government tightens its belt and ensures that the persons who are on unauthorised leave are dealt with severely. As I have found that the petitioner has no legal right to get the extra ordinary leave and the decision taken by the Secretary being founded on sound reason, no interference is called for by this Court in exercise of its extra jurisdiction. 10. In the result, I do not find any merit in this application and it is dismissed accordingly.