Baidyanath Prasad Singh s/o late B. B. Singh v. State of Jharkhand
2018-01-17
SHREE CHANDRASHEKHAR
body2018
DigiLaw.ai
ORDER : Multiple prayers, not inter-connected to each other, have been made by the petitioner in the writ petition. 2. Primary challenge to the impugned order dated 08.5.2013 by which the respondent-authority has declined to regularize the period between 23.05.2001 to 24.01.2006 is founded inter-alia on the following grounds: (i) There is a complete non-application of mind by the respondent-authority inasmuch as the respondent-authority has not at all considered the relevant materials on record, (ii) The expert medical opinion has been discarded by the respondent-authority, (iii) The overwhelming evidence indicating that the petitioner was waiting for posting for the entire period between 23.05.2001 to 24.01.2006 except for 239 days have been erroneously discarded, and (iv) On admitted facts the petitioner cannot be said to be on unauthorized absence for the aforesaid period. 3. Briefly stated the petitioner, who was appointed as Medical-Officer in the year 1973, has claimed that he proceeded on leave on 23.05.2001 for medical reasons. He gave his joining on 17.01.2002 and submitted medical certificate along with cadre allocation letter dated 24.04.2001. He claims that he was waiting for posting for the period 17.01.2002 to 14.01.2004. In the meantime vide order dated 19.08.2003 he was directed to tender joining in the office of Civil Surgeon, Dumka, whereupon he submitted application on 06.09.2003 to Commissioner, Health, Patna objecting to the said direction citing various reasons. On 03.02.2004 he allegedly gave his joining in the office of Civil Surgeon, Dumka, however, he was orally instructed by the Civil Surgeon, Dumka to give his joining to the Health Department. In compliance of the said oral direction of Civil Surgeon, Dumka the petitioner claims that he tendered his joining in the Health Department, Jharkhand on 11.04.2004. These facts he has asserted in his representation dated 09.03.2011. In paragraph no.5 of the said representation, in the same breath he has claimed that he was waiting for posting from 11.04.2004 to 16.01.2006 and by the Notification dated 16.01.2006 he was posted at Primary Health Centre, Satgawan where he tendered his joining on 25.01.2006. He superannuated from service on 28.02.2007 and when post-retiral benefits were not paid to him he came to this Court in W.P.(S) No.7483 of 2006.
He superannuated from service on 28.02.2007 and when post-retiral benefits were not paid to him he came to this Court in W.P.(S) No.7483 of 2006. The writ petition stood disposed of vide order dated 06.02.2013 directing the respondent-authority to decide his claim raised under different heads and, if found genuine, to grant benefit of the same to the petitioner within a period of eight weeks. In purported compliance of order dated 06.02.2013 passed by the writ Court, the respondent-authority by the impugned order dated 08.05.2013 has declined to regularize the period between 23.05.2001 to 24.01.2006. 4. A perusal of the impugned order dated 08.05.2013 would disclose that the documents submitted by the petitioner such as the discharge summary from the Department of Cardiology, Batra Hospital & Medical Research Centre and the medical certificate issued by Dr. S.N. Singh have been noticed by the respondent-authority. It is not in dispute that by a paper publication dated 13.01.2002 published in the daily newspaper of 'Dainik Jagran', a list of medical-officers who were found absent from duty was published. The petitioner was one among them. He gave his joining on 17.01.2002 is an admitted fact, as admitted by him in paragraph no.2 of his own representation dated 09.03.2011. 5. Chapter-VI to the Jharkhand Service Code, 2001 deals with the subject 'Leave'. Rule-149 provides that any leave 'admissible' under these rules may be granted by the State Government. Rule-152 clarifies that leave cannot be claimed as of the right and if exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. The petitioner has pleaded that on 23.05.2001 he proceeded on leave on medical grounds. There is no order of the competent-authority granting medical leave to the petitioner. Under Rule-179 leave not due may be granted to an employee however, subject to the following conditions- (i) on medical certificate, without limit of amount, (ii) otherwise than on medical certificate, for not more than three months at any one time and six months in all. Admittedly, when the petitioner proceeded on leave he had not submitted any medical certificate and only when he gave his joining to the Health Department, Bihar on 17.01.2002 he submitted a medical certificate.
Admittedly, when the petitioner proceeded on leave he had not submitted any medical certificate and only when he gave his joining to the Health Department, Bihar on 17.01.2002 he submitted a medical certificate. The respondent-authority in its order dated 08.05.2013 recorded that the discharge summary submitted by the petitioner from Batra Hospital & Medical Research Centre discloses treatment of the petitioner from 18.07.2001 to 19.07.2001. Another medical certificate has been submitted by the petitioner only on 06.12.2006. Evidently, under the rules the medical certificate submitted by the petitioner subsequently has rightly been not taken into account by the competent-authority. 6. Under Jharkhand Service Code, 2001 an employee shall be entitled for study-leave, hospital leave, earned leave, half-pay leave, commuted leave and extraordinary leave. Rule-236 provides that extraordinary leave may be granted to a government servant in special circumstances; (i) when no other leave is admissible under these rules, or (ii) when other leave being admissible, the government servant concerned applies in writing for the grant of extraordinary leave. In his representation dated 09.03.2011 which was followed by the representation dated 23.02.2013, the petitioner has claimed earned leave/half pay leave for the period between 23.05.2001 to 16.01.2002. In these representations, he has merely claimed that for the period between 17.01.2002 to 24.01.2006 he remained 'waiting for posting'. The contention raised on behalf of the petitioner, that there is complete non-consideration of the materials as well as the expert medical opinion, is unfounded. An employee who has remained absent for more than four and half years from service cannot claim that during that period he was not absent from duty. The petitioner has not produced any evidence to establish that except 239 days when he allegedly was absent on account of his illness he had reported for duty. The respondent-authority taking note of the materials on record, in particular, the medical certificate submitted by the petitioner has recorded a finding that the petitioner remained absent unauthorizedly between the period 23.05.2001 to 24.01.2006. This satisfaction of the respondent-authority is based on the materials on record. 7. In the above facts, challenge to the impugned order dated 08.05.2013 fails. In the writ petition, the petitioner has also prayed for grant of selection-grade, time-bound promotion, revision in his pension and other post-retiral benefits etc. The writ petition is completely bereft of foundational facts for claiming these reliefs.
7. In the above facts, challenge to the impugned order dated 08.05.2013 fails. In the writ petition, the petitioner has also prayed for grant of selection-grade, time-bound promotion, revision in his pension and other post-retiral benefits etc. The writ petition is completely bereft of foundational facts for claiming these reliefs. The petitioner has not produced any circular/notification on which he can found such claims. In fact he has pleaded that he was granted pecuniary benefits of selection-grade in the year 1998. He has also pleaded that while his juniors were granted junior selection-grade vide order contained in memo dated 19.03.1998 he was deprived of such benefits and he was placed at serial number 237. Evidently a claim which arose in the year 1998, cannot be entertained by the writ Court 20 years thereafter. 8. In the result, finding no substance in the writ petition, it is dismissed. Petition dismissed.