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Judgment
D.G.R. Patnaik, J.—Heard counsel for the parties.
The petitioner in this writ application has prayed for issuance of a direction upon the respondents to regularize his services for the period 12.02.1997 to 26.12.1999 which is the period, the petitioner claims to have waited for his posting at the head quarters of the Health Department but was not paid his salary for such period. The petitioner has also prayed for a direction to the respondents to pay him the salary for the aforesaid period together with interest at bank rate thereon.
Facts of the petitioner''s case in brief are as follows :The petitioner was appointed in the Health Department of the State Government as Medical Officer. During his posting at the Government Hospital at Dhanbad, he was transferred to the Sadar Hospital at Sasaram but he was not allowed to join there by the then Superintendent of the Sadar Hospital. The petitioner had to report at the head quarters where he joined the Department of Health, Bihar at Patna awaiting his posting from 14.02.1997 to 28.08.1997. By a subsequent notification dated 28.08.1997, the petitioner was posted as Medical Officer, Referral Hospital, Chhatapur, Supoul. The petitioner found an error in the notification in as much as, the present address of the petitioner was shown as Civil Surgeon office at Sasaram. He filed his representation for issuance of a correction slip and awaiting the correction slip to be issued, he continued to remain at headquarters.
Subsequently by notification dated 23.12.1999, the petitioner was transferred and posted as Medical Officer, Leprosy Training Centre and Hospital, Tetulmari at Dhanbad. Pursuant to the transfer order, the petitioner joined as Medical Officer, Leprosy Training Centre and Hospital, Tetulmari at Dhanbad on 27.12.1999.
By yet another notification, the petitioner was again transferred as Medical Officer, Sub-Divisional Hospital, Chas, Bokaro and later, by another order of transfer, was posted as Deputy Medical Superintendent, Patliputra Medical College & Hospital, Dhanbad where he discharged his duties as Assistant Professor.
Consequent upon the creation of the State of Jharkhand, the petitioner''s services along with his entire service records were placed with the concerned department in the Government of Jharkhand on 04.11.2003.
The petitioner submitted several representations (Annexure-3 series) to the concerned authorities of his department for regularizing his services for the period between 12.02.1997 to 26.12.1999. On account of non-regularization of the aforesaid period, his pay slip was not issued by the office of the Accountant General, Bihar/Jharkhand and consequently, he could no draw the salary for the aforesaid period.
It is relevant to note that earlier vide notification dated 22.08.1995, the petitioner was transferred from Dhanbad to Sadar Hospital, Sasaram. He challenged the order of his transfer by filing a writ application before the High Court vide C.W.J.C. No. 1512 of 1995 (R). By and interim order dated 10.07.1995, the High Court directed the respondents to pay the petitioner his salary for the previous period, whereafter the petitioner was to comply with the order of his transfer. The petitioner continued in his post at Dhanbad awaiting his salary but the same was not paid to him. Ultimately the writ application was disposed of by the High Court on 29.01.1997 with a direction to the petitioner to handover charge of his office and to proceed to join his transferred place of posting.
The petitioner proceeded to join his posting at Sasaram but upon being refused to accept the joining by the Superintendent of the hospital, he had to join the head quarters at Patna and remained there on and from 14.02.1997 to 28.08.1997.
As per the counter affidavit of the Respondent No. 2, the claim of the petitioner for regularization of his service was partly granted by the Government of Bihar with regularization of his service for the period from 14.02.1997 to 28.08.1997 as period of waiting for posting. However the petitioner''s claim for regularization of the remaining period i.e. from 29.08.1997 to 26.12.1999, the Finance Department of the Government did not accord sanction for regularization.
In support of his claim, the petitioner has wanted to gain advantage of the office notings concerning his file maintained in the Department of Health, Government of Jharkhand wherein the concerned officers had observed in their respective notings that there was no fault on the part of the petitioner. Rather, there were latches on the part of the Department and as such, in their opinion, the waiting period is fit to be regularized.
The contention of the petitioner is that though pursuant to the aforesaid notings, the respondents had conceded for regularizing the period between 12.02.1997 to 28.08.1997 but no formal order/notification to the effect has been issued as yet.
Learned Counsel for the petitioner would want to explain that though by a notification the petitioner was transferred to Supoul from Dhanbad but on account of the error in notification, the petitioner could not possibly comply with the transfer order and had sought for a correction slip and awaiting the correction slip to be issued, he had to remain at Dhanbad. Subsequently though no correction slip was issued but another notification was issued directing his transfer to the Leprosy Centre at Dhanbad where he joined on 26.12.1999. Learned Counsel adds that the period between 29.08.1997 to 26.12.1999, was spent by the petitioner performing duty at Dhanbad and therefore the said period has to be regularized and the salary for the said period should be given to the petitioner.
Per contra, the stand taken by the respondents is that the petitioner had intentionally disobeyed the order of his transfer by challenging the transfer notifications on frivolous and flimsy grounds. It is explained that pursuant to the directions contained in the earlier order of this Court and in this writ application, the Secretary, Health, in consultation with the Secretary, Finance, Government of Jharkhand, upon considering the grievance of the petitioner, had recorded a reasoned order on 07.11.2009 and the same was communicated to the petitioner that on the ground of petitioner''s failure to comply with the order of his transfer and having remained absent from duty during the period 29.08.1997 to 26.12.1999, the aforesaid period cannot be regularized. However a liberty is granted to the petitioner to file a representation for adjusting the aforesaid period of his absence against extra ordinary leave.
It is also explained that the plea taken by the petitioner for refusing to comply with the earlier order of his transfer to Supoul was frivolous and this would be apparent from the fact that in the subsequent order by which he was transferred to the Leprosy Training Hospital, Dhanbad, a similar error in his present place of posting was mentioned. Yet, without raising any issue on this score, the petitioner promptly joined at the Leprosy Training Centre & Hospital, Dhanbad.
From the rival submissions the facts which emerge are that the petitioner, while posted at Dhanbad, was transferred to Supoul. On the plea that the transfer order did not mention his present place of posting correctly, he evaded complying with the order of transfer and did not join duty at his transferred place of posting in between 28.08.1997 to 26.12.1999. Significantly, when a similar error was observed in the subsequent transfer order whereby the petitioner was transferred to the Leprosy Training Centre & Hospital, Dhanbad, the petitioner did not raise any issue on the same and had promptly joined his transferred place of posting.
Earlier, when a notification issued for his transfer to Sasaram, he challenged the transfer order by filing a writ application and obtained the benefit of continuing his stay at Dhanbad. The above facts amply demonstrate that the petitioner was keen to continue remaining at Dhanbad and within its peripheral area and had devised all conceivable pleas to resist compliance of the order of his transfers to other places. Admittedly, there being no error in the notification indicating the place to which he was transferred he was supposed to join duty at the place of his transfer, the mere error in the notification regarding his present place of posting, could not, under the Rules, be taken as a ground for the petitioner to disobey the order of his transfer. The facts amply demonstrate that the petitioner had intentionally remained absent from duty during the period 28.08.1997 to 26.12.1999 and had not worked during that period. The petitioner cannot therefore legally demand payment of any salary for the aforesaid period.
As regards the petitioner''s claim for regularization, as it appears from the counter affidavit of the respondents, the petitioner''s service for the period 12.02.1997 to 28.08.1997 has been regularized by the respondents and the petitioner''s grievance has been partly redressed. For the remaining period, the respondents have assured that the period can be adjusted towards extra ordinary leave without pay, to maintain continuity of service for enabling his retrial benefits. The petitioner should remain content by such offer towards redressal of his grievance and cannot ask for any more.
In the light of the above discussions, this writ application is disposed of with a direction to the concerned authorities of the respondents to issue a formal notification, within 15 days from the date of this order, for regularizing the petitioner''s service for the period 12.02.1997 to 28.08.1997. The petitioner shall be at liberty to file a representation before the concerned authorities of the respondents for treating the period from 28.08.1997 to 23.12.1999 towards extra ordinary leave and within 15 days from the date of receipt of representation, the concerned authorities of the respondents shall record their decision and communicate the same effectively to the petitioner.
Let a copy of this order be given to the learned Counsel for the respondents.