Patna High Court
Rajendra Kumar vs The State Of Bihar & Ors on 8 January, 2014
Author: Ravi Ranjan
Bench: Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2986 of 2012
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Rajendra Kumar, Son Of Late Ram Dayal Ram Resident of Village-Karwa, Haskar,
Post Office Bajitpur, P.S.-Karpi, District-Arwal
.... .... Petitioner
Versus
1. The State Of Bihar
2. Director General Cum Inspector General Of Police, Bihar, Patna
3. Inspector General, Cabinet (Vigilance), Vidyut Cell, Patna, Bihar
4. S.P. Muzaffarpur
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Viveka Nand Prasad Singh,
Mr. Anil Kumar Choudhary, Advocates
For the State : Mr. Sourendra Pandey, A.C. to S.C. 23
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CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN
ORAL JUDGMENT
I have heard learned counsel for the petitioner and
the State.
The petitioner seeks quashing of the decision
contained in memo no.2976 dated 15.09.2011 issued by the
Superintendent of Police, Muzaffarpur rejecting his representation
holding that treating of 135 days of service of his absence as
extraordinary leave for regularizing his absence was in order.
The petitioner was posted as Inspector of Police in
Muzaffarpur district. He was transferred to C.I.D., Patna from
Muzaffarpur vide Police Headquarter, Patna memo no.3209/P.1
dated 9.7.98. He was relieved on 01.08.1998, however, he did not
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join the place of transfer and suddenly, after much delay on
14.12.1998, he had given a departure application (Annexure B) to the Superintendent of Police, Muzaffarpur stating that he was going to join C.I.D. as per his transfer. Till that he had not given any application for leave or any medical certificate etc. showing that he was being treated during 135 days of his absence. Thereafter, when his salary was not being paid, he approached this Court by filing C.W.J.C. No.4676 of 2005 which was disposed of on 11.07.2011 after noticing that the period of his absence from duty commencing from 01.08.1998 to 13.12.1998 (135 days) has been treated as extraordinary leave, therefore, the grievance of the petitioner was redressed. However, since the petitioner wanted the aforesaid period to be adjusted from other admissible leave, he was given liberty to approach the Superintendent of Police, Muzaffarpur by filing a representation. That representation was considered and decided vide Annexure 1 rejecting his claim which is under challenge.
Learned counsel for the petitioner submits that, in view of Rule 180(a) read with Rule 236 of the Bihar Service Code, 1952, the extraordinary leave could have only been granted in special circumstances when no other leave was admissible under the Code. Learned counsel contended that some of his 3 Patna High Court CWJC No.2986 of 2012 dt.08-01-2014 3/7 earned leaves were admissible and available, thus, the absence should have been regularized first by utilizing all the earned leave and, then only, the balance days of absence could have been regularized from extraordinary leave.
Counter affidavit has been filed on behalf of the State respondents taking a stand that the petitioner remained absent for 135 days without any leave sanctioned to him and without informing the authorities concerned during that period as to why he is not attending his duty. It is contended that, in view of Rule 180(b) read with Note 2, the authorities were empowered to regularize his unauthorized absence as extraordinary leave.
For better appreciation, Rule 180 and Rule 236 are being quoted as under:
"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 extraordinary leave in combination with, or in continuation of, any leave that is admissible, and may commute retrospectively period of absence without leave into extraordinary leave.
NOTE 1. - The State Government may for special reasons dispense with the condition that extraordinary leave may be granted only when no other leave is by rule admissible, provided that a Government servant cannot be compelled to take extraordinary leave when leave with allowances is admissible to him.
NOTE 2. - The Power of commuting period of absence without leave into extraordinary leave under sub- rule (b) is absolute; in other words, such commutation is permissible even when other leave was admissible to Government servant at the time his absence without leave commenced.
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236. Extraordinary leave may be granted to a Government servant in special circumstances :-
(i) when no other leave is admissible under these rules ;
(ii) when, other leave being admissible, the Government servant concerned applies in writing for the grant of extraordinary leave."
A Division Bench of this Court in Birendra Kumar Singh V. State of Bihar and 2 others [1968 B.L.J.R. (951)], after scrutinizing the aforesaid Rules, has held that Rule 180 is not inconsistent with Rule 236 as it deals with the matter not provided in Rule 236. Clause (a) of Rule 180 permits the grant of extraordinary leave in special circumstances when no other leave is admissible and to that extent, it is a mere repetition of clause (i) of Rule 236. However, the further provision therein that such leave is not debited to leave account and no leave salary is admissible during such leave may be applicable in case of the petitioner of the aforesaid case because there are not inconsistent with Rule 236 as they deal with matters not provided for in that Rule. Note 2 of the Rule 180 clearly lays down that power of commuting period of absence without leave into extraordinary leave under sub-rule (b) is absolute. Such commutation is permissible even when other leave was admissible to Government servant at the time his absence without leave commenced. In the present case, the petitioner's case is not of overstaying the 5 Patna High Court CWJC No.2986 of 2012 dt.08-01-2014 5/7 sanctioned leave rather he has remained absent from duty for about 135 days without any application having been made or even without any intimation regarding his alleged medical treatment during that period. In Birendra Kumar Singh (supra), it has been held that once it is unchallenged that the petitioner did not attend his official duties and it is not shown that such absence has been regularized by the appropriate authority, the petitioner's right to draw pay for the period of absence ceases to exist. This is not a case of punishment by any authority but is a case where the petitioner, by his own conduct, has deprived himself of his right to pay and other allowances. In identical situation, another Division Bench of this Court in Joycee Jones Vs. the State of Bihar & Ors. [2002(1) PLJR 562] has held that appellant cannot seek regularization of unauthorized absence from duty even as extraordinary leave as the appellant obviously embarking on leave as a subterfuge to avoid undesirable posting. In Joycee Jones Vs. the State of Bihar & Ors. [2001(4) PLJR 11], the Single Bench of this Court has held that Rule 165(1) of the Bihar Service Code grants benefit of various kinds of leave in a case where a Government servant, who was on valid leave, remained absent. In other words, he overstayed after the end of leave. However, in that case, it was found that even the application for casual leave was 6 Patna High Court CWJC No.2986 of 2012 dt.08-01-2014 6/7 not filed before the competent authority who could have granted such leave.
Coming to the case in hand, since the petitioner also remained absent without grant or sanction of any leave or without filing any application for leave, he cannot take a stand that his absence should be regularized in a manner which suits him. In view of Annexure B appended to the counter affidavit, the claim of the petitioner that he joined on 19.07.1998 at C.I.D., Patna, and, thereafter, was ordered to join at Cabinet Vigilance, Vidyut Cell, Patna on 23.12.1998, would not be tenable as he had filed the departure application (Annexure B) before the Superintendent of Police, Muzaffarpur first time on 14.12.1998. However, in Annexure B also he has not stated anything regarding his absence and medical treatment. The authority concerned could have even proceeded for disciplinary proceeding against him for such unauthorized absence, however, in place of doing that, it has treated the absence of the petitioner as extraordinary leave without pay which, in my opinion, is not fit to be interfered with.
Learned counsel for the petitioner lastly submits that the order is in violation of the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. In support of his submission he has 7 Patna High Court CWJC No.2986 of 2012 dt.08-01-2014 7/7 placed reliance upon two decisions of the Hon'ble Supreme Court one rendered in Geetaben Ratilal Patel Versus District Primary Education Officer [(2013)7 Supreme Court Cases 182] and another in Anil Kumar Mahajan Versus Union of India and others [(2013) 7 Supreme Court Cases 243]. However, on deeper scrutiny, it appears that the aforesaid decisions would not be applicable in the case of the petitioner as no punitive action has been taken against him by reducing his rank or dispensing with his service on account of having attained any disability during his service.
Accordingly, this writ application is dismissed.
(Dr. Ravi Ranjan, J) Patna High Court The 08th January, 2014 Sanjay Kumar/ N.A.F.R