Patna High Court - Orders
Bishun Dayal Ram vs The State Of Bihar & Ors on 13 August, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.1691 of 2006
BISHUN DAYAL RAM, Son of Late Nepali Ram, Resident of
Village Nimiya, P.O. Bhadaula, P.S. Kudra, District Kaimur
(Bhabhua).
Versus
1.THE STATE OF BIHAR
2.The Health Commissioner, Govt. of Bihar, having its office
Vikas Bhawan, Bailey Road, P.S. Sachivalaya, Patna- 15.
3.The District Magistrate, Rohtas (Sasaram).
4.The Auyuruvedic Medical Officer, Rohtas (Sasaram).
5.The Auyurvedic Medical Officer, Govt. Auyurvedic, Kaimur,
Bhabua.
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2 13.8.2010Heard counsel for the petitioner and counsel for the State.
Prayer of the petitioner in this writ application reads as follows:-
"(i)Issuance of writ in the nature of writ in the nature of writ of certiorari to quash/set aside the order dt. 29.12.2001 vide its letter No.14 as contained in annexure- 5 of this writ application whereby and whereunder the respondent No.5 has stopped the payment of salary to the petitioner.
(ii)Issuance of writ/writs in the nature of writ of mandamus whereby and whereunder the respondents are commanded to pay the salary to the petitioner from 30.12.2001 till date."
Counsel for the petitioner in support of the aforementioned prayer would submit that there is no dispute that payment of the petitioner was made by the District Indigenous Medicines (DESHI CHIKITSHA PADHADHIKARI) and on the basis of such appointment letter dated 30.10.1989 the petitioner was continued in service till the year 2006. In fact payment of salary according to learned counsel was also made to the petitioner till 29.12.2001, but then his payment of salary was withheld from 2 30.12.2001 and therefore the petitioner would be entitled for payment of his salary for the period work was taken from him in pursuance of the aforementioned appointment.
Mrs. Nivedita Nirvikar, learned counsel appearing on the State, on the other hand, submits that payment of the petitioner was made in an illegal manner and therefore when such illegality came to surface payment of salary to the petitioner was withheld.
Upon consideration of the aforesaid submissions and on perusal of records it is found that though in the counter affidavit a plea has been taken but the main issue as with regard to the averment made by the petitioner in the writ application asserting performance of their duty in the concerned period, i.e, from 29.12.2001 to the date of filing of this writ application i.e, 8.2.2006, has not been answered.
In that view of the matter, whether appointment of the petitioner was valid or invalid would be of little consequence because once the petitioner was appointed on the post of Sweeper (MEHTAR) and work was also taken from him for a long period of 17 years and in fact his payment of salary was also made on the basis of the same appointment letter from 1989 to 29.12.2001, the petitioner would be at least entitled for payment of salary for the period he had admittedly worked specially when he himself is no longer interested in continuing in service and has abandoned his service.
Such payment of salary to the petitioner however 3 would be admissible on the basis of the absentee statement and the certificate of the controlling officer that the petitioner had actually performed his duty. There is nothing on the record to show such satisfaction of the controlling officer and therefore this Court would remit the matter back to the Director, Indigenous Medicine, Government of Bihar, Patna to look into claim of the petitioner for payment of salary from 30.12.2001 to 8.2.2006, the period in which the petitioner is said to have continued in service and also discharged the duty on the basis of his appointment letter issued by the DESHI CHIKTISA PADHADHIKARI, Rohtas dated 30.10.1989. If the local Controlling authority of the petitioner in the relevant period on the basis of the monthly absentee statement, attendance register or any other authentic document would certify that the petitioner has actually worked in the relevant period, his payment of salary would be made strictly in accordance with the terms and conditions contained in the order of his appointment.
In order to expedite the process the petitioner is given liberty to approach the office of the Director, Indigenous Medicines, Government of Bihar, Patna by filing a representation along with a copy of this order laying claim for payment of salary for the period he has not been paid despite work already taken from him. It will also be open for the petitioner to enclose and/or produce any evidence of his working in the said period. The Director, Indigenous Medicines upon receipt of such representation and having called for a report from the Local 4 authority where the petitioner was posted and had worked would take necessary decision within a period of six months from the date of receipt/production of a copy of this order.
It goes without saying that if the petitioner is also found entitled for payment of salary either in full or part of his claim the Director, Indigenous Medicine shall issue necessary orders to the concerned authority for making actual payment of such amount to the petitioner within the next three months from the date of his order.
It is, however, also made clear that on the basis of such payment made, if any, the petitioner will have no right to claim for regularization of his services, inasmuch as, this Court has not gone into the issue as with regard to legality in the appointment of the petitioner.
With the aforementioned observation/direction this application is disposed of.
Abhay Kumar ( Mihir Kumar Jha, J.)