JOYCEE JONES Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner, an ex -member of the Bihar Health Service, has filed this writ petition to seek quashing of order passed by Secretary, Health Department, Government of Bihar vide Memo no. 40 (HS) dated

(2.) 2.2001 contained in Annexure -5. By the said order the Health Secretary has declined petitioners request to regularise her absence from duty from 6.5.1993 till her retirement on 30.11.1995 and has held that in view of Rule 152 of the Bihar Service Code, leave cannot be claimed as of right. Petitioner has also sought a mandamus to command the respondents to regularise the period from 6.5.1993 to 30.11.1995 by granting various kinds of leave. 2. The facts necessary for deciding the present case are as follows. The petitioner while posted as Sub Divisional Medical Officer at Bhagalpur was transferred to Patna City Hospital to the post of Deputy Superintendent vide order dated 30.12.1992. The petitioner represented against such transfer but her representation was rejected on 15.4.1993. She was relieved at Bhagalpur on 30.4.1993 and reported her joining at Patna City Hospital on 5.5.1993. After that she did not work till her retirement on 30.11.1995. Her case is that on 5.5.1993 the Civil Surgeon, Patna was not available hence, she handed over charge report to Head Assistant of the Patna City Hospital along with an application for casual leave from 6.5.1993 to 9.5.1993 and proceeded on leave. Petitioner claims to have sent an application for extension of leave on account of her mothers illness from 10.5.1993 to 9.6.1993 and another application dated 6.6.1993 for further extension of leave on account of her own illness from 10.6.1993 to 8.9.1993. She claims to have sent another application on 4.9.1993 for special medical leave from 9.9.1993 to 6.9.1994. She claims to have submitted her joining in the Health Department before an Under Secretary on 6.3.1995 with an application for extraordinary leave for the earlier period 7.9.1994 to 5.3.1995 under Rule 234 of the Bihar Service Code. She claims to have filed an application for her posting at Bhagalpur and remained waiting for such posting till she superannuated on 30.11.1995.

(3.) IT is not in dispute that por to passing of the impugned order contained in Annexure -5, the Health Secretary, Government of Bihar had earlier rejected petitioners similar claims and representations through an order dated 3.9.1997 which was challenged by the petitioner through a writ petition bearing CWJC No. 3778/1999 which was disposed of by order dated 31.7.2000 as contained in Annexure -2. By the said order this Court noticed the relevant facts and came to a conclusion that the petitioner was not interested in performing her duties at Patna City Hospital. This Court treated her conduct as wilful absence from duty and viewed it seriously because being a Doctor petitioner remained absent from the Hospital at Patna City for over two years with least concern for the patients. With such findings the Court, however, noticed the fact that no disciplinary action was taken against the petitioner and none can now be taken after her retirement. Thereafter the Court considered a submission that even if petitioner remained unauthorisedly absent from duty such absence can be regularised as leave under provisions of the Bihar Service Code such as Rules 234, 240 and 243. On such submission, the Court expressed no opinion and observed that "if the petitioner is entitled to have the period of absence regularised against any kind of leave due under the Bihar Service Code the same should be considered independently". Since such claim for regularisation had not been considered with specific reference to the provisions of the Bihar Service Code, this Court quashed the earlier order dated 3.9.1997, not on merits but only to enable the Secretary, Health Department to reexamine the claim of the petitioner afresh in accordance with law. Thereafter, the Health Secretary gave notice and opportunity of hearing to petitioners representative as indicated in the impugned order itself and passed the order contained in Annexure -5 rejecting the petitioners claim that she was entitled to various leaves and hence her unauthorised absence should be regularised.