PRATIMA MODI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present writ petition has been filed for directing the respondents to sanction and release 10% pension, 10% gratuity and entire leave encashment amount in favour of the petitioner herein. The petitioner has further prayed for quashing of the letter dated 13.02.2018 issued under the signature of the Officer on Special Duty, Health Department, whereby and whereunder the Accountant General, Bihar, Patna has been informed that the leave encashment amount of the petitioner in lieu of 249 days, has been decided to be withheld till conclusion of the two departmental proceedings pending against the petitioner herein.

(2.) The brief facts of the case are that the petitioner was initially appointed as Medical Officer on 28.06.1974. The retirement age was enhanced by the respondents vide notification no. 825 dated 28.01.2011 from 62 years to 65 years qua the doctors posted in I.G.I.C. The petitioner was to superannuate on 30.06.2011 upon attaining the age of 62 years, however on account of enhancement in superannuation age, since the respondent-State vide notification no. 682 dated 24.01.2011 had also enhanced the retirement age of the doctors who belong to the Bihar Medical Education Cadre from 62 years to 65 years, the petitioner was compelled to file a writ petition bearing CWJC no. 10180 of 2011, for a direction upon the respondent-State to enhance the superannuation age of the petitioner from 62 years to 65 years, in light of the notification dated 28.01.2011. Ultimately, the said writ petition of the petitioner along with other writ petitions were disposed off vide judgment dated 14.02.2012 and all the writ petitioners were directed to be taken back in service if they are post graduate and have retired on or after 21.01.2011. The petitioner had then filed an appeal bearing L.P.A. no. 673 of 2012 against the aforesaid judgment dated 14.02.2012 passed in C.W.J.C. no. 101180 of 2011 and the State Government had also filed an appeal which were disposed off vide order dated 28.06.2016 by setting aside the judgment of the learned Single Judge and the appeals of the Post Graduate Diploma Holder Doctors and the MBBS doctors of Bihar Health Service were allowed. Nonetheless, the respondents made the petitioner to retire from the post of Civil Surgeon-cum-Chief Medical Officer, Bhagalpur at the age of 62 years on 30.06.2011, whereafter 90% pension, 90% gratuity amount, G.P.F. amount and Group Insurance amount were sanctioned and released to the petitioner herein, however 10% pension and 10% gratuity amount and the entire leave encashment amount were not released to the petitioner. It is the further case of the petitioner that in a malafide manner, after expiry of six years of retirement, the respondent issued resolution dated 21.09.2017, whereby and whereunder a departmental proceeding was initiated against the petitioner under Rule 17 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 for being allegedly guilty of misconduct and disobedience of the government orders. Thereafter, the petitioner had filed a detailed written statement stating the actual facts and submitted that the petitioner was not guilty of any of the allegations levelled against her and had denied all the charges. On 01.12.2017, the departmental inquiry was closed by the Inquiry Officer, however till date, no final order has been passed in the said departmental proceeding. The petitioner is stated to have challenged the said departmental proceeding initiated vide notification dated 21.09.2017 by filing a writ petition bearing CWJC no. 15947 of 2017 and a Bench of this Hon'ble Court, by an order dated 26.04.2018, has passed an interim order restraining the respondents from passing any final order till the disposal of the writ petition. Thereafter, the Officer on Special Duty, Health Department has issued the impugned letter dated 13.02.2018, whereby the Accountant General, Bihar has been intimated that since two departmental proceedings are pending against the petitioner, leave encashment amount be not released to her. It is submitted that the said order dated 13.02.2018 has been challenged in the aforesaid pending writ petition bearing CWJC no. 15947 of 2017, by filing an amendment petition bearing I.A. no. 7729 of 2018, however the same has been filed on wrong legal advice, thus the petitioner is taking steps to withdraw the same. It has been further stated in the writ petition that another department proceeding was initiated vide resolution dated 18.11.2016 under Rule 17 of the Bihar Government Servant (C.C.A.) Rules, 2005 and Rule 43-B of the Bihar Pension Rules for committing irregularity in purchase of machine, to which the petitioner has also submitted her written statement. The said resolution dated 18.11.2016, initiating departmental proceeding against the petitioner has also been assailed in a writ petition bearing CWJC no. 13944 of 2018 and the same is pending adjudication before this Court.

(3.) The learned counsel for the petitioner has relied upon a judgment rendered by the Hon'ble Apex Court reported in (2013) 12 SCC 210 (State of Jharkhand and others v. Jitendra Kr. Srivastava and another), paragraphs no. 13 and 14 whereof, are reproduced hereinbelow :-