B.N.Banerjee, J. - (1.) The case made by the petitioner, in this Rule, is that he was appointed as a male nurse, in Toke A. G. Hospital, by the Civil Surgeon at Dacca. The said appointment was said to have been made on 9-9-1944. On the eve of the partition of India, the petitioner alleges, he opted for service under the Government of West Bengal. This is denied in the affidavit-in-opposition. Nevertheless it is admitted that he was given a fresh appointment, on 20-8-1947 as a male nurse in a hospital at Burdwan, in West Bengal. According to the petitioner, he applied for ten days' leave, on 22-9-1955' on account of illness and applied successively for extension of the leave on the ground that he was in continued illness. While thus absent, the petitioner came unofficially to learn that he was being transferred to Keshpur Hospital, in the District of Midnapore. On coming to know of that, the petitioner says, he applied, on 11-10-1955 for cancellation of the order of transfer. Before that application was disposed of, the petitioner was notified on 24-10-1955 by the Superintendent of the hospital at Burdwan that the petitioner stood released from his duties at the Burdwan hospital for the purpose of joining his duties in the hospital at Midnapore. The petitioner did not join the hospital at Midnapore under the order of transfer. It further appears that the hospital at Midnapore was abolished some time in October, 1955 and the order of transfer of the petitioner thus became infructuous. Since the petitioner began absenting himself on the ground of his illness, he was directed, on 6-12-1955 to appear before the Civil Surgeon at Burdwan for medical examination. The petitioner states that he appeared before the Civil Surgeon for his medical examination but alleges that the result of the medical examination was never communicated to him. In or about the middle of January, 1956 the petitioner alleges, he applied before the Superintendent of Nursing Services for a posting. This the petitioner did, as he says, because the hospital to which he had been transferred stood abolished. On 14-6-1957, the Superintendent of Nursing Services informed the petitioner that he could not be given a posting because there was no suitable vacancy.
(2.) The story of the petitioner up to this stage is not wholly admitted in the affidavit-in-opposition, filed in this Rule, by the respondent Assistant Director (Nursing), Directorate of Health Services. It is stated, in the said affidavit-in-opposition, that, on 21-9-1955 the petitioner took one day's leave on account of his alleged illness but did not file any formal application for leave until 11-10-1955 and therefore the petitioner must be deemed to have been on unauthorised leave from 21-9-1955 to 11-10-1955. It is further stated in the affidavit-in-opposition that the order of transfer of the petitioner to Keshpur hospital, at Midnapore, had been made on 16-9-1955 and was communicated to the petitioner by registered post on 22-9-1955. The said registered letter was delivered to the petitioner on 6-10-1955. The order of his release from duty at the Burdwan hospital was communicated to the petitioner on 22-9-7955. There was also another letter sent to the petitioner in continuation of the letter dated 22-9-1955 on 18-10-1955, which letter the petitioner received on 24-10-1955. It is also stated in the said affidavit-in-opposition that the Civil Surgeon examined the petitioner on 11-12-1955 and directed him to join his duties within a week. In the affidavit-in-opposition it is denied that, the petitioner had applied for posting in the middle of January, 1956 and it is stated in the said affidavit-in-opposition that the first application by the petitioner asking for posting was received only on 11-6-1956. By the time that application was received, it is stated there was no post vacant wherein to place the petitioner.
(3.) On 3-12-1958 the petitioner applied before this Court, under Article 226 of the Constitution, with the grievance that he was in Government service and was not being given any posting in any hospital and was not also being paid his salaries. He prayed for a writ in the nature of Mandamus calling upon the Civil Surgeon of Burdwan, the Assistant Director (Nursing), Directorate of Health Services and the Director of Health Services to give him a suitable posting and to pay to him all arrears of his salaries. On that application this Court issued a Rule, being Civil Rule No. 3986 of 1958. In-that Rule, one Nirod Ranjan Sen Gupta, Administrative Officer, Nursing, Directorate of Health Ser vices, filed an affidavit-in-opposition therein stating as follows: "I state that as the petitioner's service was terminated by order dated 24-11-55, no question of the petitioner's posting does at all arise";