- (1.) The instant intra-court appeal is against the order dated 17.01.2018 passed by learned Single Judge in W.P.(S) No.6019 of 2013 whereby and whereunder the learned Single Judge has declined to regularize the service of the appellant/writ-petitioner for the period from 23.05.2001 to 24.01.2006.
(2.) Before entering into the legality and propriety of the impugned order, it requires to refer herein certain factual aspects which led the appellant/writ-petitioner to invoke the jurisdiction of this Court as conferred under Article 226 of the Constitution of India, which are as follows: The appellant/writ-petitioner, who was appointed as Medical Officer sometime in the year 1973, proceeded on leave on 23.05.2001 for medical reasons. He gave his joining on 17.01.2002 and submitted medical certificates along with cadre allocation letter dated 24.04.2001. He claimed that he was waiting for posting for the period from 17.01.2002 to 14.01.2004. In the meantime, vide order dated 19.08.2003, he was directed to tender his joining in the office of Civil Surgeon, Dumka, whereupon he submitted application on 06.09.2003 to Commissioner, Health, Bihar, Patna objecting to the said direction citing various reasons. On 03.02.2004, he gave his joining in the office of Civil Surgeon, Dumka, however, he was orally instructed by the Civil Surgeon, Dumka to give his joining to the Health Department, in compliance to the said oral direction of Civil Surgeon, Dumka, the appellant/writ-petitioner claims that he tendered his joining in the Health Department, Jharkhand on 11.04.2004. These facts have been asserted by him in representation dated 09.03.2011. He further claims that he was waiting for posting from 11.04.2004 to 16.01.2006 and vide notification dated 16.01.2006, was posted at Primary Health Centre, Satgawan, where he tendered his joining on 25.01.2006, from where he has superannuated from service on 28.02.2007. The appellant/writ-petitioner had approached to this Court by filing a writ petition being W.P.(S) No.7483 of 2006, when post-retiral benefits were not paid to him. The said writ petition stood disposed of vide order dated 06.02.2013 directing the respondent authority to decide his claim raised under different heads and, if found genuine, to grant the benefit of the same to the appellant/writ-petitioner within a period of eight weeks. In compliance of the order dated 06.02.2013 passed by the Writ Court, the respondent authority, vide order dated 08.05.2013 (impugned) declined to regularize the period between 23.05.2001 to 24.01.2006. The appellant/writ-petitioner had challenged the order dated 08.05.2013 by way of writ petition being W.P.(S) No.6019 of 2013 which was dismissed vide order dated 17.01.2018, inter alia, on the ground that the appellant/writpetitioner who had proceeded on leave, had not submitted any medical certificate and only when he gave his joining to the Health Department, Bihar on 17.01.2002, he had submitted medical certificates. The excuse taken by the appellant/writ-petitioner about ailment has been discarded by the respondent authority in its order dated 08.05.2013 recording therein that the discharge summary submitted by the appellant/writ-petitioner from Batra Hospital and Medical Research Centre disclosed treatment of the appellant/writpetitioner from 18.07.2001 to 19.07.2001. Another medical certificate has been submitted by the appellant/writ-petitioner only on 06.12.2006. The said medical certificates have not been taken into consideration in view of the fact that there was no order of the competent authority granting medical leave to the appellant/writpetitioner. The writ court has declined to interfere with the decision of the respondent authority vide order dated 08.05.2013 mainly on the ground that the appellant/writ-petitioner has not produced any evidence to establish that except for 239 days, when he allegedly was absent on account of his illness, he had reported for duty. The respondent-authority, taking note of the material available on record, the medical certificate submitted by the appellant/writpetitioner, has recorded a finding that the appellant/writ-petitioner remained absent unauthorizedly between the period from 23.05.2001 to 24.01.2006. The learned Single Judge came to conclusive finding that the decision taken therein does not require any interference since the same is based upon the cogent evidence and the material available on record. The aforesaid order is under challenge.
(3.) Learned counsel for the appellant/writ-petitioner has submitted that the learned Single Judge has committed error in not interfering with the impugned decision taken by the authority vide order dated 08.05.2013 mainly on the ground that the reason for absence was beyond his control since he was suffering from cardiac problem and to that effect, medical certificates have been produced but the same have not been taken into consideration either by the authority while considering the claim of the appellant/writ-petitioner or by the learned Single Judge. Learned counsel, in course of argument before this Court, has referred to certain medical certificates as also on-going treatment. ;