Case Background
The petitioner was a Medical Officer under the Health Department of the State of Bihar. After completing his MBBS, he joined Ranchi Medical College by notification dated 02.08.1981 in a fixed pay scale. His appointment was initially for six months but was later regularized with effect from 02.06.1981.
By order dated 04.12.1984, he was posted against a reserved post in the district of Ranchi. Later, via notification dated 18.05.1985, he was posted as District Phaleria Officer, Ranchi. Subsequently, under notification no. 404 dated 15.05.1990, issued by the Health Department, Government of Bihar, he was posted as Resident Medical Officer in Rajendra Medical College, Ranchi, where he continued to work till 14.12.1996.
On 14.12.1996, Memo No. 1029(2) was issued transferring several Medical Officers to different places. The petitioner’s name appeared at serial no. 131, with a remark that his native district be ascertained and he be placed in the next establishment. According to him, in compliance with this memo, he submitted his joining in the office of the Directorate, Health Services, Bihar, Patna.
However, after that joining, no posting order was ever issued to him. He claims he was kept “waiting for posting” for years, and ultimately he attained the age of superannuation on 28.02.2022 at 67 years, as a Medical Officer.
After retirement, when he approached the authorities for his retiral dues and salary for the period from 1997 till his retirement, he did not receive a clear or complete response. This led him to file the present writ petition, Civil Writ Jurisdiction Case No. 9168 of 2022, before the Patna High Court.
What the Court Examined and Decided
The petitioner’s grievance was three-fold. First, he wanted a formal order of superannuation with effect from 28.02.2022. Second, he sought a direction to the authorities to accept his pension papers so that pension and other post-retirement benefits could be calculated and paid. Third, he demanded arrears of salary with due promotions and increments from 11.08.1997 till his retirement.
Through his counsel, the petitioner argued that, after the 14.12.1996 transfer memo, he dutifully submitted his joining in the Directorate at Patna. No posting order was issued thereafter, and he was kept waiting for posting until retirement. He asserted that there was no fault, negligence, or unwillingness on his part to discharge duties. He highlighted that no departmental proceeding or even a show-cause notice was ever initiated against him between 1997 and 2022.
He further stated that he had been paid salary only up to 29.01.1996 and nothing thereafter. Despite being on “waiting for posting,” he was granted Time Bound Promotion as per Memo No. 388 dated 11.08.1997 with effect from 25.06.1991, indicating that the department still treated him as in service.
During the pendency of the writ petition, by letter dated 21.02.2025, the petitioner was informed that 90% provisional pension and encashment of 240 days of earned leave had been sanctioned and payment orders issued. However, there was no clarity regarding his GPF and other retirement benefits.
The petitioner relied heavily on a letter dated 20.03.2025 (Annexure P/13) from the Department of Finance, Government of Bihar, addressed to the Additional Secretary, Health Department. In that letter, Finance requested that the petitioner’s services be regularized from 27.01.1996 to 28.02.2022 so that pension and leave encashment up to his retirement date could be paid. The basic pay had been shown as Rs. 62,200/- as on 01.01.2016. According to the petitioner, his proper basic pay as on 28.02.2022 should be Rs. 1,42,400/-, and his pension ought to be fixed accordingly.
He argued that the authorities had adopted a mala fide approach to cover up their own lapse and were illegally denying his lawful entitlement, particularly salary and full retiral benefits for the period he was kept without posting. He cited decisions of the Supreme Court and the Patna High Court, including Shiv Nandan Mahto v. State of Bihar, (2013) 11 SCC 626, State of Bihar v. Shail Devi, 2011 (2) PLJR 448, and Kamini Kumari v. State of Bihar (L.P.A. No. 1219 of 2023), to submit that an employee cannot be deprived of benefits for the period he was kept out of service solely due to the employer’s mistake.
On the other side, the State, through its counsel, argued that even accepting the petitioner’s version, he had remained silent for over two decades. After the 1996 notification, he did not seriously pursue posting or salary by way of representation or legal action. The writ petition was filed only in 2022, after his retirement.
The State contended that the petitioner remained absent from duty from 28.01.1996 till 28.02.2022 without working anywhere in the department. It was stated that departmental proceedings under Rule 43(b) of the Bihar Pension Rules, 1950 were proposed to examine this long absence. It was also pointed out, based on Memo No. 230(2) dated 18.02.2025, that the petitioner had never signed the attendance register at the headquarters, and hence his claim for salary for this waiting period was unjustified.
The State relied on the Supreme Court’s decision in Vijay S. Sathaye v. Indian Airlines Ltd., (2013) 10 SCC 253, wherein it was held that long absence can amount to voluntary abandonment of service, bringing the bond of service to an automatic end without a formal termination order.
The Patna High Court framed the key question: whether the period from 27.01.1996 till 28.02.2022 should be counted for purposes of salary and other retiral benefits, including pension.
First, the Court examined the 14.12.1996 notification, Memo No. 1029(2). It noted that the petitioner was transferred with a direction that, after ascertaining his home district, he be placed in the “Establishment.” The Court accepted that the petitioner claimed to have joined at the Directorate in Patna pursuant to this memo and that the State could not show any subsequent posting order for him.
Importantly, the Court observed that it was not the case of the State that the petitioner disobeyed any order or refused to join at any assigned place. No departmental proceedings had ever been initiated against him for unauthorized absence or misconduct. The Court further recalled that Rule 76 of the Bihar Service Code, which had allowed summary dismissal for absence without departmental proceedings, had been held unconstitutional by the Supreme Court in Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330. Therefore, automatic cessation of service without following statutory procedure was not permissible.
The Court then examined the State’s proposal to proceed under Rule 43(b) of the Bihar Pension Rules, 1950. Referring to State of Bihar v. Md Idris Ansari, 1995 Supp (3) SCC 56, the Court noted that Rule 43(b) can be invoked against a retired government servant only when, in a departmental or judicial proceeding, he has been found guilty of grave misconduct or has caused pecuniary loss, and that too in respect of events not older than four years before initiation. Additionally, under Rule 139, pension can be reduced based on unsatisfactory service record, but only in compliance with principles of natural justice and within three years of first sanction of pension. In the present case, there was no finding of grave misconduct and no such proceeding was pending.
The Court distinguished the facts of Vijay S. Sathaye from the petitioner’s case. In Vijay Sathaye, the employee voluntarily stopped attending work after applying for voluntary retirement and took up another job. That was found to be voluntary abandonment. Here, on the contrary, there was no evidence of the petitioner’s intention to abandon service. He submitted joining in 1996 and was then left without posting. Thus, the Court held that the principle of automatic termination by abandonment did not apply.
On the issue of forfeiture of past service for interruption, the Court referred to Rule 103 of the Bihar Pension Rules and the Patna High Court’s earlier decision in Shail Devi, which held that an employee who had submitted a joining report and was kept waiting for posting till superannuation could not be denied pension on that basis. The Court found that the State cannot take advantage of its own lapse where the authority had never rejected the joining.
The Court also noted the Finance Department’s letter dated 20.03.2025, which itself recommended regularization of the petitioner’s services from 27.01.1996 to 28.02.2022 for the purpose of pension and leave encashment. Further, 90% provisional pension and leave encashment for 240 days had already been sanctioned, though on the lower basic pay of Rs. 62,200/- as on 01.01.2016, ignoring the pay that would be due at actual retirement on 28.02.2022.
However, the Court did not ignore the petitioner’s own inaction. It emphasized that, despite being kept waiting for posting, he did not approach the higher authorities or the Court for decades. Only after superannuation in 2022 did he come to Court. On this point, the Court relied upon the Supreme Court’s decision in State of Bihar v. Kripa Nand Singh, (2014) 14 SCC 375. There, the Court had held that “no work, no pay” is the rule and that compulsory waiting is an exception only if the employee establishes earnest efforts to join duty and that failure to post him was not his fault. Voluntary waiting, without sustained efforts or legal action, does not qualify as compulsory waiting.
Applying Kripa Nand Singh, the Patna High Court held that the petitioner had not shown earnest endeavours to secure posting or bring the issue to the authorities’ or Court’s attention for a very long time. As such, his long “waiting” period was treated as voluntary waiting, not compulsory waiting for posting.
The Court then examined the law on delayed service claims, referring to Union of India v. Tarsem Singh, (2008) 8 SCC 648. It reiterated that though service claims are normally rejected for delay and laches, an exception is made for continuing wrongs like pension fixation, where relief can be granted prospectively, and arrears may be restricted to a limited period.
On the overall facts, the Court held that this was a case of continuing wrong in terms of denial of proper retiral benefits and pension. Therefore, it concluded that justice would be met if the petitioner was given the benefit of service continuity up to his actual date of retirement for all retiral purposes, but without salary for the period he neither worked nor made timely efforts for posting.
Accordingly, the writ petition was allowed to the extent that all retiral benefits and other dues were to be extended by treating the petitioner’s superannuation as on 28.02.2022. At the same time, following the principle of “no work, no pay,” the Court categorically held that the petitioner was not entitled to salary for the interregnum period when he was kept waiting for posting. Each party was directed to bear its own costs.
Why This Judgment Matters
This judgment is crucial for government employees who are kept “waiting for posting” for long periods, especially close to retirement. The Patna High Court has made it clear that the State cannot, by its own inaction, deny pension and other retiral benefits by pretending that the employee was not in service.
At the same time, the Court sends a strong message to employees that they must be vigilant. If they are not posted or paid, they should promptly approach higher authorities or the courts. Remaining silent for decades can be treated as voluntary waiting, and in such cases, courts may deny back wages.
For retired personnel, particularly in Bihar, the decision clarifies that pension and leave encashment can be protected even if there was a long gap in actual work, provided the department had never terminated services and had contributed to the situation. But salary for the non-working period will not be granted unless the employee can show active efforts and prompt challenge to the employer’s lapse.
Legal Issues and Answers
- Issue: Should the period from 27.01.1996 to 28.02.2022, when the petitioner was kept waiting for posting without a formal posting order, be counted for pension and other retiral benefits?
Answer: Yes. The Court held that the petitioner’s service must be treated as continuing up to 28.02.2022 and all retiral benefits, including pension and leave encashment, must be calculated accordingly. - Issue: Is the petitioner entitled to salary and arrears for the entire period when he was waiting for posting and did not work?
Answer: No. Applying the rule of “no work, no pay” and relying on Kripa Nand Singh and Tarsem Singh, the Court held that the petitioner, having not made earnest efforts or timely legal challenge, was not entitled to salary for the interregnum period. - Issue: Can the State proceed under Rule 43(b) of the Bihar Pension Rules, 1950 to withhold pension on the ground of alleged long absence?
Answer: Not on the present facts. The Court observed that no departmental or judicial proceeding had found the petitioner guilty of grave misconduct or pecuniary loss, and the time conditions in Rule 43(b) and Rule 139 were not satisfied.
Cases Cited by the Court
- Deokinandan Prasad v. State of Bihar & Ors., (1971) 2 SCC 330
- State of Bihar & Others v. Md Idris Ansari, 1995 Supp (3) SCC 56
- Vijay S. Sathaye v. Indian Airlines Ltd. & Ors., (2013) 10 SCC 253
- State of Bihar & Ors. v. Shail Devi, 2011 (2) PLJR 448
- Kamini Kumari v. State of Bihar & Ors., L.P.A. No. 1219 of 2023
- State of Bihar & Others v. Kripa Nand Singh & Another, (2014) 14 SCC 375
- Union of India & Anr. v. Tarsem Singh, (2008) 8 SCC 648
- Shiv Nandan Mahto v. State of Bihar & Ors., (2013) 11 SCC 626
Case Details
Case Number: Civil Writ Jurisdiction Case No. 9168 of 2022
Case Title: Prabhu Nath Prasad Singh @ Prabhu Nath Singh v. The State of Bihar & Ors.
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Harish Kumar
Date of Judgment: 19.06.2025
Citation: 2025(3) PLJR 299
Advocates:
- For the petitioner: Mr. Aditya Narayan Singh, Advocate; Mr. Kundan Kumar Sinha, Advocate; (heard with) Mr. Satyendra Narayan Singh, Advocate
- For the State/Respondents: Mr. S.D. Yadav, AAG-9; Mr. Anil Kumar Verma, AC to AAG-9
- For the Accountant General, Bihar: Mrs. Ritika Rani, Advocate
Nature of the Case: Writ petition (service matter relating to pension, retiral benefits, and claim for salary during waiting-for-posting period)
Result: Writ petition partly allowed; petitioner held entitled to full retiral benefits reckoned up to 28.02.2022 but not entitled to salary for the waiting period; parties to bear their own costs.
Link to judgement; https://patnahighcourt.gov.in/viewjudgment/MTUjOTE2OCMyMDIyIzEjTg==-HE3ZKYWm4Yo=
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