IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.621 of 2025 In Civil Writ Jurisdiction Case No.51 of 2022 ======================================================

1. The State of Bihar through Principal Secretary, Department of Health, Bihar, Patna.

2. The Joint Secretary, Department of Health, Bihar, Patna. 3. The Director, Health Services Directorate, Bihar, Patna.

4. The Chief Medical Officer cum Civil Surgeon, Khagaria.

5. The Treasury Officer, Khagaria.

... ... Appellant/s Versus

1. Dr. Shameem Shohreay Afaque Son of Choudhary Mushtaque Hassan, Resident of Village- Choti Balia, Upper Tola P.S.- Balia, District- Begusarai.

2. Accountant General, Bihar, Patna.

... ... Respondent/s ======================================================

Appearance :

For the Appellant/s : Mr. Ajay Behari Sinha, GA-8 Mr.Suryakant Kumar, AC to GA-8 For the Respondent No. 1 : Mr. Pankaj Kumar Sinha, Advocate Mr. Rajiv Kumar Singh, Advocate For the Respondent no. 2 : Mr. Ram Kinkr Choubey, SC IA & AD ======================================================

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH

ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 19-01-2026 The Letters Patent Appeal has been filed by the State of Bihar and Others, challenging the judgment dated 12.12.2024, passed in CWJC No. 51 of 2022.

2. The aforesaid writ petition was filed by the Respondent Dr. Shameem Shohreay Afaque with following prayer:-

“1. (A) A writ in the nature of Certiorari or any other appropriate writ, order, direction quashing the order dated 11.8.2021 as dispatched through Memo No. 589(9)/Swa. Patna dated 13.8.2021 showing No. Vividh-13-28/2018 (Swa)/Patna dated. Stopping the payment of pension amount and 10%

amount of gratuity permanently.

(B) A writ in the nature of Mandamus or any other appropriate writ, order, direction commanding the respondents to act in accordance with law and make payment of petitioner's pension and 10%

amount of gratuity.

3. After issuance of notice, the Respondents No. 1, 2 and 3 filed the counter affidavit. Another counter affidavit was also filed by the Respondent No. 4. The learned Single Judge, after hearing the learned counsel for the respective parties and going through the averments taken in the writ petition as also in the counter affidavit, has been pleased to hold as follows:- “9. Having heard the learned counsel for the respective parties and after meticulous examination of the materials available on record, this Court finds that admittedly the petitioner went on leave on account of the serious ailment of his wife on 01.04.2003 and remained absent to 13.12.2010. During the interregnum period, the petitioner has neither been served with any notice nor any proceeding has been initiated in terms of Rule 76 of the Bihar Service Code. The petitioner has been allowed to join in the Headquarter and later on he was posted vide notification dated 30.06.2012 and further he has been allowed to superannuate unconditionally on 28.02.2019. The proceeding, if any, for the charge of unauthorized absence, has been initiated after the retirement of the petitioner under Rule 43(b) of the Rules, 1950 by serving a copy of the memo of charge with respect to an incident which took place in between 01.04.2003 and 13.12.2010. Though, the petitioner in response to the memo of charge has submitted his explanation and participated in the proceeding under Rule 43(b) of the Rules, 1950, however, the petitioner cannot be precluded to challenge the proceeding, if the same is wholly without jurisdiction.

10. Before parting with this case, it would be worth benefiting to reproduce the prescriptions as provided under Rule 43(b)(a)(ii), which reads as follows:

“43.(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of order the recovery from a pension of the whole or part of any pecuniary lo