JUDGMENT 1. - The subject matter of impugnment is the judgment and order dated 19.1.2012 passed in S.B.Civil Writ Petition No.88/2012 whereby the appellant-writ-petitioner's request for annulment of the order dated 10.12.2011 terminating his services with the respondent-Jai Narayan Vyas University (for short, hereinafter referred to as "the University") has been negated. 2. We have heard Mr. Ravindra Singh, learned counsel appearing for the appellant and Mr. Vijay Purohit, learned counsel appearing for the respondents. 3. A brief outline of the relevant facts would be necessary to appropriately comprehend the rival arguments. The appellant-writ petitioner, who was initially appointed as Assistant Professor on 15.11.1985 in the Department of Physics with the University, was promoted as Associate Professor on 15.11.1998. Having been offered the post of Director in Jaipur Engineering College, Kukas, Jaipur on 5.3.2009, he made an application on 7.3.2009 with the Vice-Chancellor of the University seeking grant of Extra Ordinary Leave (for short, hereinafter referred to as "the EOL") initially for a period of one year so as to enable him to join the new assignment. According to him, in view of his length of service over 15 years by then, he was entitled to EOL for a duration of 6 years. 4. This application was forwarded and recommended by the Professor & Head of the Department of Physics of the University. Subsequent thereto, he submitted another application on 24.3.2009 reiterating his request and indicating inter-alia that he did wish to join the new assignment on 1.4.2009. This application too was forwarded by the Professor & Head of the Department of Physics with the recommendation to allow him to join the new post with effect from 1.4.2009. It was thereafter that by his application/letter dated 31.3.2009 addressed to the Vice- Chancellor of the University, he informed the latter that he was joining the new post with effect from 1.4.2009 and would leave the headquarters and that, he would complete all formalities soon after his (Vice-Chancellor) final approval was accorded. This application/representation too was forwarded for necessary action by the Professor & Head of the Department of Physics. 5. The appellant-writ petitioner accordingly joined the post of Director, Jaipur Engineering College, Kukas, Jaipur on 1.4.2009 and eventually, by his letter dated 5.3.2010 while apprising the Vice- Chancellor of the University of the above fact, requested him for grant of EOL for 3 years with effect from 1.4.2009. 5. The appellant-writ petitioner accordingly joined the post of Director, Jaipur Engineering College, Kukas, Jaipur on 1.4.2009 and eventually, by his letter dated 5.3.2010 while apprising the Vice- Chancellor of the University of the above fact, requested him for grant of EOL for 3 years with effect from 1.4.2009. The Head of the Department of Physics forwarded this application/representation. A few months thereafter, according to the appellant-writ petitioner, he on 9.9.2010 received a letter dated 9.8.2010 under the hand of the Registrar of the University to the effect that he had left the University without the permission of the competent authority and sanction of leave to join as Director, Jaipur Engineering College, Jaipur. Thereby, he was required, as directed by the Vice-Chancellor of the University, to resume his duty latest by 31.8.2010 in the Department of Physics of the University, failing which necessary action was to be taken as per rules. The appellant-writ petitioner has asserted that this letter dated 9.8.2010 was dispatched by the University on 7.9.2010 and received by him on 9.9.2010 and that even otherwise, having regard to these dates, it was not possible for him to comply therewith. 6. The appellant-writ petitioner has averred that in response to this letter dated 9.8.2010, he submitted a detailed reply on 13.9.2010 indicating inter-alia that verbal permission was granted to him by the Vice-Chancellor of the University allowing him to join the post of Director, Jaipur Engineering College, Jaipur with the assurance that the process in connection with his request for EOL would be completed soon. He thereafter reiterated his request to consider his application for grant of EOL upto 31.3.2012. By his subsequent representations also addressed to the Vice-Chancellor of the University, he implored the latter for his promotion to the post of Professor under CAS Scheme from November, 2002 with the request not to link this issue with that of EOL. By the office order dated 10.12.2011, his services were thereafter terminated on the ground of wilful absence from the University without permission with effect from 1st April, 2009. His representation against the same having failed to evoke any response, he approached this Court. 7. By the office order dated 10.12.2011, his services were thereafter terminated on the ground of wilful absence from the University without permission with effect from 1st April, 2009. His representation against the same having failed to evoke any response, he approached this Court. 7. By the impugned judgment and order, the learned Single Judge, however, rejected the challenge to the decision of termination of his services on the ground that the impugned decision was not by way of disciplinary action, but as a consequence of his abandonment of the services of the University. It was recorded that the appellant-writ petitioner had by abandoning his services not only violated all rules and regulations of the University, he thereby required the respondent-University to engage qualified candidates on temporary basis to cater to its needs. It was held that as the appellant-writ petitioner had abandoned the services of the respondent-University, the procedure for termination of his services as contemplated in Clause-3 of Schedule-II of Appendix-B of Ordinance 320 of the University was not necessary to be adhered to. 8. The respondent-University in its reply filed in the appeal while admitting that the appellant-writ-petitioner had applied for EOL initially for a period of one year to join as Director, Jaipur Engineering College, Jaipur, has averred that not only such leave could not be claimed as a matter of right, he without the sanction thereof by the Vice-Chancellor joined the new assignment and thus, committed a grave misconduct besides demonstrating persistent negligence of duty. While putting the appellant-writ petitioner to strict proof to establish that the Head of his Department had recommended his joining the new office, it was asserted that his failure to resume duty inspite of the letter dated 9.8.2010, was also an instance of grave misconduct. That his conduct also exhibited persistent negligence of duty, was reiterated. The respondent University admitted that the letter dated 9.8.2010 despatched to the appellant-writ-petitioner's address i.e. 2/973, Kuri Housing Board, Jodhpur had returned unserved. According to it, however, this letter had also been addressed to the Secretary, Jaipur Engineering College, Jaipur, where at the relevant time, the appellant-writ-petitioner was serving as Director and that too, was returned. Noticeably, it was not denied by the respondent-University that this letter had been despatched on 7.9.2010 and received by him on 9.9.2010 as asserted by the appellant-writ-petitioner. According to it, however, this letter had also been addressed to the Secretary, Jaipur Engineering College, Jaipur, where at the relevant time, the appellant-writ-petitioner was serving as Director and that too, was returned. Noticeably, it was not denied by the respondent-University that this letter had been despatched on 7.9.2010 and received by him on 9.9.2010 as asserted by the appellant-writ-petitioner. The answering respondent maintained that the case of the appellant-writ petitioner in this backdrop was placed before the Syndicate in its meeting held on 10.12.2011 in which it was decided to terminate his services on the ground of wilful absence from duty with effect from 1.4.2009. That the conduct of the appellant-writ petitioner of remaining wilfully absent from duty in the facts and circumstances of the case did tantamount to misconduct and gross negligence, was underlined. 9. Mr.Singh argued that as admittedly the EOL sought for by the appellant-writ-petitioner was admissible as per Ordinance 327 of the University considering length of his service, his successive applications therefor unequivocally did demonstrate against his wilful absence from duty and thus, the impugned termination of his services on that ground is per se illegal, null and void. The learned counsel contended that in view of the late dispatch of the letter dated 9.8.2010 by the respondent-University, it was impossible for him to resume duty on or before 31.8.2010 and thus, the ground of wilful absence on the basis of his assumed failure being non est in law and on facts, the learned Single Judge ought to have interfered with the termination of his services. Mr.Singh urged that as would be apparent from the order of termination of his services as well as the stand taken by the respondent-University in its pleadings, the impugned action was by way of disciplinary measure and as the same was in non7 compliance of the procedure prescribed therefor in clause-3 of Schedule-II of Appendix-B of Ordinance 320 of the University, it is per se invalid. The impugned termination of the services of the appellant-writ petitioner being grossly violative of the principles of natural justice as he has not been afforded any opportunity to represent against the same, it is on this count alone liable to be adjudged null and void, he argued. 10. The impugned termination of the services of the appellant-writ petitioner being grossly violative of the principles of natural justice as he has not been afforded any opportunity to represent against the same, it is on this count alone liable to be adjudged null and void, he argued. 10. Mr.Purohit has submitted per contra that as leave admittedly cannot be claimed as a matter of right, the appellant-writ petitioner could not have joined his new office in absence of sanction of his prayer for EOL and thus, he was rightly construed to be wilfully absent from duty having regard to the duration of his non-availability. According to the learned counsel, as the EOL sought for by the appellant-writ-petitioner had not been granted, his successive applications therefor, are of no significance. As he failed to resume his duty on or before 31.8.2010 as required by letter dated 9.8.2010 or even thereafter, the Syndicate of the University did rightly take the decision to terminate his services, he maintained. Relying on the decision of the Hon'ble Apex Court in Aligarh Muslim University and ors. v. Mansoor Ali Khan (2000) 7 SCC 529 : AIR 200 SC 2783 , the learned counsel urged that as in the facts and circumstances of the case admittedly, no leave had been granted to the appellant-writ-petitioner and that inspite thereof, he had left the services of the respondent-University, his plea based on non-compliance of the principles of natural justice in the admitted facts of the case, is wholly untenable. 11. We have applied ourselves to the pleadings of the parties and also the arguments advanced. 12. Ordinance 327 of the University pertaining to leave apart from clarifying that it cannot be claimed as a matter of right, provides for in clause 5 thereof in the following terms: "O.327. 5. An employee who remains absent after the expiry of his leave is not entitled to leave salary during the period of such absence. Wilful absence from duty involves forfeiture of appointment. The Vice-Chancellor may condone such period of wilful absence treating it as Extra ordinary leave (without pay)." 13. The above extract reveals that wilful absence from duty though can entail forfeiture of appointment, the Vice-Chancellor may condone such period of wilful absence treating it as Extra Ordinary Leave (without pay). 14. Wilful absence from duty involves forfeiture of appointment. The Vice-Chancellor may condone such period of wilful absence treating it as Extra ordinary leave (without pay)." 13. The above extract reveals that wilful absence from duty though can entail forfeiture of appointment, the Vice-Chancellor may condone such period of wilful absence treating it as Extra Ordinary Leave (without pay). 14. Clause-3 of Schedule-II of Appendix-B of Ordinance 320 of the University while authorising the Syndicate of the University to suspend and/or determine the engagement of a teacher on grounds of grave misconduct and/or persistent negligence of duty, lays down a detailed procedure therefor, in which apparently, not only definite charges on the basis of allegations are to be framed, the delinquent has to be afforded all reasonable opportunities of defending himself against the same. Admittedly, in the case in hand, no such procedure was initiated and/or pursued. This assumes significance in view of the repeated assertion of the respondent-University that the appellant-writ-petitioner in joining the post of Director, Jaipur Engineering College, Jaipur and failing to resume duty on or before 31.8.2010, was guilty of grave misconduct and had displayed as well persistent negligence of duty. Incidentally, the empowerment of the Syndicate to suspend and/or determine the engagement of the teacher on grounds of grave misconduct and/or persistent negligence of duty, as referred to in Clause-3 of Schedule-II of Appendix-B of Ordinance 320 of the University, is on these two eventualities for which an exhaustive procedure has been prescribed. 15. The contents of the letter dated 9.8.2010 are set out hereinbelow: "Please refer to your application dated 7th March, 2009 (received on 14th March, 2009) requesting to permit you to join as Director at Jaipur Engineering College, Jaipur on 1.4.2009 for a period of one year on EOL and also letter of the Head of the Department dated 31.7.2009. After considering the whole matter, it has come to the notice that you have left this university without granting permission of the competent authority and sanctioning leave to join as Director at Jaipur Engineering College, Jaipur. Therefore, I am directed by the Hon'ble Vice-Chancellor to inform you to resume your duty latest by 31.8.2010 in the Department of Physics of this University, failing which necessary action will be taken as per rules." 16. Therefore, I am directed by the Hon'ble Vice-Chancellor to inform you to resume your duty latest by 31.8.2010 in the Department of Physics of this University, failing which necessary action will be taken as per rules." 16. As would be patent from the above quote, thereby, the appellant-writ-petitioner was directed to resume his duty latest by 31.8.2010 failing which it was indicated that necessary action would be taken as per rules. If wilful absence, as has been underlined by the respondent-University, has been construed to be a grave misconduct on his part warranting termination of his services, in our comprehension, such an action could not have been taken without complying with the procedure prescribed therefor. Apart from the fact that the appellant-writ-petitioner's plea of having received the letter dated 9.8.2010 only on 9.9.2010 has not been refuted in clear and unambiguous terms by the respondent-University, in our view, having regard to the sequence of events culminating in the termination of his services, he ought to have been afforded an opportunity of hearing against the action proposed. The applicability of "useless formality theory" as has been observed by the Hon'ble Supreme Court in Aligarh Muslim University and ors. v. Mansoor Ali Khan (supra) is contingent on the facts of a particular case. 17. Having regard to the entire gamut of the facts of the case in hand, we are not persuaded to conclude that the impugned decision of termination of the services of the appellant-writ petitioner could have been taken without affording him an opportunity of representing against the same, more particularly as his joining as Director, Jaipur Engineering College, Jaipur and failure to resume duty by 31.8.2010 has been construed to be grave misconduct and also demonstrative of persistent negligence of duty. 18. In the above view of the matter, we find ourselves in respectful disagreement with the conclusions recorded in the impugned judgment and order. The termination of the services of the appellant-writ-petitioner flies in the face of the pleaded stand of the respondent-University and is violative of procedure embodied in Clause-3 of Schedule-II of Appendix-B of Ordinance 320 of the University. For this limited ground of interference, for obvious reasons, we do not dilate on the other factual aspects. 19. In the result, the appeal is allowed. For this limited ground of interference, for obvious reasons, we do not dilate on the other factual aspects. 19. In the result, the appeal is allowed. The impugned judgment and order is interfered with and the order terminating the services of the appellant-writ-petitioner with the respondent-University is set aside. The respondent-University is, however, at liberty, if so advised, to take appropriate steps in the matter as prescribed by its Ordinance.Appeal allowed. *******