ORAL ORDER This Appeal under Clause 10 of the Letters Patent has been preferred by the respondent State of Bihar against the judgment and order dated 29th July 2011 passed by the learned single Judge in CWJC No. 1412 of 2007. 2. The respondent-writ petitioner had joined the service of the State Government in 1974 as District Statistical Officer. While serving as District Statistical Officer, in 1989 he applied for study leave for a period of three years to pursue further studies in the United States of America (USA). He was allowed the study leave for three years from 1st July 1989 till 30th June 1992 on condition that after expiry of the period of leave he will join the service and will serve the State of Bihar at least for a period of three years. A bond to that effect was executed by the petitioner. The petitioner, however, did not return on expiry of the period of leave; instead, weeks before the expiry of the leave, on 18th June 1992 the petitioner informed the State Government that he was employed in USA and that his study leave be extended for a further period of three years. The State Government did not grant the said leave; nor did it reject the same in express words. Nevertheless, the petitioner did not return or report for duty. Thus, since 1st July 1992 the petitioner remained absent from service without leave. While he was absent, under Notification dated 30th June 1993, the petitioner and two others were promoted as Joint Director, Statistics & Evaluation with effect from the date they reported for the duty. It is admitted that the petitioner did not report for his new assignment; his promotion, therefore, did not become effective. 3. On 31st July 1995, the writ petitioner once again wrote to the Director, Statistics & Evaluation for leave for three years for medical treatment of his wife in USA. The said application was also not processed by the State Government until the leave was refused on 22nd July 2002. In the meantime, a disciplinary proceeding was initiated against the writ petitioner for overstaying the leave period from 1st July 1989 to 30th June 1992 and for remaining absent without leave since 1st July 1992. The writ petitioner did not participate in the disciplinary proceeding. In the meantime, a disciplinary proceeding was initiated against the writ petitioner for overstaying the leave period from 1st July 1989 to 30th June 1992 and for remaining absent without leave since 1st July 1992. The writ petitioner did not participate in the disciplinary proceeding. Eventually, his absence having been proved, under Notification dated 29th November 2003 issued by the Government of Bihar, he was dismissed from service. 4. Pending the disciplinary proceeding, the petitioner approached this Court under Article 226 of the Constitution in CWJC No. 6925 of 1991 to challenge the action of the State Government in initiating the disciplinary proceeding against the petitioner. In view of his dismissal from service, under order dated 2nd September 2004 made by this Court, the said Writ Petition was disposed of with the liberty to the petitioner to challenge the order of dismissal in appeal before the appellate authority. It appears that pursuant to the said order, the petitioner preferred appeal before the Governor of the State of Bihar which obviously has not been dealt with. Since then the petitioner has filed the above CWJC No. 1412 of 2007 to challenge the order of dismissal made against him under Notification dated 29th November 2003. According to the petitioner, for pursuing studies in USA he had to obtain loan and for repayment of the loan, he had to secure employment in USA. His application for extension of leave was, therefore, justified. The State Government ought to have granted extension of the study leave. In absence of refusal to grant leave, the leave was deemed to have been granted. The petitioner, therefore, could not have been dismissed from service in the guise of absence without leave. 6. The petition was contested by the State Government. According to the State Government, the leave after 30th June 1992 was never extended. According to the terms of the leave granted to the petitioner from 1989 to 1992 and the bond executed by him, the petitioner ought to have reported for duty on 1st July 1992. The petitioner having failed to report for duty on 1st July 1992 and having overstayed the leave period and having remained absent from service continuously for a period exceeding five years, he was liable to be removed from service as envisaged by Rule 76 of the Bihar Service Code. The order of dismissal was, therefore, justified. 7. The petitioner having failed to report for duty on 1st July 1992 and having overstayed the leave period and having remained absent from service continuously for a period exceeding five years, he was liable to be removed from service as envisaged by Rule 76 of the Bihar Service Code. The order of dismissal was, therefore, justified. 7. The learned single Judge has allowed the Writ Petition to the extent that the State Government has been directed to treat the petitioner in service till 30th June 1995 and that he be visited with punishment of compulsory retirement. The learned single Judge has also held that since the State Government promoted the petitioner on 30th June 1993, the State Government is deemed to have acceded to the request of the writ petitioner to grant him extension of leave from 1st July 1992 till 30th June 1995. Therefore, this Appeal. 8. Learned Additional Advocate General Mr. Ashok Kumar Keshri has appeared for the appellant State of Bihar. He has assailed the judgment of the learned single Judge. He has submitted that indisputably the petitioner having obtained leave for a period of three years overstayed the leave period and has remained absent till the date of the dismissal from service. The absence from duty without leave should be viewed as a grave misconduct especially when the petitioner was a highly placed gazetted officer of the State Government. Mr. Keshri has further submitted that in any view of the matter, Rule 76 of the Bihar Service Code envisages punishment of removal from service in cases of the government servants who are continuously absent from service for a period of five years. The petitioner could not have been visited with a punishment lesser than that of removal from service. The action of the petitioner in accepting a private employment in a foreign country without permission of the State Government while in service of the State Government is deplorable and did call for a disciplinary action. 9. The respondent-writ petitioner has contested the Appeal and has also filed cross-objection to the extent the learned single Judge has allowed compulsory retirement effective from 30th June 1995 and not till 22nd July 2002, the date on which the leave was refused. 10. Learned advocate Mr. Madhuresh Prasad has appeared for the respondent-writ petitioner. 9. The respondent-writ petitioner has contested the Appeal and has also filed cross-objection to the extent the learned single Judge has allowed compulsory retirement effective from 30th June 1995 and not till 22nd July 2002, the date on which the leave was refused. 10. Learned advocate Mr. Madhuresh Prasad has appeared for the respondent-writ petitioner. He has vehemently submitted that the action of the writ petitioner in overstaying the leave period and in securing a private employment in a foreign country was bona fide. He has submitted that the petitioner, not having availed of any benefit from the State Government, had to secure loan for further studies and had to secure employment for repayment of the loan. He has submitted that until 22nd July 2002, the State Government did not refuse the leave asked for by the petitioner. The State Government, therefore, would be deemed to have extended the leave till 22nd July 2002. The order of the learned single Judge, therefore, calls for modification to the extent that the petitioner be compulsorily retired from service with effect from 22nd July 2002. 11. We find the submission made by Mr. Madhuresh Prasad to be fallacious. True, the State Government did not take any active action of refusing to grant extension of leave asked for by the petitioner under his application dated 18th June 1992, the State Government cannot be deemed to have extended the leave period. Besides, the petitioner, while in government service, could not have secured a private employment. He had gone to a foreign country for further studies. He was supposed to complete the studies and return to report on duty under the State Government. The action of the petitioner in securing private employment without the permission of the State Government in itself was a misconduct. His remaining absent without leave was another misconduct committed by him. Both the acts of commission and omission by the petitioner called for a disciplinary action. True to its nature, the State Government did not take immediate action and also issued order of promotion of the petitioner in absentia. However, the same did not create a right unto the petitioner. 12. In our opinion, the petitioner shall be deemed to have abandoned the service when he refused to report for duty after expiry of the period of leave and when he obtained private employment while still in government service. However, the same did not create a right unto the petitioner. 12. In our opinion, the petitioner shall be deemed to have abandoned the service when he refused to report for duty after expiry of the period of leave and when he obtained private employment while still in government service. The order of dismissal from service made by the State Government against the writ petitioner was in accordance with law. Except his bona fide and the inaction of the State Government in not making an express order refusing extension of leave in 1992 or soon thereafter, there is no other ground on which the petitioner has challenged the order of dismissal from service. Neither of the said grounds is sustainable. 13. To us it appears that the action of the petitioner lacks bona fide. It is apparent that once in USA, the petitioner has settled there for good and he is still residing in USA. The petitioner appears to have left India with an intention to settle down permanently in USA. However, he did not leave Government employment only with a view to keeping a door open, in case of necessity. The intention now is to receive pension from the Government of Bihar. Intention of the petitioner is not laudable, it is sheer dishonesty. 14. For the aforesaid reasons, the Appeal is allowed. The impugned judgment dated 29th July 2011 made by the learned single Judge in CWJC No. 1412 of 2007 is set aside. CWJC No. 1412 of 2007 is dismissed. 15. Interlocutory Application stands disposed of. 16. The respondent writ petitioner will bear the costs throughout. The cost is quantified at Rs. 20,000/- (Twenty thousand). The amount of cost will be paid by the petitioner to the appellant no. 3 within three weeks from today. In the event the petitioner fails to pay the cost, as directed, the same will be recovered as arrears of land revenue.