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2016 DIGILAW 1776 (RAJ)

Lalita Jain v. State of Rajasthan

2016-12-07

PUSHPENDRA SINGH BHATI

body2016
ORDER : Pushpendra Singh Bhati, J. 1. These are two writ petitions preferred by the petitioner seeking relief arising out of her appointment as Teacher Gr. III in the respondent department. 2. Since the facts of both the cases are common to a large extent, therefore, this Court deems it appropriate to pass a common judgment in these two writ petitions. 3. The petitioner has asked for the following relief in SB Civil Writ Petition No. 8517/2002:- "(i) This writ petition may kindly be allowed and by an appropriate writ, order or direction the period from 13.10.1988 on-wards may kindly be ordered to be regularised by treating the petitioner on duty and the respondents may be directed to pay to the petitioner salary from that date till not relieved from Sanganer and the Order dt. 23.5.1991 regarding reposting at Jobner on lower post as Teacher Grade-III even after promotion on the post of Senior Teacher (Grade-II) from Sanganer may kindly be quashed and the respondents may be directed to permit the petitioner to join on the post of Senior Teacher at Government Girls Senior Higher Secondary School, Sanganer until relieved in compliance of the promotion order dated 19.1.1991 from Sanganer for maintaining her status and treat her compulsorily kept under Awaiting posting Order from the date of the promotion order for Senior Teacher and pay her the salary of the said post from the date of her promotion alongwith interest @ 18% per annum on all the arrears of salary w.e.f. October, 1988 and onwards and all consequential benefits given to her juniors. The respondents may further be directed to give to the petitioner entire seniority of Senior Teacher Grade-II. (ii) Any other appropriate order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may also kindly be issued in favour of the petitioner." 4. In SB Civil Writ Petition No. 5548/2009, the petitioner has sought following reliefs:- "(i) This writ petition may kindly be allowed and by an appropriate writ, order or direction the impugned order dated 7.5.2005 (Annexure-30) may be declared as illegal and unconstitutional and the same may kindly be quashed and set aside. (ii) The respondents may be directed to reinstate the petitioner in service with all consequential benefits. (ii) The respondents may be directed to reinstate the petitioner in service with all consequential benefits. (iii) Any other appropriate order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may also kindly be issued in favour of the petitioner. (iv) The cost of this writ petition may also kindly be awarded in favour of the petitioner." 5. Brief facts of the case are that the petitioner was appointed as Teacher Gr. III in respondent department in the year 1973. The petitioner was transferred from Government Girls Senior Secondary School, Sanganer to Manji Renwal in the year 1988. The petitioner filed a civil suit before learned Munsif & Judicial Magistrate No. 2, Jaipur City, Jaipur on 14/10/1988 upon which the learned Court granted an order of status-quo on 21/10/1988. On 31/10/1988, name of the petitioner was said to be deleted from the record of the school and her salary was also not paid. Being aggrieved of the same, the petitioner preferred a representation to the authorities seeking payment of salary and other benefits. In the meanwhile, the petitioner was promoted on the post of Teacher Gr.II on 19/01/1991. On 23/05/1991, the respondent authority again transferred the petitioner to Jobner for which the petitioner again preferred representations. 6. Against the grievance of salary and impermissibility to join, the petitioner approached Rajasthan Civil Services Appellate Tribunal, Jaipur by filing Appeal No. 3440/1999 with the prayer that the respondents be directed to accept joining of the petitioner w.e.f. 19/07/1991 and paying her the entire salary by treating her on duty w.e.f. 19/01/1991. 7. The learned Tribunal disposed of the appeal in light of the fact that the order under challenge dt. 10/07/1999 stood annulled by the respondent authorities. However, there was a direction to pay the consequential salary and all other benefits. It is pertinent to mention here that as far as the salary and consequential benefits are concerned, the order attained finality as the same was not challenged by the respondents authorities in any superior court. 8. When the petitioner did not got the salary in spite of orders of the learned Tribunal, she preferred SB Civil Writ Petition No. 8517/2002 seeking service benefits of salary etc. from 13/10/1988 to 23/05/1991. Thus the petitioner was seeking consequential benefits of her service from 13/10/1988 onwards. 8. When the petitioner did not got the salary in spite of orders of the learned Tribunal, she preferred SB Civil Writ Petition No. 8517/2002 seeking service benefits of salary etc. from 13/10/1988 to 23/05/1991. Thus the petitioner was seeking consequential benefits of her service from 13/10/1988 onwards. In this writ petition, notices were issued but no interim relief whatsoever was granted to the petitioner. 9. During pendency of this writ petition, the respondents gave a notice to the petitioner under Rule 86(4) of the Rajasthan Civil Service, 1951 (for short, 'RSR') on 28/03/2005. In the notice, the petitioner was asked to explain the reasons for remaining absent from the post of Teacher w.e.f. 07/07/1991 without due sanction of leave. Such voluntary absence was to be explained by the petitioner. The petitioner made a detailed reply to the notice vide letter dt. 02/04/2005 whereby she stated that her representations seeking withdrawal of transfer orders and other issues including taking her back on duty and allowing her to join were pending with the respondents authorities and had not been considered by them. It was repeatedly pleaded that she went for joining at the requisite destinations but either was not permitted to join or those orders were quashed by the respondents themselves. The petitioner also stated that she had been promoted as Teacher Gr. II whereas she was being asked to discharge the duties on the post of Teacher Gr. III. Thus, the petitioner took a stand that all consequential benefits after the year 1988 should be paid and her absence which is being treated as a voluntary absence is in-fact not voluntary in nature and no redressal of her issues were responsible for her absence. 10. After due consideration of the reply filed to the notice by the petitioner, the respondent authority passed an order dt. 07/05/2005. In this order, it has been held that the petitioner remained voluntarily absent w.e.f. 07/07/1991. It was also stated in the order that the petitioner was transferred on 10/07/1999 from Jobner to Sanganer but the same order was quashed vide order dt. 26/04/2000. The order dt. 10/07/1999, which was under challenge before the learned Tribunal in Appeal No. 3440/1999 thus concluded into the position where the petitioner was to join back at Jobner as the order dt. 10/07/1999 which was under challenge stood quashed. 26/04/2000. The order dt. 10/07/1999, which was under challenge before the learned Tribunal in Appeal No. 3440/1999 thus concluded into the position where the petitioner was to join back at Jobner as the order dt. 10/07/1999 which was under challenge stood quashed. Even after such orders, the petitioner failed to join at Jobner. The order also stated that the petitioner remained absent without leave from her place of work for more than five years in violation of Rule 23 of the RSR. The notice was given and proceedings under Rule 86(4) of RSR were proposed. It was held that the facts mentioned in her reply were incorrect and in-fact, the willful absent of the petitioner has been proved from the record. The order concluded by confirming the fact that the petitioner had remained absent w.e.f. 07/07/1991 and thus in accordance with Rule 23 of RSR, her absence of five years stands proved and while invoking Rule 86(4) of RSR, the services of the petitioner are brought to an end w.e.f. 07/07/1991. The petitioner filed a writ petition bearing SB Civil Writ Petition No. 5548/2009 after four years and such order of dismissal without explaining the delay in approaching this Court. 11. The respondents filed reply to the writ petition and stated that the petitioner did not join duties after 07/07/1991 and therefore, remained voluntarily absent without sanctioned leave thereafter. The respondents also defended the action taken under Rule 23 & Rule 86(4) of RSR against the petitioner. 12. Counsel for the petitioner made an argument that Rule 86(4) of RSR was not applicable in the case and in fact, Rule 86(3) of RSR ought to have been made applicable. It was also argued that if Rule 86(3) of RSR was invoked, then the disciplinary enquiry in accordance with law was mandatory and the impugned termination order passed without conducting a proper enquiry shall stand vitiated. Counsel for the petitioner also argued that since the word 'dismissal' has been used in the impugned order dt. 07/05/2005, therefore, the applicability of Rule 86(4) of RSR was not there as the rule envisages a deemed resignation from service as a consequence of absence for more than five years. 13. Counsel for the petitioner also argued that since the word 'dismissal' has been used in the impugned order dt. 07/05/2005, therefore, the applicability of Rule 86(4) of RSR was not there as the rule envisages a deemed resignation from service as a consequence of absence for more than five years. 13. It was pointed out by counsel for the petitioner that since the word 'dismissal' has been used, therefore, Rule 86(4) of RSR was actually the rule which ought to have been invoked followed by consequential enquiry in accordance with provisions of Rajasthan Civil Services (CCA) Rules, 1958 (for short, 'CCA Rules'). Counsel for the petitioner argued that the impugned order of termination passed on 07/05/2005 was w.e.f. 07/07/1991 and such retrospective dismissal from service cannot be permissible in the eye of law. Counsel for the petitioner relied upon a judgment of this Court in the case of Dinesh Chandra Sharma v. State of Rajasthan, (SB Civil Writ Petition No. 3241/1988 in which it was held that the impugned order of termination was bad as no enquiry under Rule 16 of CCA Rules was conducted before passing the impugned termination order and such termination order was retrospective in nature. In such circumstances, the termination order was quashed. 14. The precedent law, referred above, shall not be applicable in the present case because Rule 86(3) of RSR clearly envisages departmental proceedings under the CCA Rules for the action taken under sub-rule 1 & 2 of Rule 86 of RSR. In exceptional circumstances, where the absence was more than five years, a specific rule had been inserted as Rule 86(4) for which the only requirement was that the Government servant should be given reasonable opportunity to explain the reasons for such absence before invoking the same. In exceptional circumstances, where the absence was more than five years, a specific rule had been inserted as Rule 86(4) for which the only requirement was that the Government servant should be given reasonable opportunity to explain the reasons for such absence before invoking the same. Rule 86(3) & 86(4) of RSR read as follows:- "Rule 86 (3): "Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceedings under Rajasthan Civil Services (Classification, Control * Appeal) Rules against a Government servant who willfully remains absent from duty for a period exceeding one month and if the charge of willful absence from duty is proved against him he may be removed from service" Rule 86(4): "Unless the State Government, in view of the special circumstances of the case, determines otherwise a State Government employee who remains absent from duty for a continuous period exceeding five years other than on foreign service, whether with or without leave, shall be deemed to have resigned from service. Provided that a reasonable opportunity to explain the reasons for such absence shall be given to the employee before the provisions of the sub-rule are invoked." 15. Thus, the legislative intention for dealing with the absence of more than five years without proper leave is very clear and in the given circumstances, the respondents were justified in invoking provisions of Rule 86(4) read with Rule 23 of RSR. While denying the second relief, this Court is of the opinion that all benefits of salary etc. from 13/10/1988 to 06/07/1991 should be given to the petitioner as there is no order so as to inflict any detrimental condition upon her prior to 07/07/1991 when the order dt. 07/05/2005 came into effect. The respondents are, therefore, directed to consider the matter of the petitioner as regards to the salary and other entitlements of the petitioner for the period from 13/10/1988 to 06/07/1991 and after calculating such entitlement, the same may be paid to the petitioner within a period of three months from today. 16. Both the writ petitions are disposed of as per aforementioned directions.