ORDER : 1. Grievance of the petitioner herein stems out of two orders; one is dated 20.01.2004 (Annex.13), whereby the services of the petitioner were terminated w.e.f. 14.06.2001 and the second dated 16.12.2004 (Annex.19), whereby the termination of petitioner’s services was confirmed. 2. Brief facts of the case are as below: 2.1 Vide an office order dated 02.06.1997, petitioner was appointed as Medical officer on adhoc basis against a permanent post. She joined her duty on 04.06.1997. On 03.11.1997, the petitioner submitted a maternity leave application on account of her pregnancy. She was later blessed with a female child on 27.02.1998. Due to her medical condition, she again submitted a leave application on 30.10.1998. 2.2 However, respondent No. 2 (Director, Medical & Health Services) wrote a letter to respondent No. 3 (CM&HO) on 24.12.1998 indicating that the petitioner was appointed as an ad hoc employee. Regarding her absence from duty, he suggested to take action against the petitioner. Vide a letter dated 06.01.1999, respondent No. 3 forwarded the matter to the Joint Director. Apropos, the Joint Director, vide order dated 07.01.1999, asked respondent No. 3 to take action against the petitioner. 2.3 Before any action could be taken, the petitioner joined her duties on 07.01.1999 itself. Posting was also accorded to her. Subsequent thereto, on 27.02.2001, respondent No. 3 issued an office order forfeiting the period of service during which she remained absent, i.e. from 04.11.1997 to 30.10.1998. The petitioner thereafter developed a psychological problem known a “Paranoid Shyzophrenia” which aggravated in the passage of time. The Incharge, Primary Health Center, where the petitioner was working reported the matter to the higher authorities and on the basis of the said report, the petitioner was relieved from Primary Health Center, Kharia Meethapur vide order dated 13.06.2001 (Annex.11) and was asked to report at the office of Chief Medical & Health Officer, Jodhpur. Thereafter, due to health condition of the petitioner, she submitted another leave application through telegram and her husband informed respondent No. 3 regarding her leave, stating that she was suffering from paranoid schizophrenia and as soon as the psychiatrist gives her a fitness certificate, she will join duty. Thereafter, due to health condition of the petitioner, she submitted another leave application through telegram and her husband informed respondent No. 3 regarding her leave, stating that she was suffering from paranoid schizophrenia and as soon as the psychiatrist gives her a fitness certificate, she will join duty. 2.4 That during the absence of the petitioner from duty, owing to her health condition, the department did not take any action and totally silent qua the same until all of a sudden the impugned order dated 20.01.2004 was passed by the respondent No. 3 terminating the services of petitioner retrospectively w.e.f. 14.06.2001. Aggrieved by the same, the petitioner submitted a representation on 13.02.2004, but no heed was paid. She again submitted a representation to respondent No. 3 on 01.07.2004. 2.5 On 21.08.2004, the petitioner was given a fresh appointment order on contract basis with fixed pay. Pursuant to that order, the petitioner joined her duties on 27.08.2004. However, subsequently, by order dated 16.12.2004, the earlier termination order of petitioner's services was confirmed. Hence this petition. 3. Defence taken in the reply is as below: 3.1 The petitioner submitted the application for grant of leave on 01.11.1997, but a bare look at the same would clearly show that period of leave was not mentioned therein. The petitioner reported on duty on 03.11.1998; whereas, her initial date of appointment was 04.06.1997 and she remained on duty for a mere period of 2 months & 5 days. After 31.10.1998, the petitioner had not given any information regarding her absence or leave; whereas her child was born on 27.02.1998. 3.2 Vide communication 24.12.1998 (Annex.5), respondent no. 2 suggested respondent no. 3 to take its own decision in the matter, since the petitioner was appointed by the District Level Selection Committee. The said Committee was constituted under the Chairmanship of the District Collector. The petitioner was initially appointed for a period of 6 months, but she did not even complete her initial tenure of appointment. 3.3 Vide communication dated 06.01.1999, respondent no. 2 forwarded the matter with complete record to the respondent no. 3. Vide communication dated 28.01.1999, the Joint Director forwarded the matter to the District Collector for necessary action in the matter. Vide communication dated 30.01.1999, the petitioner was ordered to be posted at the vacant post of Primary Health Centre, Jhakhan. 3.3 Vide communication dated 06.01.1999, respondent no. 2 forwarded the matter with complete record to the respondent no. 3. Vide communication dated 28.01.1999, the Joint Director forwarded the matter to the District Collector for necessary action in the matter. Vide communication dated 30.01.1999, the petitioner was ordered to be posted at the vacant post of Primary Health Centre, Jhakhan. By order dated 20.01.2004, the respondent No. 3 terminated the services of the petitioner. Pursuant to which, vide order dated 16.12.2004, the termination order of petitioner's services was confirmed. Therefore, no interference is warranted by this Court. 4. In the aforesaid backdrop, I have heard the learned Senior Counsel Mr. M.S. Singhvi assisted by Mr. Akhilesh Rajpurohit on behalf of the petitioner and perused the case file as well as seen the parawise response given to the petition in the reply filed on behalf of the respondents. None appears for the respondents. 5. Learned Senior Counsel appearing on behalf of the petitioner submits that the impugned order dated 20.01.2004, terminating the services of the petitioner is without any authority of law, inasmuch as, the same can be passed only by the disciplinary authority specified in Rule 15 read with Rules 14 and 16 of the Rajasthan Civil Service (CCA) Rules, 1958. The petitioner is/was in State Service. The order of removal from service can thus only be passed by the State Government, notwithstanding the fact that the initial appointment order was issued by the Chief Medical & Health Officer. 5.1. He further submits that the impugned order has been passed in flagrant violation of the provisions of Article 311 of the Constitution of India. For the sake of arguments, even if it is assumed that the respondent No. 3 could have passed the impugned order considering itself to be a disciplinary authority, then also the same could be passed only after holding an enquiry. Admittedly, no enquiry was conducted against the petitioner before passing the impugned order. The petitioner was not even afforded any opportunity of hearing. 5.2. He also submits that the impugned order dated 20.01.2004 has been passed with retrospective effect and since the same is quasi judicial/administrative in nature, it cannot be passed with retrospective effect. 5.3. Learned Senior Counsel would also urge that the petitioner never remained absent willfully. Due to her medical condition, she could not come on duty. She even duly informed about the same. 5.3. Learned Senior Counsel would also urge that the petitioner never remained absent willfully. Due to her medical condition, she could not come on duty. She even duly informed about the same. Thus, the impugned orders suffer from the vice of illegality and deserve to be quashed and set aside. 5.4. He also submits that the respondents have committed error while passing the order dated 27.02.2001 forfeiting her previous service and treating the petitioner as new appointee w.e.f. 04.02.1999 as the same is contradictory to the order dated 04.02.1999 whereby her leave from 04.11.1997 to 30.10.1998 was sanctioned and she was ordered to be taken on duty as per the terms and conditions enshrined in the first appointment order dated 02.06.1997. 6. Before proceeding to advert with the merits of the case, for better understanding as to how the events unfolded, it is appropriate that chronology of events is seen, which is as below: DATES EVENTS 02.06.1997 (A/1) The petitioner was appointed as a Medical Officer in the services of the Government of Rajasthan. 04.06.1997 The petitioner joined her services pursuant to the order dated 02.06.1997. 03.11.1997 (A/2) The petitioner submitted an application for a grant of leave and permission to leave headquarters due to pregnancy. 27.02.1998 The petitioner shifted to her parent's place and gave birth to a female child by surgical operation. 31.10.1998 (A/3) On account of the backache from which the petitioner was suffering, she could report to her duties only on 31.10.1998 by submitting an application to the Senior Medical Officer, Mathania. 03.11.1998 The petitioner reported on duty. 24.12.1998 (A/5) Respondent No. 2 wrote to respondent No. 3 that since the petitioner was appointed on an ad hoc basis and the appointment was made on the district level, therefore, respondent No. 3 was competent to take the decision regarding the joining of the petitioner. 06.01.1999 (A/6) Respondent No. 3 again forwarded the matter to the Joint Director, Medical & Health Services, Jodhpur. 07.01.1999 The Joint Director, Medical & Health Services, Jodhpur directed respondent No. 3 to take the petitioner back on duty and take the decision regarding leave. The petitioner again submitted a joining report in the office of respondent No. 3. 06.01.1999 (A/6) Respondent No. 3 again forwarded the matter to the Joint Director, Medical & Health Services, Jodhpur. 07.01.1999 The Joint Director, Medical & Health Services, Jodhpur directed respondent No. 3 to take the petitioner back on duty and take the decision regarding leave. The petitioner again submitted a joining report in the office of respondent No. 3. 28.01.1999 (A/7) The Joint Director, Medical & Health Services, Jodhpur wrote to District Collector, Jodhpur seeking his approval for posting the petitioner at a vacant post by treating the period of leave as leave without pay. 30.01.1999 (A/8) Joint Director, Medical & Health Services, Jodhpur again wrote to respondent No. 3 for posting the petitioner at Primary Health Centre, Jhakhan on the vacant post of Medical Officer. 04.02.1999 (A/9) The CMHO, Jodhpur issued an order in pursuance of the communication dated 30.1.1999. 07.02.1999 The petitioner was relieved from Mathania and joined at Primary Health Centre, Jhakhan. 2000 In the later part of the year 2000, petitioner developed a psychological problem known as Paranoid Schyiophrenia. 27.02.2001 (A/10) Respondent No. 3 issued an order forfeiting the period of service from 4.11.1997 to 31.10.1998 and treated the petitioner to be newly appointed on 4.2.1999. The said order has been passed without giving an opportunity of hearing to the petitioner. 13.06.2001 The petitioner was relieved from Government Primary Health Centre, Kharia Meethapur and was directed to report at the office of Chief Medical & Health Officer, Jodhpur. 14.06.2001 On account of suffering from Paranoid Schizophrenia the petitioner could not report for duty at the office of Chief Medical & Health Officer, Jodhpur. 19.12.2003 (A/12) The husband of the petitioner informed respondent No. 3 that the petitioner was suffering from Paranoid Schizophrenia and now there is an improvement in the health of the petitioner and, therefore, as soon as the Psychiatrist gives a fitness certificate, she will report on duty. 20.01.2004 (A/13) Respondent No. 3 terminated the services of the petitioner w.e.f. 14.6.2001. 13.02.2004 (A/14 and 15) The petitioner made a representation to the and Hon'ble Chief Minister of the Government of Rajasthan and also submitted a representation to the Addl. Director (Gazetted), Medical & Health Services, Government Rajasthan, Jaipur. 01.07.2004 (A/16) The petitioner submitted a representation to respondent No. 3. 03.07.2004 (A/17) Respondent No. 2 submitted a factual report. 21.08.2004 (A/20) The petitioner was given a fresh appointment as a Medical Officer. Director (Gazetted), Medical & Health Services, Government Rajasthan, Jaipur. 01.07.2004 (A/16) The petitioner submitted a representation to respondent No. 3. 03.07.2004 (A/17) Respondent No. 2 submitted a factual report. 21.08.2004 (A/20) The petitioner was given a fresh appointment as a Medical Officer. This order was on a contract basis on a fixed pay. 27.08.2004 The petitioner joined her duty. 06.09.2004 The petitioner was reposted at the Community Health Centre, Dhundhara, where she is still continuing to this date. 7. From the aforesaid narrative, two things thus emerge clearly i.e. (i) that the merit of the petitioner is not disputed as she was subsequently inducted back into service once again and has been working as a medical officer ever since to the satisfaction of the department, and (ii) the medical condition and the treatment she had to undergo post her maternity leave period is also not disputed. 8. In the aforesaid backdrop, what has thus to be seen is whether the department followed the due procedure in terminating the services of the petitioner for remaining absent without any authorized leave. 9. Conceded case of the department, as is borne out from the defence taken in the reply, is that the impugned orders terminating the services of the petitioner were passed summarily without issuing any charge-sheet or show cause notice and affording opportunity to the petitioner to present defence and simply on the ground that having served merely for two months and 5 days, she remained absent without any authorized leave. In my opinion, such an action on the part of the respondents is against the elementary principles of natural justice and fair play, besides being violative of the applicable Service Rules. 10. Facts of the case, viz., the petitioner having proceeded initially on maternity leave followed by her peculiar medical condition causing paranoia schizophrenia, for which she was undergoing treatment, were fully within the knowledge of the respondents. It is also not disputed that the petitioner had been sending intermittent telegrams to the department conveying her medical condition. 11. In case, the department had any doubt on the genuineness of the petitioner's medical condition, they were fully equipped to take appropriate action by putting the petitioner under notice. 12. It is also not disputed that the petitioner had been sending intermittent telegrams to the department conveying her medical condition. 11. In case, the department had any doubt on the genuineness of the petitioner's medical condition, they were fully equipped to take appropriate action by putting the petitioner under notice. 12. That apart, even the impugned orders were passed with retrospective effect, inasmuch as, it is dated 20.01.2004, and the petitioner was conveyed that her services were terminated w.e.f. 14.06.2001, by ante dating the same for more than two and a half years. Such a course could not have been adopted by the department. Had it been a case of simpliciter termination of her services w.e.f. the date of the passing of the order impugned on account of her having abandoned her services after serving for 2 years and 5 months, the department might perhaps claim that it was justified in doing so. In the peculiar premise, the impugned order terminating the services retrospectively cannot be sustained. 13. However, on the other hand, undue advantage also cannot be accorded to the petitioner for the period she did not actually serve the department merely on the ground that at one stage after appointment she served for a mere period i.e. 2 months and after that did not report on duty. 14. Mere sending of the intimations cannot be construed as a sanction of the leave and to that extent, the conduct of the petitioner amounts to abandoning / acquiescing to her fait accompli, knowing well that the consequences of the unauthorized leave would naturally be termination of her services. 15. Having said that, the hard fact remains the termination of the petitioner’s services could not be done without following due procedure as per the applicable department Rules read with Article 311 of the Constitution of India and the elementary principles of natural justice and fair play. Concededly, neither any notice was issued nor any opportunity of hearing granted nor any enquiry was held against the petitioner before retrospectively terminating her services. 16. Reference may be had in this context to a judgment rendered in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 . Relevant extract whereof, is herein-below: “14. Concededly, neither any notice was issued nor any opportunity of hearing granted nor any enquiry was held against the petitioner before retrospectively terminating her services. 16. Reference may be had in this context to a judgment rendered in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 . Relevant extract whereof, is herein-below: “14. Article 311 does not, in terms, say that the protections of that article extend only to persons who are permanent members of the services or who hold permanent civil posts. To limit the operation of the protective provisions of this article to these classes of persons will be to add qualifying words to the article which will be contrary to sound principles of interpretation of a Constitution or a statute. In the next place, clause (2) of Article 311 refers to “such person as aforesaid” and this reference takes us back to clause (1) of that Article which speaks of a “person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State”. These persons also come within Article 310(1) which, besides them, also includes persons who are members of a defence service or who hold any post connected with defence. Article 310 also is not, in terms, confined to persons who are permanent members of the specified services or who hold permanent posts connected with the services therein mentioned. To hold that that Article covers only those persons who are permanent members of the specified services or who hold posts connected with the services therein mentioned will be to say that persons, who are not permanent members of those services or who do not hold permanent posts therein, do not hold their respective offices during the pleasure of the President or the Governor, as the case may be a proposition which obviously cannot stand scrutiny. The matter, however, does not rest here. The matter, however, does not rest here. Coming to Article 311, it is obvious that if that Article is limited to persons who are permanent members of the services or who hold permanent civil posts, then the constitutional protection given by clauses (1) and (2) will not extend to persons who officiate in a permanent post or in a temporary post and consequently such persons will be liable to be dismissed or removed by an authority subordinate to that by which they were appointed or be liable to be dismissed, removed or reduced in rank without being given any opportunity to defend themselves. The latter classes of servants require the constitutional protections as much as the other classes do and there is nothing in the language of Article 311 to indicate that the Constitution makers intended to make any distinction between the two classes. There is no apparent reason for such distinction. It is said that persons who are merely officiating in the posts cannot be said to “hold” the post, for they only perform the duties of those posts. The word “hold” is also used in Articles 58 and 66 of the Constitution. There is no reason to think that our Constitution makers intended that the disqualification referred to in clause (2) of the former and clause (4) of the latter should extend only to persons who substantively held permanent posts and not to those who held temporary posts and that persons officiating in permanent or temporary posts would be eligible for election as President or Vice-President of India. There could be no rational basis for any such distinction. In our judgment, just as Article 310, in terms, makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does Article 311, in our view, make no distinction between the two classes, both of which are, therefore, within its protections and the decisions holding the contrary view cannot be supported as correct. 15. Clause (1) of Article 311 is quite explicit and hardly requires discussion. 15. Clause (1) of Article 311 is quite explicit and hardly requires discussion. The scope and the ambit of that protection are that government servants of the kinds referred to therein are entitled to the judgment of the authority by which they were appointed or some authority superior to that authority and that they should not be dismissed or removed by a lesser authority in whose judgment they may not have the same faith. The underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure. Clause (2) protects government servants against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. It will be noted that in clause (1) the words “dismissed” and “removed” have been used while in clause (2) the words “dismissed” “removed” and “reduced in rank” have been used. The two protections are (1) against being dismissed or removed by an authority subordinate to that by which the appointment had been made, and (2) against being dismissed, removed or reduced in rank without being heard. What, then, is the meaning of those expressions “dismissed” “removed” or “reduced in rank”? It has been said in Jayanti Prasad v. State of Uttar Pradesh, AIR (1951) All 793, that these are technical words used in cases in which a person's services are terminated by way of punishment. Those expressions, it is urged, have been taken from the service rules, where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of Article this leads us to embark upon an examination of the service rules relating to punishments to which the government servants can be subjected.” (Emphasis supplied) 17. The import of the Apex Court judgment thus is that Article 311 of the Constitution of India does not limit the protections envisaged therein to only permanent members of the civil services or those holding permanent civil posts. For, such a limitation would be contrary to the principles of constitutional interpretation and would unfairly exclude temporary or officiating employees from its protections. Article 311 does not explicitly differentiate between permanent and temporary employees. For, such a limitation would be contrary to the principles of constitutional interpretation and would unfairly exclude temporary or officiating employees from its protections. Article 311 does not explicitly differentiate between permanent and temporary employees. If the protection of Article 311 were limited to permanent employees, temporary employees would be vulnerable to dismissal or removal without due process, which would be unjust. Pertinently, even the temporary employees perform same duties just like permanent employees and thus deserve the same protections. Furthermore, it has been held that other Articles in the Constitution, such as Articles 310, 58, and 66, also use the term “hold” without distinguishing between permanent and temporary positions. If the Constitution makers intended such a distinction, they would have explicitly stated it. Thus, both permanent and temporary employees ought to be afforded the protections of Article 311, as there is no rational basis for treating them differently. In the larger interest to ensure that the rights of all government employees are safeguarded, a more inclusive interpretation of Article 311 has been given by the Supreme Court. 18. In the parting, I may hasten to add here that conceded case of the respondents is that as on 13/14.06.2001, everything was hunky dory, inasmuch as, petitioner was asked to rejoin her duties by an office order and, to that extent, her past mis-conduct, if any, stood condoned. However, as it turned out, the petitioner did not join duties due to her medical condition and remained absent without leave. Nothing stopped the respondents to take administrative action against the petitioner, provided of-course, in accordance with law by issuing appropriate notice and/or instituting departmental proceedings to its logical conclusion. The department, on its own volition, chose not to take any action for more than two years. Then, suddenly, as a bolt from blue, impugned order dated 20.01.2004 was passed, which no doubt department could have passed, but as already observed, only by following due procecure of law. That aside, even if services were to be terminated, the same could, at best, have been with effect from the date of passing of the order, i.e. 20.01.2004 and not retrospectively w.e.f. 14.06.2001. What is also noteworthy is that even confirmation of the termination vide impugned order dated 16.12.2004 was, rather in a very strange manner, inasmuch as prior to the passing of said confirmation order petitioner had already joined service on 21.08.2004. What is also noteworthy is that even confirmation of the termination vide impugned order dated 16.12.2004 was, rather in a very strange manner, inasmuch as prior to the passing of said confirmation order petitioner had already joined service on 21.08.2004. Be that as it may, for the other reasons already noted hereinabove, the impugned order is not sustainable. 19. As an upshot of my discussion hereinabove and in the light of the ratio laid down in Parshotam Lal Dhingra, ibid, the orders impugned dated 27.02.2001 (Annex.10) treating her to be new appointee; dated 20.01.2004 (Annex.13) and 16.12.2004 (Annex.19), terminating the services of the petitioner and confirming the order of termination, are set aside. 20. However, it is made clear that petitioner shall not be entitled to any monetary benefits for the period she did not report for work/remained absent from duty. The consequences of setting aside of the impugned orders herein would merely be that she is held entitled only the notional benefits arising there from. 21. With the aforesaid observations, the petition is partly allowed. 22. Pending application, if any, also stands disposed of.