ORDER : RAJANI DUBEY, J. 1. The petitioner has filed the instant petition under Article 226 of the Constitution of India seeking following relief (S) :- “10.1 That, this Hon’ble Court may kindly be pleased to quash the impugned order dated 07.12.2013 and 23.04.2008 (Annexure P-1) & (Annexure P-2) passed by the respondent Nos. 2 and 3. 10.2 That, this Hon’ble Court may kindly be pleased to direct the respondents to reinstate to the petitioner in service with all consequential benefit (arrears, seniority promotion) 10.3. Any other relief, which this Hon’ble Court may deem fit.” 2. Brief facts of the case, as projected by the petitioner, are that the petitioner was appointed as Assistant Teacher and was working at Govt. Primary School, Sumairpur, Block Lundra, District Surguja (C.G.). The petitioner on account of his ill health was absent from 2007 to 23.04.2008, therefore, vide order dated 23.04.2008 (Annexure P/2), the services of the petitioner were terminated by the respondent No.3 due to unauthorized absent. Thereafter, on 09.05.2012, the petitioner preferred an appeal (Annexure P/3) against the order of termination. When no action was taken by the respondent No.2 on the appeal filed by the petitioner, he moved an application before the Commission for Scheduled Tribes, Govt. of C.G., wherein a notice was issued to respondent No.2 to file reply and finally the Commission passed an order on 15.10.2013 (Annexure P/4) recommending the reinstatement of the petitioner. Thereafter, the respondent No.1 issued a letter dated 07.12.2013 (Annexure P/5) to respondent No.2 to take necessary action in accordance with the recommendation of the Commission for Scheduled Tribes. The petitioner filed a writ petition being W.P.(S) No.3782/2014 before this Hon’ble Court seeking implementation of order of Commission for Scheduled Tribes, however, the writ petition was dismissed as withdrawn. After passage of consideration period when respondent No.2 did not supply the copy of order dated 07.12.2013 (Annexure P/1) whereby the appeal of the petitioner was rejected, the petitioner filed an application before the Commission and subsequently, the said order was supplied to the petitioner by the Commission on 18.03.2015 vide Annexure P/8. 3. Learned counsel for the petitioner submits that the petitioner was regular employee of the State Govt and the respondent authorities terminated the services of the petitioner without conducting/initiating departmental enquiry. 3. Learned counsel for the petitioner submits that the petitioner was regular employee of the State Govt and the respondent authorities terminated the services of the petitioner without conducting/initiating departmental enquiry. The services of the petitioner was governed by the Civil Service (C.C.A.) Rule 1966, but the respondent No.3 did not follow the rule and straight-way terminated the services of the petitioner. Learned counsel further submits that as per order dated 23.04.2008, the respondent No.3 issued a show cause notice to the petitioner, but the said notice was not served to the petitioner and the respondent No.3 terminated the services of the petitioner without giving any opportunity of hearing, as such, the impugned orders are liable to be quashed. Learned counsel also submits that the appeal preferred by the petitioner was rejected by the respondent No.2 merely on the ground of limitation and did not decide his appeal on merit. The petitioner had moved an application before the respondent No.2 on 31.01.2015 for early disposal of his appeal, but the respondent No.2 did not give information to the petitioner regarding passing of order dated 07.12.2013. Learned counsel also submits that the impugned order dated 07.12.2013 (Annexure P/1) passed by the respondent No.2 is bad and malafide as the respondent No.1 had issued another letter dated 07.12.2013 to the respondent No.2 for necessary action in accordance with recommendation of the Commission for Scheduled Tribes and on the same day i.e. on 07.12.2013, the respondent No.2 without entering in to the merit of the case, rejected the appeal of the petitioner on the ground of limitation, which shows malafide intention of respondent authorities and the same deserves to be set aside. Reliance has been placed on the decision in W.A. No.450/2021 [ Krishna Kumar Kosaria Vs. State of C.G. & Anr.] dated 12.06.2023 of this Court. 4. On the other hand, learned State counsel strongly opposed the prayer of the petitioner and submits that the petitioner during his posting at Govt. Reliance has been placed on the decision in W.A. No.450/2021 [ Krishna Kumar Kosaria Vs. State of C.G. & Anr.] dated 12.06.2023 of this Court. 4. On the other hand, learned State counsel strongly opposed the prayer of the petitioner and submits that the petitioner during his posting at Govt. Primary School, Sumairpur, Block Lundra, District Surguja as Assistant Teacher, was absent from his duties since September, 2007 and upon a report of concerned District Education Officer, a show cause notice dated 15.01.2008 was issued to the petitioner and when he petitioner did not respond to it, a notice (Annexure R/2) was published in widely circulated newspaper “Hari Bhoomi” noticing the petitioner to finally join the duties and when the petitioner again did not respond to the aforesaid notice, the District Education Officer terminated the services of the petitioner vide order dated 23.04.2008 (Annexure P/2). Learned counsel further submits that the petitioner being aggrieved by the termination order dated 23.04.2008, preferred an appeal before the Director, Directorate of Public Instruction, Chhattisgarh Raipur after a lapse of more than 04 years and after due consideration, the appeal was dismissed vide impugned order dated 07.12.2013 (Annexure P/1), as such, both the impugned orders are just, proper and legal & there is no infirmity in the same. Thus, the instant petition is liable to be dismissed at the threshold. 5. I have heard learned counsel for the parties and perused the material available on record. 6. It is not disputed in this case that the petitioner was working as Assistant Teacher in Govt. Primary School, Sumairpur, Block – Lundra, District Surguja (C.G.) and he was absent from September, 2007 to 23.04.2008, therefore, by the impugned order dated 23.04.2008 (Annexure P/2), the services of the petitioner was terminated. Thereafter, the petitioner preferred an appeal against the order of termination which was also dismissed by the impugned order dated 07.12.2013 (Annexure P/1). The respondent authorities, in their reply, submitted that before passing the impugned orders, a show cause notice was issued to the petitioner followed by notice in the newspaper and when no reply was received by the petitioner, his services were termited by the order under impugned. The respondent authorities, in their reply, submitted that before passing the impugned orders, a show cause notice was issued to the petitioner followed by notice in the newspaper and when no reply was received by the petitioner, his services were termited by the order under impugned. It is apparent from the record as also by the return of respondent authorities that the petitioner was regular employee of the respondent authorities and in view of the Civil Service (C.C.A.) Rules, 1966, a proper departmental enquiry was to be initiated against the petitioner extending proper opportunity of hearing, which they have not done in the instant case. 7. This Court in Krishna Kumar Kosaria (supra) held in para 23, 24, 25, 26, 27 and 28 as under :- “23. The petitioner was a permanent Government servant. He had a right to his substantive rank. The Supreme Court in the matter of Parshotam Lal Dhingra v. Union of India" has held that mere termination of service, without more, of such an employee, would constitute his 'removal' or 'dismissal' from service attracting Article 311(2) of the Constitution of India. As such, the constitutional protection and safeguard guaranteed under Article 311(2) cannot be taken away by a side wind without following the provisions contained under Article 311(2) of the Constitution of India. 24. In the matter of Jai Shanker v. State of Rajasthan", the question that fell for consideration before the Constitution Bench of the Supreme Court was, whether the provisions contained under the Jodhpur Service Regulations was sufficient to enable the Government to remove a person from service without giving him an opportunity of showing cause against that punishment, if any, and it was answered in negative holding that the regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause and the Government cannot order a person to be discharged from service without at least telling him that they propose to remove him and and without giving him an opportunity of showing cause as to why he of Chh should should not no be removed. It has further been observed as under :- "6. A removal is removal and if it is punishment for Overstaying one's leave an opportunity must be given to person against whom such an order is proposed, no matter how the regulation describes it. It has further been observed as under :- "6. A removal is removal and if it is punishment for Overstaying one's leave an opportunity must be given to person against whom such an order is proposed, no matter how the regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here. 7. In our judgment, Jai Shankar was entitled to an opportunity to show cause against the proposed removal from service on his overstaying his leave and as no such opportunity was given to him, his removal from service was illegal. He is entitled to this declaration." 25. Similarly, in the matter of Deokinandan Prasad v. State of Bihar¹³, another Constitution Bench of the Supreme Court has held that an order of termination of service passed under Rule 76 of the Bihar Service Code on account of the servant's continuous absence for five years without giving an opportunity to the servant under Article 311(2) of the Constitution of India would be invalid. 26. The aforesaid principles of law laid down in Jai Shanker (supra) and Deokinandan Prasad (supra) have been followed with approval by their Lordships of the Supreme Court in the matter of State of Assam v. Akshaya Kumar Deb¹ wherein the question that required consideration was as under :- "7. The only question that falls for determination is whether the services of the respondent could be terminated under Rule 18 of the Assam Fundamental and Subsidiary Rules, without complying with the procedure prescribed in Article 311(2) of the Constitution of India ?" 27. Relying upon the decisions rendered in Jai Shanker (supra) and Deokinandan Prasad (supra), their Lordships answered the aforesaid question as under :- "14. Now in the case in hand, the impugned order was made against the consent of the respondent who has throughout been willing to continue in service. His case is that after the expiry of his leave he reported for duty and produced a medical certificate of his fitness, but he was arbitrarily and maliciously not allowed to work after September 13, 1956. Indeed his contention is that in these circumstances, F.R. 18 would not be attracted. Apart from the constitutional requirement of Article 311(2) natural justice and fairplay required that he should have been given a chance to substantiate his contention. Indeed his contention is that in these circumstances, F.R. 18 would not be attracted. Apart from the constitutional requirement of Article 311(2) natural justice and fairplay required that he should have been given a chance to substantiate his contention. The fact remains that given an opportunity, he would have controverted seriously the circumstances of his absence from duty on the basis of which the impugned action has been taken. 17. Even if it is assumed that termination under F.R. 18 does not cause forfeiture of benefits already earned such as pension, etc., then also that will not, by itself, take it out of the category of 'removal' as envisaged by Article 311(2). The respondent was a permanent government servant. He had a right to his substantive rank. According to the test laid down by this Court in Parshotam Lal Dhingra's case, the mere termination of service, without more, of such an employee would constitute his 'removal' or 'dismissal from service, attracting Article 311(2). From the constitutional standpoint, therefore, the impugned termination of service will not cease to be 'removal' from service merely because it is described or declared in the phraseology of F.R. 18 as a 'cessation' of service. The constitutional protection guaranteed by Article 311(2) cannot be taken away "in this manner by a side wind". 21. The above enunciation applies to the facts of the present case. Excepting the length of the period of absence, the basic features of Regulation 13 in Jai Shanker's case (supra) were very similar to those of F.R. 18 now under consideration. The words "should be considered to have sacrificed his appointment" in regulation 13, substantially correspond to the words "servant ceases to be in Government employ" in F.R. 18. Further the import and effect of the phrase "may only be reinstated with the sanction of the competent authority" in the regulation, is largely the same as that of the opening clause "unless the Provincial Government, in view of the special circumstances of the case shall otherwise determine in F.R. 18. The difference between the regulation and F.R. 18 as to the length of absence from duty prescribed as a condition precedent for the attraction of the respective provision, is a distinction without a difference in principle. The consequence of absence, though for different periods, envisaged by both the provisions, is the same, viz., "sacrifice" or "cessation" of the absentee's service. The difference between the regulation and F.R. 18 as to the length of absence from duty prescribed as a condition precedent for the attraction of the respective provision, is a distinction without a difference in principle. The consequence of absence, though for different periods, envisaged by both the provisions, is the same, viz., "sacrifice" or "cessation" of the absentee's service. The present case will thus be governed by the ratio of Jai Shanker's case. 24. In view of the above approach, it is not thought necessary to express any final opinion as to the constitutional validity of Rule 18 of Assam Fundamental and Subsidiary Rules. Although couched in ambiguous and unhappy language, the rule is capable of being interpreted and worked consistently with the requirement of Article 311(2) of the Constitution. This, however, should not lull the Government into a sense of complacency and belief that all is well with the rule. The sooner it is suitably amended, the better will it be in the interest of all concerned.” 28. Turning to the facts of the present case in light of the decisions rendered by the Supreme Court in Jai Shanker (supra), Deokinandan Prasad (supra) and Akshaya Kumar Deb (supra), it is quite vivid that neither in the Rules of 1977 nor in the applicable fundamental rules, there is any provision of abandonment of service for a continuous absence exceeding five years and even otherwise, petitioner is a permanent Government employee and he has constitutional safeguard and protection under Article 311(2) of the Constitution of India, as such, it was absolutely imperative on the part of the competent authority to give an opportunity of showing cause to the petitioner against his proposed termination from service particularly when the petitioner was insisting that he could not join duty on account of medical reasons and due to circumstances which were beyond his control.” 8. In the light of above decision of this Court, in the present case also, it is apparent that the petitioner was a confirmed employee of Govt. In the light of above decision of this Court, in the present case also, it is apparent that the petitioner was a confirmed employee of Govt. of Chhattisgarh and his services are governed by the Civil Service (C.C.A.) Rule, 1966 & he has been terminated from the service by the respondent No.3 on the ground that he remained unauthorisedly absent from his duties for a period of more than one year but no reasonable opportunity of hearing as contemplated under Article 311 (2) of the Constitution of India has been provided to him. The appellate authority also did not consider this ground of the petitioner that no reasonable opportunity of hearing was afforded to the petitioner as contemplated in C.C.A. Rule, 1966, and dismissed the appeal of the petitioner. 9. Thus, considering the aforesaid facts and circumstances of the case and the guidelines of Hon’ble Apex Court referred in the matter of Krishna (supra), the impugned orders liable to be and are hereby set aside. 10. This Court in the matter of Krishna (supra) also observed in para 30 as under :- “30. Therefore, we are of the considered opinion that the impugned order is liable to be set aside and it is hereby set aside. Since the appellant has already attained the age of superannuation, he would not be entitled for reinstatement, but he will be entitled for consequential benefits except back-wages in the facts and circumstances of the case. We deem it inexpedient to grant leave to the State to proceed afresh against the appellant in the facts and circumstances of the case including his superannuation in the meanwhile.” 11. In the instant case also, the petitioner, at the time of filing petition, was aged around 54 years and by now he is aged around 63 years. If the appellant has attained the age of superannuation, he would not be entitled for reinstatement but he would be entitled for consequential benefits except back-wages, and if the petitioner has not attained the age of superannuation, he be re-instated in service with all consequential benefits, except back wages, in accordance with law. 12. The petition is thus allowed to the extent indicated herein above.