JUDGMENT : (A.S. SUPEHIA, J.) 1. On 01.10.2024, this Court had passed the following order. “Learned advocate Mr. Shastri shall produce the original record by the next date of hearing and a photocopy of the said record shall be supplied to learned advocate Mr. Kharadi and to this court also. The appellant shall also give his service details by filing additional affidavit by the next date of hearing. S.O. to 23.10.2024.” 2. Thereafter, the matter has been adjourned on numerous occasions. Today, when the matter is taken up for hearing, learned advocate Mr.U.M. Shastri, appearing for the respondent Nos.2 and 4, has submitted that despite best efforts having being made, the respondent-authorities, have failed to trace out the record of the departmental/Tribunal proceedings. 3. ADMIT . Learned advocate Mr.U.M.Shastri, waives service of notice of admission on behalf of the concerned respondents. 4. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865, is directed against the order dated 07.11.2017 passed by the learned Single Judge disposing of the captioned writ petition filed by the appellant seeking a direction to complete the departmental inquiry and payment of subsistence allowance within the stipulated period and also by way of an amendment, a prayer clause was inserted seeking quashing and setting aside the decision taken by the Education Tribunal on 15.12.2009. 5. The learned Single Judge by the impugned order dated 07.11.2017 has disposed of the writ petition by issuing some clarificatory direction with regard to the subsistence allowance. 6. Learned advocate Mr.Kharadi, appearing for the appellant, at the outset, has submitted that after the dismissal order dated 21.04/05.2005 was set aside by the Appellate Authority, no departmental proceedings were either continued or initiated afresh and hence, the appellant was constrained to file the writ petition being Special Civil Application No.15770 of 2012, which was disposed of by the order dated 11.12.2012 directing the present appellant to file a detailed representation and the respondents were directed to decide the same on or before 21.01.2013. It is submitted that after the present appellant – original petitioner made a representation dated 20.12.2012, surprisingly, he was issued a letter dated 28.12.2012 referring some proceedings of the Tribunal, which the present appellant is unaware of. It is submitted that after the present appellant – original petitioner made a representation dated 20.12.2012, surprisingly, he was issued a letter dated 28.12.2012 referring some proceedings of the Tribunal, which the present appellant is unaware of. He has submitted that thus in view of the curious facts and in absence of the documents, the respondents were required to pay pension and retirement benefits to the appellant. It is urged by learned advocate Mr.Kharadi, that the learned Single Judge has failed to appreciate the aforesaid facts in its true perspective, hence the same may be quashed and set aside. 7. Per contra, learned advocate Mr. U.M. Shastri, appearing for the respondent-authorities has submitted that the impugned order passed by the learned Single Judge may not be interfered with as the respondents are not having any documentary evidence to point out as to whether any departmental proceedings are held or not. It is submitted that the original record is not available, and hence, the appellant cannot be reinstated in service. 8. We have heard the learned advocates appearing for the respective parties. 9. In the additional affidavit filed by the appellant, it is mentioned that the present appellant, on attaining the age of superannuation, has superannuated on 31.05.2023. 10. The facts, which are established from the pleadings, are that the appellant was serving as a Primary Teacher at village Kadvabariya, Taluka Kandana, District Panchmahals and was suspended by the order dated 08.10.2010 in view of the contemplation of the departmental proceedings. The charge appears to be that the appellant, while he was serving as a Assistant Teacher, had illegally withdrawn the GPF amount of 4 employees by forging the papers. Ultimately, the appellant was dismissed from the services by the order dated 21.04/05.2005 passed by the respondent No.2. The appellant, thereafter filed an appeal before the Appellate Authority and by the order dated 24.05.2007, the District Primary Education Officer, Panchmahals at Godhra, had partly allowed the appeal by setting aside the order of dismissal and remanded the matter for holding the departmental proceedings. The appellant, thereafter filed an appeal before the Appellate Authority and by the order dated 24.05.2007, the District Primary Education Officer, Panchmahals at Godhra, had partly allowed the appeal by setting aside the order of dismissal and remanded the matter for holding the departmental proceedings. Thereafter, since nothing happened, despite request made by the appellant to conduct the inquiry proceedings, he was constrained to file a writ petition before this Court being Special Civil Application No.15770 of 2012, which was disposed of by the order dated 11.12.2012 by directing the appellant to make a representation on or before 24.12.2012, which was to be decided by the respondent authority within a period of 30 days i.e. on or before 21.01.2013. 11. Accordingly, the appellant made a representation on 20.12.2012. Further, a request was also made to the respondents, however, by the communication dated 28.12.2012, the District Primary Education Officer informed the appellant that since the order of dismissal has been upheld by the District Primary Education Tribunal, no further exercise is required to be undertaken. 12. The appellant – original petitioner filed the captioned writ petition before this Court seeking direction to complete the departmental inquiry and also praying for setting aside the order dated 15.12.2009 passed by the District Primary Education Tribunal, though such order was not communicated to him and it is also not in existence. 13. It is asserted by the present appellant in his writ petition that no departmental inquiry was held as directed by the Appellate Authority. It is also asserted before this Court that he is not aware about the proceedings of the District Primary Education Tribunal, as mentioned in the communication dated 28.12.2012. Such assertions are made in the writ petition on affidavits. 14. Despite the aforesaid facts, the writ petition was disposed by the learned Single Judge in limine, though such assertion was made by the appellant. 15. Despite opportunities given to the present respondents, they have not produced any record either of the departmental inquiry or any proceedings of the Education Primary Tribunal. 16. At this stage, we may refer to the observations recorded by the learned Single Judge. The learned Single Judge has disposed of the writ petition on the ground that the petitioner was unable to produce the order, which he has assailed in the writ petition. The relevant observations are as under : - “19. 16. At this stage, we may refer to the observations recorded by the learned Single Judge. The learned Single Judge has disposed of the writ petition on the ground that the petitioner was unable to produce the order, which he has assailed in the writ petition. The relevant observations are as under : - “19. The petitioner has sought to challenge the said order dated 15.12.2009. However, copy of record is not placed on record. 20. In absence of the order which is sought to be challenged by the petitioner, any direction with regard to such order cannot be passed by this Court. 21. As mentioned above, in light of the minutes/record of hearing conducted on 15.12.2009, it appears that certain order of penalty came to be passed against the petitioner after the order dated 10.2.2007 passed by the appellate authority and after the order dated 24.5.2007 whereby the Inquiry Officer and Presenting Officer came to be appointed. 22. In this view of the matter, there is no ground or reason or justification to pass any order directing completion of inquiry which was conducted in pursuance of and in light of appellate authority's order dated 10.2.2007. From the material tendered on record by learned advocate for the respondent, it appears that such inquiry was conducted and completed and the decision passed by the competent authority in such de novo inquiry was challenged by the petitioner in appeal which was heard on 15.12.2009. Therefore, any order with regard to relief prayed for in paragraph No.11(B) is not required to be passed at this stage. 23. It is however clarified that if the petitioner is aggrieved by the order passed by the competent authority, it will be open for the petitioner to challenge such order before appropriate forum. 24. So far as petitioner's claim for subsistence allowance is concerned, it is clarified that if subsistence allowance is not paid to the petitioner in accordance with applicable rules,the petitioner may submit claim for subsistence allowance before the competent authority and such claim shall be considered in light of relevant facts and applicable rules. With aforesaid clarification, present petition stands disposed of.” 17. With due respect to the learned Single Judge, we do not subscribe to the observations recorded by the learned Single Judge, while disposing of the writ petition. With aforesaid clarification, present petition stands disposed of.” 17. With due respect to the learned Single Judge, we do not subscribe to the observations recorded by the learned Single Judge, while disposing of the writ petition. Though ample opportunities were given to the respondents, they were unable to point out any departmental proceedings held pursuant to the order dated 24.05.2007 passed by the Appellate Authority. No documentary evidence about the filing of the appeal before the Tribunal by any of the parties has been produced since the appellant in his writ petition has categorically asserted that he was not aware about such proceedings. The appellant in his writ petition had primarily prayed for a direction for completion of the departmental inquiry and payment of subsistence allowance. 18. We may at this stage comment on the so called order passed by the Primary Education Tribunal. The reference of the same is only made in the communication dated 28.12.2012 issued by the District Primary Education Officer, Panhmahal, Godhra. The same is translated as under: “By RPAD District Panchayat Panchmahals Godhra - Education Branch - Letter No.District Panchayat / Education / T-1 / Vashi / 4189 Godhra Date 28/12/2012 To, Kantibhai Somabhai Patel Village: Limbhola, Taluka: Kadana District: Panchmahals Subject: Departmental Inquiry and Suspension Allowance. Reference: Your application dated 20/12/12. Regarding the above subject, it is stated that as per the proceedings in the appeal before the District Primary Education Tribunal constituted under Section 24/2 of the Mumbai Primary Education Act 1947, the order of this office bearing Letter No.District Panchayat / Education/K-2/Inquiry/296/Vashi/1430/36 dated 21/5/2005 for dismissal has not been cancelled. Therefore, the above order remains in effect. Hence, no further action is required from this office. A copy of the hearing of the District Primary Education Tribunal's appeal dated 15/12/09 is attached herewith. Enclosure: Sd/- As above Signature: District Primary Education Officer District Education Committee, Panchmahals Godhra” 19. A bare perusal of the communication dated 28.12.2012 will exposit that the District Primary Education Officer has only referred to the hearing date of 15.12.2009 by the Tribunal. It does not mention any date of the order. It is a very cryptic order bereft of any details. The appellant has asserted that he is not aware of any order passed by the Tribunal as he was not issued any notice. The present communication also does not refer to any number of any appeal. It does not mention any date of the order. It is a very cryptic order bereft of any details. The appellant has asserted that he is not aware of any order passed by the Tribunal as he was not issued any notice. The present communication also does not refer to any number of any appeal. Though, opportunity was given to the respondents, they have not produced any details. In fact no affidavit in reply is filed. Hence, the appellant cannot be denied the benefits on a non-existing order. 20. Under the circumstances, the aforesaid observations made by the learned Single Judge were uncalled for. On an overall appreciation of the facts and circumstances of the case, the present Letters Patent Appeal succeeds in lack of any documentary evidence mentioned hereinabove, the impugned order passed by learned Single Judge is hereby quashed and set aside. 21. At this stage, due to passage of time, it is not feasible to issue any directions to the respondents for completion of the departmental inquiry since the appellant, has reached the age of superannuation on 31.05.2023. In absence of suspension order, the appellant’s prayer for subsistence allowance cannot be granted. At this stage, it would be apposite to incorporate the observations of the Apex Court in the case of Manoj Kumar vs Union of India, 2024(3)SCC 563: “20. In public law proceedings, when it is realised that the prayer in the writ petition is unattainable due to passage of time, constitutional courts may not dismiss the writ proceedings on the ground of their perceived futility. In the life of litigation, passage of time can stand both as an ally and adversary. Our duty is to transcend the constraints of time and perform the primary duty of a constitutional court to control and regulate the exercise of power or arbitrary action. By taking the first step, the primary purpose and object of public law proceedings will be subserved.” 22. Thus, the appellant cannot be left remediless even if the prayers have become untenable due to passage of time. The action of the respondents is declared as illegal and arbitrary. As a sequel, the impugned order passed by the learned Single Judge is quashed and set aside. In order to meet the ends of justice, and to avoid further litigation, we direct the respondents to treat the appellant as retired from the service. The action of the respondents is declared as illegal and arbitrary. As a sequel, the impugned order passed by the learned Single Judge is quashed and set aside. In order to meet the ends of justice, and to avoid further litigation, we direct the respondents to treat the appellant as retired from the service. His retirement benefits such as pension and gratuity shall be fixed by treating the intervening period as a notional. The appellant shall not be entitled to actual benefits of pay, but the notional period shall be considered for fixing the pay and increments, and accordingly his pension papers shall be prepared and his retirement benefits shall be fixed and paid. The entire exercise shall be carried out within a period of six weeks from the date of receipt of the present order. 23. The Letters Patent Appeal succeeds.