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PATNA HIGH COURT
N.L.Untwalia and S.Sarwar Ali JJ.
Sobhana Das Gupta
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 2050 of 1970 ;
Decided On : MARCH 01, 1973
Rule 76 of Bihar Service Code lays down that absence from duty, without leave, for a period of five years results in the employment of a Government Servant coming to an end.
The rule does not envisage passing of any order. The cessation of the service is automatic, and is a consequence of the applicability of the rule. Any Government order that is or may be passed is only for the purpose of deciding whether the rule applies to a particular Government Servant in the facts and circumstances of a given case. Clearly, therefore, the applicability of Art 311 of the Constitution is excluded by necessary implication by the very language and wordings of the rule. Under the rules nothing more is required, nothing more is to be done, once the conditions laid down in the rules are fulfilled. The fulfilment of these conditions causes automatic cessation of the Government employment. Therefore rule 76, in so far as it lays down that a Government Servant ceases to be in Government employ if he is absent from duty for five years without leave, is ultravires of Article 311 (2) of the Constitution and must be struck down. (Para 11)
(AIR 1964 S.C. 600, Rel. on, A.I.R. 1966 S.C. 492, and A.I.R. 1971 S.C. 1409 Ref.)
Treating that a Civil servant has ceased to be in Government employ because of continuous absence without leave for five years amounts to removal and the said removal without giving any opportunity to the civil servant is to go against Article 311 of the Constitution. In the circumstances, violation of Article 311 of the Constitution is writ large and there can, therefore, be no doubt that the order is illegal. (Para 8)
Sarwar Ali, J.
1. In this application the petitioner prays that the order passed by respondent No. 2, the Director of Public Instruction, Bihar a copy of which is Annexure 2 to the writ application, be called up and quashed. By this order the petitioner is treated as having ceased to be in Government employ under Rule 76 of the Bihar Service Code, 1952 .
2. The relevant facts which are either admitted or have been established during the course of hearing of this writ application may be, briefly, stated. The petitioner was appointed in the year 1949 to Bihar Subordinate Education Service. By an order dated 7-9-1961 she was promoted to Bihar Education Service. Class II and posted as Lady Principal, Womens Training School at Bela-ganj in the district of Gaya. The petitioner was deputed to attend a training course at the Institute of English at Patna. She, accordingly, reported to the said Institute on 3-8-1963. By an order dated 7-12-1963 the petitioner, along with others, was relieved from the Institute and directed to report to the respective Institutions in due course. It may be stated that the petitioner, before her deputation to the Institute aforesaid, was at Sasaram having been transferred from Belaganj to Sasaram by order dated 21-6-1963. The petitioner applied for earned leave from 9-12-1963 to 31-12-1963 on the ground that her mother was seriously ill. It appears that she applied for leave on several subsequent dates also. On 29-6-1964 the petitioner was intimated by the Deputy Director of Education (Administration) that her applications for leave can be sanctioned only after she had joined her duty as Lady Principal, Womens Training School at Sasaram, and she had furnished medical certificate in support of her mothers illness. By order dated 11-9-1964 the petitioner was transferred and posted as Lady Principal. Womens Training School at Gopalganj. It appears that the petitioner did not join her duty. By Annexure D to the counter-affidavit the petitioner was informed that her application for leave had been rejected. She was further directed to resume her duty at Gopalganj failing which she would be liable for disciplinary action. The petitioner having failed to join her post at Gopalganj departmental proceeding was drawn up against the petitioner which was held and concluded. On 17-1-1967 the inquiring officer submitted his report. On 3-6-1967 the Government passed an order reducing the petitioner in rank and reverting her to Subordinate Education Service. The order of the Government is Annexure E -to the counter-affidavit. In the memo portion of the same order the petitioner was posted as Assistant Mistress. Womens Training School, Gobind-pur. It appears that the petitioner had made further applications for leave. In an application dated 28-9-1968 she prayed for leave and further prayed for being posted at Patna. These prayers were rejected. An order dated 23-11-1968 was passed again, directing the petitioner to join the post at Gobindpur. She was further informed that if she did not join the post within a week departmental action will be taken against her. The petitioner did not it is admitted, join the post of Assistant Mistress at Gobindpur. That by that time the petitioner had been absent from duty for over five years. The respondents were of the view that Rule 76 of the Service Code was applicable to her and that she had ceased to be in Government employ. Consequently a communication was addressed to the petitioner which is as follows:
"Upayukt Bishoy Par Apke Tithi 6-5-69 Ke Patra Ke Prasang Me Mujhe Kahana Hai Ki December, 1963 Se Hi Anu-pasthit Rahane Ke Karan Bihar Sewa Sanhinta Ke Niam 76 Ke Anusar Apki Sewa Samapt Samajhi Jati Hai."
This is Annexure 2 to the writ application and as stated above is under challenge.
3 In this application the order of the Government reducing the petitioner in rank (Annexure E to the counter-affidavit) is not under challenge. It is only the decision of the State Governme
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