N.P.Singh, J.

1. This writ writ application has been filed on behalf of the petitioner for a writ of mandamus directing the respondents to fix her pension and other retirement benefits after the petitioner retired from the service of the State Government on 31st of August, 1988. A prayer has also been made to quash an order dated 18-7-88 issued from the Directorate of Industries, rejecting the representation of the petitioner in terms of Rule 76 of the Bihar Service Code (hereinafter referred to as the Code).

2. According to the petitioner she was appointed as Lady Skilled Artisan as early as in the year 1956 and thereafter she continued in the service of the State Government. Sometime in the year 1968 due to mental disorder the petitioner stopped coming to office. Initially, she was granted leave but later she absented herself from duty without any leave. This situation continued upto the year 1978 when the petitioner is said to have become normal and wanted to join her service but she was not allowed to join because she had remained absent without leave for such a long period. The petitioner kept on pursuing the matter, but she ultimately retired from the service of the State Government, as already mentioned above. Before her retirement the impugned order dated 18-7-88 mentioned above was issued in purported exercise of the powers under Rule 76 of the Code. At the stage of admission itself counter affidavit has been filed on behalf of the respondents.

3. There is not much dispute so far the facts are concerned because on her own saying the petitioner absented from duty for about 10 years and, according to the petitioner, after ten years she was not allowed to join. So the question which falls for consideration is as to whether in the circumstances mentioned above it shall be deemed that the services of the petitioner stood terminated automatically under Rule 76 of the Code. This aspect of the matter has been examined by a Bench of this Court presided over by Hon ble Mr. Justice N. L. Untwalia (as he then was) and Hon ble Mr. Justice S. Sarwar Ali in the case of Sobhana Das Gupta V/s. The State of Bihar and Ors. 1974 PLJR 382. In that case also the petitioner had remained absent without leave for a pretty long time and the stand of the State was that her services stood terminated. The Bench referred to Article 311 of the Constitution and pointed out that the service of a Government servant can be terminated in the back ground of Article 311 of the Constitution and any rule containing provisions of automatic termination of the service of a regular employee of the State Government must pass the test of Article 311 of the Constitution. In that connection in respect of this very Rule 76 of the Code it was observed as follows :-

In my view, in order to determine whether the impugned rule is invalid, the proper test would be to see whether the rule, either expressly or by necessary implication, excludes the applicability of Article 311 of the Constitution. If it does, the rule must be held to be invalid. On the other hand if the impugned Service Rule does not have this effect, the rule itself may not be invalid, but the order without complying with provision of Article 311 would be invalid and incapable of being given effect to. Thus it is only when the rule is to be read in conjunction with or supplemental to Article 311 of the Constitution that it can be held to be valid. Testing it from this point of view, that part of Rule 76 which is under consideration in this case has to be struck down as invalid. The rule 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 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 s