Rule 76 of the Bihar Service Code, which provides for automatic termination of service for absence from duty for five years, is invalid and cannot be used to dismiss or remove a government servant from service.

This writ application has been filed on behalf of the petitioner making a grievance that although he has not been removed or dismissed from the service of the State Government still, by an order dated 4th July, 1988, passed by the District Magistrate East Champaran, the joining report submitted by the petitioner has not been accepted.

2. From the statements made in the writ application it appears that the petitioner was posted as Jan Sevak in Raxaul Block on 27.5.1963 and from 17.11.65 be started absenting from the duty and remained absent till 23.10.1980. After 15 years when the petitioner purported to submit this joining report it was not accepted by the District Magistrate.

3. The petitioner, thereafter, filed an appeal before the Commissioner. Tirhut Division, who, appears to have referred the matter to the Finance Department. From the records it appears that some departmental proceeding has been initiated against the petitioner and in that connection some advice has been sought for from the Personnel and Administrative Reforms Department. But it does not appear that even after 15 years of absence from duty the petitioner bas been formally dismissed or removed from the service of the State Government. The District Magistrate by the impugned order dated 4.7.88 has held that as the petitioner remained absent from duty for more than 15 years, in view of Rule 76 of the Bihar Service Code (hereinafter referred to as 'the Code') it shall be deemed that his service stood terminated.

3. The validity of Rule 76 of the Code aforesaid was considered in the case of Sobhana Das Gupta v. The State of Bihar and another (1973 BBCJ 202) by a Bench of this Court presided over by Untwalia, C. J. (as he then was) In the said case it was held in respect of Rule 76 as follows :-

“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 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 Article 311 of the Constitution is excluded by necessary implication by the very language and wordings of the rule. Under the rules nothing more is to be done, once the conditions laid down in the rules are fulfilled. The fulfillment of those conditions cause automatic cessation of Government employment. I am therefore, clearly of the view that 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 invalid and must be struck down. It is further manifest that the Government order contained in Annexure-2 is also invalid and cannot be given effect to.”

In view of the aforesaid Bench decision of this Court there is no escape from conclusion that there is no question of automatic dismissal or removal of the petitioner from the service of the State Government. As the order passed by the District Magistrate, East Champaran, is in purported exercise of the powers under Rule 76 of the Code aforesaid, which has been held to be invalid, we are left with no option but to quash that order.

4. Incidentally, we may mention that on 14.9.88, after referring to the aforesaid Judgment we directed the learned Government Advocate to seek instructions from the District Magistrate, East Champaran, as to how the petitioner has not been allowed to join the service and he has been treated to have been dismissed from the service of the State Government by the aforesaid order dated 4.7.88. However, no counter-affidavit has been filed. We are disposing of this writ application on the basis of the statements made in the writ application.

5. As the petitioner has admittedly remained