I.A. ANSARI, J.

1. Having been appointed, on compassionate ground, by the District Superintendent of Education, Gaya, as an Assistant Teacher on 21.08.1991, the original writ petitioner, namely, Rana Pratap Singh (since deceased), continued to serve as an Assistant Teacher, in Urdu Primary School, Madarpur, Dumaria, Gaya, with effect from 07.09.1991. The original writ petitioner remained absent from duty from April, 1997, until the time he presented his joining report, on 23.02.2008, with a medical certificate, whereby he was certified to be medically fit to resume his duty. The original writ petitioner’s joining report was not accepted nor was any formal rejection order passed; but the original writ petitioner was not allowed to rejoin his service. No departmental or disciplinary proceeding was initiated against the original writ petitioner for having remained absent from duty in the manner as indicated hereinbefore.

2. Having not been able to rejoin his service, the original writ petitioner filed a writ petition, under Article 226 of the Constitution of India, which gave rise to C.W.J.C. No. 21857 of 2011. By his writ petition, the original writ petitioner sought for, inter-alia, a direction to the respondents to accept his joining report, dated 23.02.2008, and allow him to discharge his duties as an Assistant Teacher, in Urdu Primary School, Madarpur, Dumaria, Gaya, and also a direction to the respondents to regularize the period of his absence from duty with effect from May, 1997, till 22.02.2008. By his writ petition, the original writ petitioner further sought for the relief of being declared entitled to all the service benefits, which he would be entitled to receive on regularization of the period of his absence from duty.

3. However, while the writ petition was pending, the original writ petitioner died on 26.12.2011. Upon death of the original writ petitioner, the widow, namely, Most. Devanti Devi, came to be substituted, along with her son, namely, Rahul Kumar, as legal representative, on 08.07.2015, the widow being petitioner No. 1 and the original writ petitioner’s son, as petitioner No. 2.

4. By the judgment and order, dated 28.08.2015, a learned single Judge has dismissed the writ petition on the ground that the employer was justified in not accepting the joining report of the original writ petitioner (since deceased) and, therefore, the question of payment of salary did not arise making it, however, clear that the respondents may consider the other claims of the family, in accordance with law, preferably, within a period of six months, on an application being filed by the substituted petitioners (i.e., the appellants herein). Aggrieved by the judgment and order, dated 28.08.2015 aforementioned, this Letters Patent Appeal has been preferred.

5. We have heard Mr. Shivendra Kishore, learned Senior Counsel, appearing for the appellants, and Mr. S. Raza Ahmad, learned Additional Advocate General No. 9, appearing for the respondents.

6. While considering the present appeal, what needs to be noted is that the original writ petitioner (since deceased) remained, admittedly, absent from duty from May, 1997, to 22nd February, 2008, and submitted his joining report, on 23.02.2008, on the ground that he had become mentally sick and, on being declared fit, he had come forward to join his service. This joining report was neither accepted nor rejected. The joining report, therefore, remained pending and, in the meanwhile, the original writ petitioner died without being allowed to rejoin his service.

7. While considering the present appeal, what needs to be pointed out is that merely because a person is legal representative, he or she cannot be allowed to be substituted in a proceeding against a party, who may have died after the institution of the proceeding. The right to sue must survive in favour of the legal representatives in order to enable him or her claim for substitution in place of a party to a legal proceeding, who