JUDGMENT :

1. Heard Mr. SP Sharma, learned counsel for the petitioner and Mr. D Nath, learned Senior Government Advocate for the respondents in the PWD(Roads), Government of Assam.

2. The petitioner was appointed on the recommendation of the Assam Public Service Commission as an Assistant Engineer (Civil) in the PWD and was posted at Dibrugarh Roads Division against a vacant post. Prior to being appointed as an Assistant Engineer (Civil), the petitioner was in Australia for certain educational purpose. After the appointment, he felt that there was a necessity to go back to Australia to complete certain unfinished works. Consequently, he sought for leave from 01.07.2004 to 30.07.2004, which was granted. But the petitioner on his own volition overstayed the leave and returned back in the year 2006. Although it is stated that from time to time he went on giving applications for extension of his leave, but there is nothing on record to show that any leave in respect of such applications were allowed.

3. Be that as it may, after returning back in the year 2006, the petitioner was placed under suspension by an order dated 29.03.2006 of the Commissioner and Special Secretary to the Government of Assam in the PWRD. A disciplinary proceeding was also initiated against the petitioner as per the show cause notice dated 24.06.2009 under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (in short Rules of 1964) read with Article 311 of the Constitution of India, primarily on the charges that he remained unauthorizedly absent for the aforesaid period.

4. A declaration was made by the petitioner on a non-judicial stamp paper on 18.06.2010 to the effect that the petitioner will not claim any pay and allowances for the period from 31.07.2004 till the date of the declaration, if he is reinstated in service.

5. The respondents through the Deputy Secretary to the Government of Assam in the PWD issued a communication dated 30.05.2012 to the petitioner informing that the department was considering to dispose of the disciplinary proceeding and also to revoke the order of suspension and accordingly the response of the petitioner was invited. The petitioner made a reply to the said communication as per his letter dated 03.07.2012 providing certain medical certificates.

6. Consequently, by an order dated 09.11.2012 of the Deputy Secretary to the Government of Assam in the PWD, the petitioner was reinstated in service and was posted as Assistant Engineer (Civil), PWD(R) at Tinsukia. After being reinstated, the petitioner was aggrieved by a notification dated 12.10.2016 providing for his inter-se seniority in the cadre and against the same, there was also a legal notice dated 21.06.2017 by the petitioner.

7. In the circumstance, WP(C) No. 7317/2017 was instituted by the petitioner, which was given a final consideration by the order dated 11.12.2017, wherein there was a direction to the Commissioner and Secretary in the PWD(R) to give a consideration to the representation that may be submitted by the petitioner. Consequent thereof, the order dated 21.08.2018 was passed by which, amongst others, it had been provided that as advised by the Personnel Department and Judicial Department and upon considering the prayers of the petitioner and taking a humanitarian approach, the disciplinary authority had decided to conclude the departmental proceeding against the petitioner by revoking the suspension order dated 29.03.2006 and to treat his entire period of absence as ‘dies non’ for all purpose under FR 18 and that the entire past service of the petitioner would stand forfeited as advised by the Judicial Department. Being aggrieved, this writ petition is instituted.

8. Mr. SP Sharma, learned counsel for the petitioner raises a grievance that in the fact and circumstance of the matter, where the petitioner was not performing his duties for whatever reason it may be, there was a disciplinary proceeding and the authorities as per the undertaking given