ORDER :

1. This writ petition has been filed by the petitioner aggrieved against the order dated 28.2.2019 (Annex. 4), whereby, exercising the power under Rule 23(2) and 23A read with Rule 86 of the Rajasthan Service Rules, 1951 (‘the Rules 1951’) the petitioner, who was working as Junior Assistant (Probationer Trainee), has been dismissed from service.

2. The petitioner was accorded appointment on the post of LDC after going through the selection process conducted by RPSC vide order dated 16.3.2018 and was directed to join her duty under Sub Registrar, Jhanwar, District Jodhpur.

3. As the petitioner had given birth to a baby boy on 1.3.2018, she applied for extension of joining time for six months but she was accorded extension for three months and she joined her duties on 21.5.2018. The petitioner, thereafter applied for maternity leave under Rule 103 of the Rules, 1951 and her application was forwarded on 23.5.2018. The petitioner also moved another application dated 12.6.2018 seeking leave without pay, however, no order was passed on the said applications. The petitioner received the impugned order dated 28.2.2019 (Annex. 4), whereby, it was indicated that her applications were rejected on 24.10.2018 and as the petitioner remained absent from duty since 13.6.2018 without leave, the same was misconduct as per Clause 13 of her order of appointment dated 16.3.2018 and therefore, the order impugned dismissing her from service was passed.

4. The petitioner made representations indicating that her services have been terminated without affording her any opportunity of hearing. The petitioner sought information regarding the order dated 24.10.2018, whereby, her applications for leave were rejected under Right to Information Act, which was supplied to her under communication dated 20.5.2019 (Annex. 9). The petitioner sought information regarding communication of order dated 24.10.2018 to her, for which a communication dated 6.1.2020 (Annex. 16) was sent by the Sub-Registrar, Jhanwar that neither the order dated 24.10.2018 was received by the office nor the same was sent to the petitioner.

5. Learned counsel for the petitioner made submissions that action of the respondents in dismissing the petitioner from service is ex facie illegal and inhumane. Submissions were made that admittedly just before the petitioner was accorded appointment, she had given birth to a child on 1.3.2018 and pursuant to her order of appointment dated 16.3.2018 sought extension, which was granted for three months only and as such, the petitioner was forced to join her duties on 21.5.2018 and, thereafter, applied for maternity leave, to which she was entitled as laid down by this Court in Smt. Neeraj vs. State of Rajasthan, S.B. Civil Writ Petition No. 4384/2020 decided on 7.12.2020 and upheld by the Division Bench in State of Rajasthan vs. Smt. Neeraj, D.B. Special Appeal (Writ) No. 376/2021 decided on 4.8.2021, however maternity leave was not sanctioned to her.

6. Further, the petitioner was also entitled for child care leave, which though was applied by her in the form of ‘leave without pay’ the same was also not granted, no communication was made to the petitioner regarding rejection of her applications, though the same was purportedly rejected on 24.10.2018. The fact of non-communication of rejection is amply proved by the communication (Annex. 16) and as such the petitioner being unaware of the fact of rejection of her applications, could not join her duties. The respondents, without affording any opportunity of hearing to the petitioner and/or holding disciplinary inquiry, has passed the order impugned, which is ex facie illegal and deserves to be set aside.

7. Learned counsel for the respondents vehemently opposed the submissions. It was submitted that though the petitioner had applied for maternity leave and leave without pay, without sanction of the said leave, she should not have remained absent from duty and once she chose to remain absent from duty, the