Termination of service without due process is illegal; absence should be treated as resignation, not termination.

ORDER :

GRIEVANCE/PRAYER:

1. The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner ventilating her grief over the termination of her services by the respondent authorities vide order dated 18.07.2000 (Annexure-7) and has sought benevolence of this Court to quash and set aside the said termination order as well as to reinstate her in service, or alternatively, to treat her as being in service up to passing of the impugned order and release her post-retirement/termination benefits.

FACTS OF THE CASE:

2. Bereft of elaborate details, the brief facts necessary for disposal of the instant writ petition are as under:

2.1. The petitioner was appointed as Teacher Grade-III (earlier nomenclature was Assistant Teacher) in the year 1984 and joined her duties at Government Primary School, Pachpadra, Barmer on 03.01.1984. She was subsequently transferred to various schools over the time and lastly transferred to Government Primary School, Jasol, Barmer.

2.2. On 06.07.1995, she applied for seven days’ leave with permission to leave headquarter for investigation, diagnosis and medical treatment of her son, who was suffering from Congenital Osteogenesis Imperfecta which caused him to sustain nearly 360 fractures in his lifetime. Not only this, her mother-in-law was suffering from paralysis attack following a brain hemorrhage, which left her in a coma as well as her father-in-law was also suffering from kidney failure and as such they were in critical health condition. As her son and in-laws required constant medical consultation and special nursing attention, she was unable to resume her duties and, thus, sent several applications for extension of her leave period to the respondent authorities through registered post from time to time and lastly on 25.03.1999.

2.3. During her leave period from 1995 to 1999, she suffered a lot: (i) her mother-in-law passed away in the year 1995, followed by her father-in-law on 23.03.1996 due to their respective ailments mentioned herein above; (ii) she became pregnant in the year 1997 and as she was worried that her second child might also suffer from the same disease as her first child, she had to remain under medical observation and take complete bed rest during the prenatal period and as a result of which, she gave birth to a son on 31.01.998 and (iii) on 26.01.1999, her elder son also died at a very young age due to his health complications mentioned herein above.

2.4. The sudden and tragic demise of her elder son at a very young age profoundly disturbed her mental equilibrium, which deeply affected her physical health, necessitating medical treatment and preventing her from resuming her duties.

2.5. On 06.04.1999, when her mental and physical health condition improved, though she reported at Government Primary School, Jasol, Barmer for resuming her duties, but the respondent authorities refused to accept her joining and paid no heed to her repeated representations made with the same request.

2.6. Eventually, the respondent authorities vide order dated 18.07.2000 (Annexure-7) terminated her services with immediate effect on the ground of willful absence since 06.07.1995 in accordance with the Rule 86 of the Rajasthan Service Rules. [For brevity hereinafter to be referred as ‘RSR’]

2.7. Being aggrieved by the order of termination dated 18.07.2000 (Annexure-7), the petitioner preferred an appeal bearing Appeal No. 1213/2000 before the Rajasthan Civil Services Appellate Tribunal, Jaipur. [For brevity hereinafter to be referred as ‘tribunal’] However, the tribunal vide order dated 30.01.2015 (Annexure-R/1) dismissed the said appeal as not maintainable because the order under assail was passed as a punishment, which could not be challenged before it.

2.8. In these circumstances, the petitioner again moved a detailed representation requesting to the respondent authorities to at least release her post-retirement/termination benefits but no heed was paid by them. Hence, the