G.L. Oza, J.-

1. This petition has been filed by the petitioner challenging the order passed on 21-7-1979 and a subsequent order passed on 6-5-1980 by the respondents.

2. According to the petitioner, the petitioner joined the services as an Assistant Surgeon on 15-10-1956 and later on he was promoted as Class I officer and was appointed a Medical Specialist. It is alleged that in the year 1978 the petitioner was posted at the District Hospital, Durg as a Medical Specialist, where he received a telegram from his home town Ujjain about the serious illness of his mother at Ujjain. It is alleged that he applied for leave and submitted the leave application along with the telegram to the Civil Surgeon, District Hospital. Durg and with his verbal permission he proceeded on leave to Ujjain. The leave application was forwarded to the Director of Health. It is further alleged that as the condition of the petitioner's mother was not satisfactory, it became necessary for him to continue to stay at Ujjain and be, therefore applied for extension of leave for a period of 60 days from 25-8-1978 to 23-10-1978 and this continued and the petitioner applied for extension of leave from 24-10-1978 to 7-12-1978 and from 8-12-1978 to 25-12-1978 and 26-12-1973 to 8-2-1979 it is alleged that all these leave applications with ecessary medical certificates were submitted by the petitioner through the Civil Surgeon to the Competent authority.

3. It is alleged that till 31-1-1979 as the petitioner did not hear anything about the sanction of his leave and he, therefore, carried an impression that the leave was sanctioned. But according to the petitioner on 31-1-1979 he received a confirmation copy of a telegram purported to have been issued on 23-1-1979, whereby the petitioner was directed to resume duties within 7 days and it is alleged that in compliace with this the petitioner joined his services at the District Hospital. Durg, on 8-2-1979 and a joining report was submitted to the Civil Surgeon. It is futher alleged that later on his services were placed at the disposal of the Labour Department and the petitioner was posted in the Employees' State Insurance Hospital at Ujjain and later his services were re-transferred to the Health Department and ultimately on 26-9-1980 he was posted again as a Medical Specialist in the District Hospital at Ujjain. According to the petitioner he received an order dated 21. 7. 1979, where in, it was stated that leave from 9. 8. 1978 to 8-2-1979 has been treated as unauthorised absence and this period, therefore, has been treated as a break in service and on receipt of this order a representation was made by the petitioner on 29. 9. 1979. Thereafter a reminder was given by the petitioner and he was informed by order dated 25-9-1980 that his representation his been rejected. It is these two orders, the order dated 21-7-1979 and the order rejecting the representation are the orders which are challenged in this petition.

4. In the return filed by the State, most of the facts are not disputed. The only question is about the leave during the period 9-8-1978 to 8-2-1979 According to the return this leave was not sanctioned and, therefore, the Government chose to treat this period as break in service and, therefore, the impugned order was issued.

5. It was contended on behalf of the petitioner that this order is not justified as under the leave rules, which are applicable to the petitioner, Rule 2. is the only Rule under which an appropriate action could have been taken and under Rule 24 the only action that could have been taken was to treat this period of leave, whichever was available to the petitioner either half-pay or other leave and in Case no other leave was available then it could have been treated as extraordinary leave, in substance meaning leave without pay and it is contended that in that event it could not be treated as break In service. According to the petitioner if the authorities wanted to take a penal action