1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.6613/97 Vijendra Singh vs. Board of Revenue & Anr. Date of order : 23/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Vaish for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for the respondents. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner Vijendra Singh with the prayer that the respondents be directed to treat the entire period from 5.2.1989 to 10.3.1991 as spent on duty and their order dated 5.2.1994 in so far as it directs to treat the said period as leave be declared nullity and the respondents be directed to sanction the medical leave to the petitioner for the period for which he has submitted sickness and fitness certificate as mentioned in the enquiry report and accordingly the respondents be directed to refix the salary of petitioner upto date by allowing annual grade increments while treating his service continuous from before 5.2.1989 and after 10.3.1991. 2 Shri Rajendra Vaish, learned counsel for the petitioner has argued that the petitioner was served with a charge sheet for absence of the aforesaid period, but the charges were not found proved. Number of witnesses who were serving the respondents such as drivers and other employees came in evidence to prove that petitioner was actually discharging the duties at the residence of Shri G.P. Nagar, who was the Revenue Appellate Authority at Jaipur and was head of department for office staff of Circuit bench of the Board of Revenue at Jaipur. It was at his instructions that the petitioner was made to work at his residence. He continuously worked for the aforesaid period. Learned counsel submitted that the medical certificate were for different spells from 5.1.1989 to 5.12.1990 and 6.12.1990 to 10.3.1991 and he duly produced medical certificate, therefore, he was liable to be paid the salary of the entire period. The Enquiry Officer and/or Disciplinary Authority acted wholly illegally in directing that the period aforesaid shall not be treated as spent on 3 duty for the purpose of pension and administrative purposes and that petitioner shall be granted leave for that period. Learned counsel submitted that even in that the respondents have not granted him benefit of pay revision / increments / other consequential benefits. It was as if that the absence of the petitioner for the period from 5.1.1989 to 10.3.1991 would be taken as break in service. Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petition and argued that the petitioner was himself responsible for such a situation. He neither marked his attendance for the entire period of two years, nor did he even once claim salary, which clearly show that he was not in service anywhere. He had neither valid orders to discharge the duties at the residence of Shri G.P. Nagar, nor any such order has been produced by him. Having heard the learned counsel for the parties and perused the material on record, I find that in so far as the order passed by the respondents dated 11.11.1994 regularising the aforesaid period from 4 5.1.1989 to 10.3.1991 by grant of extra ordinary leave without pay in the first spell for 700 days from 5.1.1989 to 5.12.1990 and leave without pay in second spell for 95 days from 6.12.1990 to 10.3.1991 is concerned, that order appears to have been passed with a view to regularising absence of the petitioner. This absence was not considered as willful for the reasons aforesaid and on that basis, the charges against him in the enquiry report were not found proved, but at the same time, the fact remains that the petitioner was not discharging the duties physically in the office. He claimed to have worked at the residence of Shri G.P. Nagar. In the facts of this nature, while the respondents may be justified in regularising the absence of petitioner by grant of leave of the kind due or extra ordinary leave or leave without pay, but this order should not entail the consequence of break in service of the petitioner so as to deny him benefit of continuity from the date of his initial appointment i.e. 29.6.1987. The present writ petition is therefore 5 allowed in part and the respondents are directed to treat continuity of service of the petitioner for the aforesaid period from 5.1.1989 to 10.3.1991 not only for the purpose of pension but also for the purpose of fixation, annual increments and other benefits. In other words, the said period shall not be treated as break in service. (MOHAMMAD RAFIQ), J. RS/