IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8437 of 2002 MIR MOFAZZAL HUSSAIN, son of late Hafiz Yaqub, resident of village Pura Kothi, P.O. Belao, District Arwal … Petitioner Versus 1. THE STATE OF BIHAR 2. The District Superintendent of Education (D.S.E.), Gaya 3. The Block Education Extension Officer (B.E.O.), Belaganj, Gaya … Respondents ----------- 4. 19.7.2010 Heard Mr. Sudarshan Sharma, learned counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This application is directed on behalf of the aforesaid petitioner for issuance of an appropriate writ/writs, order/orders, direction/directions to the respondent no. 2 to accept joining of the petitioner on the post of an Assistant Teacher in Urdu Primary School, Balapur, Belaganj which was submitted before respondent no.3 direction to respondent no.2 to pass necessary order on letter no. 120 dated 20.8.2001 issued from the office of the respondent no.3 seeking permission to accept joining of the petitioner which is not at yet pass in the following circumstances.” 2 Counsel for the petitioner with reference to the aforementioned prayer would submit that the petitioner was appointed in the year 1982 on the post of teacher in a Primary School and had remained in service till December, 1989 but thereafter on account of his mental illness he had become absent from duty from January, 1990 and therefore, when he could ultimately become fit to rejoin duty on 14.8.2001 he had made a request for accepting his joining on which no decision has been taken till date. Counsel in this context would rely on inter departmental communication made by the Block Education Extension Officer to the District Superintendent of Education dated 20.8.2001. Counsel for the State, on the other hand, on the basis of instruction received by him would submit that for such a huge gap of period of absence of the petitioner being around 11 years the D.S.E. by himself is not competent to take a decision and as such, the matter was referred by the D.S.E. to the Directorate of Primary Education by letter dated 25.4.2003 but no decision on the same 3 has been taken till date. In the opinion of this Court in a case of this nature where a person has been duly appointed and if he has also become a permanent employee, his services cannot be deemed to be terminated in absence of an order. Earlier the provision in this regard under Rule 73 of the Bihar Service Code to this effect was found to be ultra vires wherein absence of continued five years service or more was taken to be a deemed termination of service. Subsequently this aspect has been considered by the Apex Court and this Court and it has been held that absence of petitioner from duty by itself cannot be deemed to be termination of his service unless a departmental proceeding is drawn and the charges of unauthorized absence is framed and proved in course of such proceeding. The reliance placed by the learned counsel for the petitioner to that extent on the judgment of this Court in the case of Raj Nath Rai vs. the State of Bihar & ors., reported in 2004(2) PLJR 209 is quite correct. 4 In the present case, however, as is noted above, the letter of B.E.O., the immediate controlling officer, does not show that any information was given by the petitioner or his family members with regard to his absence for a period of 11 years and therefore, if the petitioner had appeared only with a prescription of some doctor that by itself could not have been taken to be the clinching proof of his being under treatment or being a mental patient. It is well settled that after illness of more than a year if a Government servant would appear he will have to be first declared fit by a Medical Board constituted by the Civil Surgeon. Admittedly no Medical Board was held in case of the petitioner and the whole issue has remained snow balling between the District Superintendent of Education and the Director, Primary Education. In that view of the matter, this Court would direct the Director, Primary Education, and the District Superintendent of Education, Gaya to consider the grievance of the petitioner as with regard to 5 acceptance of joining and take necessary steps and actions so that the fate and future of the petitioner is known to him at an early date. It is made clear that if the respondents would find the case of the petitioner fit for acceptance of his joining he would be only entitled for payment of salary from the date such order is passed by the Director, Primary Education but in case his unauthorized absence becomes the subject matter of departmental proceeding all the claim of the petitioner would remain dependent on the outcome of such departmental proceeding. In order to expedite the matter this Court would direct the petitioner to file a self contained representation to the Director, Primary Education alongwith all his unimpeachable evidence, whereafter the Director, Primary Education, after obtaining report from the District Superintendent of Education, Gaya shall pass his final speaking order but not later than six months from the date of receipt/ production of a 6 copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/