IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4895/05 Vidhyadhar Sharma vs. State & Ors. Date of order : 11/11/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Letter Petition for the petitioner. Shri Aklesh Jain, Dy. Govt. Counsel for the respondent. ****** This writ petition has been registered on the basis of a letter sent by the petitioner to this Court in which he has raised a grievance that in spite of specific judgement passed by this Court dated 4.1.1991 in his writ petition no.1712/1980, respondents have neither paid arrears of salary of the petitioner, nor has he been granted retiral benefits. The petitioner has asserted in the letter petition that in spite of the petitioner contacting the concerned parties in Medical Health Department and its Directorate, every time he has been informed that the relevant records are not available. His enquiries from the Panchayat Samiti Udaipurwati has revealed that the case file of the petitioner has been sent to the Chief Medical Health Officer, Jhunjhunu on 24.3.2003. The Medical Health Department has however demanded particulars and the details as to when the petitioner was transferred from Panchayati Raj Department to their department. The petitioner has contended that in the year 1979, the Additional Secretary Panchayati Raj Department sent a letter dated 12.6.1979 to the Director Medical & Health Services, Government of Rajasthan for absorption of the petitioner in that department but no action was taken by the Medical & Health Department and when the judgement aforesaid was passed by this Court on 4.1.91. Thereafter also no action has been taken by the respondents. This Court issued notice of the writ petition to the respondents who in reply thereto submitted that the matter of the petitioner has been referred to the Director, Medical & Health Services for passing necessary orders with regard to his absorption in the Medical & Health Department and with regard to payment of arrears of the salary and other retiral / consequential benefits including the amount of pension etc. to him. However, the Directorate so far has not passed any order. When the matter was taken up for hearing on 19.5.2008, this Court took a serious view of the matter and passed the following order: “It is quite strange that despite of the judgement of this Court dated 4.1.91 wherein a specific direction was given to the Director, Medical & Health to pass order within a specific period of 3 months, as per reply at page 2 what has been stated that Director, Medical & Health could not pass order in the matter. It is not only shows dis- obedience of the Court's order, but further shows as to how matters are dealt with by the officials of the State Government. A period of 17 years has already been passed after judgement of this Court and reply to the writ petition has been filed in the year 2006 with the statement as otherwise referred above. Looking to the seriousness of the case and also lapses on the part of the Government officials, in not taking action pursuant to the judgement of this Court, even a period of 17 years, necessary order has not been passed. The Director Medical & Health is given opportunity to show as to why direction of this Court dated 4.1.99 has not been complied and for that purpose he may remain present in Court on 20th May, 2008. Counsel for the respondent State of Rajasthan is directed to convey this order to the Director Medical & Health so that necessary compliance be made.” The Additional Director of the Medical Health Department appeared before the Court on 21.5.08 and subsequently an affidavit has been filed on behalf of the respondents, which they have produced on record on 28.5.08 along with order dated 24.5.08. This order has been passed by Additional Director (Admn.), Directorate of Medical & Health Services. It states that upon abolition of the post of Vaccinator in the Panchayati Raj Department and petitioner has been declared surplus and in compliance of the judgement of this Court dated 4.1.1991, the petitioner is ordered to be absorbed in the office of Chief Medical Health Officer, Jhunjhunu with effect from 1.4.1974, his date of birth being 1.2.1927 he is ordered to be retired retrospectively with effect from being attaining the age of superannuation with effect from 31.1.1982. Since the petitioner was not on duty from the period from 1.4.1974 to 31.1.1982, the period of his absence shall upon transfer from the State Government be not treated as break in service, not entitling him to any increments, leave and pension etc. The salary of the petitioner shall be liable to be revised on the basis of the pay which he was receiving on 31.3.1974 notionally for the purpose of revision with effect from 1.9.1976 and 1.9.1981 and on that basis, his pension shall be liable to be revised with other consequential benefits. The implication of the aforesaid order is that though the petitioner would be treated to be surplus from service from 31.1.1982 but pay which he was getting from 31.3.1974 shall be notionally revised in 1976 and 1981 and on that basis his pay and other retiral dues shall be calculated from the subsequent period of service from 1.4.1974 till 31.1.1982, which has been ordered to be treated as break in service. This being a letter petition filed at the instance of someone, who has not appeared to contest the matter, the validity of the aforesaid order is examined on the basis of material available on record. The writ petition of the petitioner was earlier allowed by detailed judgement of this Court dated 4.1.1991 with the following orders: “The result of the above discussion is that the writ petition deserves to be accepted. Consequently, the writ petition is allowed. The order dated 15.3.1980 (Ex.24) is quashed to the extent it treats the petitioner as absent after 18.9.1968 and proceeds on the premise th the petitioner's service stood automatically terminated after expiry of the period of five years of alleged absence. Respondents are directed to make payment of salary to the petitioner from 18.6.1968 to 31.3.1974. It is for the department to decide as to which of the Panchyati Samiti should make payment to the petitioner. However, payment of salary to the petitioner in terms of the directions of this court shall be made within a period of 3 months of the date of presentation of the copy of this order to the Community Development and Panchayat Department. So far as the period from 1.4.1974 to the date of retirement is concerned, the Community Development and Panchayati Raj Department shall forthwith refer the matter to the Director, Medical & Health Services who should pass necessary orders within three months of the receipt of communication from the Community Development Department. Once the petitioner is absorbed in the Medical & Health Department, action for payment of salary to the petitioner must be taken by the Medical & Health Department and this exercise shall be completed within a period of six months. The petitioner shall be entitled to all consequential benefits in the form of pay fixation, pension etc. The parties are left to bear their own costs.” The aforesaid judgment had decided upon both the aspects namely that the petitioner was not responsible if he was not allowed to join in the Panchayat Samiti where he was transferred because the earlier Panchayat Samiti did not relieve him and that he was also not responsible if his case was not forwarded to Medical & Health Department for absorption when the post of Vaccinator was abolished from the Panchayat Samiti with effect from 1.4.1977. The order dated 15.3.1980 by which it was directed that since the petitioner has not furnished any proof to where he discharged the duties after 18.9.1968 till the abolition of the post and therefore his services could not be regularised / absorbed beyond that date and since he remained absent from the period of more than 5 years his services should be deemed to be automatically terminated, was quashed. The respondent Panchayati Raj Department was directed to make payment of the salary to the petitioner with effect from 18.6.1968 to 31.3.1974 and for the period after 1.4.1974 till the date of his retirement i.e. 31.1.82. It was directed that the Panchayati Raj Department shall forward the case of the petitioner to Director, Medical and Health Department who shall pass necessary orders for absorption of the petitioner within three months and once the petitioner is absorbed again for payment of his salary, must be taken by the Medical Health Department within six months thereafter. It was further held that the petitioner shall also be entitled to the consequential benefits in the form of pay fixation and pension etc. The order was very specific and nothing was left to the discretion of the respondents. As per the spirit of the aforesaid order, the respondents were required to pay salary to the petitioner for the period from 1.4.1984 to 31.3.1974 from their Panchayati Raj Department and for the period from 1.4.1974 till the date of his retirement from the Medical & Health Department. It was also directed that the necessary orders for absorption of the petitioner in that department shall be passed and petitioner shall be paid salary for this latter period, referred to above, within a period of six months thereafter and he shall also be entitled to pay fixation and pension etc. The order passed by this Court on 4.1.1991 attained finality. It has not been shown that such order was ever subjected to challenge by the respondents before the division bench of this Court or beyond that. Action of the respondents in now seeking to treat the period of original petitioner's service from 1.4.1974 to 31.1.1982 as break in service and depriving him of the increment, leave encashment and pensionary benefits treating this period of service as part of qualifying service has to be therefore held to be illegal and unconstitutional. The order to this extent is quashed and set aside. The respondents are directed to treat the petitioner continuous in service till the date of his superannuation on 31.1.1982. He shall be entitled to receive all such benefits including the benefit of revision of pay scales, increments, leave encashment, other retiral benefits including pension till the date he was alive as if he was never removed from service. Compliance of the judgement shall be made within a period of three months from the date its copy is produced before the respondents. Copy of this judgement be endorsed to the legal representatives of the petitioner for information. (MOHAMMAD RAFIQ), J. RS/