IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10623 of 2006 MEENA DEVI, W/O JAGDEO RAM, R/O VILLAGE- MARICHA RAM, P.O.-SARAI, DISTRICT-VAISHALI, HE WAS POSTED AS ASSISTANT TEACHER, PRIMARY SCHOOL MUZAFFARPUR, MALAHI-EAST ANCHAL- LALGANJ, DISTRICT-VAISHALI. …………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, PRIMARY & ADULT EDUCATION DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 3. THE DISTRICT SUPERINTENDENT OF EDUCATION, VAISHALI, DISTRICT-VAISHALI. 4. THE AREA EDUCATION OFFICER, VAISHALI, ANCHAL-LALGANJ, DISTRICT-VAISHALI. ………RESPONDENTS. ----------- 5 28.01.2010 Heard learned counsel for the petitioner and learned counsel for the State. In this writ application petitioner has prayed for quashing of memo no. 2996 dated 11.09.2004 issued from the office of respondent District Superintendent of Education, Vaishali annexed as Annexure-9 to the writ application whereby the joining of the petitioner has been refused on the ground of her absence for more than five years in terms of Rule 76 of the Bihar Service Code. The order shows that after her appointment in 1988 petitioner absented from duty from 1.12.1991. Thereafter, she has submitted her joining only on 11.09.2004. Since she remained absent for more than five years, 2 the respondent District Superintendent of Education has refused her joining relying upon Rule 76 of the Bihar Service Code. Learned counsel for the petitioner submits that Rule 76 of the Bihar Service Code has been held ultra vires long back by this Court by a judgment rendered in the case of Shobhna Das Gupta Vs. State of Bihar (1974 PLJR 382). He relies upon two judgments of the Division Bench of this Court, namely, Rama Nand Singh Vs. The State of Bihar reported in 1991 (2) PLJR 198 and Sidhnath Upadhya Vs. The State of Bihar reported in 1991 (2) PLJR 148 to contend that even in the event of long absence, the respondents can not refuse joining of the petitioner and they were legally obliged to accept the same. Thereafter they were at liberty to hold regular departmental proceeding against her for her long absence and pass any order which they may deem fit and proper. This having not been done, in view of the above referred judgments, the petitioner is entitled to join her duties and entitled for payment of salary from the date of her joining till final orders are passed by the respondents. 3 Counter affidavit has been filed in the case. Learned G.A. No. II submits that the show cause notice has been issued to the petitioner, as contained in Annexure-C, and petitioner is required to file reply to the same. Thereafter, final decision will be taken in the case of the petitioner. This may be so, but the fact remains that till now no regular departmental proceeding has been held against the petitioner for her long absence of almost 13 years which, according to learned G.A. No. II, is a grave misconduct. Therefore, the petitioner is entitled to join her duties and for her salaries for the period from the date of her joining till any order is passed against her. In the circumstances, this writ application is allowed, Annexure-9 is quashed. The respondents are directed to accept the joining of the petitioner and pay her salary from the date of her joining till any final orders are passed in regular departmental proceeding against her which the respondents may hold in accordance with law. In case, the respondents take final decision to retain the 4 petitioner in service, they may consider granting her admissible leave adjusting such period of her absence, as may be adjustable against her admissible leave. In the departmental proceeding, if at all, the respondents decide to hold, must be held and concluded within a period of four months from the date of receipt/production of a copy of this order. Salary of the period as aforesaid must be paid to the petitioner before issue and service of any charge-sheet of the departmental proceeding against the petitioner. Arvind/ (J. N. Singh, J.)