IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11060 of 2008 DAYANAND SHUKLA, S/O LATE ADITYA NARAYAN SHUKLA, R/O VILLAGE+P.O.-MARANCHI, P.S.- HATHIDAH, DISTRICT-PATNA. …………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DISTRICT SUPERINTENDENT OF EDUCATION, PATNA. 3. THE BLOCK EDUCATION EXTENSION OFFICER, BARH-2, DISTRICT-PATNA. 4. THE HEADMASTER, SANSKRIT PRIMARY SCHOOL, ATMAL GOLA, DISTRICT-PATNA. ……………RESPONDENTS. ----------- 3 26.09.2011 In this writ application, petitioner has challenged an order of the District Superintendent of Education, Patna dated 29.04.2008 (Annexure-15), by which he has been dismissed from service on account of unauthorized absence from duty for about 15 years. After prolong absence, petitioner had submitted his joining, but the same was not accepted by the authorities. Hence, he moved this Court through CWJC No.1196 of 2006. The said writ application was permitted to be withdrawn by order dated 31.07.2007 (Annexure-14) with liberty to the petitioner to file a fresh representation and a direction to the respondents to consider the same and dispose it of by speaking order in accordance with law preferably within a period of four months from the date of 2 receipt of the representation. Accordingly, petitioner filed his representation which has been considered and rejected by the impugned order and petitioner being found absence unauthorizedly for almost 15 years has been dismissed from service. Learned counsel for the petitioner submits that the first part of Rule 76, which provided for automatic termination of service on the ground of unauthorized absence from duty for more than five years, has been held ultra vires by this Court long back. Hence, by amendment in the Rules, a provision for proceeding under the relevant Discipline and Appeal Rules before any action for unauthorized absence for over five years, has been inserted. He submits that since the petitioner was being sought to be dismissed by the impugned order on the ground of his unauthorized absence from duty for almost 15 years the respondents were legally obliged to hold the proceeding against him in accordance with the concerned Discipline and Appeal Rules i.e. present 2005 Rules. Though, a counter affidavit has been filed in this case, but there is no reply to 3 the said stand of the petitioner therein. Upon looking to Rule 76 (b) of the Bihar Service Code, this Court finds that in cases of unauthorized absence from duty for five years or more, holding of a departmental proceeding as per the Rules is imperative, in absence of which no valid order of dismissal from service can be passed. This has apparently and admittedly not been done in the present case. In the circumstances, the impugned order of the District Superintendent of Education, Patna (Annexure-15), as contained in memo no.2974 dated 29.04.2008 is quashed. The respondents are directed to accept the joining of the petitioner immediately with liberty to them to proceed against the petitioner in accordance with law afresh, if they are so advised. Arvind/ ( J.N. Singh, J.)