1 S.B. CIVIL WRIT PETITION NO. 353/1996 Om Prakash Sharma vs State of Rajasthan & Ors. DATE OF ORDER: 23.7.2009 HON'BLE MR. PRAKASH TATIA, J. Mr. RN Upadhayay, for the petitioner. Mr. Rajesh Bhati, Asstt to AAG <><><> Heard learned counsel for the parties. The petitioner was appointed on the post of Gram Sewak- cum-Secretary on 24th Oct., 1989. The petitioner submitted an application for grant of leave on medical ground on 24.1.1991 and said leave was sanctioned orally as per the petitioner. The petitioner was transferred from Panchayat Samiti Bichhiwara, District Dungarpur to Zila Parishad, Udaipur vide order dated 23rd March, 1991, copy of which has been placed on record as Annex.1. The petitioner was relieved by order dated 1st April, 1991 from his duties though he was not present on duty on that day. Copy of this order is also placed on record as Anenx.2. It is submitted that petitioner since was seriously sick, therefore, he sent applications for grant of further leave and alongwith applications, he submitted the medical certificates also and this position continued upto 5th Feb., 1992. The petitioner became fit to join the duty and after obtaining the fitness certificate from 2 the competent doctor on 5th Feb., 1992 he reported on duty in Zila Parishad, Udaipur on 6th Feb., 1992 then the petitioner was directed to report for duty in Panchayat Samiti Bichhiwara vide order dated 15th Feb., 1992. Copy of this order has been placed on record as Annex.3. When petitioner reported for duty in Panchayat Samiti Bichhiwara, he was not taken on duty by the Vikas Adhikari and he sent the petitioner back to the Zila Parishad, Udaipur. The order passed by the said Vikas Adhikari has been placed on record as Annex.4. The petitioner then reported on duty in the office of the Zila Parishad, Udaipur on 18.2.1992 and once again he was directed by order dated 18.2.1992 to report to duty to Panchayat Samiti Bichhiwara. Copy of this order is also placed on record as Annex.5. Then the petitioner reported on duty in Panchayat Samiti Bichhiwara, but the Vikas Adhikari declined to take the petitioner on duty vide order dated 22.2.1992. Copy of this order is also placed on record as Annex.6. Then case of the petitioner was referred to the Special Administrative Secretary, Rural Development for guidance. The petitioner also submitted a representation to the Addl. Administrative Secretary, Rural Development and Panchayati Raj Department of Government of Rajasthan which is dated 1st March, 1992. The petitioner also submitted copies of all the orders referred above alnogwith his representation. The petitioner has also placed on record the copy of the 3 representation as Annex.7. The petitioner thereafter, sent several reminders by registered letters almost every month and also contacted personally with the concerned officers. The petitioner in these facts and circumstances approached this Court with the prayer that respondents be directed to take the petitioner back on duty and to pay him arrears of unpaid emoluments right from 1st April, 1991 with interest @ 18% per annum. Notices were issued to the respondents of this writ petition by the order of this Court dated 7.2.1996. The notices were served upon the respondents as per the report dated 7.8.1996 and reply to the writ petition has been filed by the respondents on 28.3.1997. The respondents stated that petitioner did not submit any leave application on 24.1.1991. However, it has been admitted in the reply that petitioner was transferred from Panchayat Samiti Bichhiwara, District Dungarpur to Zila Parishad, Udaipur by order dated 23.3.1991 and he was relieved from duties from 1.4.1991. It is also admitted that petitioner might have reported on duty to the Zila Parishad, Udaipur on 6.2.1992 but the post on which he was transferred had already been occupied, therefore, he was not taken on duty. It is submitted that then petitioner went to the office of Panchayat Samiti Bichhiwara and requested Vikas Adhikari to take him on duty, but Vikas Adhikari declined to do so on the ground that petitioner 4 has already been transferred to the Zila Parishad, Udaipur. Substantially, the facts of sending the petitioner from one place to another place and he was not allowed to join the duty at any of the place is admitted fact. Then it has been contended that petitioner was appointed on temporary services and since he remained absent from 24.1.1991 and did not report on duty, therefore, his services were automatically terminated. Inspite of admitting the fact that petitioner was relieved from 1st April, 1991 to join the duties and there he was not allowed to join the duties and he was sent back, the petitioner's services terminated automatically and the respondent during the pendency of the writ petition published notice in newspaper “Vagar Doot” on 11.8.1997. In this notice dated 11.8.1997 it has been stated that petitioner is absent from duties since Sept., 1992 and if he will not join the duties by 15th Sept., 1997 then his services will be terminated under Rule 34A(ii) of the Zila Parishad Rules, 1959. It will be worthwhile to mention here that copy of the notice published in the newspaper dated 1.8.1997 was submitted alongwith the affidavit of the Vikas Adhikari of the Panchayat Samiti Bichhiwara dated 7.3.1998 and that too, after admitting that the Vikas Adhikari, Bichhiwara, District Dungarpur received the petitioner's application for leave alongwith medical certificates Annex.8, 9, 10, 12 and 13 to 20. From the facts mentioned above itself it is clear that 5 petitioner was in service. He was transferred when he was on leave from 1st Apirl, 1991 and he reported on duty on 6.2.1992 after obtaining medical fitness certificate dated 5.2.1992 he was directed to report for duty in Panchayat Samiti Bichhiwara vide order dated 15.2.1992 then admittedly, he was not allowed to join the duties by specific orders which have been referred above. The copies of the orders have been placed on record by the petitioner. The contention of the respondents that petitioner's services stand terminated automatically because of his absence from duty have been falsified by the respondents themselves as respondents themselves have passed the orders sending him from one place to another place and also sought guidance from the higher authorities for posting the petitioner at right place. Then the petitioner's medical certificates were duly received by the concerned officer as the petitioner could have sent those applications for leave to the concerned authorities, where he was working and that is because of the reason that petitioner was on leave at particular point of time and further more, he sent the medical certificates alongwith applications and he could not have submitted those medical leave application again if were returned to the petitioner, because of the reason that petitioner was not allowed to join the duties, is the admitted case of the respondents themselves. The petitioner's services stand 6 automatically terminated before the year 1996 i.e., before reply was filed by the respondents stands falsified by the subsequent act of the respondents themselves, who published the notice in the newspaper “Wagad Doot” (Annex.R/1) i.e., dated 11.8.1997 wherein the petitioner has been admitted to be in employment and, therefore, he was warned that in case he will not join the duties by 15th Sept., 1997 he may be removed from service under Rule 34A(ii) of the Zila Parishad Rules, 1959. The respondents for the reasons best known to them choose to take such an step as has been taken by publishing the notice in the newspaper on 11.8.1997 during the pendency of the writ petition asking the petitioner to join the duties on or before 15th Sept., 1997 whereas the petitioner already approached various authorities asking them to allow him to join the duties and, thereafter, he had to approach this Court by filing the writ petition before the notice Annex.R/1 dated 11.8.1997 was published in the newspaper. The respondents' own document Annex.R/1 clearly shows that petitioner was in service till 11.8.1997 and he was treated in service, therefore, his services was sought to be terminated by the respondents in the year 1997. It will be worthwhile to mention here that in pursuance of the judgment of this Court, the petitioner again submitted all the documents alongwith copies of the representations sent by registered post requesting the respondents to allow the 7 petitioner to join the duties. Even from these documents placed on record as well from the affidavits submitted by Hari Prasad, the then Vikas Adhikari, it is clear that the petitioner submitted leave application and the medical certificates with the leave applications time to time and were duly received by non-else- then Vikas Adhikari, Panchayat Samiti Bichhiwara of District Dungarpura. All those facts clearly show that petitioner was sent from pillar to post and post to pillar by the respondents and was not allowed to join the duties and, therefore, the petitioner is entitled to have direction to tack back on duty. Learned counsel for the State vehemently submitted that petitioner did not choose to challenge the notice Anex.R/1 dated 11.8.1997 and he did not comply with the said notice, therefore, his services has been terminated by virtue of Rule 34A(ii) of the Zila Parisahd Service Rules, 1959. The argument is absolutely misconceived because of the plain and simple reason that, that notice was issued only to create false evidence, which is in fact also a self-contradictory stand taken by the respondents. There was no reason for the petitioner to challenge the notice whereby the respondents admitting petitioner to be in service upto 11.8.1997 in view of the fact that their earlier stand was that petitioner's services stands terminated in the year 1996. The petitioner who was willing to join the services and made several efforts and 8 approached this Court and sought direction against the respondents that respondents be directed to take the petitioner back in service then how the petitioner could have challenge any offer of the respondents to accept him on duty. In view of the above reasons, the writ petition of the petitioner is allowed with costs and respondents are directed to take the petitioner in service forthwith and petitioner since was denied joining of duties for none of his fault, therefore, the petitioner is entitled to all consequential benefits. (PRAKASH TATIA), J. c.p.goyal/-