1 S.B. CIVIL WRIT PETITION NO.3555/2004. (Smt. Chausar vs. State & ors.) DATE OF ORDER : 13.02.2007. HON'BLE MR. GOVIND MATHUR, J. Mr. P.R. Singh for the petitioner/s. Mr. Shyam Ladrecha, AGA, for the respondent/s. The petitioner has preferred this petition for writ giving challenge to the order dated 05.11.98 passed by District Education Officer (Elementary I), Udaipur dismissing her husband from service as a consequent to an enquiry under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The factual matrix necessary to be noticed for adjudication of the present petition for writ is that husband of the petitioner Shri Kishan Lal Meghwal a Teacher Grade III, was served with a memorandum under Rule 17 of the Rules of 1958 to explain the alleged charges of mis-conduct, but no explanation was given by him, as according to the petitioner he was suffering from Chronic Psychos and was admitted as an indoor patient at Department of psychiatry, General Hospital, Udaipur. The respondents by acting upon the memorandum issued under Rule 17 of the Rules of 1958, dismissed the petitioner from service by the order dated 05.11.1998. While giving challenge to the order 2 aforesaid, a direction is also sought for respondents to issue an appropriate order of retirement pertaining to the husband of the petitioner after his reinstatement in service as a consequent to declaration of the order dated 05.11.1998 illegal. It is contended by counsel for the petitioner that the order impugned is wholly without jurisdiction as no penalty of dismissal could have been imposed by adhering summary procedure prescribed under Rule 17 of the Rules of 1958. In reply to the writ petition, it is stated by the respondents that the present petitioner is having no locus to prefer the present petition for writ as the order impugned pertains to her husband and not to herself. The respondents have admitted that the order impugned was passed after adhering the procedure prescribed under Rule 17 of the Rules of 1958. Heard counsel for the parties. I do not find any force in the preliminary objection raised by the respondents regarding maintainability of the petition for writ by the petitioner, who is none else than wife of the employee who is dismissed from service under the order 3 impugned and is suffering from a psychotic disease. The fact that the petitioner is wife of Shri Kishan Lal Meghwal is not disputed by the respondents. Beside that, the order impugned on its face is without jurisdiction, therefore, this Court while exercising powers under Article 226 of the Constitution of India is having broad discretion to examine validity of such an order if an apparent illegality is brought into its knowledge. Under the Rules of 1958, a penalty of dismissal could be imposed only by adhering the procedure prescribed under Rule 16, that is in conformity with principle of providing reasonable opportunity for defence to a civil servant, as enshrined under Article 311, of the Constitution of India. A penalty of dismissal being a major penalty could not have been imposed upon the petitioner by summary proceedings as prescribed under Rule 17 of the Rules of 1958. As such the order passed by the disciplinary authority dismissing of the husband of the petitioner from service is non est being without jurisdiction. The question with regard to acceptance of retirement of the husband of the petitioner is required to be examined by the disciplinary authority himself in accordance with the provisions of the Rajasthan Civil Services (Pension Rules), 1996, 4 if husband of the petitioner or the petitioner on his behalf submits any application seeking voluntary retirement, therefore, I am not entering into the prayer made by the petitioner in this context. In result, the petition for writ is allowed, the order impugned dated 05.11.98 passed by the District Education Officer (Elementary I), Udaipur is quashed. The respondents are directed to reinstate husband of the petitioner in service with all consequential benefits. If the petitioner on behalf of her husband submits an application for voluntary retirement under Rajasthan Civil Services (Pension Rules), 1996 within a period of one month from today and satisfies the authorities competent that husband of the petitioner is not in a position to move such application, then the respondents are directed to consider the same in accordance with law and shall pass an appropriate order in accordance with law within a period of four months thereafter. No order to cost. (GOVIND MATHUR)J. Anil/