- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Smt. Saroj Bhardwaj vs. State & Ors. S.B.CIVIL WRIT PETITION NO. 463/2006 DATE OF ORDER : 28th July, 2008 P R E S E N T HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.S.N.Trivedi, for the petitioner. Mr.B.L.Bhati, Government Counsel. In this petition, petitioner has prayed for direction to the respondent to grant annual grade increments, leave, selection scale on completion of 9, 18 and 27 years of service as well as pay fixation as per revised pay scales issued by the State Government from time to time and further prayed for interest @ 12% p.a. on the arrears. As per facts of the case, petitioner was appointed in the Education Department as Physical Teacher w.e.f. 17/12/1977. - 2 - Thereafter, she remained absent from duty without any information for 13 years and vide order dated 12/7/1991 she was allowed to join duties. At the time of joining duties she was given posting at Government Girls Secondary School, Loonkaransar District Bikaner vide order dated 25/7/1991. Petitioner is claiming annual grade increments, leave, selection scale and other benefits on the ground that after joining in 1991 she was allowed minimum of pay scale and till today she is getting salary in minimum pay scale with admissible allowances but she has not been paid regular grade increments so also other service benefits. It is contended by learned counsel for the petitioner that the day on which she preferred writ petition there was nothing against her but without any reasons respondents detained the service benefits available under the Service Rules, therefore, respondents are under obligation to grant all service benefits within stipulated time with interest @ 12% p.a. Per contra, by way of filing reply it is submitted by the respondents that petitioner remained absent from duty for near about 13 years (January, 1978 to 14/7/1991) and no explanation has been filed by the petitioner for her absence for 13 years. In para no.3 of the reply filed by respondents it is - 3 - specifically stated that petitioner has not submitted any medical certificate for her disease and she remained absent without any information to the Department. The petitioner also did not raise any grievance for ten years for grant of increments, selection scale and fixation and only in 2006 this writ petition has been filed by the petitioner without any explanation for delay. It is contended by learned counsel for respondents that charge sheet under Rule 16 of Rajasthan Civil Services (Classification, Control and Appeal), Rules, 1958 has been issued to petitioner for taking disciplinary action, therefore, petitioner's matter with regard to regular grade increments, selection scale and other service benefits will be considered after finalisation of departmental inquiry because she has committed grave misconduct of remaining willful absent from duty for near about 13 years and under Rule 56(3) of the RSR after 30 days of willful absence from duty, employee can be removed from service, therefore, this writ petition deserves to be dismissed. I have heard both the parties. In this case no rejoinder has been filed by petitioner with regard to assertion made in reply that no application for leave during her absence of 13 years was filed. It is also admitted fact that petitioner was appointed in the month of December, 1987 and she remained absent from duty - 4 - from 4/1/1978 to 14/7/1991, for which departmental inquiry is pending, therefore, obviously such an employee is not entitled to seek any interference by this Court under Article 226 of the Constitution of India. In my opinion, the Department is under obligation to initiate departmental inquiry against the petitioner for her misconduct of willful absence from service for 13 years. The respondent department is well within its jurisdiction to take action under Rule 23 of the RSR against the employee who remained absent from duty for more than 5 years. Likewise, under Rule 86 of RSR departmental proceedings for forfeiting all past service as well as for terminating the services of an employee is required to be taken on the ground of willful absence from duty for more than one month. But somehow, due to gross negligence on the part of Education Department, no action was taken against petitioner for 13 years and she was granted special indulgence to join duties again in 1991 knowingly well that it is a case of abandonment of service. Thereafter, when petitioner preferred writ petition in the month of January, 2006, a charge sheet was issued to petitioner on 24/7/2006. Although, department is at fault for not initiating any inquiry within time but conduct of petitioner does not entitle her to any indulgence by this Court because she left the job just after few days of her appointment and did not join the service - 5 - for 13 years. In the peculiar facts and circumstances of the case, it will be proper that before finalisation of inquiry petitioner should not be given any benefit except annual grade increments, and pay fixation while treating her in the minimum of pay scale of the post on 14/7/1991, the day when she was allowed to join duties. It is also required to be observed that petitioner has also challenged the charge sheet dated 24/7/12006 issued to her in S.B.Civil Writ Petition No.4375/2006 which has also been decided today itself by this Court. In the said writ petition, directions have been issued to finalize the departmental proceedings initiated against the petitioner vide charge sheet dated 24/7/2006 within a period of six months. If petitioner will be exonerated in the departmental proceedings then certainly she will be entitled for all service benefits but till pendency of departmental inquiry she is not entitled to any benefits except pay fixation from the date of rejoining after long absence of 13 years from duty. In the circumstances, this writ petition is partly allowed. The respondents are directed to grant the benefit of pay fixation and annual grade increments while treating petitioner's pay in - 6 - the minimum of pay scale of the post as on the date of rejoining duty after long absence of 13 years, which is 15/7/1991. Petitioner is also held entitled to arrears of fixation and respondents are directed to comply with the above directions within a period of three months from today. It is made clear that petitioner will not be entitled for other benefits till final decision of the inquiry pending against her. No order as to costs. (GOPAL KRISHAN VYAS), J. pb