IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 1269 of 2003 Smt. Nandi Bisht …….Petitioner. Versus State of U.P. and others ……Respondents. Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Alok Mehra, Advocate for the petitioner. Ms. Beena Pande, Standing Counsel for the State of Uttar Pradesh. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard learned counsel for the petitioner, learned Standing Counsel for the State of Uttar Pradesh and the learned Standing Counsel for the State of Uttarakhand. This Writ Petition has been filed by the widow of one Sri Bhim Singh Bisht who was an employee in the Health Department in the erstwhile State of Uttar Pradesh. Sri Bhim Singh Bisht (the husband of the petitioner), while he was working as a vaccinator in the Health Department was transferred from Primary Health Centre, Takula to Primary Health Centre, Lamgara. The husband of the petitioner joined the duties at Lamgara on 2.7.1979. According to the petitioner, her husband went on medical leave with effect from 4.8.1981 and thereafter reported back for duties on 6.10.1981 which was in fact rejected. In the counter affidavit the respondents state that the husband of the petitioner was absent from his duties since 5.8.1981 and therefore under the provisions of Rule 18 of the Uttar Pradesh Fundamental Rules, as it existed at the relevant time, the husband of the petitioner ceased to be a Government employee. Rule 18 of the Uttar Pradesh Fundamental Rules reads as follows :- “18. Unless the Government, in view of the special circumstances of the case, shall otherwise determine, after five years’ continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, a government servant ceases to be a Government employee.” In the year 1996, the husband of the petitioner passed away. This Writ Petition has been filed in the year 2003 by the petitioner, 2 who is the widow of the deceased Sri Bhim Singh Bisht, praying for the following relief :- “(i) To issue a writ, order or direction in the nature of mandamus commanding the Respondents to grant entire terminal/retiral benefits including amount of General Provident Fund, Group Insurance, Gratuity and Family Pension to the petitioner. (ii) To issue a writ, order or direction in the nature of mandamus commanding the Respondents to pay the entire arrears of salary of her husband to the Petitioner with effect from August 1981 up to 30.5.1996. (iii) To issue a writ, order or direction in the nature of mandamus commanding the Respondents to pay interest on the delayed payment of the aforesaid amount at a rate to be specified by this Hon’ble Court. (iv) To issue any other suitable writ, order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. (v) To award the cost of the writ petition in favour of the petitioner.” Apart from the fact that the Writ Petition itself is highly belated and the delay has only been explained by the petitioner by stating that earlier she was pursuing her grievance before a wrong forum. Be that as it may on merit itself the present Writ Petition is on a very weak foundation. The Uttar Pradesh Fundamental Rule 18 clearly states that if a Government employee except under the special circumstances of the case is not traceable after five years, he shall be ceased to be a Government employee. It is not the case of the petitioner that her husband reported for duties during this period or pursued his remedies before the superior authorities or before any other forum. This fact has also been brought to the notice of this Court by the respective counsels at the bar that the Fundamental Rule 18 has been amended in the year 1989 and the following Rule was incorporated :- “18. Unless the Government, in view of the special circumstances of the case, otherwise determine, after five years’ continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, no Government servant shall be granted leave of any kind Absence beyond five years will attract the provisions of Rules relating to disciplinary proceedings.” 3 Apart from this, learned counsel for the petitioner has also cited a decision of the Supreme Court in The State of Assam and others v. Akshaya Kumar Deb (1975) 4 SCC 339, wherein it has been stated that merely because an employee is absent without leave, his services cannot be automatically terminated and it would amount to a misconduct for which disciplinary proceedings have to be initiated. In the said case, an employee was absent without leave for a period of five years and his services were automatically terminated, which was agitated before the Apex Court and the Apex Court after relying upon an earlier decision of Supreme Court in Parshotam Lal Dhingra v. Union of India reported in AIR 1958 SC 36 has stated as follows :- “17. Even if it is assumed that termination under F.R. 18 does not cause forfeiture of benefits already earned such as pension, etc. then also that will not, by itself, take it out of the category of ‘removal’ as envisaged by Article 311 (2). The respondent was a permanent government servant. He had a right to his substantive rank. According to the test laid down by this Court in Parshotam Lal Dhingra’s case, the mere termination of service, without more, of such an employee would constitute his ‘removal’ or ‘dismissal’ from service, attracting Article 311 (2). From the constitutional standpoint, therefore, the impugned termination of service will not cease to be ‘removal’ from service merely because it is described or declared in the phraseology of F.R. 18 as a “cessation’ of service. The constitutional protection guaranteed by Article 311 (2) cannot be taken away “in this manner by a side wind”. However, the facts of the present case are entirely different. It is not the government servant who is before this Court. The government servant remained absent from duties for a long period and during his absence passed away in the year 1996. Before this Court is the widow of the deceased government servant who now claims for her family pension and other benefits. Even if we calculate the total period of service put in by the husband of the petitioner, even then the deceased had not put in the required period of service entitling the petitioner for family pension which is ten years at the relevant time. 4 This case stands on entirely different footing than what was before the Supreme Court in The State of Assam and others v. Akshaya Kumar Deb (1975) 4 SCC 339. No indulgence can be granted to the petitioner by this Court. The Writ Petition is totally devoid of merits and is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 11.8.2010 Avneet