IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.7180 OF 2007 FULENA PASWAN, S/O SRI LADDU PASWAN, R/O VILLAGE & P.O. DAFARPUR, P.S BAKHARI(NAOMOTHI), DISTRICT BEGUSARAI. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT(PRIMARY EDUCATION). 2.THE DEPUTY DEVELOPMENT COMMISSIONER, BEGUSARAI. 3.THE DISTRICT SUPERINTENDENT OF EDUCATION, BEGUSARAI. 4.THE BLOCK EDUCATION EXTENSION OFFICER, KHUDAWANDPUR, DISTRICT BEGUSARAI. ………………………RESPONDENTS. ----------- 02/ 21.09.2011 Having heard counsel for the parties and taking into account that there is a gross delay in filing of this writ application by the petitioner for his being reinstated in service, this Court would not exercise its discretionary power to give any relief to the petitioner especially when he has been sleeping over for a long time on his own rights. Though as a matter of fact, the relevant prayer being only for quashing of an order dated 25.11.2006, passed by the District Education Establishment committee would create an impression that the writ application hardly suffers from any delay and laches but when the facts of the case of the petitioner are taken into account, it becomes manifest that the order dated 25.11.2006 was 2 passed under the circumstances created by the petitioner himself. The petitioner in fact entered in service on the strength of an order of appointment dated 19.02.1972, and thereafter, having worked for almost little more than two years, he became absent from duty since 1974. After remaining absent from duty for more than 20 years, he came to this Court in C.W.J.C NO. 10017 of 1994 for issuance of a direction for acceptance of the joining and this Court by an order dated 06.07.1995 had held as follows:- “06.07.1995. Heard. The present application has been filed on behalf of the petitioner for direction to the respondents to pay his salary on the ground that he was appointed as Assistant Teacher in 1972. It is admitted by the petitioner that his salary is not being paid from 1974. He has filed the present application in 1994. In that view of the matter, it is not a fit case for issuance of direction by this Court for payment of salary. However, it appears that the petitioner has represented the matter before the District Superintendent of Education, Begusarai and the matter is pending since long. Taking into consideration the said fact I dispose of the writ application with a direction to the District Superintendent of Education to place the matter before the District Establishment Committee and if it is found by the District 3 Establishment Committee that the petitioner has absented from the school, since, 1975, the District Establishment committee will take appropriate action against the petitioner. In case it is found that the petitioner’s absence was not unauthorized then appropriate order will be passed in accordance with law. The matter should be decided within four months from the date of production of a copy of this order. It is made clear that this Court is not expressing any opinion as to whether the petitioner was validly appointed or not or as to whether he has been absent from the School since, 1975 or not. It is for the District Establishment Committee to decide the matter and pass an appropriate order. With this observation this application is disposed of.” It has to be noted that the said order of this Court dated 06.07.1995 virtually rejecting his prayer was conveniently never communicated by the petitioner and in fact the respondents have claimed in the counter affidavit that they came to know of the same for the first time when the petitioner had filed a contempt application in the year 2004 and when this Court had directed them to explain as with regard to compliance of the order of this Court dated 06.07.1995 in C.W.J.C No. 10017 of 1994. It has to be again noted that the aforesaid order of this Court dated 06.07.1995 was to be 4 communicated to the Collector of the district who was the Chairman of the District Education Establishment Committee but the petitioner in his reply dated 26.03.2004, had clearly admitted that he had submitted his application along with a copy of the order dated 06.07.1995 to the District Superintendent of Education only on 29.11.2003. It therefore, becomes clear that the order of this Court dated 06.07.1995 was also not communicated to the competent authority and the petitioner had again remained happily absconding since 06.07.1995 to 29.11.2003. It is in this background that the Authorities having noticed the filing of the contempt application had passed the impugned order on 25.11.2006 holding that the joining of the petitioner could not be accepted as he was absent from duty for more than five years. This Court in the peculiar facts and circumstances of this case does not find any error in such approach of the respondents. Having held so this Court also must record that the impugned order dated 25.11.2006 is not in accordance with law, inasmuch as, the provisions contained in 5 Rule-76 of Bihar Service Code prior to 1969 with regard to automatic termination of service on account of unauthorized absence from duty for a period of 5 years or more had been held to be ultra vires in the case of Sohana Das Gupta vs The State of Bihar reported in 1974 PLJR 382 and was substituted with the following provisions:- “Rule 76: Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a Government servant, after five years’ continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave ceases to be in Government employ. [(a)No Government servant shall be granted leave of any kind for a continuous period exceeding five years. (b) Where a Govt. servant does not resume duty after remaining on leave for a continuous period of 5 years, or where a Government servant after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him, exceeds a continuous periods of 5 years, he shall unless the State Government otherwise determine be removed from service after following the procedure laid down in the Civil Service (Classification, Control & Appeal) Rules and the Bihar & Orissa Subordinate Service (Discipline & Appeal) Rules, 1935.]” In view of the aforesaid provisions of Rule 76 of Bihar Service Code it becomes clear that an unauthorized absence can only 6 lead to departmental proceeding and an order of punishment can be passed only after conducting a full fledged departmental proceeding. Admittedly, no such departmental proceeding was conducted in the case of the petitioner but then a question would still remain that if a person had himself deliberately absconded from service and had appeared after 30 years, as in this case when the petitioner had virtually surfaced in the year 2004 after remaining absent from 1974, were the Authorities bound to accept the joining of the petitioner or allow payment of salary to him? The answer would always be in negative. In that view of the matter, if the petitioner himself has approached this Court complaining the non-compliance of the earlier order of this Court passed in C.W.J.C No. 10017 of 1994 after 10 years he cannot claim any benefit for reinstatement in service that too after he has attained the age of superannuation on 31.12.2008. The petitioner therefore, is not entitled to any relief as prayed by him in paragraph no. 1 of this writ application which reads as follows:- 7 “That the present writ application is being directed for issuance of writ in the nature of certiorari or any other appropriate writ/writs for quashing the impugned office order issued vide memo no. 2529 dated 25.11.2006 is issued by the District Superintendent of Education (Begusarai) as contained in Annexure-5), whereby and wherein the petitioner’s service to the post of Assistant Teacher, Primary School, Harerampur, Khudawandpur has been terminated in the light of the order dated 06.07.1995 passed by this Hon’ble Court in C.W.J.C No. 10017/1994 filed by the petitioner as in pursuance of the said order of this Hon’ble Court dated 06.07.1995, the District Education Establishment Committee held it’s meeting on 25.11.2006 and unanimously took decision that since the petitioner remained absent for more than 5 years without information, as such his service is being terminated under Rule 76 of the Bihar Service Code.” This Court is conscious of the fact that even if the order of termination dated 25.11.2006 is set aside today on the ground of not following the prescribed procedure, the petitioner in view of his attaining the age of superannuation on 31.12.2008 cannot be treated to be a working employee for the purpose of either payment of salary or for payment of his retirement benefits, inasmuch as, his admitted period of working would be only around two years in between 1972 to 1974. The deemed continuation of the petitioner service on quashing his order of 8 termination dated 25.11.2006 would also not give him the benefit of past service inasmuch as, his qualifying service under Bihar pension Rules in which he had worked and drawn salary will again only be for two years. Therefore, the whole exercise of holding a departmental proceeding, however, would be an exercise in futility and not necessary in the peculiar facts and circumstances of the case of the petitioner, inasmuch as, he was actually never interested to continue in his service after he had happily absconded in the year 1974 and remained out of scene till 2004. Thus for the reasons recorded above, this Court does not find any merit in this application and the same is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)