WP(C) 5365/2008 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (oral) Heard Mr. R. Baruah, the learned counsel for the petitioner as w ell as Mr. B.J. Ghosh, the learned State Counsel appearing for the respondents. 2. The petitioner in the present petition has challenged the depart mental proceeding initiated vide the show cause notice dated 14th December, 1995 issued by the Secretary to the Government of Assam, Personal (A) Department ask ing him to show cause as to why the disciplinary action under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India should not be taken against him for the allegations co ntained in the said show cause notice. The petitioner has also prayed for a dir ection to the respondent authorities to permit him to resume his duties and to g ive necessary posting. 3. The petitioner was appointed as Sub-Deputy Collector and posted at Mangaldoi in the district of Darrang vide order dated 13th February, 1984, pu rsuant to the selection for appointment in ACS Class-II Service. The petitioner while in service fell ill and consequently initially on 15th September, 1986 ap plied for earned leave, which was granted for 3 (three) months. Subsequent appl ications were filed for earned leave for subsequent periods. During the period, since the petitioner prayed for earned leave on medical ground, he was asked to appear before the Medical Board and accordingly, he appeared before several Med ical Boards. The Medical Board, constituted for the purpose of examination of t he petitioner, submitted a report on 11th November, 1987 certifying that the pet itioner is fit to resume his duties, as he has recovered from his illness and ma y be allotted light duties for a period of 6 (six) months. According to the res pondents, despite such opinion of the Medical Board, the petitioner did not resu me his duty, which necessitated issuance of the show cause notice on 14th Decemb er, 1995 asking him to show cause as to why disciplinary action should not be ta ken. The petitioner, on receipt of the same, submitted his reply on 20th Decembe r, 1995. It also appears from the records produced by Mr. Ghosh, the learned St ate Counsel that the petitioner, at that point of time, offered to resign from s ervice, for which the concerned department asked the petitioner to submit the fo rmal resignation letter, which the petitioner did on 16th August, 1997. Records , however, do not reveal the acceptance of such resignation as submitted by the petitioner. The records produced by Mr. Ghosh further reveal that though the dis ciplinary proceeding was initiated by issuing the show cause notice dated 14th D ecember, 1995 and the petitioner submitted his reply pursuant to such show cause notice issued, the said proceeding rest at that stage and did not proceed furth er, may be because the petitioner offered to resign and accordingly submitted hi s resignation on 16th August, 1997. 4. The petitioner, thereafter, submitted an application on 5th Sept ember, 2008 before the Commissioner and Secretary, Government of Assam allowing him to join and also requesting him to give the posting stating inter alia that he has completely recovered from his illness. Since no action was taken, the pet itioner submitted another application as well as the representation dated 12th S eptember, 2008 and such request of the petitioner has not been attended to till date. 5. Mr. Baruah, the learned Sr. Counsel for the petitioner submits t hat since the petitioner has neither been put under suspension nor been dismisse d or removed from service or his resignation has been accepted, the respondents cannot keep him hanging position without accepting the joining report as submitt ed by him on 5th September, 2008. Mr. Baruah, therefore, submits that necessary directions may be issued to the respondent authorities to accept such joining r eport and to give the necessary posting and also to pay the unpaid salary since the year 1986. 6. Mr. Ghosh, the learned State Counsel, on the other hand, has sub mitted that though the petitioner was found to be medically fit to resume his du ties by the Medical board, as reflected in the report of the Medical Board dated 11th November, 1987, he did not report for his duty, which compelled the author ity to initiate a proceeding by issuing the show cause notice dated 14th Decembe r, 1995. It has further been submitted that the said proceeding, however, did no t proceed further, as the petitioner has submitted the resignation letter on 16t h August, 1997, on which, however, no order has been passed. Mr. Ghosh further submits that the petitioner only on 5th September, 2008 submitted the applicatio n addressed to the Commissioner and Secretary to the Government of Assam to allo w him to join the duty, followed by the representation dated 12th September, 200 8. According to Mr. Ghosh, from 11th November, 1987, i.e. the date when the Med ical Board found the petitioner to be fit for resuming his duties till 5th Septe mber, 2008, i.e. almost 21 (twenty one) years, the petitioner did not come forwa rd to resume the duties and hence, the petitioner cannot claim that he should be paid the salary for the period and instead the department may initiate further departmental proceeding against the petitioner for his unauthorized absence. Mr . Ghosh, however, has fairly submitted that since the petitioner has not been te rminated or removed from service or his resignation has been accepted, the petit ioner continues to be the Government servant. 7. It appears from the facts, as narrated above, that the petitione r was found to be medically fit to resume his duties by the Medical Board, as re flected in the report of the Medical Board dated 11th November, 1987. The petit ioner thereafter, only on 5th September, 2008 submitted the application before t he Commissioner and Secretary for allowing him to resume to his duty, without bo thering to do anything between 1987 to 2008. However, the fact remains that the petitioner’s service has not been terminated or he has not been removed from se rvice. No decision has also been taken by the respondent authorities on the res ignation submitted by the petitioner on 16th August, 1997. The subsequent condu ct of the petitioner in filing the application on 5th September, 2008 amounts to withdrawal of his earlier resignation letter. The petitioner, therefore, contin ues to be the Government servant, pursuant to his order of appointment dated 13t h February, 1984. 8. As noticed above, the petitioner though has filed the applicatio n dated 5th September, 2008 requesting the Commissioner and Secretary to allow h im to join the duty, followed by the representation dated 12th September, 2008, no order, however, has been passed on such request. 9. That being the position, the present writ petition is disposed o f with a direction to the Commissioner and Secretary to the Government of Assam, Personal (A) Department to pass necessary order on the request of the petitione r to allow him to resume his duties. The said authority shall also pass necessa ry order relating to the wages for the earlier period, keeping in mind the fact that the petitioner for a long period of time, as noticed above, did not come fo rward to resume his duties. It is also open for the respondent authorities to p roceed with the earlier departmental proceeding initiated vide show cause notice dated 14th December, 1995 and also to initiate a further departmental proceedin g, if so advised, for the unauthorized absence of the petitioner. The necessary orders shall be passed by the Commissioner and Secretary within a period of 4 ( four) weeks from today. 10. The writ petition is accordingly disposed of. No cost.