1 SB Civil Writ Petition No.5936/2008 Balu Das Vaishnav. vs. State of Raj. & Ors. S.B. Civil Writ Petition No.5936/2008 Balu Das Vaishnav. vs. State of Rajasthan and others. Date : 18.5.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.RS Choudhary, for the petitioner. Mr.RL Jangid, for the respondents. - - - - - Heard learned counsel for the parties. As per the case of the petitioner, he acquired educational qualifications of B.A. and B.Ed. in 1994 and 1997 respectively. The petitioner was appointed as Shiksha Sahyogi on 2.7.2001 and he joined the duties on the same day itself. As per the petitioner himself, a criminal case was registered against him for offences under Sections 143, 323/149 IPC and Section 3(1)(X) of SC/ST Act as well as under Sections 365, 366, 342 and 376(2) (G) IPC and Section 3(2)(v) of SC/ST Act. According to the petitioner's own case, he was 2 SB Civil Writ Petition No.5936/2008 Balu Das Vaishnav. vs. State of Raj. & Ors. arrested in the said case and remained in custody from 5.2.2006 to 20.9.2007, therefore, he could not join his duties during this period on the post of Shiksha Sahyogi. However, the petitioner after his acquittal by the competent criminal Court vide judgment dated 20.9.2007 applied for allowing him to join duties vide Annex.P/6. It appears that the petitioner was allowed to join the duties by the headmaster of the concerned school which is clear from Annex.7 dated 20.12.2007. Thereafter, a notification was issued for giving appointment on the post of Prabhodhak on 31.5.2008 under Panchayati Raj Prabhodhak Service Rules, 2008. According to the petitioner, the petitioner was eligible as per his educational qualifications and he acquired requisite experience of five years of service which was also requirement for appointment on the post of Prabhodak. Learned counsel for the petitioner relied upon the judgment of this Court rendered in SB Civil Writ Petition No.8796/2008 (Smt. Vishnu Kanwar vs. State of Rajasthan and others) decided on 21.11.2008 reported in 2009 WLC (Raj.) UC 186, wherein according to learned counsel for the 3 SB Civil Writ Petition No.5936/2008 Balu Das Vaishnav. vs. State of Raj. & Ors. petitioner, dispute was that when relation of master and servant continued and during this period, if employee was sent for some training or was on sanctioned leave, whether that absence period can be counted in in-service period or not ? In above case, it has been held that the master servant relations endures during the period of training and during the period of sanctioned leave and both the periods are to be counted towards service. In view of the above reason, according to learned counsel for the petitioner, the petitioner's absence from duty for the period from 4.2.2006 to 20.9.2007 for which he remained behind bars, can be counted to be the period for which the petitioner could not join the duties for the reason beyond his control. The petitioner subsequently has been acquitted by the court. Learned counsel for the respondents submitted that the law laid down in the case of Smt. Vishnu Kanwar has no application to the facts of this case. In the present case, neither the petitioner was assigned any work by the employer nor he remained absent on account of sanction of any 4 SB Civil Writ Petition No.5936/2008 Balu Das Vaishnav. vs. State of Raj. & Ors. leave by the employer. Furthermore, even if the petitioner was prevented from discharging duties by any other reason and because of no fault of the petitioner even then, experience requires is “experience of job in fact” and not is deemed experience. Only in those cases, one can claim addition of period of leave and assignment of duties by the employee to be period of experience but it cannot be stretched to the case where the employee remained in custody. The petitioner has been acquitted by giving benefit of doubt by the Court and it is not honourable acquittal and the period for which he remained behind bars cannot be said to be a period in service by applying the principle. It is also submitted that the nature of allegations levelled against the petitioner and the charges which have been framed against him if will be considered to be a reasonable reason for the petitioner for remaining away from the duties then that will result into chaos. It is also submitted that the post is of educating the villagers and in that situation, the petitioner if was not called for interview, the respondents have not committed any wrong. 5 SB Civil Writ Petition No.5936/2008 Balu Das Vaishnav. vs. State of Raj. & Ors. After considering the submissions of learned counsel for the parties and the reasons given in the case of Smt. Vishnu Kanwar(supra), I am of the view that the person who remained behind bars for about one and a half years after his appointment as Shiksha Sahyogi and did not discharge the duties attached to the post, which is not on account of sanction of his leave by the employer nor it was due to assignment of any other duty by the employer, cannot be counted as period in service and cannot be counted as period of service experience of such employee. Furthermore, the employer also could not have assigned any duty to the petitioner during the period for which the petitioner was in lawful custody of police or court, then he cannot be treated to be a person equivalent to the person who did not discharge the duties because of any vacations or due to assignment of any duty by the employer etc. as has been held in the case of Beeram Ram Choudhary vs. State of Rajasthan and others (S.B. Civil Writ Petition No.6273/2008) referred in the case of Smt. Vishnu Kanwar (supra). The petitioner's remaining behind bars during trial of the offence cannot be equated with the circumstances beyond 6 SB Civil Writ Petition No.5936/2008 Balu Das Vaishnav. vs. State of Raj. & Ors. his control nor the absence can be attributed to the employer so as to treat him on duty so as to acquire the experience on the post. In view of the above reasons, I do not find any merit in this writ petition and the same is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya