High Court · 2025

Subsequently, his services had been confirmed vide order dated

31.05.1997, a copy of which is Annexure-4 to the petition.

4. Thereafter, the petitioner absconded from service since September,

2001. He claims to have approached the authorities in the year 2010 for his joining and thereafter had been issued a certificate by the Gandhi Memorial Associated Hospital, Lucknow dated 15.12.2014, a copy of which is Annexure-6 to the petition, to indicate that the petitioner was suffering from schizophrenia and had been admitted in the hospital on 27.06.2013 and discharged on 06.07.2013 and fit to join duty. The discharge ticket is also part of Annexure-6 to the petition.

5. The contention is that despite the petitioner having presented himself for duty along with fitness certificate, he has not been permitted to join the duties rather by means of the order impugned and placing reliance on Rule 18 of the Financial Handbook Part II (Vol 2 to 4) Chapter III, the claim of the petitioner for his joining has been rejected.

6. The contention is that Rule 18 of the Financial Handbook categorically provides that although no Government servant shall be granted leave of any kind except in special circumstances and absence beyond 5 years will attract provisions of Rules relating to disciplinary proceedings meaning thereby in case a Government servant is absent beyond 5 years the same would entail the disciplinary proceedings against him but in the instant case the respondents have failed to initiate disciplinary proceedings against him and have not passed any order by which the petitioner might have removed from service and consequently there cannot be any occasion for the respondents to have passed the impugned order whereby negating the claim of the petitioner for his joining as emerges from perusal of the order impugned dated 24.08.2018 and thus it is prayed that the said order be quashed with a further direction to the respondents to reinstate the petitioner in service from the date he submitted his joining i.e.

06.05.2010 and to grant leave to the petitioner for the aforesaid period of his absence from service, as provided under the rules.

7. On the other hand, Dr Udai Veer Singh, learned counsel appearing for respondent No.3 has argued that the petitioner absconded from service since September, 2001 and it is only when he approached this Court by filing Writ Petition No.6212(SS) of 2018, which was decided vide order dated 05.04.2018 that the petitioner submitted his representation for his joining, which has been rejected vide the order impugned. However, Dr Udai Veer Singh states that there is no dispute to the fact that no disciplinary proceedings have been conducted against the petitioner pertaining to his unauthorized absence since September, 2001 till date and of any order having been passed by which the petitioner has been either dismissed or removed from the service so as to entail his non joining on the said post.

8. Having heard learned counsel for the parties and perused the record, it emerges that after the petitioner has initially been appointed in December, 1995 on compassionate ground as Untrained Assistant Teacher and thereafter having been confirmed in May, 1997, he did not report for duty since September, 2001. The hospital has issued a medical certificate dated 15.12.2014 per which the petitioner has been found fit to resume duties. Thus, it is apparent that the petitioner was fit to resume duties since 15.12.2014 but was not permitted to join duties by the respondents without any disciplinary proceedings having been initiated for his unauthorized absence and further there is neither any order of dismissal or removal from service meaning thereby there is no order per which the petitioner can be restrained to join duties.

9. Considering the aforesaid, the writ petition is partly allowed. A writ of certiorari is issued quashing the order impugned dated

24.08.2018 a copy of which is Annexure-1 to the petition.

10. A writ of mandamus is issued commanding the respondent No.3 to allow the petitioner to join duties as Assistant Teacher within a period of six weeks of a certified copy of the order being produced before the respondents. It would be open for the respondents to initiate disciplinary proceedings against the petitioner as per rules and conclude the same within a period of 6 months from the date of joining of the petitioner.

11. In case the respondents are of the view that no proceedings are to be initiated against the petitioner, then appropriate leave would be granted to be petitioner in accordance with rules for the period the petitioner was unauthorizedly absent till his joining. The order in this regard would be passed within a period of 3 months from the date of lapse of 6 months, which has been fixed for the purpose of initiation of the proceedings, if any. Period of absence since September, 2001 till the period the petitioner joins duty would be governed by the orders that are passed either in the disciplinary proceedings or the order by which the leave if any is granted. Order Date :- 6.1.2025 prateek PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Subsequently, his services had been confirmed vide order dated

31.05.1997, a copy of which is Annexure-4 to the petition.

4. Thereafter, the petitioner absconded from service since September,

2001. He claims to have approached the authorities in the year 2010 for his joining and thereafter had been issued a certificate by the Gandhi Memorial Associated Hospital, Lucknow dated 15.12.2014, a copy of which is Annexure-6 to the petition, to indicate that the petitioner was suffering from schizophrenia and had been admitted in the hospital on 27.06.2013 and discharged on 06.07.2013 and fit to join duty. The discharge ticket is also part of Annexure-6 to the petition.

5. The contention is that despite the petitioner having presented himself for duty along with fitness certificate, he has not been permitted to join the duties rather by means of the order impugned and placing reliance on Rule 18 of the Financial Handbook Part II (Vol 2 to 4) Chapter III, the claim of the petitioner for his joining has been rejected.

6. The contention is that Rule 18 of the Financial Handbook categorically provides that although no Government servant shall be granted leave of any kind except in special circumstances and absence beyond 5 years will attract provisions of Rules relating to disciplinary proceedings meaning thereby in case a Government servant is absent beyond 5 years the same would entail the disciplinary proceedings against him but in the instant case the respondents have failed to initiate disciplinary proceedings against him and have not passed any order by which the petitioner might have removed from service and consequently there cannot be any occasion for the respondents to have passed the impugned order whereby negating the claim of the petitioner for his joining as emerges from perusal of the order impugned dated 24.08.2018 and thus it is prayed that the said order be quashed with a further direction to the respondents to reinstate the petitioner in service from the date he submitted his joining i.e.

06.05.2010 and to grant leave to the petitioner for the aforesaid period of his absence from service, as provided under the rules.

7. On the other hand, Dr Udai Veer Singh, learned counsel appearing for respondent No.3 has argued that the petitioner absconded from service since September, 2001 and it is only when he approached this Court by filing Writ Petition No.6212(SS) of 2018, which was decided vide order dated 05.04.2018 that the petitioner submitted his representation for his joining, which has been rejected vide the order impugned. However, Dr Udai Veer Singh states that there is no dispute to the fact that no disciplinary proceedings have been conducted against the petitioner pertaining to his unauthorized absence since September, 2001 till date and of any order having been passed by which the petitioner has been either dismissed or removed from the service so as to entail his non joining on the said post.

8. Having heard learned counsel for the parties and perused the record, it emerges that after the petitioner has initially been appointed in December, 1995 on compassionate ground as Untrained Assistant Teacher and thereafter having been confirmed in May, 1997, he did not report for duty since September, 2001. The hospital has issued a medical certificate dated 15.12.2014 per which the petitioner has been found fit to resume duties. Thus, it is apparent that the petitioner was fit to resume duties since 15.12.2014 but was not permitted to join duties by the respondents without any disciplinary proceedings having been initiated for his unauthorized absence and further there is neither any order of dismissal or removal from service meaning thereby there is no order per which the petitioner can be restrained to join duties.

9. Considering the aforesaid, the writ petition is partly allowed. A writ of certiorari is issued quashing the order impugned dated

24.08.2018 a copy of which is Annexure-1 to the petition.

10. A writ of mandamus is issued commanding the respondent No.3 to allow the petitioner to join duties as Assistant Teacher within a period of six weeks of a certified copy of the order being produced before the respondents. It would be open for the respondents to initiate disciplinary proceedings against the petitioner as per rules and conclude the same within a period of 6 months from the date of joining of the petitioner.

11. In case the respondents are of the view that no proceedings are to be initiated against the petitioner, then appropriate leave would be granted to be petitioner in accordance with rules for the period the petitioner was unauthorizedly absent till his joining. The order in this regard would be passed within a period of 3 months from the date of lapse of 6 months, which has been fixed for the purpose of initiation of the proceedings, if any. Period of absence since September, 2001 till the period the petitioner joins duty would be governed by the orders that are passed either in the disciplinary proceedings or the order by which the leave if any is granted. Order Date :- 6.1.2025 prateek PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench