B.K. Narayana, J.
1. Heard Smt. Abha Gupta, learned Counsel for the petitioner, Sri Mithilesh Kumar, holding brief of Sri R.S. Prasad, learned Counsel for the respondents No. 1 and 4 and learned standing counsel for the respondents No. 3 and 5.
2. The instant writ petition has been filed by the petitioner for quashing the order dated 9.5.2007 (Annexure-7 to the writ petition) to the extent it purports to reject the petitioner's representation filed by him for being reinstated on the post of Assistant Teacher in Primary Vidyalaya Kosam Inam, Block Kaushambi, district Kaushambi.
3. Brief facts of the case as mentioned in the writ petition are that the petitioner was appointed as Assistant Teacher in Primary Vidyalaya Kosam Inam, Block Kaushambi, district Kaushambi, hereinafter referred to as 'the School' on 16.4.1992. The petitioner joined the post of his appointment on 29.4.1992 but the petitioner's salary was not paid, which compelled the petitioner to file an application before the Competent Authority on 4.5.1992 for payment of his salary. As the petitioner's salary remained unpaid, the petitioner preferred Civil Misc. Writ Petition No. 10378 of 1993 before this Court. During the pendency of the aforesaid writ petition, the petitioner fell ill in the last week of June, 1993 and remained confined to bed till September, 1993. Upon recovering from his illness, the petitioner submitted his joining alongwith all the relevant documents including medical certificates. However, the, petitioner was not permitted to join as a result the petitioner was compelled to file another writ petition before this Court being Civil Misc. Writ Petition No 45948 of 1993. The Writ Petition No. 45948 of 1993 was finally disposed of by this Court vide order dated 8.8.2005 with the following direction:
In view of the aforesaid fact, it will be in the interest of justice that the respondent-No. 1 Basic Shiksha Adhikari, Kaushambi be directed to consider the case of the petitioner regarding his joining and regarding payment of salary, it is provided that the petitioner shall submit a detailed representation annexing all relevant documents including the application of sanction of leave and medical certificates before the respondent No. 1 within a period of three weeks from today. The respondent No. 1 Basic Shiksha Adhikari, Kausambi is directed to pass appropriate and detailed order according to law regarding grievance of the petitioner preferably within a period of two months from the date of production of the certified copy of this order.
With these observations the writ petition is disposed of. There shall be no order as to costs.
4. The representation submitted by the petitioner before the respondent No. 1 pursuant to order of this Court dated 8.8.2005 has been decided by the impugned order dated 9.5.2007 passed by the respondent No. 1 whereby although the petitioner has been paid salary for the period of his absence, i.e., from 29.4.1992 to 18.9.1993, the prayer made by the petitioner for being permitted to join the post of his appointment has been refused on the ground that since the petitioner had remained continuously absent for more than five years after 18.9.1993, his service was deemed to have been terminated under Rule 18 of the Financial Hand Book Vol. II.
5. The learned Counsel for the petitioner submitted that the termination of the services of the petitioner was violative of the principles of natural justice and that the services of the petitioner could not be terminated without giving a show cause notice and without affording an opportunity of hearing. The learned Counsel for the petitioner further submitted that in the present case, no charge-sheet was issued nor any enquiry was held and therefore, the impugned order terminating the services of the petitioner on the ground of being continuously absent for five years was patently erroneous and violative of the principles of natural justice.
6. Learned Counsel for the petitioner further submitted that even under Rule 18 of Vol. II of the Financial Hand Book, the respondents where under an obligation to proceed with the disciplinary proceedings in spite of the fact that the petitioner was continuously absent for more than five years and that there could be no deemed termination of his services on the ground of being continuously absent for five years.
7. On the other hand, the learned Counsel appearing for the respondents contended that Rule 18 as it existed prior to the amendment made on 12.9.1989 would be applicable which contemplates automatic cessation of employment on being continuously absent for five years.
8. Learned Counsel for the respondents further submitted that in view of the provisions of Rule 18 as it existed prior to the amendment made on 12.9.1989, no enquiry was required to be conducted before dispensing with the petitioner's services.
9. I have carefully examined the submissions made by the learned Counsel for the parties and have perused the record.
10. In so far as the impugned order of termination is concerned, the same has been passed under Rule 18 of the Rules. Rule 18 of the Financial Hand Book, Vol. II has been substituted w.e.f. 12.9.1989. Rule 18 as it existed prior to 12.9.1989 is quoted hereunder:
Unless the Government, in view of 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 in Government employ.
With effect from 12.9.1989, Rule 18 was substituted as under:
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.
11. Learned Counsel for the respondents submitted that in view of Rule 18 as existed prior to. 12.9.1989, a Government servant being continuously absent for five years would cease to be in Government employment.
12. In my view, the argument of the learned Counsel for the respondents is without any merit. In the first instance, the provisions of Rule 18 as it existed prior to 12.9.1989, will not be applicable and the rule, which was substituted w.e.f. 12.9.1989 would be applicable to the facts of the present case, inasmuch as, the impugned order of termination has been passed after 12.9.1989 and the alleged continuous absence of the petitioner also relates to the period after 12.9.1989. Even otherwise there cannot be automatic cessation of service. In my view the principle of natural justice is required to be followed both in the earlier rule as well as in existing rule. In my view, if a person remains absent continuously, he can be removed by following the procedure contemplated under Chapter VIII, Vol. II of the Financial Hand Book and there cannot be any automatic cessation of employment. Therefore, in my view, the impugned order of termination is violative of the principles of natural justice and consequently, the said order cannot be maintained.
13. Learned standing counsel has very fairly conceded that prior to terminating the petitioner's service neither any charge-sheet was issued to the petitioner nor he was given any opportunity of hearing. There is sufficient material on record to show that the petitioner had not been sitting idle after 18.9.1993 and had been moving the authorities for being permitted to join the post of his appointment but without any response.
14. For the aforesaid reasons, this Court is of the view that the respondent No. 1 has clearly erred in law in refusing to permit the petitioner to join the post of his appointment for the reason that the petitioner's services automatically came to an end on account of the petitioner having remained absent continuously for more than five years after 18.9.1993. The respondent No. 1 erroneously applied Rule 18 of the Financial Hand Book, Vol. II as it existed prior to 12.9.1989 to the present case whereas the respondent No. 1 was liable to apply Rule 18 as substituted w.e.f. 12.9.1989. The impugned order is liable to be set aside on the ground that the same has been passed in violation of the principles of natural justice without affording any opportunity of hearing to the petitioner.
15. In view of the above discussion, the impugned order dated 9.5.2007 (Annexure-7 to the writ petition) passed by the respondent No. 1 insofar as it purports to reject the petitioner's prayer for being permitted to join the post of his appointment on the ground of automatic cessation of service is hereby quashed. The writ petition is partly allowed. The petitioner shall be reinstated in service with all consequential benefits within a period of one month from the date of production of certified copy of this order. The respondents shall, however, be at liberty to proceed against the petitioner in accordance with law.