LexDEOKINANDAN PRASAD versus STATE OF BIHAR & ORS.
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634 A B c D E F G H DEOKJNANDAN PRASAD v. STATE OF BIHAR & ORS. (May 4, 1971) [S. M. SIKRI, C.J., G. K. MITTER, C. A. V AIDIALINGAM, P. JAGANMOHAN REDDY AND I. D. DUA, JJ.] Constitution of India, 1950, Art. 32-Right to pension, if propmy- Petition to enforce-Maintainability. Bihar Service Code. r. 76-A.utomatic termination without opportunity to show cause-If violates Art. 311. Bihar Pension Rules, r. 46--Scope of. Tho petitioner was a Deputy Inspector of Schools and a member of the Education department of the respondent-State. On September 2, 1953, the Director of Public Instruction passed an order directing a censure to be recorded in the character roll of tho petitioner. On March 5, 1960, be was reverted to the Lower Division of the Subo-rdinate Educational Service, as a result of an inquiry into certain charges. He filed a suit challenging the two orders. On August 5, 1961, the Munsiff passed an order restrain· ing the respondent from enforcing the order dated March 5, 1960. On April 3, 1962, the temporary injunction was vacated by the Subordinate Judge. On April II, 1963, the suit was decreed and the respondent was prohibited from enforcing the order dated March 5, 1960. This decree was set aside in appeal by the Subordinate Judge on June 24, 1964, and tho petitioner's second appeal was dismissed by the High Court on February 11, 1965. On August 5, 1966, the Director of Public Instruction passed an order that the petitioner 'having not been on his duties for more than five- ycars since March 1, 1960 has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code.' The petitioner bav· ing completed 58 ye>rs of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arranae for the payment of bis pension, and on June 12, 1968 tho Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules be wu not entitled to any pension. The petitioner filed the present writ petition under Art. 32 challenging the various orders. HELD: (I) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of the High Court in second appeal. (b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner. [6520-H ~ 653A-B] (2) The order dated August S, 1966, declaring, under r. 76 of th& Service Code that the petitioner had ceased to be in Government service should be set aside. [653-A·B] (a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years. Under this rule it is immaterial whether absence. from duty by the government servant was with or without leave so Iona as. it is established that he was absent from duty for a continuous period for over five years. Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March DBOKINANDAN v. Bl.HAR (Vaidialingam, J.) 11, 1960. Therefore, the order stating that he 'ceased to be in government employ on March· 2, 1965, was On the face of it erroneous:• [643C-D, B; 644A-q (b) Assuming that the order should be read that the petitioner waS not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order oven then, the order would be ille- gal: From August 5, 1961, the date of temporary injunction granted by the Munsiff till April 3, 1962, when that order was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty iii the seniqt post in spite of several letters written by him. Again on April 11, 1963 when the Munsiff granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the .l!PPellate ,court, and so, the decree of the trial court was· in full fotce till it was set aside in appeal on June 24, 1964. Quring that period; that is, from ·April 11, 1963 to June 24, 1964 the petitioner wrote sevet,a~ letters requesting the respondent' to permit him to join duty in the sen,iot S;rade, but the respondent did not permit him to do so. Therefore, ther~ was no question of the petitioner being continuously absent from service for over S years· during the perio
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