HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. 17 AFR
Reserved
Writ Petition No. 6740 of 2009 (S/S)
Smt. Neeraj Kumari 58 years wife of Shri Yateesh
Chandra Gupta resident of house no. 130/1B, Utsav,
Mahanagar Colony, Pilibheet Bareilly.
....Petitioner
Vs.
1.State of U.P. through Principal Secretary, Basic Education,
U.P. Civil Secretariat, Lucknow
2. Director Education (Basic), Nishatganj, Lucknow
3. Secretary, Basic Shiksha Parishad, Allahabad, U.P.
4. Assistant Director Education (Basic ) IIId Region, Bareilly.
5.District Basic Education Officer Bareilly.
.Opposite parties
Counsel for Petitioner : Vinay Misra
Counsel for Respondents : A.C.S.C, Chaudhary Shatrughan and J.P. Maurya.
Hon'ble Vishnu Chandra Gupta,J.
By means of the present petition, the petitioner has prayed for issuing a writ in the nature of certiorari quashing the order dated 05.12.2007 (Annexure No. 1) passed by the opposite party no. 2, Director Education (Basic), Nisatganj, Lucknow, by which the petitioner was declined to join the service on the post of Assistant Teacher treating it that she has lost her lien over the post on which she was working. She further prayed to issue a writ in the nature of mandamus commanding the opposite parties to allow the petitioner to resume her duties and further to discharge her services with responsibilities without any hindrance and to pay the arrears of salary due to the petitioner for the period she was on leave after sanctioning leave.
Brief facts for deciding this petition are that the petitioner was appointed as Assistant Teacher in Primary School at Bhojipura in District Bareilly in pursuance of the appointment letter dated 07.03.1986 (Annexure No.3) issued by the opposite party no. 5, District Basic Education Officer (For short BSA), Bareilly. She joined her duty in Primary School, Bhojipura Naveen IInd, Vikas Khand, Bhojipura, District Bareilly on 1.4.1986 (Annexure No.4). She continued to work on the said post. On 16th of March, 1995, she proceeded on leave due to domestic problem and ill health. The leave was extended from time to time. The petitioner applied for leave on medical certificate from 01.01.1998 to 28.02.1998. On 01.03.1998 after obtaining medial fitness certificate the petitioner submitted her joining to opposite party no.5, but she was not permitted to join the duty despite repeated request and representations made to opposite party no.5. It is also alleged that the medical fitness certificate of the petitioner dated 02.05.1998 issued by the Chief Medical Officer, Bareilly (Annexure-7 to the writ petition) along with medical leave application was submitted to opposite party no. 5.
The opposite party no. 5 wrote a letter dated 11.06.2003 (Annexure-8 to the writ petition) to Chief Medical Officer, Bareilly for medical examination of the petitioner by the medical board and asked to give opinion of the medical board regarding fitness of the petitioner so that she could be permitted to resume her duty. The English translation of the letter dated 11.06.2003 is as follows:-
" From,
The District Basic Education Officer,
Bareilly.
To,
The Chief Medical Officer/Chairman,
Medical Board, Bareilly.
Patrank :- Lekha/ /2003-04, dated 11.06.2003
Subject:- Regarding medical leave of Smt. Neeraj Kumari, Assistant Teacher,Primary School- Bhojipura (Naveen)
Sir,
Aforesaid Smt. Neeraj Kumar, Assistant Teacher, Primary School- Bhojipura has remained on medical leave for last so many years, due to bad health. At present being fit, she has given application to join at the school.
Therefore, the concerned teacher is being sent to you for the examination by Medical Board to decide whether she may be permitted to join again or not. Kindly provide the advice /guidance of Medical Board regarding her joining so that the action may be taken accordingly .
Yours faithfully
(Dhanraj Mishra)
District Basic Education Officer
Bareilly.
Letter No.-Lekha/3212-15/2003-04 of aforesaid date
Copy:-
1.Assistant Director(Basic)III Region, Bareilly for information in response to his letter Number-ba.li. (1)1058/2003-04 Dt.26.05.2003.
2. Assistant Basic Siksha Adikari Bhojipura , Bareilly for information and necessary action.
3.Smt. Neeraj Kumari,Asst. Teacher, Primary School Bhojipura Naveen,Bareilly with direction to appear before medical board along with her medical certificates
District Basic Education Officer
1. Bareilly"
2.
The Medical Board after conducting medical examination of the petitioner submitted report with the opinion that the petitioner is fit to discharge her duties, but inspite of it, the petitioner has not been permitted to join her duties by the opposite party no. 5.
Thereafter, opposite party no.5 vide letter dated 2.7.2003 (Annexure No. 9 to the writ petition) sought guidelines/direction in the matter of the joining of the petitioner from Secretary, Basic Shiksha Parishad, Allahabad, U.P., opposite party no. 3. The letter dated 2.7.2003 (English Translation) is as follows:-
"From,
The District Basic Education Officer,
Bareilly.
To,
The Secretary,
Basic Education Board, U.P.,
Allahabad.
Patrank-Lekha/ /2003-04, Dated 02 July, 2003
Subject :- Regarding Smt. Neeraj Kumari, Assistant Teacher,
Sir,
Regarding aforesaid subject it is submitted that Smt. Neeraj Kumari,Assistant Teacher, Primary School -Bhojiupura (Bareilly) has remained on medical leave for last so many years due to bad health. At present she has submitted an application for joining on the basis of her fitness certificate. On which guidance) have been sought from Assistant Director, Education (Basic), Third Region, Bareilly vide letter No. Lekha/1058/2003-04, dated 24.05.2003 of this office. He has directed to take the advice of Medical Board, prior to sanctioning the medical leave/leave without pay to the concerned teacher for aforesaid period.(photocopy of the same is enclosed) Thereafter, vide letter of this office No. Lekha/3212-15/2003- 04, dated 11.06.2003, Smt. Neeraj Kumari has been sent to appear before Chief Medical Officer/Chairman, Medical Board, Bareilly alongwith her medical certificate for medical examination. The photocopy of the report of medical examination is enclosed.
Therefore it is requested that kindly issue appropriate guidance/directions regarding Smt. Neeraj Kumari, Assistant Teacher.
Enclosure:- As above.
Yours faithfully
(Dhanraj Mishra)
District Basic Education Officer
Bareilly.
Letter No./4728-29/2003-04 of aforesaid date
Copy- Smt. Neeraj Kumari, Asst. Teacher for information
District Basic Education Officer
Bareilly."
When the said letter was not responded by the opposite party no. 3, the opposite party no. 5 also wrote a letter to the Assistant Director Education (Basic) IIIrd Region, Bareilly, opposite party no.4. vide letter dated 27.9.2005 (Annexure No. 10 to this writ petition). The English translation of the letter dated 27.09.2005 is as follows:-
"From ,
The Assistant Director, Education (Basic),
Third Division ,Bareilly
To,
The District Basic Education Officer,
Bareilly.
Partank-Shi. Sa/ /2005-06, Dated 27.09.2005
Subject:- Regarding Smt. Neeraj Kumari ,Assistant Teacher.
Sir,
Kindly take reference of your letter partank: Lekha/4728/29, dated 02.07.2003 which is addressed to Secretary, Basic Eduction Board, U.P. Allahabad. Through this letter you sought guidance regarding Smt. Neeraj Kumari, Assistant Teacher Primary, School- Bhojipura (Bareilly) as she being on medical leave for last so many yeas.
Please clarify in this regard whether any guidance has been received from secretary, Basic Education Board, U.P. Allahabad or not. If any guidance is not received to you in this matter then again after sending a reminder letter immediately to Secretary , Basic Education Board, U.P. Allahabad and after obtaining the guidance immediately take necessary action in the matter.
Yours faithfully
(Dr. Pawan Kumar)
Assistant Director, Education (Basic) ,
Third Division Bareilly
letter.San.Si.Sa /2443-45/2005-06/ of aforesaid date
Copy to Sachiv, Besic Siksha Parisad,U.P.,Allahabad with a request to send the guidance sought by Basik Siksha Adhikari, Bareilly in this matter as early as possible.
2.- Copy to Smt. Neeraj Kumari wife of Sri Satish Chandra Gupta Addl.District Judge 130/1B Utsav Maha Nagar colony, Pilibhit bypass Bareilly in response to her letter dated 26.9.2005
(Dr. Pawan Kumar)
Assistant Director, Education (Basic) ,
Third Division Bareilly" By this letter the opposite party no.4 informed to opposite party no.5 that if the direction/guidelines have not yet been received from the opposite party no. 3, reminder may be issued to seek direction/guidelines from Secretary, Basic Education Board, U.P. in the matter.
The petitioner moved an applications for granting leave without pay w.e.f. 30.9.1995 to 20.10.1995 to the Deputy Inspector of Schools, Bareilly stating therein that due to domestic problems she is unable to attend the duty and she was on leave without pay w.e.f 16.3.1995 to 29.9.1995, copy of which has been annexed as Annexure no. 5 to the writ petition. Thereafter the petitioner moved several applications for extension of leave without pay to the Deputy Inspector of Schools, Bareilly on the same ground. Lastly she moved an application for grant of leave without pay w.e.f. 30.6.1997 to 30.9.1997 to the Deputy Inspector of Schools, Bareilly stating therein that on account of domestic problems she is unable to attend the duty. The petitioner moved several applications on different dates for joining the duty to the District Basic Education Officer, Bareilly, but no heed was paid by him.
When the authorities concerned do not take any decision in the matter of the petitioner, the petitioner submitted a representation dated 13.10.2006 (Annexue No.11 to the writ petition) to the Director Education (Basic), Nishataganj, Lucknow, opposite party no. 2 after giving full details of the matter and requested to issue direction to the authorities concerned for granting leave of the petitioner and permitting her to join the duty.
When this representation was also not decided by the opposite party no. 2, the petitioner was compelled to take shelter of the Court and filed a writ petition bearing No.4616 of 2007 (S/S). The same was disposed of by this Court vide order dated 08.08.2007 with a direction to the Director, Basic Education to decide the representation of the petitioner dated 13.10.2006 within a period of two months from the date of production of certified copy of the order. The order passed on 08.08.2007 in writ petition No.4616 of 2007(S/S) is quoted here in below:-
"This court also observed therein that the Director will also assess the responsibility of the officers dealing with the matter who have not expedited the proceedings and fix the liability on them as contemplated under the Rules. Heard learned counsel for the petitioner and learned counsel for the B.S.A.
Notice on behalf of opposite parties no. 1, 2 and 4 has been accepted by the learned Standing Counsel and notice on behalf of opposite party no.3 and 5 has been accepted by Shri M.M. Asthana.
With the consent of parties' counsel, the writ petition is being disposed of finally.
The petitioner was appointed as Assistant Teacher in the Primary School Bhojpur, Naveen-II, District Bareilly on 07.03.1986. The petitioner fell ill and proceeded on leave on 16.03.1995. The petitioner thereafter extended her medical leave till 28.02.1998 and on 01.03.1998 after obtaining fitness certificate from the doctor she submitted her joining. The petitioner's representation in regard to fact that she may be permitted to work, has not been decided. The correspondence is going on since then but no decision has been taken up till now. Although the petitioner has tried her level best to convince the authorities that whatever leave is permissible under law that may be granted to her and she may be permitted to resume her duties, but the opposite parties have not considered any thing and neither permitted the petitioner to resume her duties on account of which she has been compelled to remain absent from 01.03.1998. The B.S.A. Should have taken a decision promptly within a reasonable time instead of lingering the matter for a long time.
In the above circumstances, the Director, Basic Education, is directed to decide the representation of the petitioner dated 13.10.2006, contained in Annexure no. 10 to the writ petition, within a period of two months from the date a certified copy of this order is produced before him. The Director will also assess the responsibility of the officers dealing with the matter who have not expedited the proceeding and fix the liability on them as contemplated under the Rules. "
In pursuance of the order dated 8.8.2007 passed by this Court, the Director, Basic Education decided the representation of the petitioner on 5.12.2007 and declined the petitioner to join her duty observing it that her lien is terminated against the post on which she was working. The order dated 05.12.2007 deciding the representation of the petitioner is annexed as Annexure-1 to the writ petition, the relevant portion of which (the Hindi version translated into English) is reproduced herein below:
"District Basic Education Officer, Bareilly has informed in his report that Smt. Neeraj Kumari was appointed on the post of Assistant teacher by the order dated 7.3.86. In compliance of aforesaid, on 1.4.86 she assumed charge in the school. From dated 1.4.86 to March 95, being posted on the post of Assistant Teacher, as per office/school records she remain absent for 199 days and has availed medical leave of 59 days and maternity leave of 90 days.
Since March 16, 1995, she is continuously absent from the school. From 16.03.1995 to 5.5.1999, Smt. Neeraj Kumari has remained on leave without pay; the total period of which is, 4 years, 1 month, 21 days. From 6.5.1999 to 11.6.2003, she has remained on medical leave, maternity leave etc.; its total period is 4 years, 5 months. For the period, from 11.6.2003 to 28.6.2005, no leave application has been submitted. Aforesaid period is 2 years, 17 days.
After considering the representation dated 13.10.2006 of Smt. Neeraj Kumari and the report submitted by District Basic Education Officer, Bareilly, it is found that after more than 05 years' leave/absence, the title (lien) of the employee comes to an end and justification to assume the charge also ended. Therefore, the representation of Smt. Neeraj Kumari, dated 13.10.2005 having no force is hereby decided by rejecting the same.
Dinesh Chandra Kanojia Director,
Education(Basic),Uttar Pradesh, Lucknow
Endorsement No.Si. Ni.(Bai)/28536-40/2007-08/Dt.5.12.2007
Copy to following for information and necessary action:
1. Registrar, Hon'ble High Court, Lucknow
2. Sachiv ,Basic Siksha Parisad, U.P., Allahabd
3. Regional Assistant Director Education(Basic), Bareilly
4. Zila Basic Siksha Adhikari, Bareilly
5. Smt. Neeraj Kumari wife of Sri Yatish Chandra Gupta, Resident of-130/1B, Utsav Mahanagar Colony, Pilibhit By pass Road, Bareilly
Dinesh Chandra Kanojia
Director,
Education(Basic),Utter Pradesh,Lucknow"
Aggrieved by the aforesaid impugned order dated 5.12.2007 passed by the opposite party no. 2 the petitioner has preferred the instant writ petition.
Heard learned counsel for the petitioner Sri Vinay Mishra, Additional Chief Standing Counsel appearing on behalf of opposite parties 1, 2 and 4 Shri Chaudhary Shatrughan and learned counsel appearing for opposite party no. 5.
Inspite of sufficient time being provided to the learned counsel for the opposite parties, no counter affidavit has yet been been filed on their behalf.
Since no counter affidavit has been filed in this case, this court has no option except to decide the case on the basis of material available on record. In absence of the counter affidavit, this court may proceed on the basis of assertions made in the writ petition, which remain unconverted till date in view of the decisions of Hon'ble the supreme Court of India as reported in Choksi Tube Company Limited Vs. Union of India, 1997 (11) SCC 179 and AIR 1993 SC 2592, Naseem Bano Vs. State of U.P. and others , in which the Hon'ble Supreme Court of India has laid down the law that where a plea taken is not controverted in reply, it amounts to admission of the plea.
In view of the aforesaid facts of the case, it is necessary to look into the concept of lien which has been defined under Rule 9(13) of Financial Hand Book, Volume-II (Parts II to IV). The definition of lien given in the aforesaid Rule is reproduced herein blow:
"9.(13) Lien means the title of a government servant to hold substantively, either immediately or on termination of a period or periods of absence,a permanent post,including a tenure post,to which he has been appointed substantively."
Rule 14 (a) of the Financial Hand Book deals with suspension of lien. Rule 14A relates to termination of lien. Rule 14B relates to transfer of lien. Rule 14 (a), 14-A and 14-B are reproduced herein below for ready reference:
"14 (a). The lien of a government servant on a permanent post which he holds substantively shall be suspended if he is appointed in substantive capacity:
(1) to a tenure post,or
(2) to a permanent post outside the cadre on which he is borne,or
(3) provisionally, to a post on which another government servant would hold a lien had his lien not been suspended under this rule.
(b) The Government may, at their option, suspend the lien of a government servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service,or, in circumstances not covered by clause 2(a) of this rule,is transferred,whether in a substantive or officiating capacity,to a post in another cadre,and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.
(c) Notwithstanding anything contained in clause (a) or (b) of this rule, a government servant's lien on a tenure post may in no circumstances be suspended. If he is appointed substantively to another permanent post, his lien on tenure post must be terminated.
(d) If a government servant's lien is suspended under clause (a) or (b) of this rule, the post may be filled substantively, and the government servant appointed to hold it substantively shall acquire a lien on it; provided that the arrangements shall be reversed as soon as the suspended lien revives.
(e) A government servant's lien which has been suspended under clause (a) of this rule shall revive as soon as he ceases to hold lien on a post of the nature specified in sub-clause (1),(2) or (3) of that clause.
(f) A government servant's lien which has been suspended under clause (b) of this rule shall revive as soon as he ceases to be on deputation out of India,or on foreign service, or to hold a post in another cadre , provided that a suspended lien shall not revive because the government servant take leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India, or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years, or that he will hold substantively a post of the nature specified in sub clause (1), (2) or (3) of clause (a)
Orders of the Governor regarding Rule 14
When it is known that a government servant on transfer to a post outside his cadre is due to retire on superannuation pension within three years of his transfer, his lien on the permanent post cannot be suspended.
14A.(a) A government servant's lien on a post may in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien ora suspended lien upon a permanent post.
(b) In a case covered by sub-clause (2) of clause (a) of rule 14, the suspended lien may not, except on a written request of the government servant concerned, be terminated while the government servant remains in Government service.
14B. Subject to the provisions of rule 15, the government may transfer to another permanent post in the same cadre the lien of a government servant who is not performing the duties of the post to which the lien relates ,even if that lien has been suspended."
The perusal of these Rules clearly indicate that lien is the title of government servant to hold a substantive post to join immediately or on termination of a period of absence on permanent post on which the employee has been appointed substantively.
It is not in dispute that the petitioner has been appointed substantively against a permanent post as Assistant Teacher. She continued to work as such. There is no provision for termination of lien as is evident from Rule 14(a) of the Financial Hand Book. The lien can be terminated only when the government servant is wilfully absented from duty and the government servant has been held responsible for the same by awarding punishment in the departmental proceeding. If the service of the government servant is dispensed with by dismissal/termination on the ground of wilful absence from duty, the lien shall come to an end and the lien of government employee can only in that situation stands terminated. Admittedly in this case, neither departmental action was ever taken against the petitioner for her alleged absence nor she was held guilty of wilful absence from duty. The undisputed fact which emerges to the effect that till date there is no order on record of terminating the services of the petitioner on the ground of absent without leave nor any document in this regard has been brought by the respondents. Further from perusal of the impugned order dated 05.12.2007 (Annexure No. 1) passed by opposite party no. 2, it reveals that as the petitioner continuously remained absent without leave, so her services have been deemed to be terminated, as per the provisions as provided under Financial Hand Book Volume II (Part II to IV). The said stand taken by the opposite party no.2 while rejecting the petitioner's claim by the impugned order is totally incorrect and wrong and on this basis the claim of the petitioner cannot be negated.
To support his contentions, the learned counsel for the petitioner relied upon a judgement of the Apex court reported in (2012) 3 SCC 178, Krushnakant B. Parmar Vs. Union of India and another, the operative portion of which is reproduced herein below, wherein in paragraph Nos. 16, 17 & 18 held as under:-
"16- In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct."
In view of the above, unless the petitioner was held responsible for misconduct of wilful absence from duty, her lien cannot be terminated.
It is not in dispute that petitioner gave an application for resuming her duty to the B.S.A, Bareilly after submitting her medical fitness certificate on 1.3.1998. The B.S.A., Bareilly is competent authority to decide whether the petitioner should be permitted to join the duty or not but he kept the matter pending for about five years and wrote a letter to the Chief Medical Officer, Bareilly for medical examination of the petitioner by the Medical Board with intend to obtain opinion that petitioner is medically fit to resume her duty. The petitioner found fit in the medical examination by the Medical Board. But instead of passing any order in the matter of petitioner BSA started seeking opinion of high ups and referred the matter for opinion to the Secretary, Basic Shiksha Parishad, Allahabad ,U.P. When the B.S.A., Bareilly did not receive the reply of the query, he wrote a letter to Assistant Director Education (Basic), IIIrd Region, Bareilly for seeking necessary instructions in the matter of the petitioner. The Assistant Director Education (Basic), IIIrd Region, Bareilly instead of giving clear direction directed the B.S.A., Bareilly to issue reminder to the Secretary, Basic Shiksha Parishad, Allahabad ,U.P. in pursuance of earlier letter issued in the year 2003. This shows that the authorities concerned did not allow the petitioner to join the services on the post on which lien of petitioner was in existence. For years together the petitioner run over from pillar to post for her joining but the authorities concerned did not pay any attention on the request of the petitioner for considerable long time and ultimately in 2006, the petitioner moved a representation to the Director, Education (Basic), State of U.P.. Unfortunately when the Director, Education (Basic), State of U.P., the highest authority of the Basic Education , also did not take care of it and failed to issue necessary directions to the subordinates in the matter of petitioner, then the Court intervened at the request of the petitioner and directed to the Director, Education (Basic), State of U.P. to decide the representation of the petitioner and only thereafter the impugned order has been passed. In the order impugned dated 5.12.2007 passed by the opposite party no. 2 , has been mentioned that the petitioner had not applied any leave from 11.06.2003 to 28.06.2005.
The question arises whether the petitioner required to move any application for leave for interregnum period till the decision is taken by the competent authority on the application given by the petitioner for joining? The reply would certainly be in negative. This shows that by the impugned order the Director, Education (Basic), State of U.P. not only shielded the authorities of the education department instead of taking action against them, but also decided the representation mechanically without application of mind and against the provisions of law and rules contained in respect of lien as above. The impugned order has been passed on the basis of the report submitted by the B.S.A., Bareilly but without giving opportunity of being heard to the petitioner.
It is not in dispute that petitioner was found fit to resume her duty by the Medical Board, but no decision was taken by the B.S.A., Bareilly in the matter of the petitioner for granting permission to join her duty as her lien was in existence and she continuously from 1998 was pressing for joining.
In view of the above, the impugned order dated 5.12.2007 passed by the opposite party no. 2 cannot be allowed to sustain and is liable to be set aside. For wilful non action of opposite parties the cost is also liable to be imposed against them .
The writ petition is allowed. The impugned order dated 5.12.2007 passed by opposite party no. 2 is set aside/quashed with cost quantified at Rs.25000/- which shall be recovered from the State. The cost shall be deposited with the Registrar of this Court within a period of one month from today. In case, the costs is not deposited within the time stipulated by the State, the same shall be recovered as arrears of land revenue .However the State Government may recover the costs after depositing the same from the officers responsible for the same.
The opposite party no. 5 District Basic Education Officer (BSA) Bareilly, who is the competent authority/appointing authority of the petitioner, is directed to permit the petitioner to join her duties and post the petitioner forthwith as assistant teacher, if the vacancy already in existence in Primary School, Bhojipura Naveen IInd, Vikas Khand, Bhojipura, District Bareilly where she was working or in other suitable place where she can be posted or in his own office till she is posted in other suitable post. The opposite party no.5 is also directed to take decision regarding leave applied by the petitioner and to pay the salary which is due to the petitioner within a period of one month from the date of production of certified copy of this order. BSA Bareilly, opposite party no. 5 is further directed that the period commencing from the date when the petitioner presented the application permitting her to join services till she actually joined in pursuance of the order passed by this Court, shall deemed to be spent on duty for all purposes including post retiral benefits.
GSY
4th October, 2013
सरकारी नौकरी - Army /Bank /CPSU /Defence /Faculty /Non-teaching /Police /PSC /Special recruitment drive /SSC /Stenographer /Teaching Jobs /Trainee / UPSC
Court No. 17 AFR
Reserved
Writ Petition No. 6740 of 2009 (S/S)
Smt. Neeraj Kumari 58 years wife of Shri Yateesh
Chandra Gupta resident of house no. 130/1B, Utsav,
Mahanagar Colony, Pilibheet Bareilly.
....Petitioner
Vs.
1.State of U.P. through Principal Secretary, Basic Education,
U.P. Civil Secretariat, Lucknow
2. Director Education (Basic), Nishatganj, Lucknow
3. Secretary, Basic Shiksha Parishad, Allahabad, U.P.
4. Assistant Director Education (Basic ) IIId Region, Bareilly.
5.District Basic Education Officer Bareilly.
.Opposite parties
Counsel for Petitioner : Vinay Misra
Counsel for Respondents : A.C.S.C, Chaudhary Shatrughan and J.P. Maurya.
Hon'ble Vishnu Chandra Gupta,J.
By means of the present petition, the petitioner has prayed for issuing a writ in the nature of certiorari quashing the order dated 05.12.2007 (Annexure No. 1) passed by the opposite party no. 2, Director Education (Basic), Nisatganj, Lucknow, by which the petitioner was declined to join the service on the post of Assistant Teacher treating it that she has lost her lien over the post on which she was working. She further prayed to issue a writ in the nature of mandamus commanding the opposite parties to allow the petitioner to resume her duties and further to discharge her services with responsibilities without any hindrance and to pay the arrears of salary due to the petitioner for the period she was on leave after sanctioning leave.
Brief facts for deciding this petition are that the petitioner was appointed as Assistant Teacher in Primary School at Bhojipura in District Bareilly in pursuance of the appointment letter dated 07.03.1986 (Annexure No.3) issued by the opposite party no. 5, District Basic Education Officer (For short BSA), Bareilly. She joined her duty in Primary School, Bhojipura Naveen IInd, Vikas Khand, Bhojipura, District Bareilly on 1.4.1986 (Annexure No.4). She continued to work on the said post. On 16th of March, 1995, she proceeded on leave due to domestic problem and ill health. The leave was extended from time to time. The petitioner applied for leave on medical certificate from 01.01.1998 to 28.02.1998. On 01.03.1998 after obtaining medial fitness certificate the petitioner submitted her joining to opposite party no.5, but she was not permitted to join the duty despite repeated request and representations made to opposite party no.5. It is also alleged that the medical fitness certificate of the petitioner dated 02.05.1998 issued by the Chief Medical Officer, Bareilly (Annexure-7 to the writ petition) along with medical leave application was submitted to opposite party no. 5.
The opposite party no. 5 wrote a letter dated 11.06.2003 (Annexure-8 to the writ petition) to Chief Medical Officer, Bareilly for medical examination of the petitioner by the medical board and asked to give opinion of the medical board regarding fitness of the petitioner so that she could be permitted to resume her duty. The English translation of the letter dated 11.06.2003 is as follows:-
" From,
The District Basic Education Officer,
Bareilly.
To,
The Chief Medical Officer/Chairman,
Medical Board, Bareilly.
Patrank :- Lekha/ /2003-04, dated 11.06.2003
Subject:- Regarding medical leave of Smt. Neeraj Kumari, Assistant Teacher,Primary School- Bhojipura (Naveen)
Sir,
Aforesaid Smt. Neeraj Kumar, Assistant Teacher, Primary School- Bhojipura has remained on medical leave for last so many years, due to bad health. At present being fit, she has given application to join at the school.
Therefore, the concerned teacher is being sent to you for the examination by Medical Board to decide whether she may be permitted to join again or not. Kindly provide the advice /guidance of Medical Board regarding her joining so that the action may be taken accordingly .
Yours faithfully
(Dhanraj Mishra)
District Basic Education Officer
Bareilly.
Letter No.-Lekha/3212-15/2003-04 of aforesaid date
Copy:-
1.Assistant Director(Basic)III Region, Bareilly for information in response to his letter Number-ba.li. (1)1058/2003-04 Dt.26.05.2003.
2. Assistant Basic Siksha Adikari Bhojipura , Bareilly for information and necessary action.
3.Smt. Neeraj Kumari,Asst. Teacher, Primary School Bhojipura Naveen,Bareilly with direction to appear before medical board along with her medical certificates
District Basic Education Officer
1. Bareilly"
2.
The Medical Board after conducting medical examination of the petitioner submitted report with the opinion that the petitioner is fit to discharge her duties, but inspite of it, the petitioner has not been permitted to join her duties by the opposite party no. 5.
Thereafter, opposite party no.5 vide letter dated 2.7.2003 (Annexure No. 9 to the writ petition) sought guidelines/direction in the matter of the joining of the petitioner from Secretary, Basic Shiksha Parishad, Allahabad, U.P., opposite party no. 3. The letter dated 2.7.2003 (English Translation) is as follows:-
"From,
The District Basic Education Officer,
Bareilly.
To,
The Secretary,
Basic Education Board, U.P.,
Allahabad.
Patrank-Lekha/ /2003-04, Dated 02 July, 2003
Subject :- Regarding Smt. Neeraj Kumari, Assistant Teacher,
Sir,
Regarding aforesaid subject it is submitted that Smt. Neeraj Kumari,Assistant Teacher, Primary School -Bhojiupura (Bareilly) has remained on medical leave for last so many years due to bad health. At present she has submitted an application for joining on the basis of her fitness certificate. On which guidance) have been sought from Assistant Director, Education (Basic), Third Region, Bareilly vide letter No. Lekha/1058/2003-04, dated 24.05.2003 of this office. He has directed to take the advice of Medical Board, prior to sanctioning the medical leave/leave without pay to the concerned teacher for aforesaid period.(photocopy of the same is enclosed) Thereafter, vide letter of this office No. Lekha/3212-15/2003- 04, dated 11.06.2003, Smt. Neeraj Kumari has been sent to appear before Chief Medical Officer/Chairman, Medical Board, Bareilly alongwith her medical certificate for medical examination. The photocopy of the report of medical examination is enclosed.
Therefore it is requested that kindly issue appropriate guidance/directions regarding Smt. Neeraj Kumari, Assistant Teacher.
Enclosure:- As above.
Yours faithfully
(Dhanraj Mishra)
District Basic Education Officer
Bareilly.
Letter No./4728-29/2003-04 of aforesaid date
Copy- Smt. Neeraj Kumari, Asst. Teacher for information
District Basic Education Officer
Bareilly."
When the said letter was not responded by the opposite party no. 3, the opposite party no. 5 also wrote a letter to the Assistant Director Education (Basic) IIIrd Region, Bareilly, opposite party no.4. vide letter dated 27.9.2005 (Annexure No. 10 to this writ petition). The English translation of the letter dated 27.09.2005 is as follows:-
"From ,
The Assistant Director, Education (Basic),
Third Division ,Bareilly
To,
The District Basic Education Officer,
Bareilly.
Partank-Shi. Sa/ /2005-06, Dated 27.09.2005
Subject:- Regarding Smt. Neeraj Kumari ,Assistant Teacher.
Sir,
Kindly take reference of your letter partank: Lekha/4728/29, dated 02.07.2003 which is addressed to Secretary, Basic Eduction Board, U.P. Allahabad. Through this letter you sought guidance regarding Smt. Neeraj Kumari, Assistant Teacher Primary, School- Bhojipura (Bareilly) as she being on medical leave for last so many yeas.
Please clarify in this regard whether any guidance has been received from secretary, Basic Education Board, U.P. Allahabad or not. If any guidance is not received to you in this matter then again after sending a reminder letter immediately to Secretary , Basic Education Board, U.P. Allahabad and after obtaining the guidance immediately take necessary action in the matter.
Yours faithfully
(Dr. Pawan Kumar)
Assistant Director, Education (Basic) ,
Third Division Bareilly
letter.San.Si.Sa /2443-45/2005-06/ of aforesaid date
Copy to Sachiv, Besic Siksha Parisad,U.P.,Allahabad with a request to send the guidance sought by Basik Siksha Adhikari, Bareilly in this matter as early as possible.
2.- Copy to Smt. Neeraj Kumari wife of Sri Satish Chandra Gupta Addl.District Judge 130/1B Utsav Maha Nagar colony, Pilibhit bypass Bareilly in response to her letter dated 26.9.2005
(Dr. Pawan Kumar)
Assistant Director, Education (Basic) ,
Third Division Bareilly" By this letter the opposite party no.4 informed to opposite party no.5 that if the direction/guidelines have not yet been received from the opposite party no. 3, reminder may be issued to seek direction/guidelines from Secretary, Basic Education Board, U.P. in the matter.
The petitioner moved an applications for granting leave without pay w.e.f. 30.9.1995 to 20.10.1995 to the Deputy Inspector of Schools, Bareilly stating therein that due to domestic problems she is unable to attend the duty and she was on leave without pay w.e.f 16.3.1995 to 29.9.1995, copy of which has been annexed as Annexure no. 5 to the writ petition. Thereafter the petitioner moved several applications for extension of leave without pay to the Deputy Inspector of Schools, Bareilly on the same ground. Lastly she moved an application for grant of leave without pay w.e.f. 30.6.1997 to 30.9.1997 to the Deputy Inspector of Schools, Bareilly stating therein that on account of domestic problems she is unable to attend the duty. The petitioner moved several applications on different dates for joining the duty to the District Basic Education Officer, Bareilly, but no heed was paid by him.
When the authorities concerned do not take any decision in the matter of the petitioner, the petitioner submitted a representation dated 13.10.2006 (Annexue No.11 to the writ petition) to the Director Education (Basic), Nishataganj, Lucknow, opposite party no. 2 after giving full details of the matter and requested to issue direction to the authorities concerned for granting leave of the petitioner and permitting her to join the duty.
When this representation was also not decided by the opposite party no. 2, the petitioner was compelled to take shelter of the Court and filed a writ petition bearing No.4616 of 2007 (S/S). The same was disposed of by this Court vide order dated 08.08.2007 with a direction to the Director, Basic Education to decide the representation of the petitioner dated 13.10.2006 within a period of two months from the date of production of certified copy of the order. The order passed on 08.08.2007 in writ petition No.4616 of 2007(S/S) is quoted here in below:-
"This court also observed therein that the Director will also assess the responsibility of the officers dealing with the matter who have not expedited the proceedings and fix the liability on them as contemplated under the Rules. Heard learned counsel for the petitioner and learned counsel for the B.S.A.
Notice on behalf of opposite parties no. 1, 2 and 4 has been accepted by the learned Standing Counsel and notice on behalf of opposite party no.3 and 5 has been accepted by Shri M.M. Asthana.
With the consent of parties' counsel, the writ petition is being disposed of finally.
The petitioner was appointed as Assistant Teacher in the Primary School Bhojpur, Naveen-II, District Bareilly on 07.03.1986. The petitioner fell ill and proceeded on leave on 16.03.1995. The petitioner thereafter extended her medical leave till 28.02.1998 and on 01.03.1998 after obtaining fitness certificate from the doctor she submitted her joining. The petitioner's representation in regard to fact that she may be permitted to work, has not been decided. The correspondence is going on since then but no decision has been taken up till now. Although the petitioner has tried her level best to convince the authorities that whatever leave is permissible under law that may be granted to her and she may be permitted to resume her duties, but the opposite parties have not considered any thing and neither permitted the petitioner to resume her duties on account of which she has been compelled to remain absent from 01.03.1998. The B.S.A. Should have taken a decision promptly within a reasonable time instead of lingering the matter for a long time.
In the above circumstances, the Director, Basic Education, is directed to decide the representation of the petitioner dated 13.10.2006, contained in Annexure no. 10 to the writ petition, within a period of two months from the date a certified copy of this order is produced before him. The Director will also assess the responsibility of the officers dealing with the matter who have not expedited the proceeding and fix the liability on them as contemplated under the Rules. "
In pursuance of the order dated 8.8.2007 passed by this Court, the Director, Basic Education decided the representation of the petitioner on 5.12.2007 and declined the petitioner to join her duty observing it that her lien is terminated against the post on which she was working. The order dated 05.12.2007 deciding the representation of the petitioner is annexed as Annexure-1 to the writ petition, the relevant portion of which (the Hindi version translated into English) is reproduced herein below:
"District Basic Education Officer, Bareilly has informed in his report that Smt. Neeraj Kumari was appointed on the post of Assistant teacher by the order dated 7.3.86. In compliance of aforesaid, on 1.4.86 she assumed charge in the school. From dated 1.4.86 to March 95, being posted on the post of Assistant Teacher, as per office/school records she remain absent for 199 days and has availed medical leave of 59 days and maternity leave of 90 days.
Since March 16, 1995, she is continuously absent from the school. From 16.03.1995 to 5.5.1999, Smt. Neeraj Kumari has remained on leave without pay; the total period of which is, 4 years, 1 month, 21 days. From 6.5.1999 to 11.6.2003, she has remained on medical leave, maternity leave etc.; its total period is 4 years, 5 months. For the period, from 11.6.2003 to 28.6.2005, no leave application has been submitted. Aforesaid period is 2 years, 17 days.
After considering the representation dated 13.10.2006 of Smt. Neeraj Kumari and the report submitted by District Basic Education Officer, Bareilly, it is found that after more than 05 years' leave/absence, the title (lien) of the employee comes to an end and justification to assume the charge also ended. Therefore, the representation of Smt. Neeraj Kumari, dated 13.10.2005 having no force is hereby decided by rejecting the same.
Dinesh Chandra Kanojia Director,
Education(Basic),Uttar Pradesh, Lucknow
Endorsement No.Si. Ni.(Bai)/28536-40/2007-08/Dt.5.12.2007
Copy to following for information and necessary action:
1. Registrar, Hon'ble High Court, Lucknow
2. Sachiv ,Basic Siksha Parisad, U.P., Allahabd
3. Regional Assistant Director Education(Basic), Bareilly
4. Zila Basic Siksha Adhikari, Bareilly
5. Smt. Neeraj Kumari wife of Sri Yatish Chandra Gupta, Resident of-130/1B, Utsav Mahanagar Colony, Pilibhit By pass Road, Bareilly
Dinesh Chandra Kanojia
Director,
Education(Basic),Utter Pradesh,Lucknow"
Aggrieved by the aforesaid impugned order dated 5.12.2007 passed by the opposite party no. 2 the petitioner has preferred the instant writ petition.
Heard learned counsel for the petitioner Sri Vinay Mishra, Additional Chief Standing Counsel appearing on behalf of opposite parties 1, 2 and 4 Shri Chaudhary Shatrughan and learned counsel appearing for opposite party no. 5.
Inspite of sufficient time being provided to the learned counsel for the opposite parties, no counter affidavit has yet been been filed on their behalf.
Since no counter affidavit has been filed in this case, this court has no option except to decide the case on the basis of material available on record. In absence of the counter affidavit, this court may proceed on the basis of assertions made in the writ petition, which remain unconverted till date in view of the decisions of Hon'ble the supreme Court of India as reported in Choksi Tube Company Limited Vs. Union of India, 1997 (11) SCC 179 and AIR 1993 SC 2592, Naseem Bano Vs. State of U.P. and others , in which the Hon'ble Supreme Court of India has laid down the law that where a plea taken is not controverted in reply, it amounts to admission of the plea.
In view of the aforesaid facts of the case, it is necessary to look into the concept of lien which has been defined under Rule 9(13) of Financial Hand Book, Volume-II (Parts II to IV). The definition of lien given in the aforesaid Rule is reproduced herein blow:
"9.(13) Lien means the title of a government servant to hold substantively, either immediately or on termination of a period or periods of absence,a permanent post,including a tenure post,to which he has been appointed substantively."
Rule 14 (a) of the Financial Hand Book deals with suspension of lien. Rule 14A relates to termination of lien. Rule 14B relates to transfer of lien. Rule 14 (a), 14-A and 14-B are reproduced herein below for ready reference:
"14 (a). The lien of a government servant on a permanent post which he holds substantively shall be suspended if he is appointed in substantive capacity:
(1) to a tenure post,or
(2) to a permanent post outside the cadre on which he is borne,or
(3) provisionally, to a post on which another government servant would hold a lien had his lien not been suspended under this rule.
(b) The Government may, at their option, suspend the lien of a government servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service,or, in circumstances not covered by clause 2(a) of this rule,is transferred,whether in a substantive or officiating capacity,to a post in another cadre,and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.
(c) Notwithstanding anything contained in clause (a) or (b) of this rule, a government servant's lien on a tenure post may in no circumstances be suspended. If he is appointed substantively to another permanent post, his lien on tenure post must be terminated.
(d) If a government servant's lien is suspended under clause (a) or (b) of this rule, the post may be filled substantively, and the government servant appointed to hold it substantively shall acquire a lien on it; provided that the arrangements shall be reversed as soon as the suspended lien revives.
(e) A government servant's lien which has been suspended under clause (a) of this rule shall revive as soon as he ceases to hold lien on a post of the nature specified in sub-clause (1),(2) or (3) of that clause.
(f) A government servant's lien which has been suspended under clause (b) of this rule shall revive as soon as he ceases to be on deputation out of India,or on foreign service, or to hold a post in another cadre , provided that a suspended lien shall not revive because the government servant take leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India, or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years, or that he will hold substantively a post of the nature specified in sub clause (1), (2) or (3) of clause (a)
Orders of the Governor regarding Rule 14
When it is known that a government servant on transfer to a post outside his cadre is due to retire on superannuation pension within three years of his transfer, his lien on the permanent post cannot be suspended.
14A.(a) A government servant's lien on a post may in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien ora suspended lien upon a permanent post.
(b) In a case covered by sub-clause (2) of clause (a) of rule 14, the suspended lien may not, except on a written request of the government servant concerned, be terminated while the government servant remains in Government service.
14B. Subject to the provisions of rule 15, the government may transfer to another permanent post in the same cadre the lien of a government servant who is not performing the duties of the post to which the lien relates ,even if that lien has been suspended."
The perusal of these Rules clearly indicate that lien is the title of government servant to hold a substantive post to join immediately or on termination of a period of absence on permanent post on which the employee has been appointed substantively.
It is not in dispute that the petitioner has been appointed substantively against a permanent post as Assistant Teacher. She continued to work as such. There is no provision for termination of lien as is evident from Rule 14(a) of the Financial Hand Book. The lien can be terminated only when the government servant is wilfully absented from duty and the government servant has been held responsible for the same by awarding punishment in the departmental proceeding. If the service of the government servant is dispensed with by dismissal/termination on the ground of wilful absence from duty, the lien shall come to an end and the lien of government employee can only in that situation stands terminated. Admittedly in this case, neither departmental action was ever taken against the petitioner for her alleged absence nor she was held guilty of wilful absence from duty. The undisputed fact which emerges to the effect that till date there is no order on record of terminating the services of the petitioner on the ground of absent without leave nor any document in this regard has been brought by the respondents. Further from perusal of the impugned order dated 05.12.2007 (Annexure No. 1) passed by opposite party no. 2, it reveals that as the petitioner continuously remained absent without leave, so her services have been deemed to be terminated, as per the provisions as provided under Financial Hand Book Volume II (Part II to IV). The said stand taken by the opposite party no.2 while rejecting the petitioner's claim by the impugned order is totally incorrect and wrong and on this basis the claim of the petitioner cannot be negated.
To support his contentions, the learned counsel for the petitioner relied upon a judgement of the Apex court reported in (2012) 3 SCC 178, Krushnakant B. Parmar Vs. Union of India and another, the operative portion of which is reproduced herein below, wherein in paragraph Nos. 16, 17 & 18 held as under:-
"16- In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct."
In view of the above, unless the petitioner was held responsible for misconduct of wilful absence from duty, her lien cannot be terminated.
It is not in dispute that petitioner gave an application for resuming her duty to the B.S.A, Bareilly after submitting her medical fitness certificate on 1.3.1998. The B.S.A., Bareilly is competent authority to decide whether the petitioner should be permitted to join the duty or not but he kept the matter pending for about five years and wrote a letter to the Chief Medical Officer, Bareilly for medical examination of the petitioner by the Medical Board with intend to obtain opinion that petitioner is medically fit to resume her duty. The petitioner found fit in the medical examination by the Medical Board. But instead of passing any order in the matter of petitioner BSA started seeking opinion of high ups and referred the matter for opinion to the Secretary, Basic Shiksha Parishad, Allahabad ,U.P. When the B.S.A., Bareilly did not receive the reply of the query, he wrote a letter to Assistant Director Education (Basic), IIIrd Region, Bareilly for seeking necessary instructions in the matter of the petitioner. The Assistant Director Education (Basic), IIIrd Region, Bareilly instead of giving clear direction directed the B.S.A., Bareilly to issue reminder to the Secretary, Basic Shiksha Parishad, Allahabad ,U.P. in pursuance of earlier letter issued in the year 2003. This shows that the authorities concerned did not allow the petitioner to join the services on the post on which lien of petitioner was in existence. For years together the petitioner run over from pillar to post for her joining but the authorities concerned did not pay any attention on the request of the petitioner for considerable long time and ultimately in 2006, the petitioner moved a representation to the Director, Education (Basic), State of U.P.. Unfortunately when the Director, Education (Basic), State of U.P., the highest authority of the Basic Education , also did not take care of it and failed to issue necessary directions to the subordinates in the matter of petitioner, then the Court intervened at the request of the petitioner and directed to the Director, Education (Basic), State of U.P. to decide the representation of the petitioner and only thereafter the impugned order has been passed. In the order impugned dated 5.12.2007 passed by the opposite party no. 2 , has been mentioned that the petitioner had not applied any leave from 11.06.2003 to 28.06.2005.
The question arises whether the petitioner required to move any application for leave for interregnum period till the decision is taken by the competent authority on the application given by the petitioner for joining? The reply would certainly be in negative. This shows that by the impugned order the Director, Education (Basic), State of U.P. not only shielded the authorities of the education department instead of taking action against them, but also decided the representation mechanically without application of mind and against the provisions of law and rules contained in respect of lien as above. The impugned order has been passed on the basis of the report submitted by the B.S.A., Bareilly but without giving opportunity of being heard to the petitioner.
It is not in dispute that petitioner was found fit to resume her duty by the Medical Board, but no decision was taken by the B.S.A., Bareilly in the matter of the petitioner for granting permission to join her duty as her lien was in existence and she continuously from 1998 was pressing for joining.
In view of the above, the impugned order dated 5.12.2007 passed by the opposite party no. 2 cannot be allowed to sustain and is liable to be set aside. For wilful non action of opposite parties the cost is also liable to be imposed against them .
The writ petition is allowed. The impugned order dated 5.12.2007 passed by opposite party no. 2 is set aside/quashed with cost quantified at Rs.25000/- which shall be recovered from the State. The cost shall be deposited with the Registrar of this Court within a period of one month from today. In case, the costs is not deposited within the time stipulated by the State, the same shall be recovered as arrears of land revenue .However the State Government may recover the costs after depositing the same from the officers responsible for the same.
The opposite party no. 5 District Basic Education Officer (BSA) Bareilly, who is the competent authority/appointing authority of the petitioner, is directed to permit the petitioner to join her duties and post the petitioner forthwith as assistant teacher, if the vacancy already in existence in Primary School, Bhojipura Naveen IInd, Vikas Khand, Bhojipura, District Bareilly where she was working or in other suitable place where she can be posted or in his own office till she is posted in other suitable post. The opposite party no.5 is also directed to take decision regarding leave applied by the petitioner and to pay the salary which is due to the petitioner within a period of one month from the date of production of certified copy of this order. BSA Bareilly, opposite party no. 5 is further directed that the period commencing from the date when the petitioner presented the application permitting her to join services till she actually joined in pursuance of the order passed by this Court, shall deemed to be spent on duty for all purposes including post retiral benefits.
GSY
4th October, 2013
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