Hon'ble Mrs. Jayashree Tiwari, J.
1. The petitioner retired on 31.12.2006, serving as Deputy Director, Homeopathic, U.P. In Writ Petition No. 72244 of 2005 He has challenged the notice dated 18.10.2005, by which after holding departmental enquiry, on the allegations in charge sheets dated 18.7.2002 and 27.9.2002 he was asked to show cause on the finding recorded in the enquiry report, to submit a reply as to why he may not be punished. By an interim order dated 24.11.2005, the Court had stayed the enquiry proceedings.
2. In Writ Petition No. 61591 of 2007, the petitioner has prayed for directions to set aside the order dated 24.9.2007 passed by the Director, Homeopathic fixing his pension at Rs. 2139 and dearness allowance of Rs. 1069/-. The petitioner has prayed for directions to the respondents to restore his pension at Rs. 9206/- along with dearness allowance, provisionally paid to him after his retirement. He has also prayed for setting aside the order dated 9.1.2006, by which the State Government has rejected his representations dated 20.4.2005 and 20.5.2005 in which he prayed not to treat the period between 29.3.1992 to 19.7.1994 as break in his service and for which no pay and allowance are to be paid to him.
3. We have heard Shri Narendra Mohan, learned counsel for the petitioner. Shri Jaffer Naiyer, Additional Advocate General assisted by Shri Rajni Kant Tiwari, Standing Counsel for appears respondents.
4. The petitioner was selected as Medical Officer, Homeopathic on 17.6.1968, and joined on 24.6.1968 at Dehradun. His service conditions are regulated by the U.P. Homeopathic Medical Service Rules, 1990 (in short, the Rules of 1990). He was promoted as District Homeopathic Officer/Assistant Director, Homeopathic on 23.1.1999, and thereafter as Deputy Director, Homeopathic on 12.3.1999.
5. The petitioner alleges that as Deputy Director, Homeopathic he was eligible to be considered for promotion to the post of Director, Homeopathic. At the relevant time apart from the two Deputy Directors, seven Principals of Homeopathic Medical Colleges were also eligible to be promoted as Director, Homeopathic. The pay scales of the Principal of the Homeopathic Medical Colleges were more than the pay scale of the Deputy Director, Homeopathic and therefore the petitioner was placed below them in the eligibility list reducing his chances of promotion.
6. The petitioner filed a Writ Petition No. 4849 of 2003 challenging the eligibility clause in the Rules of 1990, and claiming parity with the Principal of Homeopathic Medical Colleges. The Department did not file any counter affidavit on which Mr. Prashant Trivedi, the Secretary, Medical and Health was summoned to the Court by the order dated 27.4.2005 and on 7.8.2005. Shri Trivedi, the Secretary appeared and gave an assurance to the Court, that a Review Committee for pay structure will be convened. It is stated by the petitioner, that on the summoning of the Secretary of the Department the authorities got annoyed with him.
7. By an office order dated 18.10.2005 a notice was issued by the Special Secretary, Government of UP to the petitioner to show cause, as to why a decision be not taken in the departmental enquiry in which the petitioner was charged with failing to conclude the departmental enquiry against Dr. B.R. Sharma, the then District Homeopathic Officer, Varanasi and to carry out the orders of the State Government in that regard. The enquiry officer submitted a report on 14.7.2003 in the charges were proved against the petitioner.
8. The petitioner filed a Writ Petition No. 72244 of 2005 in which an interim order was passed on 24.10.2005 not to take any action in pursuance to the notice dated 18.10.2005. At the time of hearing of the writ petition, since the petitioner had retired in the meantime, on 21.12.2005 the Additional Advocate General assured that the provisional pension will be paid to him, and accordingly by the order dated 17.4.2006, the provisional pension assessed at Rs. 9206/- was fixed and was paid to the petitioner.
9. Writ petition No. 61591 of 2007 was filed on 11.12.2007 challenging the orders dated 24.9.2007 fixing the pension of the petitioner at Rs. 3208/- treating the length of service w.e.f. 19.7.1994 to 31.12.2005. The pension was reduced on the ground that by order dated 9.1.2006 the State Government did not regularize the period of petitioner's absence from 29.3.1992 to 19.7.1994, and has treated the period as break in service.
10. An Office Order dated 9.1.2006 passed on the representations of the petitioner dated 20.4.2005 and 20.5.2005, the Principal Secretary, Medical Education Department found that by the Government Order dated 12.3.1992 the petitioner was transferred and posted in Government Homeopathic Hospital, Holiwalia, Rudrapur, Deoria. The petitioner did not join and absented w.e.f. 29.3.1992 without any information or application. He made a representation on 18.8.1992 to the Director, Homeopathic, protesting against his transfer from district headquarters to Government Homeopathic Hospital, Holiwalia, at a distance of 60 kms. His request to take charge at district headquarters, Deoria was not accepted, nor was he given the pay and allowance. The petitioner represented alleging that taking into account his seniority, in accordance with the Government Order dated 3.5.1990, he should be posted at any district level hospital in the State and if his request is not accepted within 30 days, his conditional resignation may be accepted. The State Government considered his representations and transferred him by the order dated 25.6.1994 to District Homeopathic Hospital, Jhansi. The transfer to Jhansi was made on his own request, where the petitioner ultimately joined on 20.7.1994. During this period of 29.3.1992 to 20.7.1994 (twenty eight months), he remained absent from duties, without any justification. The letters sent to him in the meantime on 17.6.1992 and 9.10.1992 by the registered post to join were refused to be accepted by him.
The State Government by the order dated 9.1.2006 has further found that since he did not make any application for leave for the period from 29.3.1992 to 19.2.1994, and that the letter sent to the State Government in response to the Government's letter dated 29.9.2001, was undated and no reason was given, to allow leave, the period of absence cannot be regularized. It was observed that the Government orders for posting senior Homeopathic Medical Officers, so far as possible, in district hospitals, is by way of guidelines and is not binding upon the department. The petitioner should have joined and thereafter requested for transfer. The State Government also did not find any justification to treat the period of absence as the period spent on waiting for transfer order, and for joining. The request was found to be against Fundamental Rules 108 of Financial Hand Book Vol. II part 2-4.
12. Shri Narendra Mohan, learned Counsel for the petitioner submits that the petitioner as a senior medical officer was entitled to be posted at District Headquarters. His request was finally accepted and that he was transferred to Jhansi where he joined immediately. The Director, Homeopathic repeatedly made recommendations in favour of the petitioner to regularize the period of his absence so that future complication may not arise. He submits that the petitioner was seriously wronged by the State Government in treating the period of absence to be spent in waiting for transfer on petitioner's representation, as a break in service. The petitioner was a permanent government servant and had a lien on the post, which could not be broken by his absence for a short period of time. His pension was illegally and arbitrarily delayed and denied and that the action has been taken to treat the aforesaid period as break in service and in reducing the pension causing serious loss to the petitioner by way of an order of punishment on the malafides of Shri Prashant Trivedi, the then Principal Secretary, Medical Education. He had passed the order to teach the petitioner a lesson for summoning him to the Court.
13. Shri Narendra Mohan submits that the petitioner was a Senior Homeopathic Medical Officer. He was entitled to be promoted as Director, Homeopathic. His grievance against treating the Principals of Homeopathic Medical Colleges as senior to the Deputy Directors with same length of service, was not redressed; instead the petitioner has been punished. In fact he was humiliated by transferring him to rural areas. The period of his absence should have been regularised at the time when he joined at Jhansi. His representations for regularising the period of absence were not considered in accordance with service rules applicable to him. In the representation dated 28.11.1997 the petitioner had stated that on his transfer to Holiwalia, in rural area of district Deoria was accepted by him. He was prepared to take charge. He received information about the illness of his wife and made a request to the Chief Medical Officer for casual leave for two days. The leave was granted. His wife was seriously ill. The petitioner sent the application to extend the leave. After petitioner's wife recovered from illness he made an application to the Chief Medical Officer on 23.4.1992 to permit him to join. The Chief Medical Officer informed him that since some one has already joined at District Homeopathic Hospital, he may continue at Holiwalia until he is relieved. No one was sent to relieve the petitioner and that the petitioner was not allowed to join at District Hospital, Deoria. When the petitioner insisted on joining at district headquarters at Deoria, the Chief Medical Officer did not accept the request. In these circumstances he was not allowed to join, and feeling distressed and humiliated he submitted the application for fair treatment, and posting orders, failing which his conditional resignation may be accepted.
14. Learned Additional Advocate General appearing for the State submits that the Writ Petition No. 41386 of 1994, filed by the petitioner to regularise his service and for not treating the period from 29.3.1992 to 19.7.1994 as break in service, was got dismissed by the petitioner as not pressed. The order dated 18.7.2001 dismissing the writ petition is quoted as below:-
"Heard Shri B.P. Srivastava, learned counsel appearing for the petitioner and Shri U.P. Pandey, learned Standing Counsel of the State of U.P. representing the respondents.
It is not disputed that for redressal of his grievances raised herein, the petitioner has filed before the respondent no. 1 a representation dated 9th September, 1994, a copy whereof is Annexure-21 to the petition. It is also not disputed that the representation of the petitioner dated 9th September, 1994 aforesaid has not been decided as yet.
Sri U.K. Pandey the learned Standing Counsel representing the respondent no. 1 concedes that there has been an inordinate delay in disposing of the representation of the petitioner and by not the respondent no. 1 should have decided the same.
Sri B.P. Srivastava, learned counsel of the petitioner prays that instant petition may be dismissed as not pressed as order to enable the petitioner to pursue his representation dated 9th September, 1994 before the respondent no.1.
Accordingly the petition is dismissed as not pressed in order to unable the petitioner to pursue his representation dated 9th September, 1994 before the respondent no. 1. The Court has no reason to doubt that respondent no. 1 will not decide the representation of the petitioner expeditiously. The interim order/orders shall stand vacated.
Dt. 18.7.2001 Sd/- D.S. Sinha, J.
Sd/ Lakshmi Bihari, J."
15. The petitioner after the dismissal of the writ petition on 18.7.2001, did not cooperate with the respondents and thus the matter remained pending. After a lot of persuasion the petitioner filed representations on 20.4.2005 and 20.5.2005, which were considered and rejected on 9.1.2006. The petitioner had insisted upon joining at district hospital Deoria or at any other district hospital. He was not prepared to join in rural area at Holiwalia, Deoria. He not only abandoned his duties but also submitted his conditional resignation. Instead of initiating disciplinary action, the petitioner was allowed to join at Jhansi. He did not work during the period of his absence, nor submitted any application for leave.
16. In paragraph-39 of the counter affidavit of Dr. B.N. Singh it is stated that the petitioner has been paid leave encashment of Rs. 1, 94, 579/-; G.P.F of Rs. 1, 72, 568/- and Group Insurance of Rs. 49, 958/-. His pension was, however, fixed calculating the period after the break in service.
17. The Additional Advocate General submits that under Rule 16 (1) of the Rules of 1990, there is only one post of Director Homeopathy, in the department. Prof. B.M. Singh was serving as Director in officiating capacity. A list was prepared for selection for the post of Director in accordance with the Rules of 1990, and the Government orders in force at that time. The Principals of the Homeopathic Medical Colleges were drawing higher pay scales and were placed higher in the list of eligibility, for promotion.
18. We have considered the respective submissions and find that the petitioner's representation for regularising the break in service was considered and decided by a reasoned order. It was found that on his transfer to Holiwalia district Deoria the petitioner did not join, and absented himself without making any application for leave. He was not prepared to serve in rural areas and insisted on his posting at district headquarters. In his representation dated 3.5.1990 the petitioner had clearly stated that if is not given posting in district headquarters, the letter may be treated to be his conditional resignation. His conduct, as a government servant was not acceptable. The petitioner had not given any good reason for his absence from duties. Even if he had a genuine grievance he could have waited for consideration of representation. His absence for a period of two years and four months, was not justified at all. In his representations made in 1997 the petitioner had taken the illness of his wife, as a ground for not joining. The illness, however, was confined to only one month. Thereafter his insistence to join only at district headquarters was not justified. In his representation dated 28.11.1997 and in subsequent representations dated 20.4.2005 and 20.5.2005, the petitioner has not given any good reason to treat the period of absence to be spent on duty and for grant of leave.
19. In the Government Order dated 3.5.1990 a direction was issued to post the Homoeopathic Medical Officers in accordance with their seniority. The Government Order, however, clarified that in administrative interest any Homoeopathic Medical Officer, male or female can be transferred at any time and that on such transfer he should be relieved within a week. If the Homoeopathic Medical Officers remains absent without authorisation they should be immediately relieved and in such case the leave should not be sanctioned to them. The disciplinary enquiry should be initiated against those Homoeopathic Medical Officers who do not join on the transferred place and remain absent.
20. If we consider the petitioner's representation dated 18.8.1992 in the light of the policy of the State Government we find that the petitioner was not prepared to join at Government Homoeopathic Hospital at Holiwalia on the ground that it was 60 kms away from Deoria. He requested for compliance of the Government Order dated 3.5.1990 and to be posted in the district headquarters on the ground that he was 9th in the seniority list and in paragraph-4 of his representation he stated that he is finding himself unable to serve under Dr.L.U.P. Singh on account of his arbitrary behaviour and that he may be posted at any district hospital to be relieved from the arbitrary action of the Chief Medical Officer and if his request is not accepted within ten days, his resignation may be accepted.
21. The petitioner had shown his unwillingness to join at any place other than district headquarters. He neither join at any place nor apply for leave for two years and four months. He joined only after he was given the posting in the district hospital at Jhansi.
22. Break in service is an interruption in the service career of an employee, and generally is the result of unauthorised absence under circumstances specified in the service rules. Since a break in service has serious consequences, an order to such effect cannot be passed without giving reasonable opportunity to him. The condonation can be made by administrative powers depending upon facts of each case. In Sushil Kumar Yadav vs. Union of India (1986) 3 2CC 325, the Supreme Court considering the subsequent conduct and quality of performance, highly appreciated by his superiors relieved the petitioner of the disadvantage suffered by the petitioner pursuant to term of his contract of fresh appointment, and directed condonation of break in service. In Ram Chandra Yadav s. State of Bihar (1988) Supp SCC 779, the Supreme Court condoned the break in service, except for back wages. Each case thus has to be seen in the back drop of circumstances with the power of condonation to be exercised fairly. The authority must consider whether the break was beyond the control of the employee.
23. We find that petitioner's conduct as a Government servant was unacceptable. The petitioner not only disobeyed the orders of transfer, but insisted not to join until he was given a posting in district headquarters and if no such posting was given, he offered to resign. The petitioner thereafter could not have requested for leave to regularise the long period of two years and four months.
24. The State Government rather treated him leniently in allowing him to join at Jhansi and thereafter considered his representation. Even after joining at Jhansi the petitioner continued to have grievance against the State Government. He filed a writ petition to be promoted as Director, after he was given the charge of Deputy Director and retired pursuing litigation on 31.12.2005.
25. The petitioner has not placed reliance upon any service rules or Fundamental Rules, for treating the period for which he was absent without any justification and authority, to be spent on duty, for the purposes of accounting the services rendered by him prior to the break for the purposes of pension. The orders passed against the petitioner to treat the period after the break of service to qualify to pension does not amount to punishment, for which any disciplinary enquiry was required to be held.
26. The petitioner has received the entire amount of provident fund, leave encashment and group insurance. He has not made any prayer in this regard, in this writ petition.
27. The prayers made in the Writ Petition no. 72244 of 2005 after petitioner's retirement on 31.12.2005 have become infructuous.
28. Both the writ petitions are dismissed.
Dt.29.1.2011 RKP/