G.P. Mathur, J. - (1.) THIS petition has been filed for quashing of the resolution dated 5 -12 -1987 of the Executive Counsel of the University by which the petitioner's services have been treated as abandoned by her w.e.f. 4 -12 -1987. The petitioner was appointed as temporary Lecturer in the department of Obstetrics and Gynaecology in the Institute of Medical Sciences Banaras Hindu University, Varanasi on 12 -9 -1972. She was confirmed as Lecturer on 9 -3 -1975 and was promoted as Reader on 27 -7 -1983. According to the petitioner she applied for extra -ordinary leave for joining foreign service in Libya and the leave was granted for the period 8 -6 -1985 to 7 -6 -1987. Much before the leave was to expire in June, 1987, the Medical University of Libya requested the Ambassador of India in Libya to get her leave extended for one year. However, late in July, 1987 she received information through Indian Embassy that her leave had not been extended. The petitioner joined in the Institute of Medical Sciences, B.H.U. on 24 -7 -87. On 30 -7 -1987, she got a message from her husband that the Government of Libya was not prepared to give clearance in her absence and that her children and husband, whom she had left behind in Libiya would be in serious difficulty unless she went there and got formally relieved and also got clearance for herself and her family to come to India. The petitioner then applied for casual leave on 1 -8 -1987 for going to Delhi to find out possibility of clearance from Libyan Embassy, Delhi. However, she was advised to proceed to Libiya for getting clearance. The petitioner then applied for leave for private affairs from 4 -8 -1987 to 29 -9 -1987 and after sending an application by registered post from Delhi, she proceeded to Libiya. After reaching Libiya, she made efforts with the authorities to relieve her immediately but as no decision was taken, she applied for extension of leave for private affairs upto 31 -12 -1987. However, on 22 -11 -1987, she received a telegram from the Registrar of B.H.U. that extension of leave had been refused and she must resume duty by 4 -12 -1987. The petitioner claims to have sent a telegram on the same day to the Registrar that she would be able to join her duties on or about 27 -12 -1987 and followed the same by letter and telex message. She arrived at Varanasi and reported for joining her duties on 1 -1 -1988 but she was not allowed to do so and by means of a letter dated 7 -1 -1988 written by the Assistant Registrar, she was informed that the Executive Counsel by its resolution dated 5 -12 -1987 had terminated her services. The petition has been filed for quashing of this resolution.
(2.) THE case of the University, in short, is that the petitioner was granted extra -ordinary leave without pay for two years w.e.f. 8 -6 -1985 and her request for extension beyond 8 -6 -1987 was not accepted; that while her absence from 8 -6 -1987 to 23 -7 -1987 was still to be regularised, she left for Libiya and applied for "half -pay leave on private affairs" from 4 -8 -1987 to 29 -9 -1987; that subsequently, she requested for further extension of leave upto 31 -12 -1987 for visiting London; that on 19 -11 -1987, she was informed that the extension of leave had not been granted and she should positively resume duty by 4 -12 -1987 failing which her services would be treated as abandoned by her but she did not join till 31 -12 -1987. The case of the University further is that as the petitioner did not comply with the directive of the Executive Counsel in the matter of her joining duty after availing leave, her services were rightly dispensed with under the Ordinances which contemplates that if an employee fails to return to University Services after expiry of the leave his services shall be deemed to have been abandoned. Shri R.N. Singh learned counsel for the petitioner has submitted that the case of the petitioner would be governed by Ordinance 32.3 of Chapter -IV -Part -D. Shri Dinesh Kackar, has on the other hand, submitted that the case would be governed by Ordinances 10.5 and 27 of the same chapter. The relevant ordinances are reproduced below: 32. Extra -Ordinary Leave: 32.1(a): Extra -ordinary leave shall be without pay and allowances and may be granted when no other kind of leave is admissible or when other kind of leave being admissible, the employee specifically applied in writing for the grant of extra -ordinary leave. (b) The period of Extraordinary leave shall not count for increment. 32.3 A permanent employee shall be entitled to the grant of extra -ordinary leave upto a maximum of 36 months during the entire period of his service in the University when the leave is required to accept a teaching post or research -cum -teaching post or any other paid assignments subject to the condition that this leave shall be granted at the rate of 12 months for every 5 years of service. Provided....... Provided...... (i) ...... (ii) ..... (iii) ...... Note: (a) Leave under this sub -rule shall not count as service qualifying for leave increments or pension. (b) If the employee granted leave under above sub -rule fails to return to University services on the expiry of the leave, his services will be deemed to have been abandoned from the date the leave expired. 27. Absence after expiry of leave. 27.1. Unless the authority competent to grant leave extends the leave, an employee who remains absent after the end of leave is entitled to no leave salary for the period of such absence and that period shall be treated an Extra -ordinary leave. 27.2. Willful absence from duty after the expiry of leave renders an employee liable to disciplinary action. The heading of Part -D of Chapter -IV is "Ordinances governing the Revised leave Rules of the Teachers of the University other than the teachers of Institute of Medical Sciences". The petitioner being Reader in the Institute of Medical Sciences, Part -D would not apply to her, and, therefore, ordinances 27 and 32 can have no application to the facts of the present case.
(3.) EVEN assuming that the aforesaid Ordinances would apply, the question still to be considered is whether the petitioner foiled to return to the University service on the expiry of extra -ordinary leave granted to her. It is not in dispute that she had been granted extra -ordinary leave from 8 -6 -1985 to 7 -6 -1987 and thereafter, she joined duty on 24 -7 -1987. On 1 -8 -1987 she applied for casual leave for a week for going to Delhi and it was from there that she applied for being granted leave for private affairs from 4 -8 -1987 to 29 -9 -1987 by sending an application by registered post on 10 -8 -1987. It is, therefore, obvious that she had joined duty after expiry of extra -ordinary leave and had also worked in the University for over a week and had thereafter applied for casual leave which appears to have been sanctioned. The petitioner did not join duty after expiry of casual leave and instead proceeded to Libiya. This also appears to be the stand of the University as would be evident from the resolution of the Executive Counsel dated 5 -12 -1987 which has been quoted in para. 18 of the Counter Affidavit and the relevant part thereof reads as follows: CONSIDERED the request of Dr. (Mrs.) Snail Khanna, Reader in Gynaecology, Institute of Medical Sciences, to grant her extension of half pay leave upto 31st December, 1987. All the records were perused including earlier grant of EOL and the additional 47 days over -stay by her as also her rejoining on 24th July, 1987 followed by casual leave application for 4 days i.e. w.e.f. 4th August to 10th August, 1987 followed by her instant letter of 8th August, 1987 informing that she was proceeding to Libiya for completing formalities and would rejoin on 29th September.;