N.B.Asthana, J. - (1.) This petition under Article 226 of the Constitution of India has been filed for issuing a writ, order or direction in the nature of certiorari for quashing the order dated November 23, 1985 passed by Respondent No. 1 (Annexure 15 to the writ-petition) in so far it goes against the petitioner and for a writ of mandamus directing the respondents to pay to the petitioner his full pay and allowances from July 14, 1978 up-to-date, that the period of absence from duty w.e.f. July 14, 1978 to May 31, 1979 be regularised by grant of leave and that the period for which the petitioner remained out of service be counted while determining his seniority and also for all other purposes.
(2.) The petitioner was appointed in the provincial Medical Service vide appointment letter No. November 21, 1959/3108 dated Lucknow 21/11/ 59/3108 dated December 16, 1979 in the scale of pay of Rs. 300-900 and was posted as Medical Officer, Rudrapur where he took charge on April 15, 1977. The appointment letter is Annexure 1 to the writ petition which shows that his appointment was on temporary basis for one year or till the Government required his services or till a candidate duly recommended by the Public Service Commission was available. In the year 1973 applications were invited for 2056 posts in the Provincial Medical and Health Services. The petitioner applied for the same and was selected by the Public Service Commission for the post of Medical Officer. The petitioner was then transferred to Muzaffarnagar where the Chief Medical Officer, Muzaffarnagar posted him on July 11, 1978 as Medical Officer Incharge, Primary Health Centre, Kandhala. Prior to it he was posted at Pilibhit On July 13, 1978 he came to Pilibhit to give evidence in a Court. It is alleged that he had an attack of appendicitis and had to apply for medical leave for two months i.e. from July 14, 1978 to September 11, 1978. He then moved an application for granting him earned leave from July 14, 1978 to September 20, 1978 on medical ground and from September 21, 1978 to October 10, 1978 on the ground of his mother's serious illness. He then sought extension of leave. The Chief Medical Officer, Muzaffarnagar vide his tetter No. PF/78- 79/796 dated October 19, 1978 asked him to resume his duties and to shift his mother to Kandhala where he was posted. As he was not in a position to join his duties immediately because of the illness of his mother he sent an application on November 1, 1978 to Director, Medical and Health and Family Planning (Women) Services, U. P. Lucknow tendering a conditional resignation. Copy of this resignation is Annexure 3 to the writ petition. The Chief Medical Officer, Muzaffarnagar informed the petitioner vide letter No. PF/78/79/ 796/970 dated May 26, 1979 that the resignation letter was not in accordance with law and rules and asked him to resume the duties to hand over the charge at Primary Health Centre, Kandhala and to join District Hospital, Muzaffarnagar. In the mean time his mother recovered and, therefore, on June 1, 1979 the petitioner filed an application before the Director, Medical and Health U. P. Lucknow to cancel the conditional resignation letter and to issue his posting orders and to regularise the period of absence from duty w.e.f. July 14, 1978 to June 1, 1979 against the leave of whatever nature was admissible and due to him under the Rules. The Chief Medical Officer, Muzaffarnagar refused to let him join at Muzaffarnagar telling him that unless directions are received from the Director, Medical and Health, U. P. he would not permit him to join his duties, He thereafter sent a number of letters to the Director, Medical and Health, U. P. of the Chief Medical Officer, Muzaffarnagar for payment of his salary and posting orders. Instead of putting heed to his request the State of U. P. vide Office Memorandum dated September 11, 1981 terminated the services of the petitioner. (Annexure 14 is the copy of Office Memorandum dated September 11, 1981). The conditional resignation submitted by the petitioner was treated as one month's notice under U. P. Temporary Government Servants (Termination of Services) Rules, 1975 and the petitioner's services were terminated w.e.f forenoon of December 1, 1978.
(3.) Aggrieved by the aforesaid termination order the petitioner filed Claim Petition No. 309/II/82 before Uttar Pradesh Public Services Tribunal-II, Lucknow. This petition was decided by the Tribunal on November 23, 1985. The operative portion of the judgment runs as follows: "The claim of the petitioner is allowed to the extent that the impugned order of termination Annexure 2 is quashed. The opposite parties are directed to allow the petitioner to join at his place of last posting i.e. District Muzaffar-nagar. The petitioner will be entitled to pay and other allowances from the date he joins at his place of posting. The OPs are at liberty to take suitable action against the petitioner for misconduct of wilful absence from duty. The period for which the petitioner remained out of service on account of termination will not be counted while counting length of service of the petitioner for the purposes of seniority and other consequential benefits. Costs easy.";