GARG, J. - (1.) THIS writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the respondents on 9. 8. 2002 with a prayer that by an appropriate writ, order or direction, the impugned order dtd. 11. 6. 2002 (Annex. P/39) passed by the respondent No. 1 by which the petitioner was treated to have abandoned the service with effect from 28. 7. 83 and therefore his name was deleted from the role of Medical Officer be quashed and set aside.
(2.) THE facts of the case as put forward by the petitioner are as under: i) That the petitioner was initially appointed on the post of Civil Assistant Surgeon vide order dtd. 3. 9. 80 (Annex. 1) on urgent and temporary basis. ii) That the petitioner was thereafter selected by the Rajasthan Public Service Commission on the post of Civil Assistant Surgeon against the substantive vacancy of the Civil Assistant Surgeon. A selection list dtd. 20. 12. 80 (Annex. P/2) was issued by the Rajasthan Public Service Commission, in which the name of the petitioner was placed at serial No. 10. iii) That in pursuance of the select list dtd. 20. 12. 80 (Annex. P/2), vide order dtd. 26. 3. 81 (Annex. P/3), the petitioner was allowed to work at the Govt. Dispensary, Lakhasar (Churu ). iv) That vide order dtd. 27. 6. 81, the petitioner was transferred from Govt. Dispensary, Lakhasar to P. B. M. Hospital, Bikaner. v) That while the petitioner was working as Civil Assistant Surgeon, Bikaner, he was sent on deputation for one year to Vivekanand Swasthya Samiti, Bhadra, Distt. Sri Ganganagar (hereinafter referred to as the Samiti) vide order dtd. 18. 9. 82 (Annex. P/5 ). vi) Further case of the petitioner is that in pursuance of order dtd. 18. 9. 82 (Annex. P/5), the petitioner was relieved on 30. 10. 82 from PBM Hospital, Bikaner and joined at the Samiti on 1. 11. 82. A copy of joining report is marked as Annex. P/6. vii) That on 28. 10. 83, the Samiti wrote a letter (Annex. P/7) to the Secretary, Medical and Health Department (respondent No. 1) that the deputation of Dr. Anand Jain might be extended for a further period of 3 years. viii) That the petitioner also gave his consent vide letter dtd. 28. 10. 83 (Annex. P/8) for extension of his deputation period with the Samiti. ix) Further case of the petitioner is that in pursuance of letter dtd. 28. 10. 83 (Annex. P/7) written by the Samiti, no communication was addressed by the respondents either to the petitioner or to the Samiti. x) Further case of the petitioner is that the petitioner wrote a letter dtd. 12. 12. 83 (Annex. P/9) to the respondent No. 2 (Director, Medical and Health Services, Jaipur requesting him that either the Samiti be directed to relieve him or his period of deputation be extended. xi) Further case of the petitioner is that he again wrote a letter 28. 12. 83 (Annex. P/10) to the Director, Medical and Health Services (respondent No. 2) and the Secretary, Department of Medical and Health (respondent No. 1) with the above request. Similarly he again wrote a letter dtd. 12. 9. 85 (Annex. P/11) to the respondent No. 2 (Director, Medical and Health Services) with the same request. xii) Further case of the petitioner is that thereafter he wrote a letter dtd. 13. 9. 89 (Annex. P/12) to the respondents requesting that either his period of deputation be extended or the Samiti be directed to relieve him. NOTE: With effect from 12. 9. 85 to 13. 9. 89, no communication was addressed by the petitioner to the respondents as per the case of the petitioner xiii) Further case of the petitioner is that the petitioner was relieved by the Samiti vide its letter dtd. 26. 9. 95 (Annex. P/13) and this letter was sent by the Samiti to the Secretary, Medical and Health Department (respondent No. 1 ). xiv) Further case of the petitioner is that Secretary of the Samiti issued a attendance certificate dtd. 26. 9. 95 (Annex. P/14) certifying that the petitioner had worked with the Samiti from 1. 11. 82 to 26. 9. 95. xv) Further case of the petitioner is that on being relied by the Samiti with effect from 26. 9. 95, his father fell ill and therefore, he sent his joining report to the respondent No. 2 (Director, Medical and Health Services) vide letter dtd. 6. 10. 95 (Annex. P/15) through U. P. C. NOTE: This joining report dtd. 6. 10. 95 (Annex. P/15) was sent through post and the petitioner did not report himself on duty even after he was relieved by the Samiti on 26. 9. 95. xvi) Further case of the petitioner is that his father expired on 12. 11. 95 and due to death of his father, the petitioner submitted an application dtd. 13. 11. 95 (Annex. P/16) for granting him leave for two months. This application was also sent through post. xvii) Further case of the petitioner is that through applications dtd. 8. 1. 96, 3. 4. 96, 2. 7. 96, 8. 10. 96, 10. 4. 97, 7. 10. 97, 2. 4. 98, 5. 10. 98, 5. 4. 99, 4. 10. 99, 9. 4. 2000, 5. 9. 2000, 30. 3. 2001 (Annex. P/17 to P/29), the petitioner sought leave. xviii) Further case of the petitioner is that through letter dtd. 17. 8. 2001 (Annex. P/30), the petitioner himself reported for duty before the respondent No. 2 (Director, Medical and Health Services. ). NOTE: Thus, after being relieved from the Samiti on 26. 9. 95, the petitioner did not report himself on duty and sent various applications through posts for grant of leave and thus, he remained on leave from 26. 9. 95 to 17. 8. 2001 as per his own case. xix) Further case of the petitioner is that thereafter on 7. 9. 2001, the petitioner again reported for duty before the respondent No. 2 (Director, Medical and Health Services.) Copy of joining report is marked as Annex. P/31. xx) Further case of the petitioner is that though he submitted joining report on 17. 8. 2001 and 7. 9. 2001 before respondent No. 2, but even then he was not allowed to join his duties. THErefore, he submitted an application dtd. 21. 9. 2001 (Annex/p/32) making a request to the respondent No. 2 (Director, Medical and Health Service) to permit him to join the duties. xxi) Further case of the petitioner is that he sent reminders dtd. 16. 2. 2002, 25. 3. 2002, 10. 4. 2002, 24. 4. 2002, 30. 5. 2002 and 10. 6. 2002 (Annex. P/33 to P/38 respectively ). Thus, even upto 10. 6. 2002, the petitioner was not taken on duty. xxii) Further case of the petitioner is that through order dtd. 11. 6. 2002 (Annex. P/39), the respondents treated the petitioner to have voluntarily abandoned the service with effect from 28. 7. 83 and, therefore, his name was deleted from the services of the respondents. This order has been challenged in this writ petition. xxiii) Further case of the petitioner is that vide orders dtd. 23. 12. 98, 27. 9. 99 and 4. 5. 2000 (Annex. P/40 to P/42 respectively), similarly situated persons were taken back on duty, therefore, he should also have been taken back on duty. In this writ petition, following submissions have been raised by the learned counsel for the petitioner. i) That before passing the impugned order dtd. 11. 6. 2002 (Annex. P/39) no opportunity of hearing was afforded to the petitioner and, therefore, the same is violative of principles of natural justice. ii) Further more as per Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958) no penalty could be imposed without making an enquiry under the Rules of 1958 and, from this point of view also, the impugned order dtd. 11. 6. 2002 (Annex. P/39) is liable to be quashed and set aside. iii) That after availing leave, when the petitioner reported himself on duty through application dtd. 17. 8. 2001 (Annex. P/30), he should have been taken on duty and hence the action of the respondents in not taking him on duty shows that the respondents were biased and the impugned order dtd. 11. 6. 2002 (Annex. P/39) was discriminatory and violation of Articles 143 and 16 of the Constitution of India. iv) That there was no material with the respondents to show that the petitioner had voluntarily left the services and, therefore, the impugned order dtd. 11. 6. 2002 (Annex. P/39) by which the petitioner was treated to have abandoned the services voluntarily is perse illegal and from this point of view also, the impugned order dtd. 11. 6. 2002 (Annex. P/39) is liable to be quashed and set aside. A reply to the writ petition was filed by the respondents and their main case is that the petitioner himself wrote a letter dtd. 28. 2. 83 (Annex. R/1) to the Minister Health and Family Welfare Department making a request that his deputation should be cancelled. Further case of the respondents is that through order dtd. 28. 7. 83 (Annex. R/2), the order of deputation on the petitioner was cancelled and he was directed to report at the Directorate. Further case of the respondents is that despite issuance of order dtd. 28. 7. 83 (Annex. R/2), he continued with the Samiti and thus, case of the petitioner that no response was given to the petitioner on his application/s is not correct. Further case of the respondents is that since vide order dtd. 28. 7. 83 (Annex. R/2), the order of deputation of the petitioner to the Samiti was cancelled with effect from 4. 3. 83, therefore, there was no occasion for the petitioner to have worked with the Samiti and the petitioner had worked with the Samiti of his own accord. Further case of the respondents is that the fact that the petitioner waited for four long years from 12. 9. 85 to 13. 9. 89 itself shows that the petitioner was not willing to work in the respondent-Department. Further case of the respondents is that the respondents wrote letters dtd. 29. 1. 87, 16. 2. 1990 and 27. 1. 91 (Annex. R/3 to R/5 respectively) to the Secretary of the Samiti stating that the deputation period of the petitioner had come to an end with effect from 4. 3. 83 and thereafter the petitioner at his own did not report at the Directorate. Further case of the respondents is that since 28. 7. 83, the petitioner did not join the services of the respondents and consequently he had voluntarily abandoned his services and vide order dtd. 11. 6. 2002 (Annex. P/39) his name was deleted from the role of Medical Officer and thus, the order dtd. 11. 6. 2002 (Annex. P/39) was rightly passed. A rejoinder was also filed by the petitioner in which it has been submitted that as per Rule 144a (7) of the Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules of 1951), it was the duty of the respondent - Department to issue a posting order atleast within 30 days before the expiry of period of deputation and if the deputation of the petitioner was cancelled through order dtd. 28. 7. 83 (Annex. R/2), then it was duty of the respondents to issue posting order within 30 days and since the posting order was not issued within 30 days, therefore, the respondents have violated the Rule 144a (7) of the Rules of 1951. Further more, as per Rule 86 of the Rules of 1951 in case of absent from duty without leave for more than one month, it was the duty of the respondents to take disciplinary action against such employee and as per reply of the respondents, if the petitioner did not report for duty with the directorate after passing of order dtd. 28. 7. 83 (Annex. R/2), he should have been given the charge-sheet regarding the absence from duty immediately after one month from the passing of order dtd. 28. 7. 83, but no such action was taken by the respondents and hence the order dtd. 11. 6. 2002 (Annex. P/39) is illegal and deserves to be quashed and set aside. Heard and perused the record.
(3.) THERE is no dispute on the point that through order dtd. 18. 9. 82 (Annex. P/5), the petitioner was sent on deputation for one year to the Samiti. THERE is also no dispute on the point that through jointing report dtd. 1. 11. 82 (Annex. P/6), the petitioner joined his duties with the Samiti. There is also no dispute on the point that the leave of the petitioner was never sanctioned by the concerned authority and he remained on leave without sanction. There is also no dispute on the point that period of deputation of the petitioner was not extended. ;