JAIN, J. - (1.) SINCE this writ petition and the writ petitions mentioned in Schedule'a' appended to this order involve a common question of fact and law, as agreed by the parties, they are being disposed of by this common order.
(2.) FOR convenient disposal, the facts of S. B. C. W. Petition No. 4582/92 are being taken into consideration. The petitioner Dr. Subodh Kumar Saxena has passed his M. B. B. S. Examination in they year 1973 and was appointed as Senior Demonstrator in Pathology in the year 1975. It is alleged that he passed his post graduation in Pathology and Micro-Biology in the year 1980 and he was promoted to the post of Lecturer in Pathology. It is also alleged that in the year 1982 he applied for No objection Certificate to the Government for issuance of Pass-Port, which was granted. It is also alleged that he moved an application for grant of deputation for taking up foreign assignment of Guyana. Petitioner has alleged that vide order dt. 10. 3. 83 he was ordered to be relieved and in pursuance of which he was relieved on 11. 3. 83. It is further alleged that vide order dated 25. 5. 85 he was treated on deputation for taking up foreign assignment for one year though as per the petitioner the said order was not served upon him. The petitioner has also alleged that he had requested the Indian High Commission at Guyana to allow him to complete three years duration and in pursuance of which Indian High Commissioner wrote a letter on 8. 10. 84 to the Government of Rajasthan and in the absence of any communication he continued at Guyana. The petitioner also sent a letter to the Government of Rajasthan seeking permission to change the country in March, 1986 and extension of period of deputation by two years. Ultimately, the petitioner returned India in April, 1988 and he joined his duties and posted at R. N. T. Medical College, Udaipur. Thereafter a charge-sheet dt. 1. 7. 88 (Annex. l) was served upon the petitioner proposing to hold an enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, on 10. 8. 89 after one year. Reply to the charge-sheet was filed on 21. 8[89 (Annex. 2 ). The respondents were not satisfied with the reply of the petitioner and appointed an Enquiry Officer to hold the enquiry against the petitioner. The petitioner submitted the documents in his defence vide application dt. 24. 2. 90 (Annex. 3 ). The Enquiry Officer after completing enquiry submitted his report dated 25. 9. 91 (Annex. 4), copy of which was supplied to the petitioner alongwith the notice dated 30. 1. 92 (Annex. 5) directing the petitioner to make his submission in regard to the enquiry officer's report. The petitioner replied the same vide Annex. 6 dated 19. 2. 92 and also submitted supplementary reply on 5. 6. 92 (Annex. 7 ). The respondents vide order dated 25. 8. 92 (Annex. 8) imposed penalty of removal from service on the petitioner. Being aggrieved with the same the petitioner has approached this Court under Article 226 of the Constitution praying that the impugned order dated 25. 8. 92 (Annx. 8) may be quashed with all consequential benefits and action of government in refusing extension of leave and change of country be declared illegal and he be given permission as is being given to other persons. This writ petition has been filed on 28. 8. 92 and while admitting it was ordered that meanwhile, the operation of the order dated 25. 8. 92 (Annex. 8) passed by the Dy. Secretary (Personnel A-3) Department, Government of Rajasthan, Jaipur removing the petitioner from the service is hereby stayed. In pursuance of the notice, the respondents submitted reply stating that "order for joining the foreign assignment washed to be passed after receiving the joining report from the petitioner" and Annex. R/2 dt. 25. 5. 85 was passed to grant deputation to the petitioner from 12. 3. 83 to 11. 3. 84 only and after that period he continued there without any specific permission from the State Government, copy of which was endorsed to the petitioner. It is stated that the petitioner did not apply for extension of deputation and failed to join his duties after the completion of deputation period and accepted the other foreign assignment at St. Lucia without permission of the State Government in violation of the terms and conditions set in the deputation order itself and he did not chose to intimate the State Government which amounts to a wilful absence from duty. It is also stated that the non-petitioners vide letter dated 23. 4. 87 asked the petitioner for reporting himself on duty within ten days from the receipt of the letter and was also informed for initiating disciplinary action for wilful absence but he did not take care of the letter dt. 23. 4. 87 (Annex. R. 3) even upto April, 1988 for a considerable period for one year and came to India in April, 1988. As such, he was allowed to join the duties and the disciplinary proceedings were initiated against him and thereafter the order imposing penalty was passed which was served by registered post on the petitioner on 5. 9. 92 alongwith a copy of the Rajasthan Public Service Commission. The respondents have also submitted that the Inquiry Officer has given a finding that a charge of wilful absence having been proved against Dr. Saxena at least for the period from March, 1986 to April, 1988 and consequently after enquiry under Rule 16 of the Rajasthan Civil Service (C. C & A.) Rules he was removed from service which is not illegal. The petitioner in counter filed rejoinder on 28. 8. 92 stating that review is not an alternative remedy in C. C. A. Rules and point can be agitated under Article 226 of the Constitution. It has been stated that after passing of the impugned order in the petitioner's case dismissal of other three Doctors was converted into stoppage of three grade increments with cumulative effect. The petitioner has stated that it is wrong to contend that the petitioner did not apply for extension of his tenure. It is stated that the petitioner had requested the State Government in the year 1986 itself to permit him to undertake an assignment at St. Lucia and despite that the respondents did not take any action on the request of the petitioner. It is also stated that till 5. 9. 92 copy of impugned order alongwith the advice of the R. P. S. C was not served therefore it could not have been submitted alongwith the writ petition as the same has been received by the petitioner. It is further stated that the penalty imposed on petitioner is disproportionate to the gravity of misconduct. The case has come up on an application under Article 226 (3) of the Constitution for vacating the ad-interim order dt. 28. 8. 92. As agreed by the counsel for the parties, the matter is heard finally alongwith the similar matters. I have heard learned counsel for the parties & perused the material on record.
(3.) MR. Singhvi, learned counsel for the petitioner has firstly contended that the impugned order has been passed on the basis of advice of R. P. S. C but the copy was not given initially to the petitioner and relied on DR. Ganpatlal Vs. State (S. B. C. W. Petition No. 4269/90) decided on 22. 10. 91 and its special Appeal No. 373/92 filed by the State was dismissed as time barred in limine on 6. 3. 92. He has prayed that the entire proceedings are liable to be set aside. On the other hand Mr. Sharma has submitted that it is not necessary to supply a copy of advice to the delinquent officer and relied on the Chief Engineer (Highways & Rural Works), Madras- 5 & Anr. Vs. A. Chengalvarayan (l), Major U. R. Bhatt Vs. Union of India (2), Ram Gopal Chaturvedi Vs. State of M. P. (3) and Slate of U. P. Vs. Manbodhan Lal In The Chief Engineer (Highways and Rural Works), Madras-5 Vs. A. Chengal-varayan (supra) a Division of Madras High Court held that it is not necessary to supply copy of advice of Public Service Commission to the delinquent officer when the advice of Public Service Commission was taken into consideration while inflicting punishment of dismissal. In Major U. R. Bhatt Vs. Union of India (Supra) their lordships of the Supreme Court has held that Article 320 (3) (c) of the Constitution of India (which is substantially the same as Sec. 266 of the Government of India Act, 1935) is not mandatory and it does not confer any rights on the public servant, and the absence of consultation with the Public Service Commission or any irregularity in consultation does not afford him a cause of action in a Court of law. Article 311 of the Constitution is not controlled by Article 320. In State of U. P. Vs. Manbodhan Lal (supra) their lordships of the Court has held that Article 320 (3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Article 226 of the Constitution or of the Supreme Court under Art. 32. In Ram Gopal Chaturvedi Vs. State of Madhya Pradesh (supra) it has been held that provisions of Article 320 (3) (c) are not mandatory and do not confer any right on public servant to challenge termination of service on the ground of absence of consultation with State Public Service Commission. In view of above, it is settled that provisions of Article 320 are not mandatory and does not control Article 311 and they do not confer any right on public servant, so that the absence of consultation should not afford him a cause of action in a court of law or entitle him to relief under the special powers of a High Court under Article 226. Mr. Singhvi has not been able to show otherwise or any prejudice, caused to petitioner. Therefore, the argument that due to non-supply of copy of advice of R. P. S. C. before passing the impugned punishment order, the proceedings are vitiated has no substance. So far as the decision of Ganpatlal Vs. State (supra) is concerned, the same is not helpful as in that case the incumbent got himself registered for foreign assignment with the Government of India and interviewed for the purpose and on receiving initial contract order for two years but as per practice he applied accordingly to the Government for 30 days P. L. which was sanctioned on 19. 11. 85 and the incumbent left for foreign assignment. A communication dated 24. 12. 86 directing the petitioner for duty immediately and to show cause as to why disciplinary proceedings should not be initiated for wilful absence from 16. 11. 1985, was received by the petitioner at Riyad on 15. 4. 87 through his uncle and in pursuance of which he resigned from his foreign assignment on 16. 4. 87 and returned to India to join duty. But after holding enquiry on the charge of remaining wilful absent from government duty from 18. 12. 85, the petitioner was removed from service vide order dt. 20. 9. 90. A writ petition was preferred by the incumbent challenging the impugned punishment order on the ground that enquiry report was not made available to him before passing Annex. 16 dated 20. 9. 90 so also on the count that opinion of Public Service Commission was not made available to the delinquent. The learned Single Judge of this Court quashed the same on the ground of non-supply of copy of enquiry report in view of Union of India Vs. Mohd. Ramzan Khan The learned Single Judge also observed that there is no direct authority laying down that the opinion of the Public Service Commission should be made available. However, it was ordered that the same may also be supplied to the delinquent officer so that he make proper submissions with regard to such opinion. In my humble opinion the said decision is of no assistance as admittedly in that case the point of non-supply of advice of R. P. S. C. and case law was not dealt. Further the ratio of the decision of Union of India Vs. Mohd. Ramzan Khan (supra) decided on 20. 11. 90 could not be made applicable since their lordships have held that the decision will be operative prospectively and not retrospectively, whereas in that case the impugned order of removal was passed on 20. 9. 90 (Annex. 16) prior to the said decision. Moreso, the ratio evolved in Mohd. Ramzan's case (supra) is now further interpreted by their lordships of the Supreme Court in Managing Director, ECIL, Hyderabad Vs. B. Karunakar (6) holding that the delinquent has to show what prejudice has been caused to him due to non-supply of enquiry report. Be that as it may be, since this point is not in issue in this case. As stated above, the said decision is of no help to the petitioner. ;