Sandeep Mehta, J. - (1.) BY way of the instant writ petition, the petitioner Kamakshi Agarwal has approached this Court assailing the legality and validity of the order dated 21.03.2007 (Annexure -24), whereby the District Elementary Education Officer, Jaisalmer, acting on the recommendations of the Block Elementary Education Officer, Panchayat Samiti Sankada and while exercising powers under Rule 86(3) of the Rajasthan Service Rules directed removal of the petitioner from service on the ground of habitual willful unauthorised absence from duty.
(2.) FACTS in brief are that the petitioner was appointed as a Teacher in the Elementary Education Department of Government of Rajasthan by order dated 04.11.1997. It is asserted in the writ petition that she was posted at the Government Upper Primary School, Dholia where one Shri Poonam Chand Bishnoi was posted as a Physical Instructor and was also officiating as the Headmaster. It is further alleged that Shri Poonam Chand Bishnoi was harassing the petitioner and was threatening her without any justification. The petitioner has tried to demonstrate and establish her aspersions against Shri Poonam Chand Bishnoi by placing certain documents on the record of the writ petition. While the tussle between the petitioner and Shri Poonam Chand Bishnoi was allegedly continuing, the petitioner submitted representations to the higher ups regarding the problems faced by her while being posted at village Dholia and also to take action against Shri Poonam Chand Bishnoi. She requested the District Education Officer, Jaisalmer to transfer her from Dholia to some other place and as a consequence, the petitioner was transferred for a short period of three months from Dholia to Kanod. Thereafter, a modification was directed in the petitioner's place of posting and she was transferred to Govt. Upper Primary School, Jethwai on 25.09.2003. The petitioner was thereafter, again transferred from the school, Jethwai to Dholia. She reported for joining at the office of the Primary Education Officer, Panchayat Samiti Sankada on 31.05.2004. However, admittedly the petitioner did not turn up at the school under the pretext that summer vacations were being observed at the relevant point of time. She reported back to the Primary Education Officer, Sankada on 01.07.2004 and sought leave for a short period which was sanctioned. However, she did not report back on duty and remained unauthorisedly absent thereafter upon which, a show cause notice was served upon her to explain her unauthorised absence. The petitioner submitted an explanation regarding her absence beyond the leave period and finally, by an application/representation dated 12.07.2004, addressed to the Block Elementary Education Officer, Panchayat Samiti Sankada, expressed her inability to join duty at the Government School Dholia. Another representation was submitted by the petitioner on 26.11.2004 requesting the authorities to transfer her from Dholia to any other place. The petitioner allegedly kept on representing her case to the respondents by reiterating her prayer for transfer from Dholia. Further case is set up in the writ petition that the petitioner is suffering from serious ailments. Certain medical slips/prescriptions have been filed alongwith the writ petition in order to substantiate the said claim. She also claims to have applied for medical leave. As per the petitioner, owing to her illness, she was unable to discharge duties as a Teacher at the Dholia School and thus, by an application (Annexure -21) dated 22.10.2004, addressed to various authorities, including the then Chief Minister of Rajasthan, she reiterated her prayer for transferring her from Dholia. It is further averred that the petitioner was shocked and surprised to come across a notice published in a local newspaper dated 18.06.2006 purporting to initiate proceedings against her under Rule 86(3) of the Rajasthan Civil Service Rules and calling upon her to submit a reply thereto. The petitioner immediately addressed a representation dated 23.06.2006 to the District Education Officer, Jaisalmer requesting him to drop the proceedings initiated against her. The petitioner however claims that to her utter surprise, even without considering her reply and representations, the Appointing Authority passed a grossly illegal order dated 21.03.2007 (Annexure -24) and removed her from service without taking recourse to the mandatory process of a regular inquiry as warranted under the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'Rules of 1958'). It is asserted that before directing the petitioner's removal from service, no endeavour was made even to initiate a departmental enquiry as per the mandate of law. Further case is set up that on coming to know of the order whereby she was removed from service, the petitioner went into depression. Adding to the petitioner's woes, she was served a decree of divorce dated 20.09.2008, which sent the petitioner into a further state of agony. She underwent treatment for depression and ultimately, after having regained some confidence, the petitioner claims to have preferred the instant writ petition against her alleged illegal removal from service vide order dated 21.03.2007 (Annexure -24).
(3.) SHRI Kuldeep Mathur, learned counsel for the petitioner vehemently contended that the impugned order dated 21.03.2007 (Annexure -24) directing removal of the petitioner from service without taking recourse to a regular departmental inquiry is per se illegal and contrary to the mandate of law as provided in the Rules of 1958. He submits that the petitioner had forwarded numerous applications to the authorities explaining her period of absence and the authorities were under an obligation to consider the petitioner's representations before proceeding against her under Rule 86(3) of the Rajasthan Service Rules. As per him, even assuming that the petitioner remained willfully absent from duty for a prolonged period, it was incumbent upon the authorities to have resorted to a regular inquiry under the Rules of 1958 before she could be removed from service. In support of this argument, the learned counsel drew attention of this Court to Rule 86 of the RSR and contends that Rule 86(3), by resorting whereto, the order of removal was passed against the petitioner, itself provides that initiation of inquiry under the CCA Rules, 1958 is essential before a Government Servant, who willfully remains absent from duty, can be removed from service. He placed reliance upon the following judgments and urged that the writ petition deserves acceptance and the impugned order should be quashed. "(i) Jai Shanker v. State of Rajasthan, : AIR 1966 SC 492, (ii) S.N. Mukherjee v. Union of India, : AIR 1990 SC 1984, (iii) Kailash Chand Sethi v. State of Rajasthan & Ors.,, WLC 1993 (3) Raj.188, and (iv) Shiv Shanker Sharma v. Rajasthan Rajya Vidyut Prasaran Nigam Ltd., : WLC 2010(3) Raj. 251.";