DEEPAK MAHESHWARI,J. - (1.) Instant intra-Court appeal is directed against order of the ld. Single Judge dt. 07.12.2016. The appellant-petitioner joined service as Teacher Gr.III in the year 1973 with the respondent department and it appears that she was transferred from Government Girls Senior Secondary School, Sanganer to Manji Renwal in the year 1988 and that came to be challenged in civil suit before the ld. Munsif and Judicial Magistrate No.2, Jaipur City, Jaipur on 14.10.1988 and there was temporary injunction granted to maintain status quo on 21.10.1988. It appears that pending transfer, she was promoted as Teacher Grade-II on 19.01.1991 and was again transfer/posted by a fresh order dated 23.05.1991. Although she made representation and later filed appeal in 1999 with the prayer that the respondents be directed to accept the joining report w.e.f. 19.07.1991 and also pay entire salary by treating her on duty w.e.f. 19.01.1991.
(2.) The appeal was disposed of by the ld. Tribunal in the light of the fact that the order under challenge dated 10.07.1999 stood annulled by the respondent authority and directed to pay the salary along with all other consequential benefits. When she did not get salary despite order of the Tribunal, she filed S.B.C.W.P.No.8517/2002 seeking service benefits along with salary from 13.10.1988 to 23.05.1991 and also seeking consequential benefits of her service from 13.10.1988 onwards. It reveals from the record that she remained absent and failed to report on 07.07.1991 and her whereabouts were not known to the department and indisputably she was absent from duty without sanction of leave and no explanation/justification was tendered by the appellant about her long absence from duty, in consequence thereto, she was served with a notice under Rule 86(4) of the Rajasthan Service Rules, 1951 (hereinafter 'the Rules of 1951') whereby she was asked to explain the reasons for remaining absent w.e.f.07.07.1991 and the period being more than 05 years, which is the condition precedent u/R.86(4) under the Rules of 1951, she was dismissed from service vide order dated 07.05.2005, which was the subject matter of challenge in writ petition.
(3.) The learned Single Judge examined the material available on record and finally arrived to the conclusion that there may be justification for the salary to be released to her from 13.10.1988 to 06.07.1991 but from 07.07.1991 till the order came to be passed on 07.05.2005 no justification was tendered by the appellant which could satisfy the authorities about her long absence from duty and taking note of the said fact, the ld. Single Judge was of the view that no error was committed by the respondent giving notice u/R.86(4) of the Rules 1951 to the appellant and passing of the order dt.07.05.2005 and that needs no indulgence of this Court. Counsel for the appellant submits that the respondent- authority while invoking R.86(4) of Rules, 1951 at least could not have dismissed the appellant from service and that would have been possible only after holding a regular enquiry as contemplated under the Rajasthan Civil Services (CCA) Rules, 1958. Counsel further submits that even if there is some justification for dismissing the appellant from service that could not be made effective retrospectively and such retrospective effect to the order of dismissal is in violation of the mandate of law and in support of submissions placed reliance on the judgment of this Court reported in 1990(2) RLR 714 in the case of Dinesh Chandra Sharma Vs. State of Rajasthan and Ors. Counsel for the respondent on the other hand supported the order of the ld. Single Judge and submits that R.86(4) of the Rules, 1951 envisaged to afford a reasonable opportunity of hearing to the employee who remained willful absence for more than five years and in the instant case whereabouts of the appellant were not known from 07.07.1991 and no satisfactory explanation was tendered and in the given facts and circumstances, the appellant remained wilfully absent for more than five years and the authority invoked R.86(4) of Rules, 1951 and afforded reasonable opportunity of hearing to the appellant. ;