VYAS, J. - (1.) IN this writ petition, petitioner has prayed for following reliefs:      " i. the respondents No. 1 to 5 may kindly be directed to make payment of salary to the petitioner for the period from 1. 6. 1990 to 11. 4. 1993 alongwith the interest thereon @ 18% per annum from the date of its accrual till the actual payment is made to the petitioner; ii. the F. I. R. (An. 16) dated 4. 3. 2002, lodged against the petitioner with the Police Station, Shastri Nagar, Jodhpur may kindly be quashed and set aside and respondents No. 6 and 7 may kindly be restrained from taking any further action pursuant to the said F. I. R. iii. . the respondents No. 1 to 5 may kindly be restrained from initiating any fresh enquiry against the petitioner for the same charges for which a charge sheet U/r 16 was issued to him and he was exonerated and they be further restrained from placing the petitioner under suspension on the basis of F. I. R. dated 4. 3. 2002 (An. 16); iv. the respondents may kindly be restrained from superseding the petitioner and promote the persons junior to him on the basis of the F. I. R. lodged against him; v. any other appropriate relief (s) which this Hon'ble High Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner; vi. writ petition of the petitioner may kindly be allowed with costs throughout. "
(2.) WITH regard to prayer nos. 2 & 3, it is submitted by learned counsel for the petitioner that these prayers have become infructuous in view of the fact that F. I. R. Annex. 16 dated 4/3/2002 was challenged by the petitioner by way of filing petition under Section 482 Cr. P. C. (S. B. Cr. Misc. Petition No. 710/2002) before this Court in which learned Single Judge of this Court has quashed the FIR qua the petitioner vide its judgment dated 28/3/2003, therefore, no adjudication is required for relief nos. 2, 3 & 4. It is also submitted that in this case for absent from duty, petitioner was charge sheeted vide charge memo Annex. 2 dated 6/8/1997 and after filing reply by the petitioner, departmental proceedings initiated against the petitioner vide charge sheet dated 6/8/97 was dropped vide order dated 28/3/1998 passed by Department of Personnel, State of Rajasthan, Jaipur. It is contended by learned counsel for the petitioner that in said departmental proceedings under Rule 16 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 the following period of absence from duty was in question, details of relevant charge sheet Annex. 2 are as follows: ************8 For the above period, explanation was filed by the petitioner and in the said departmental proceedings he was exonerated from the charges levelled against him were dropped vide order dated 28/3/1998 by the Secretary, Department of Personnel, Govt. of Rajasthan, therefore, obviously the said period was to be regularized by the respondents. According to the petitioner, except for the period commencing from 24. 7. 90 to 11. 4. 93, all other periods have been regularized by the respondents but no order with regard to salary for the period from 24/7/90 to 11/4/93 was passed during which petitioner was not allowed to join the duties and he remained under Awaiting Posting Order. For regularisation of said period, petitioner made his all efforts by way of filing representations but the said period was not regularized, although after accepting reply to the charge sheet for that period the departmental proceedings were dropped. The contention of the petitioner is that after final decision by the respondents for departmental inquiry respondents were under obligation to regularise the period in question and to pay salary but respondents did not give any heed to the prayer of the petitioner, therefore, for seeking direction petitioner has preferred this writ petition. In this case, after six years reply has been filed by the respondents only on 23/5/2008 and it is pointed out by learned counsel for the respondents Vide annex. R/1 that grievance of petitioner with regard to regularisation of his services w. e. f. 24. 7. 90 to 11. 4. 93 an order has been passed by the Secretary, Medical and Health Department, State of Rajasthan, Jaipur on 7. 7. 2007 by which extra ordinary leave for the said period has been sanctioned and it has been ordered that said period will not be counted for the purpose of pension and for grant of annual grade increment, therefore, as per respondents no direction is required in this case. According to petitioner, this order was not communicated to him during pendency of writ petition. As per respondents, petitioner's case for promotion was considered and vide order dated 20/8/2007 he was promoted to the post of Senior Medical Officer against the vacancies of 2006-07 and name of petitioner is appearing at serial no. 1 in the said order Annex. R/2 filed along with reply. It is also submitted in reply by the respondents that order for not counting the said service period for pension and annual grade increment had rightly been passed by the competent authority because petitioner was absent from 24/7/90 to 11/4/93, therefore, in view of judgment in case of Anand Bharti & Ors. vs. State of Rajasthan & Ors. Reported in ( (2003) 2 WLN 243 ) = (RLW 2000 (2) Raj. 890) petitioner is not entitled for salary for the period during which he remained absent from duty, therefore, prayer no. 1 made by the petitioner cannot be allowed in view of the fact that respondents after considering all aspects of the matter have passed an order Annex. R/1, whereby extra ordinary leave w. e. f. 24/7/90 to 11/4/93 was sanctioned during the pendency of this writ petition. Therefore, it is prayed that this writ petition may be dismissed.
(3.) IN rejoinder, it is stated by learned counsel for petitioner while inviting attention towards the application filed under Article 226 of the Constitution for apprising this Court about the correct fact it is submitted that petitioner was working as Medical Officer in the Office of CMHO, Sirohi and he was relieved vide order dated 30/5/1990 and he was directed to report in the office of Joint Director, Medical and Health Department, Jodhpur. IN compliance of said order petitioner reported on duty on 1/6/90 in the office of Joint Director, Jodhpur and attended the office from 1. 6. 90 to 23. 7. 90 and he was allowed to put his signature in the attendance register but after Joint Director, Medical and Health, Jodhpur did not allow the petitioner to mark attendance in the register. Thereafter, Joint Director, Medical and Health, Jodhpur has sent letter to the Director, Medical and Health, Jaipur on 24. 7. 90 and requested him to intimate the posting order of petitioner but no reply was received from the Director, Medical and Health, Jaipur. Thereafter also several letters were sent by petitioner and Joint Director, Medical and Health, Jodhpur for giving him posting and at last an order was passed on 23/3/1993 by the Additional Director, Medical and Health, Jaipur with regard to posting of petitioner and in compliance of it petitioner joined his duties in Medical and Health Department, Jaipur. However, for the period during which petitioner was awaiting posting order, no salary was paid to him. As per order of this Court, petitioner filed additional affidavit in which he has explained his position for the period commencing from 1. 6. 90 to 11. 4. 1993. The contents of additional affidavit filed by petitioner reads as under:      " 1. That Hon'ble Court has ordered on 16th may 2008 that petitioner (Deponent) should submit an affidavit with regard to period from 1. 6. 1990 to 11. 4. 1993 during which he was kept under posting orders. IN compliance to said orders the humble deponent submits as under:- 2. That the Chief Medical and Health Officer Sirohi vide his letter no. 3263-65 dated 30. 5. 1990 addressed to the Joint Director, Medical and Health Department, Jodhpur relieved deponent in the afternoon of 31st May 1990 and directed to report in the office of Joint Director, Medical and Health Jodhpur. IN compliance to it, deponent reported on duty in the office of Joint Director, M. H. Deptt. Jodhpur on 1st June 1990. Deponent regularly attended the office of Joint Director (M&h) Jodhpur from 1. 6. 1990 to 23. 7. 1990 and put signatures in the attendance register kept in the office of Joint Director, M&h, Jodhpur. IN the afternoon of 23rd July, 1990 the Joint Director, M&h, Jodhpur ordered deponent not to attend his office from next day till further instruction are conveyed about posting orders. Immediately, thereafter on 24. 7. 1990, deponent addressed a letter to Director, Medical and health Department, Jaipur and requested to intimate posting order so that he may report on duty. This fact is specifically stated in my reply to charge sheet served on deponent under Rule 16 of C. C. A. Rules, 1998 vide memorandum No. 1 (10) Personnel (K-3/97) dated 6th August 1997. A copy of the said representation has already been placed on record and is available at Ann. 3, page 43 to 51 of the writ petition. 3. That since deponent did not receive any intimation about posting so he sent several letters and reminders to the Director, Medical and Health Services, Jaipur and also to Secretary Medical and Health Department, Chief Secretary to the Govt. of Raj. And to the Health Minister, State of Raj. The details of such letters is available in reply to charge sheet and is available at Ann. 3 of the writ petition. It is further submitted that the question about absence from duty of deponent for the period 24. 7. 1990 to 11. 4. 1993 was a part of charge sheet as evidence from page 3 of the charge sheet (available at page 42 of the writ petition ). 4. That during the entire period 1. 6. 1990 to 11. 4. 1993 deponent remained at Jodhpur and consistently sent several letters to all the authorities concerned requesting thereunder to issue posting orders so that he may report on duty but no communication was sent to him till 8th April 1993. 5. That on 8th April 1993 deponent received a letter from Addl. Director (East), Medical and Health Services, Jaipur in which he was directed to report to the Secretary Medical and Health Deptt. Group II at Jaipur within 15 days from the receipt of said letter. Immediately, on receipt of said letter deponent proceeded to Jaipur 9th, 10th & 11th April 2003 were public holidays so deponent reported to Medical and Health Department on 12th April 1993. Deponent also submitted his explanation about alleged absence from duty during the period 1. 6. 1990 to 11. 4. 1993 i. e. the period during which he was kept under awaiting posting order. Finally, Director, Medical and Health Services issued posting order on 39/4/1993 and deponent was posted under Chief Medical and Health Officer, Pali who ordered him to join at Health Centre, Rohit. Accordingly, deponent joined at Rohit, District Pali. " While inviting attention towards above facts and document Annex. 20, 21, 22, 23, it is submitted by learned counsel for the petitioner that on one hand Director in letter dated 14. 7. 2006 sent a communication for regularization of service of petitioner and upon said letter case of petitioner was considered and it is observed in the proceedings Annex. 23 that while treating the period commencing from 22. 4. 90 to 11. 4. 93 under awaiting posting order, the services of petitioner may be regularized after taking concurrence from Finance Department. Meaning thereby, as per petitioner his case was considered at Secretariat level in the Department of Personnel and finally it is decided that the said period shall be treated under awaiting posting order and a decision was taken for regularising the said period after obtaining concurrence from the Finance Department, on the other hand Secretary, Medical and Health Department, Jaipur has passed an order Annex. R/1 dated 7/7/2007 which is contrary to the decision of the Government, whereby, Director, Medical and Health Department and Secretary DOP has passed an order to treat petitioner under awaiting posting order because the charge sheet issued under Rule 16 of the CCA Rules was dropped after accepting reply filed by the petitioner. Further respondents are accepting that during the period commencing from 24. 7. 90 to 11. 4. 93 petitioner was under awaiting posting order then petitioner is entitled for salary for the said period and for inaction on the part of respondents for not issuing posting order for period w. e. f. 24/7/1990 to 11/4/1993 petitioner cannot be held responsible. Further, it is prayed that order with regard to not granting regular grade increments and not counting said period for the purpose of pension regular inquiry under Rule 16 is required because denial of grade increment and forfeiture of service is penalty enumerated in the CCA Rules, 1958 and in this case admittedly inquiry was initiated but after considering reply, departmental enquiry was dropped and petitioner was exonerated from the charge of absence from duty by the respondents, therefore, only course open to the respondents is to allow salary for the said period and to count the period commencing from 24/7/90 to 11/4/1993 for all purposes. In this connection, petitioner has invited my attention towards judgment of this Court in case of Anant Ram and others vs. District Magistrate, Jodhpur & Another reported in AIR 1956 (Raj.) page 145 in which Division Bench of this Court has held that deduction can be made for absence from duty but absence should be voluntary absence by the employee. It cannot cover absence of the employee when he is forced by circumstances created by the employer from carrying out his duties. On the basis of aforesaid judgment, it is prayed that respondents may be directed to grant salary for the period commencing from 24. 7. 1990 to 11. 4. 1993 and to treat the said period for all service purposes so also the order Annex. R/1 dated 7/7/2007 which is said to be passed by the respondents during pendency of writ petition may kindly be quashed. ;