SUDHANSHU KUMAR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the State.

(2.) Petitioner, who earlier served as Assistant Director, Statistics and Evaluation, has filed this writ petition challenging the notification of the Planning and Development Department of the State Government bearing Memo No. 3152 dated 29th November, 2003, Annexure-11, whereunder he has been dismissed from service holding him guilty of unauthorized leave with effect from 1.7.1992 until the date of the impugned order. Counsel for the petitioner has challenged the said notification submitting that punishment imposed on the petitioner is too severe as would appear from the facts of the case and submitted that the Government instead of dismissing the petitioner should consider to compulsory retire him. In this connection learned counsel for the petitioner pointed out that petitioner was appointed as Assistant Director on the basis of the recommendation of the Bihar Public Service Commission and discharged his duties to the satisfaction of all concerned until he was allowed study leave under notification bearing no. 2035 dated 5.8.1989, Annexure-1 for the period 1.7.1989-30.6.1992. The study leave granted to the petitioner under Annexure-1 could not serve its purpose as he could not complete M.S. course in Computer Science within the period of study leave, and applied for extension of study leave by a further period of three years under request letter dated 18.7.1992, Annexure-2. It appears, aforesaid request for extension of study leave was taken note by the authorities of the Planning and Development Department while granting the petitioner promotion on the post of Joint Director under notification bearing Memo No. 1594 dated 30.6.1993, Annexure-3. With reference to the contents of the notification dated 30.6.1993, Annexure-3, it is submitted that the request made by the petitioner for extension of study leave under representation dated 18.7.1992 was considered and allowed by granting the petitioner promotion in absentia holding him to be availing the study leave. Even after expiry of the extended period of study leave petitioner could not come back and submitted application dated 31.7.1995, Annexure-4 requesting extension of study leave by another three years. Even after expiry of three years from 31.7.1995 also petitioner could not come back and filed third application for extension of study leave on 13.7.1998, Annexure-5 making a request for grant of further extension by three years. The 2nd and 3rd application for extension of leave filed by the petitioner was kept pending by the authorities until they passed order dated 22.7.2002, Annexure-8, taking notice of the notification granting the petitioner study leave for the period between 1.7.1989-30.6.1992 as also the fact that after expiry of the said period petitioner has been filing application for extension of leave every three years and rejected such request for extension of the study leave. After rejection of the request of the petitioner for extension of study leave departmental proceeding was initiated in which petitioner filed show-cause reply dated 15.8.2002, Annexure-8/1 requesting for grant of further opportunity to enable the petitioner to come back from United States of America and contest the proceeding. In this connection reference is also made to the letter dated 8.10.2002, Annexure-9 written by the petitioner to the Secretary of the Department whereunder request was made for grant of voluntary retirement to the petitioner taking into account the service rendered by him until 31.10.2002. It appears aforesaid request was not considered by the authorities as petitioner had not rendered any service for the period between 1.7.1989 till 31.10.2002 as during the said period he did not render any service to the department and the service rendered by him until 30.6.1989 was not sufficient for granting him voluntary retirement. Request of the petitioner for voluntary retirement having not been considered he was dismissed from service under notification dated 29th November, 2003, Annexure-11 which has been impugned in the present writ case. Learned counsel for the petitioner submitted that as conscious decision to reject the request of the petitioner for extending his study leave by the State Government was taken on 22.7.2002, the period until 21.7.2002 should be taken as the period under study leave for considering the case of the petitioner for voluntary retirement. In this connection counsel further submitted that had there been no inaction on the part of the State Government in the matter of rejection of the request of petitioner for extension of study leave the period until 21.7.2002 could not have been taken as the period of study leave. In this background submission of the counsel for the petitioner is to set aside the notification dated 29th November, 2003 with direction to the State Government to reconsider the matter for grant of compulsory retirement to the petitioner taking into account the period until 21.7.2002.

(3.) Counsel for the State has opposed the prayer. He states that petitioner having been appointed through Bihar Public Service Commission to discharge the responsibilities of the Assistant Director proceeded on study leave for three years in July, 1989 but never returned back to join the service again and kept filing petition for extension of study leave which was initially entertained and under notification dated 30.6.1993, Annexure-3 petitioner was granted promotion on the post of Joint Director in absentia taking note of the fact that he was pursuing higher studies in United States of America. In this connection learned counsel for the State further submitted that having completed his M.S. in Computer Science petitioner should have come back to India to serve the department but he appears to be enjoying greener pastures in the United States of America and thereby disqualified himself for grant of any leniency from the State and this Court.