HARISH CHANDER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner in this case was appointed as a Senior Teacher in Social Studies by the order of the Addl. Director of Education, Rajasthan, Bikaner dated July 27, 1959 after he was selected for the aforesaid post by the Rajasthan Public Service Commission and he was posted as Senior Teacher at the Higher Secondary School, Mandal, District Bhilwara. The petitioner joined his post of Senior Teacher on July 29, 1959. Subsequently, the post of Senior Teacher in Social Studies, on which the petitioner was appointed, was abolished and the post held by the petitioner was redesignated at that of Senior Teacher in Civics. On September 9, 1967 it appears that some dispute arose between the petitioner and the Head Master of the Higher Secondary School, Mandal where the petitioner was working on the question of going for a hike along with the students of that school. September 10, 1967 was a holiday and thereafter the petitioner applied for casual leave for Sep. 11 and 12, 1967. The petitioner's case is that he fell ill and could not attend to his duties on medical grounds subsequent to September 10, 1967. It is, however, admitted by both the parties that from September 11, 1967 to October 27, 1967 the petitioner was absent from duty and it is also admitted that the petitioner sent applications by post for extension of his leave on the ground of illness. The respondents' case is that the petitioner was informed that he should get himself medically examined by the District Medical and Health Officer, Bhilwara under Rule 76(b) of the Rajasthan Service Rules (hereinafter referred to as 'the rules') but he did not appear before the District Medical Officer, Bhilwara for medical examination as directed by the Head Master of the School. On October 28, 1967 the petitioner reported for duty and submitted sickness certificates and health certificate signed by the Vaidya Incharge of the Government Ayurvedic Dispensary, Roopaheli Kalan, District Bhilwara. The Head Master was agreeable in the beginning to allow the petitioner to join his duty but he directed that the petitioner should produce medical certificates and fitness certificate signed by the District Medical & Health Officer, Bhilwara. The petitioner insisted that the Head Master should give him an order in writing, on which the Head Master directed the petitioner to produce the medical certificates and the fitness certificate, as mentioned above, and stated that there was no provision for taking the petitioner on duty before the requisite certificate under Rule 83 of the Rules were produced. From the representation of the petitioner reproduced at page 10 of the writ petition and Ex. R. 12 dated November 6, 1967 it appears that in the first instance the Head Master was agreeable to allow the petitioner to join his duty subject to the final decision on the question about leave during the period of his absence from September 11, 1967 to October 27, 1967 later on. But on the insistence of the petitioner for an order in writing, the Head Master gave the petitioner the order Exhibit 2 directing him to produce the requisite medical and health certificates obtained from the District Medical and Health Officer, Bhilwara. Thus, although the petitioner's case is that the Head Master refused to take him on duty on 29 -10 -1967, yet the case of the respondents is that the Head Master was willing to allow the petitioner to join his duty, but the petitioner did not join on account of his insistence for a decision of the question of his leave for the period of his absence from duty. The fact, however, remains that the petitioner did not join his duty on October 28, 1967 or at any time thereafter and he submitted representation to higher authorities in the Education Department complaining that the Head Master illegally refused to allow the petitioner to join his duties.

(2.) According to the petitioner, the certificate of the Vaidya Incharge of the Government Ayurvedic Dispensary, Roopaheli Kalan was sufficient and that the petitioner had thereby substantially complied with the provisions of Rule 83 of the rules. On the other hand, the respondent, view is that the petitioner wilfully disobeyed the order issued by Head Master, to submit the medical certificates about his illness obtained from the District Medical and Health Officer, as envisaged in clause (b) of Rule 76 of the rules and also a fitness certificate from the very same officer under Rule 83 of the Rules. While this dispute went on, the petitioner filed this writ petition in this Court on 22 -9 -1972. A show cause notice was issued by the Court & probably to end the controversy, the Director of Primary and Secondary Education, Rajasthan Bikaner by his order dated December 5, 1972 (Ex. R. 18) posted the petitioner as Senior Teacher in Civics at the Government Higher Secondary School at Bibirani, District Alwar. It is not in dispute that even after the aforesaid order dated December 5, 1972 was passed & was delivered to the petitioner, he did not join his post of Senior Teacher even at the new place of posting and the respondents initiated disciplinary proceedings against the petitioner for the alleged misconduct of negligence, wilful absence from duty & non -compliance of the posting order etc. Although a charge sheet has been served upon the petitioner in that respect but it is not in dispute between parties that the aforesaid disciplinary proceedings have not been finally disposed of as yet & the same are still pending.

(3.) Learned Additional Government Advocate submits that so far as the grievance of the petitioner that he has not been taken back on duty is concerned, the same is no longer of any consequence as by the order dated December 5, 1972 the Director of Primary and Secondary Education, Rajasthan intimated to the petitioner that he should join his duties as Senior Teacher in Civics at Bibirani School On the basis of the unconditional order issued by the Director of Primary & Secondary Education on December 5, 1972 the petitioner could have joined his duties at the new place of his posting and that the default thereafter entirely lay with the petitioner in as much as he did not join his duty even after the order dated December 5, 1972 was communicated to him. Faced with this situation, learned counsel for the petitioner has confined his submission to the period from October 22, 1967 to December 5, 1972 and urged that the petitioner was prepared to join his duties on October 28, 1967 having submitted the medical certificates and the Fitness Certificate in accordance with the rules but as the Head Master did not allow the petitioner to join his duty on the aforesaid date, the petitioner is entitled to full salary for the period from October 28, 1967 to December 5, 1972 and also to all consequential benefits in respect thereof. On the other hand, learned Additional Government Advocate submitted that in the first place the Head Master was willing to allow the petitioner to join his duty on October 28, 1967 as admitted by petitioner in his representation reproduced at page 10 of the writ petition. In the second place, according to the learned Additional Government Advocate, the Head Master was justified in insisting upon the production of medical certificates from the District Medical and Health Officer. Bhilwara under sub -rule (b) of Rule 76 of the rules. He could also likewise insist on the production of a health or fitness certificate from the same officer, prior to permitting the petitioner to join his duty. It was also submitted by the learned Additional Government Advocate that the petitioner is not entitled to payment of any salary for the reason the writ petition is grossly belated, having been filed after a lapse of almost five years from October 28, 1967 when the cause of action accrued to the petitioner and further the petitioner was doing his own business in partnership with other persons he is not entitled to any relief in this writ petition, in the extraordinary jurisdiction of this Court.