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The petitioner filed title suit No. 86 of 1961 in the Court of the Munsif, III, Patna, for a declaration challenging the order dated March 5, 1960 as well as the inquiry proceedings on the basis of which the said order was passed. He also challenged the order of censure passed on September 2, 1953 and further incorporated in the order of March 5, 1960. Though the suit was contested by the respondents, it was ultimately decreed on April 11, 1963. The respondents filed title appeal No. 132/24 of 1963-64 before the Subordinate Judge, 11 Court, Patna, challenging the decree of the Munsif. On June 24, 1964 the appeal was allowed, with the result that the petitioner's title suit No. 86 of 1961 stood dismissed. The petitioner's Second Appeal No. 640 of 1964 was dismissed by the High Court on May 4, 1967. From these proceedings it is clear that the order of censure dated September 2, 1953 as well as of reversion dated March 5, 1960 have both been found to be correct by the High Court and it is no longer open to the petitioner to canvass those orders again. But it may be necessary for us to refer to certain proceedings connected with the title suit when we deal with the attack of the petitioner against the legality of the orders dated August 5, 1966 and June 12, 1968. When the order of reversion dated March 5, 1960 was passed, the petitioner was working as Deputy Inspector of Schools, Deoghar. The office of the Deputy Inspector of Schools was closed for Holi holidays from March 11, 1960 and the petitioner claims that he left the headquarters to go to Patna with the permission of the authorities. The order dated March 5, 1960 was received by him at Patna on March 23, 1960 when he was ill. He applied for leave. According to the petitioner, he obtained an order of temporary injunction on October 5, 1961 in his title suit No. 86 of 1961 restraining the respondents from giving effect to the order dated March 5, 1960 reverting him to the Lower Division in the Subordinate Educational service. Though he offered to join the post to which he was entitled originally, he was not allowed by the respondents to join the Upper Division of the Subordinate Educational Service. The action of the respondent in refusing to permit him to join duty was in flagrant violation of the order of temporary injunction granted by the Munsif, Patna.

It is now necessary to refer to certain proceedings connected with the title suit No. 86 of 1961 instituted by the petitioner in the Court of the Munsif III, Patna. In that suit the petitioner challenged the order dated March 5, 1960 in and by which he was reverted to the lower division of the Subordinate Educational Service and a censure was directed to be recorded against his character roll. According to the respondents in this suit Me order of censure passed on September 2, 1953 was also challenged. On August 5, 1961, the Munsif passed an order restraining the present respondents from operating the punishment order passed on March 5, 1960 by the Director of Public Instruction on the petitioner till the disposal of the suit. It is now admitted by the respondents that the petitioner was on duty till March 10, 1960 and that he was absent only from March 11. 1960. That there was an order of temporary injunction passed by the court restraining the respondents from giving effect to the order of March 5, 1960 is not challenged in the counter-affidavit. According to the petitioner he went on October 13, 1961 to join his post from which he was illegally reverted, but in spite of the order of the Munsif, Patna, the respondents did not permit him to join duty. That he was prepared to join duty and work is clear from the letters written by the petitioner to the Director of Public Instruction on October 13, 1961, October 24, 1961 and November 1, 1961. There was no reply by the respondents. It is no doubt true that on April 3, 1962, the temporary injunction granted by the Munsif, Patna, was vacated by the Subordinate Judge. On April 11, 1963 the title suit No. 86 of 1961 instituted by the petitioner was decreed and the respondents were prohibited from enforcing the order dated March 5, 1960 reverting the petitioner from the senior grade to the lower grade of the Subordinate Educational Service. The petitioner again wrote a letter on April 18, 1963 to the Director of Public Instruction drawing the latter's attention to the decree passed in title suit No. 86 of 1961 and requesting him to permit the petitioner to join duty as Deputy Inspector of Schools. There was a reply on November 27, 1963 by the Director of Public Instructions to the effect that the plea of the petitioner has been considered at all levels of the Directorate and the Government. The petitioner was directed to report himself to the Regional Deputy Director of Education, Bhagalpur Division and to join duty in "Lower Division of Subordinate Educational Service". The letter proceeds to state "in case of disobedience of order you will be charged with insubordination". We are constrained to remark that the attitude taken in this letter on behalf of the State is not commendable at all. Admittedly there was a decree passed by the Munsif in title suit No. 86 of 1961 on April 11, 1963 restraining the respondents from giving effect to the order dated March 5, 1960 reverting the petitioner from the post of Deputy Inspector of Schools to the Lower Division of Subordinate Educational Service. Admittedly the respondents were parties to the said decree and they had not obtained any order of an Appellate Court staying the operation of the decree in the suit. The effect of the decree passed by the Munsif was that the petitioner was entitled to work in the original post which he was holding prior to his reversion. That these aspects have been missed by the respondents is evident from the reply of November 27, 1963 sent by the Director of Public Instruction. The petitioner sent a further letter dated December 6, 1963 in reply to the letter of the Director of Public Instruction dated November 27, 1963. In this letter the petitioner again referred to the decree of the Munsif, Patna, dated April 11, 1963 and pointed out that he was entitled to hold the original post which he was occupying prior to the order of reversion, which has; been directed not to be put into operation by the court. He further pointed out that the directions contained in the letter dated November 27, 1963 sent by the Director of Public Instruction was not in conformity with the decree of the Munsif. He further made a request that he should be allowed to join duty in the original post in the senior grade and also made a further request for payment of arrears of his salary. There was no reply by the respondents and the petitioner was not allowed to join duty as desired by him. The above correspondence is not at all disputed by the respondents. In fact they have admitted in the counter- affidavit that even after the order of injunction, the Department was always insisting on the petitioner joining duty as Sub-Inspector of Schools, that is, in the lower grade and that the petitioner never joined duty in that post. To complete the narration on this aspect. the decree of the Munsif in favour of the petitioner restraining the respondents from enforcing the order dated March 5, 1960 was set aside on appeal by the Subordinate Judge on June 24, 1964 in title appeal No. 132/24 of 1963/64. The petitioner's Second Appeal No. 640 of 1964 was dismissed by the High Court on February 11, 1965.

From the narration of the above facts, it will be clear that from October 5, 1961, the date of temporary injunction granted by the Munsif, till April 3, 1962, when the order of temporary injunction was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty in the senior post, which he was entitled to occupy by virtue of the order of injunction. We have already referred to the fact that the petitioner sent letters dated October 5, 1961, October 13, 1961, October 20, 1961 and November 1, 1961 expressing his readiness and willingness to work in the senior post. The respondents did not permit him to join duty. Therefore, it cannot be said that the petitioner was absent from duty during this period. Again on April 11, 1963, the Munsif granted a decree in favour of the petitioner in the suit. The respondents did not obtain any stay order from the Appellate Court. So the decree of the trial court was in full force till it was set aside on appeal on June 24, 1964. During the period April 11, 1963, June 24, 1964, the petitioner wrote several letters and to which we have made a reference earlier, requesting the respondents to permit him to join duty in the senior grade. The respondents did not permit him to join duty in the senior grade; but, on the other hand, insisted on the petitioner's joining duty in the lower grade on threat of disciplinary action being taken. This attitude of the respondents, we have already pointed out, was in flagrant violation of the order of the Munsif. Therefore, during the period April 11, 1963 to June 24, 1963, it cannot be said that the petitioner was absent from duty. Hence it will be seen that the claim made by the respondents in the counter- affidavit that the petitioner, since March 11, 1960 till August 5, 1966 was continuously not in service for over five years is fallacious. There is no question of the petitioner not being in continuous service for over five years during the period referred to above. On the other hand, the period during which it could be said ',,hat the petitioner was absent was from March 11, 1960, the date on which he claims to have gone on leave till October 5, 1961 when the order of temporary injunction was passed by the Munsif. From October 5, 1961 to April 3, 1962, we have already pointed out, the petitioner cannot be considered to have been absent from duty. Therefore, the continuity of absence is broken during this period. The petitioner can again be considered to have been absent from duty from April 3, 1962, the date on which the order of temporary injunction was vacated by the Subordinate Judge, till April 11, 1963, the date on which a decree was granted by the Munsif in favour of the petitioner. During this period he was absent. But again the continuity of absence is broken during the period April 11, 1963 the date of the decree of the Munsif, till June 24, 1964, the date when the Subordinate Judge reversed the decree of the trial court. We have already referred to the various letters written during this period by the petitioner as well as the reply sent by the Director of Public Instruction on November 27, 1963. During this period he cannot be considered to be absent from duty. The third period from which he can be again considered to be absent from duty is June 24, 1964, the date of the decree of the Subordinate Judge till August 5, 1966, the date on which the order was passed purporting to be under r. 76 of the Service Code. The above circumstances clearly show that the petitioner cannot be considered to have been continuously absent from duty for over five years during the period March 11, 1960 to August 5, 1966. if that is so, the essential condition for the application of r. 76 of the Service Code is lacking and, therefore, it follows that the order dated August 5, 1966 is not supported by r. 76 of the Service Code. Therefore that order is illegal and has to be quashed. A contention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of Art. 311 of the Constitution. According to the respondents there is no violation of Art. 311. On the other hand, there is an automatic termination of the petitioner's employment under r. 76 of the Service Code. It may not be necessary to investigate this aspect further because on facts we have found that r. 76 of the Service Code has no application. Even if it is a question of automatic termination of service for being continuously absent for over a' period of five years, Art. 311 applies to such cases as is laid down by this Court in Jai Shanker v. State of Rajasthan (1). In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations, which is as follows: