Smt. Prabha Devi vs State and others

Hon''ble Tarun Agarwala, J.—Heard the learned counsel for the parties.

The petitioner was appointed as an Auxiliary Nurse Mid-wife in 1973 in Ghazipur. In 1988, the petitioner was promoted on the post of House Visitor, and by the same order, was transferred and was directed to join at Sanyukta Chikitsalaya, Tehri. It transpires that the petitioner submitted her joining report on 18th October, 1988. In paragraph 5 of the writ petition, the petitioner has alleged that she applied for leave on 28th October, 1988, which was duly sanctioned and the petitioner came back to her home district Ghazipur for recovery. In paragraph 6 of the writ petition, it has been alleged that since she could not recover, she extended her medical leave. In paragraph 8 of the writ petition, it is alleged that by an order dated 26th July, 1991, the petitioner was transferred from Tehri Garhwal to Mirzapur and, based on this transfer order, the petitioner contends in paragraph 9 of the writ petition that she fully recovered thereafter and presented herself before the Chief Medical Officer, Tehri Garhwal on 2nd August, 1991 praying that she may be allowed to join her duties and also be relieved to the new place of posting pursuant to the transfer order dated 26th July, 1991. The petitioner, thereafter, has alleged that the petitioner was not allowed to join and that the Chief Medical Officer forwarded her joining request to the Director, Maternity and Child Welfare, Uttar Pradesh, Lucknow for necessary direction and orders on the ground that she had not taken appropriate leave and was absent for a long period of time. It is alleged that the petitioner made several representations and when it fell on deaf ears, she filed the present writ petition praying for a writ of mandamus directing the respondents to allow the petitioner to join and discharge her duties with full pay and allowances admissible to the post of House Visitor and further grant arrears of salary for the period the petitioner remained on leave. The petitioner has further prayed that the respondents should be directed to treat the period w.e.f. 2nd August, 1991 onwards till the date of joining as compulsory waiting period.

The Chief Medical Officer, Tehri Garhwal, has filed a counter affidavit. In paragraph 6 of the counter affidavit, it has been stated that pursuant to the first transfer order, the petitioner joined at Tehri on 18th October, 1988. 19th and 20th October were the Gazetted holidays and 21st October 1988 was a restricted holiday. On 22nd October, 1988, the petitioner applied for casual leave. From 24th to 30th October, 1988, the petitioner applied for station leave, which was granted and on 31st October, 1988, the petitioner again applied for casual leave, which was sanctioned. The respondents contend that after 31st October, 1988, the petitioner neither turned up, nor joined her duties, nor gave any application for medical leave. The respondents further contended that the petitioner presented herself for the first time on 2nd August, 1991 and since the service book of the petitioner was not available, the matter was forwarded to respondent No. 2 for necessary directions.

In paragraph 6 of the counter affidavit, it has further been stated that in 1994, respondent No. 3 had written a letter dated 18th April, 1994 directing the petitioner to report for duties and submit the medical certificate, in spite of which she did not appear. It is alleged that the petitioner again appeared on 28th June, 1995 pursuant to letter dated 15th June, 1995 and by a letter dated 29th June, 1995, the petitioner was directed to join her duties at Primary Health Centre, Pratap Nagar, District Tehri Garhwal, but the petitioner did not join the Primary Health Centre at Pratap Nagar. No rejoinder affidavit has been filed, nor the averments made in paragraph 6 of the counter affidavit have been rebutted.

In the light of the aforesaid, it is clear that the petitioner has not worked at Tehri pursuant to her transfer order dated 17th October, 1988. The petitioner is trying to claim the benefit of the transfer order dated 26th July, 1991, which cannot be granted, since much water has flown since then. It is quite possible that the said transfer order was issued from the headquarters in ignorance of the actual fact, which is apparently clear since the petitioner never joined her duties at Tehril Garhwal. Nothing has been filed by the petitioner by way of any evidence to indicate that she had applied for leave continuously for three long years, nor there is anything to indicate that the said leave was sanctioned by the competent authority. The respondents have categorically stated in paragraph 6 of their counter affidavit that no medical leave was applied from 1st November, 1988. The Chief Medical Officer was consequently justified in directing the petitioner to approach respondent No. 2 for necessary orders with regard to her joining at Tehri Garhwal. Paragraph 6 of the counter affidavit further reveals that the petitioner was directed by letter dated 29th June, 1995 to join her duties at Primary Health Centre at Pratap Nagar, District Tehri Garhwal, which she did not comply. As a result, the transfer order dated 26th July, 1991 became redundant and inoperative.

In the light of the aforesaid admitted facts, which have remained unrebutted, it is clear that the petitioner was not inclined to join at Pratap Nagar in District Tehril Garhwal. It is a clear case of abandonment of service, for which the petitioner herself is to be blamed. This Court is of the opinion that if certain lapses have been committed by the respondents, the petitioner cannot take advantage of such lapses. The conduct of the petitioner in not joining makes her ineligible to be given any benefit from the Court.

In the light of the aforesaid, the writ petition fails and is dismissed.