Shobha Nelson vs The State Of Madhya Pradesh

the High Court of Madhya Pradesh at Jabalpur. The Writ

Petitions filed by them were disposed of by the High Court with

a direction to the Respondents therein to accept the joining

report of the writ petitioners w.e.f. 13.08.1991 with

consequential benefits. The State of Madhya Pradesh filed Writ

Appeals which were allowed in part by a Division Bench of the

High Court. The Division Bench held that the Appellants i.e.

Dr. Shobha Nelson and Dr. S.K. Nelson shall be deemed to be in

service w.e.f. 03.01.1996 and entitled to 20 per cent of their

salary from 03.01.1996 till the date they attained their

superannuation. Dr. Shobha Nelson and Dr. S.K. Nelson filed

Civil Appeals assailing the legality of the said judgment of the

High Court. The State of Madhya Pradesh also filed two Civil

Appeals having been aggrieved by the same judgment.

2. Dr. S.K. Nelson was a Surgeon in the Cancer Hospital,

Medical College, Jabalpur. Dr. Shobha Nelson, his wife was a

Lecturer in Gynaecology, Cancer Hospital, Medical College,

Jabalpur. For the sake of convenience Dr. Shobha Nelson and

Dr. S.K. Nelson will be referred to as the Appellants and the

State of Madhya Pradesh as the Respondent.

3. The Government of Madhya Pradesh informed the Appellants

2 that they have been selected by the Zanzibar Government to

serve as Medical Officers and they will be permitted to go to

Zanzibar on Foreign Service in public interest. They were

also told that their resignation from State Government

service during their stay abroad would not be accepted. The

Appellants were informed that they would be permitted for

the foreign assignment after the completion of required

formalities. The Respondent communicated their

unwillingness to release the Appellants for the foreign

assignment to the Central Government on 15.04.1975. The

Appellants left India and started working in Zanzibar from

May, 1975. According to the Appellants, they returned to

India and requested the Respondent to give them posting

orders in 1980. As they were not given posting orders by the

Respondent they went back to Zanzibar. They returned to

India and requested the Respondent to permit them to join

back in service. As their request was not acceded to, they

approached the Madhya Pradesh Administrative Tribunal.

An interim order was passed by the Tribunal on 13.03.1991

directing the Respondent to issue posting orders to the

Appellants. Due to the non compliance of the direction in

the order dated 13.03.1991 of the Tribunal which was

3 reiterated in another order dated 28.10.1991, the Appellants

filed a contempt petition before the Tribunal.

4. By an order dated 03.01.1996, the Under Secretary, Medical

Education Department, Government of Madhya Pradesh

permitted the Appellants to join their duties in their original

posts. It was mentioned in the said proceeding that an

inquiry will be conducted to find out whether the Appellants

took prior permission before leaving for Zanzibar on

deputation. In case the Appellants had gone abroad without

seeking permission from the Government of Madhya

Pradesh, the period spent by them in Zanzibar will be treated

as ‘period of absence’ and a departmental inquiry would be

initiated against them for going to a foreign country without

taking permission from the competent authority.

5. The Director of Health Services, Madhya Pradesh conducted

an inquiry and held that the Appellants did not seek

permission before going on deputation to a foreign country.

The Appellants filed Writ Petitions 15094 of 2003 and 15095

of 2003 seeking a direction to the Respondent to permit

them to join w.e.f. 13.08.1991 with all consequential

benefits. They also filed Writ Petition 16754 of 2003 in

which they sought for a relief of quashing the proceeding

4 ordered on 03.01.1996. By a judgment dated 15.12.2004,

the High Court directed the Respondent to accept the joining

of the Appellants w.e.f. 13.08.1991. There was a further

direction that the Appellants would be considered for

promotion to higher post if they were entitled. The finding in

the inquiry conducted by the Director of Medical Health that

the Appellants did not obtain permission before leaving for

deputation to Zanzibar was upheld. The Respondent

challenged the judgment by filing Writ Appeals. A Division

Bench of the High Court held that the direction given by the

learned Judge to permit the Appellants to join w.e.f.

13.08.1991 was erroneous. The Division Bench further held

the Respondent responsible for not issuing posting orders

even after the order dated 03.01.1996 was passed. It was

also directed that the Appellants shall be deemed to be in

service from 03.01.1996. The Appellants were found entitled

for only 20 per cent of the salary w.e.f. 03.01.1996 till their

dates of superannuation. The Appellants as well as the

Respondent state have filed Civil Appeals assailing the

judgments of the Division Bench of the High Court.

6. The undisputed facts of this case are that the Appellants

were working as Doctors in the service of the Government of

Madhya Pradesh. They went and worked in Zanzibar from

5 1975 to 1991. There is a finding recorded in the inquiry

conducted by the Director of Medical Health that they left for

Zanzibar without seeking permission. The said finding was

confirmed by the Single Judge of the High Court which was

not challenged by the Appellants. The Division Bench

affirmed the said finding. It is clear that the Appellants

submitted their joining report in 1991. The interim orders

passed by the Administrative Tribunal on 13.03.1991 and

28.10.1991 whereby the Respondent were directed to issue

posting orders to the Appellants were not implemented. The

Appellants had to resort to filing a contempt petition.

Ultimately an order was passed by the Respondent directing

the Appellants to join duty w.e.f. 03.08.1996.

7. The fact remains that actual posting orders were not issued

to the Appellants. We agree with the Division Bench that the

Respondent should be held responsible for not issuing actual

posting orders to the Appellants. We see no reason as to

why the Appellants would not have joined if they were given

posting orders.

8. The order dated 03.08.1996 by which the Appellants were

directed to join was made subject to certain conditions. A

fact finding inquiry was directed to be conducted to find out

whether the Appellants had obtained permission before

6 going abroad on deputation. If the Appellants were found

guilty of not taking permission, the period spent by them in

Zanzibar would be treated as ‘period of absence’. A

departmental inquiry was also contemplated in case the

Appellants were found to have left India without taking

permission from the competent authority. Though the

Director of Health Service by an order dated 22.11.2000

found that the Appellants had not taken the requisite

permission from the competent authority before going

abroad, no steps were taken by the Respondent to treat the

period spent by them in Zanzibar as ‘unauthorised absence’.

The Respondent also did not proceed to initiate a

departmental inquiry against the Appellants for the alleged

delinquency.

9. Dr. Shobha Nelson attained the age of superannuation on

18.05.2002 and is aged 74 years now. Dr. S.K. Nelson would

have retired from service on attaining the age of

superannuation on 27.11.2000. Dr. S.K. Nelson died on

17.11.2014 and the application filed for substitution to bring

his LRs on record was allowed by us on 07.04.2017.

10. We are afraid that we cannot approve the findings of the

Division Bench of the High Court that the Appellants are

7 entitled to be deemed in service only from 03.01.1996.

There is no interruption of their status as civil servants.

Their services were not terminated at any time. We approve

the view of the learned Single Judge that the Appellants

should be given the benefit of joining back w.e.f. 13.08.1991.

As stated supra, the Respondent has to be held responsible

for not giving the posting orders to the Appellants in spite of

interim orders passed by the Tribunal. It appears that the

order dated 03.01.1996 was passed only because of the

contempt petition filed by the Appellants in the Tribunal. The

Division Bench did not assign any reason as to why the

direction given by the learned Single Judge that the

Appellants were entitled for the relief from 13.08.1991 had

to be interfered with.

11. Having decided that the Appellants are entitled to the

service from 13.08.1991, the point that is to be determined

is whether they should be treated to be in service even

during period of their absence between 1975 to1991. In

view of the finding that they did not take permission before

going to Zanzibar in 1975, the normal course would have

been to permit the Respondent to proceed with the

departmental inquiry as contemplated in the order dated

8 03.01.1996. But taking note of the fact of retirement of both

the Appellants and death of Dr. S.K. Nelson we do not see

any useful purpose being served by directing any inquiry at

this stage. We hold that the period from 1975 to 1991 spent

by the Appellants in Zanzibar shall be treated as duty for the

purpose of computation of pension only. They shall not be

entitled for any salary or allowance for that period. The

Appellants shall be treated to have joined back in service on

13.08.1991. They shall be entitled for salary and other

benefits to which they are entitled from 13.08.1991 till the

date of their superannuation.

12. The Appeals are disposed of accordingly.

..................................

......J. [S. A. BOBDE]

..……................................J. [L. NAGESWARA RAO]

New Delhi, October 31, 2017.

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