[2025:RJ-JP:36840-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Special Appeal (Writ) No. 549/2023 In S.B. Civil Writ Petition No. 9790/2013 Smt. Neetu Soni W/o Shri Prakash Verma D/o Shri Ramesh Chand Soni, Aged About 48 Years, 63/120, Heera Path, Mansarovar, Jaipur. ----Appellant-Petitioner Versus 1. State of Rajasthan, Through Its Secretary, Medical And Health Department, Government of Rajasthan, Jaipur. 2. Director, Medical And Health Department, Government of Rajasthan, Swasthya Bhawan, Behind Secretariat, Jaipur. 3. Additional Director (Administration), Medical And Health Department, Government of Rajasthan, Swasthya Bhawan, Behind Secretariat, Jaipur. ----Respondents For Appellant(s) : Mr. Rajendra Soni For Respondent(s) : Mr. Yash Joshi Mr. Rohit Tiwari Mr. Priyam Agarwal Mr. Pulkit Bhardwaj Ms. Manisha Agarwal HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA HON'BLE MR. JUSTICE SANJEET PUROHIT Judgment 11/09/2025 1. This is an appeal assailing the judgment passed by the learned Single Judge dated 03.05.2023 whereby the learned Single Judge has rejected the contentions raised by the appellant- writ petitioner (for short ‘the petitioner’) and dismissed her petition. [2025:RJ-JP:36840-DB] (2 of 6) [SAW-549/2023] 2. Brief facts which need to be noticed for the purpose of adjudication of this case is that the petitioner was posted as a Nurse and was working at Community Health Centre, Rohat. She applied for leave for two days on 21.09.1997, however, she did not join back. Although it is her case that she tried to join her duties on 02.03.1998, but there is no sufficient proof which has come on record to show the same. Be that as it may, it is an admitted position that she joined her duties on 28.06.2010, i.e., after almost 13 years. 3. It has also come on record that the petitioner for the first time challenged the order dated 26.10.2010 passed by the respondents treating her to have abandoned her services and applying provisions of Rule 86(4) of the Rajasthan Services Rules, 1951 (for short ‘the Rules of 1951’). The order was challenged in S.B. Civil Writ Petition No. 624/2011 which was disposed of by the learned Single Judge setting aside the order dated 26.10.2010 passed by the respondents granting liberty to the petitioner to explain her absence from duty and liberty was also granted to the respondent-State to pass a fresh order. It appears that she submitted a representation and after considering her representation, the authorities reiterated their order passed earlier and held that she would be deemed to have resigned from service, as she had been continuously absent from duty for a period for more than 5 years. 4. Learned Single Judge has upheld the order passed by the respondents dated 22.02.2013 holding that there was no long leave granted to the petitioner and that she had failed to submit any satisfactory reason for her absence of 13 years. [2025:RJ-JP:36840-DB] (3 of 6) [SAW-549/2023] 5. Learned counsel for the petitioner submits that after the order passed by the learned Single Judge earlier in S.B. Civil Writ Petition No. 624/2011, the petitioner should have been allowed to join back and it was only thereafter the regular inquiry should have been conducted in terms of Central Civil Services (Classification, Control and Appeal) Rules, 1958 and thereafter the order should have been passed. There was no occasion to bypass the said procedure and pass the impugned order dated 22.02.2013. 6. We have considered the submissions and carefully gone through the facts of the case, we find that Rule 86 of the Rules of 1951 provides as under: [86. Absence after expiry of leave:—(1) A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained willfully absent from duty; and such absence shall amount to interruption in service involving forfeiture of past service unless, on satisfactory reasons being furnished, the absence is regularized by grant of leave due or is commuted into extra-ordinary leave by the authority competent to sanction leave. (2) (a) A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extra ordinary leave unless on satisfactory reasons being furnished, the period of absence is regularized by grant of leave due by the authority to grant leave. [(b) Willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.] [2025:RJ-JP:36840-DB] (4 of 6) [SAW-549/2023] (3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceeding under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who willfully remains absent from duty for a period exceeding one month and if the charge of willful absence from duty is proved against him, he may be removed from service. (4) No Government servant shall be granted leave of any kind for a continuous period exceeding five years. A Government Servant shall be deemed to have resigned from the service if he,- (a) is absent without authorization for a period exceeding one year from the date of expiry of sanctioned leave or permission, or (b) is absent from duty for a continuous period exceeding five years even if the period of unauthorized absence is for less than a year, or (c) continues on foreign service beyond the period approved by the State Government: Provided that a reasonable opportunity to explain the reasons for such absence, shall be given to the employee before the provisions of this sub-rule are invoked.] 7. A perusal of the aforesaid provision reflects that in terms of Rule 86(4) of the Rules of 1951, a government servant shall be deemed to have resigned from service if he is absent without authorization for a period continuously exceeding one year from the date of expiry of sanction/permission or is absent from duty for a continuous period exceeding five years even if unauthorized absence is for less than a year or continues on foreign service. 8. We find that so far as the case of the petitioner is concerned, it would fall in Category A and B as per the proviso to Rule 86(4) [2025:RJ-JP:36840-DB] (5 of 6) [SAW-549/2023] of the Rules of 1951, a reasonable opportunity is required to be given to explain the reasons for such absence. 9. Accordingly, we find that the learned Single Judge earlier while deciding S.B. Civil Writ Petition No. 624/2011, set aside the order of deemed resignation as no opportunity had been given in terms of the proviso to Rule 86(4) of the Rules of 1951. 10. However, since the learned Single Judge granted liberty to the respondents to pass a fresh order after giving opportunity of being heard, the authorities gave the petitioner an opportunity of hearing to explain her long absence of 13 years from service, which she has been unable to explain. Having satisfied that there is no plausible reason for her long absence of 13 years, the order impugned dated 22.02.2013 was passed by the authorities treating her to have deemed to resign from service. 11. During the course of arguments, learned counsel for the petitioner has also tried to raise an argument regarding applicability of the Rule 86(4) of the Rules of 1951 stating that the same has been brought into force with effect from 20.08.2001 and, therefore, would not be applicable as the petitioner had proceeded on leave in the year 1997. We are afraid that the argument is only noted for rejection. It is an admitted position that the petitioner had joined in the year 2010 after the Rule had already come in force even if her absence is to be counted from the date the Rule had come into force, five years or more has already been expired. In these circumstances, the argument is found to be baseless. 12. Having noticed the provisions of law and the facts which have come on record, we do not find any reason to interfere with [2025:RJ-JP:36840-DB] (6 of 6) [SAW-549/2023] the well reasoned order passed by the learned Single Judge, the Special Appeal (Writ) is found to be without merit and is, accordingly, dismissed. 13. Pending application(s), if any, stand(s) disposed of. (SANJEET PUROHIT),J (SANJEEV PRAKASH SHARMA),J Amit/Ritu/29