Page No.# 1/6 GAHC010217012023 2025:GAU-AS:16157 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5633/2023 OLIVA DAS W/O- BIBHUTI BORGOHAIN, R/O- HOUSE NO- 6, BHASKAR NAGAR, R.G BARUA ROAD, GUWAHATI-21, DIST- KAMRUP (M), ASSAM VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GUWAHATI-781006. 2:THE SECRETARY TO THE GOVERNMENT OF ASSAM DEPARTMENT OF SCHOOL EDUCATION DISPUR GUWAHATI- 781006 3:THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM DEPARTMENT OF SCHOOL EDUCATION ELEMENTARY EDUCATION DISPUR GUWAHATI- 781006 4:THE DIRECTOR STATE COUNCIL OF EDUCATIONAL RESEARCH AND TRAINING (SCERT) ASSAM KAHILIPARA GUWAHATI-19 5:THE PRINCIPAL DISTRICT INSTITUTE OF EDUCATION AND TRAINING (DIET) DIBRUGARH CHABUA Page No.# 2/6 DIST- DIBRUGARH ASSAM 6:THE MISSION DIRECTOR DISTRICT ELEMENTARY EDUCATION OFFICER AXOM SARBA SIKSHA ABHIJAAN MISION KAHILIPARA GUWAHATI-19 7:THE DISTRICT MISSION COORDINATOR AXOM SARBA SIKSHA ABHIJAAN MISSION TINSUKIA DIST- TINSUKIA ASSA Advocate for the Petitioner : MR. R B PHOOKAN, R SARMAH,MR K J HAZARIKA Advocate for the Respondent : SC, ELEM. EDU, SC, SSA,SC, SCERT, ASSAM BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER Date : 27/11/2025 1. Heard Mr. R.B. Phookan, learned counsel for the petitioner. Also heard Mr. S.K. Talukdar, learned Standing Counsel, Elementary Education Department, Assam and Ms. H. Barvah, learned counsel for the respondent nos. 4, 6 & 7. 2. The petitioner’s case is that the impugned order dated 08/08/2023 passed by the Secretary to the Government of Assam, Department of Education, regretting the grant of leave to the petitioner and not allowing her to join the post of Lecturer at CMDE Branch of DIET, should be set aside. 3. The brief facts of the case is that the petitioner had joined the post of Lecturer, DIET on 01/09/1989. Thereafter, the service of the petitioner was regularised vide order dated 17/06/1994. By a subsequent notification dated 18/12/2002 issued by the Commissioner and Secretary, Education Department, the service of the Page No.# 3/6 petitioner was transferred and attached with the District Resource Centre, Tinsukia under Sarba Siksha Abhiyan (SSA) as Lecturer, DIET and accordingly, the petitioner joined the District Resource Centre, Tinsukia on 27/01/2003. The petitioner was thereafter allowed to work as Coordinator, District Resource Centre, Tinsukia, vide order dated 08/04/2003, which the petitioner joined on 21/04/2003. 4. The petitioner’s further case is that the petitioner thereafter applied for leave on medical grounds from 01/05/2005 till the year 2009, by submitting various leave applications. However, no decision was taken on the petitioner’s leave applications by the respondents. The petitioner thereafter continued taking leave for the period from 2009 to 2013, without submitting any application for leave for the said period. The petitioner tried to join her post in the year 2013, which was however not allowed by the respondents. Being aggrieved by the respondents not allowing the petitioner to rejoin her post, the petitioner filed WP(C) 650/2019 before this Court, praying that a direction should be issued to the Commissioner and Secretary to the Government of Assam, Education (Ele) Department, to take a decision on the petitioner’s representations for grant of leave for the period from 2005 to 2009. 5. This Court disposed of WP(C) 560/2019, vide order dated 05/08/2019, by directing the respondent authorities, more particularly, the Commissioner and Secretary to the Government of Assam, Education (Ele) Department, to pass appropriate orders by considering the representations submitted by the petitioner. Consequent to the above order dated 05/08/2019 passed in WP(C) 650/2019, the impugned order dated 08/08/2023 has been issued by the Secretary to the Government of Assam, Department of School Education, regretting the petitioner’s applications for leave or to allow her to join her post as Lecturer of CMDE Branch of DIET. 6. The learned counsel for the petitioner submits that unless the petitioner’s Page No.# 4/6 leave period is regularised or a departmental proceeding is initiated against the petitioner, for non-regularisation of her leave period, the petitioner would be kept in limbo, without any determination being made with regard to whether she would be entitled to any service benefits. 7. On the other hand, the counsels for the respondents submit that in terms of the records of the Directorate of SCERT, Assam, various leave applications alleged to have been submitted by the petitioner had not been received by the respondents. As such, there was no question of sanctioning any leave against leave applications, which were not received by the State respondents. 8. Mr. S.K. Talukdar, learned Standing Counsel, Elementary Education Department, Assam, submits that in terms of FR-18, no Government servant shall be granted leave of any kind for a continuous period exceeding 5(five) years. As the petitioner was absent from duty since 2002 continuously for more than 5 years, the petitioner was not entitled to any kind of leave under FR-18. He submits that though the petitioner tried to project that she had applied for leave, no such leave application had been received by the respondents nor approval granted by the competent authorities. 9. I have heard the learned counsels for the parties. 10. It is settled law that unless leave is regularised, the State respondents would have to act upon the alleged unauthorised leave that has not been regularised. Further, FR-18, which is applicable to the State of Assam, states as follows :- “F.R. 18. Unless the Governor in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave, a Government servant shall be removed from service after following the procedure laid down in the Assam Services (Discipline and Appeal) Rules, 1964.” Page No.# 5/6 11. As it is quite apparent that the State respondents have not taken any action in terms of the Assam Services (Discipline and Appeal) Rules, 1964 (1964 Rules in short), pursuant to FR-18 and due to the fact that they have taken a stand that no leave application had been submitted, the respondents may have to act in accordance with the 1964 Rules. 12. In the case of State of Punjab Vs. Dr. P.L. Singla, reported in (2008) 8 SCC 469, the Hon’ble Supreme Court held that unauthorized absence of an employee from his duty amounts to misconduct. The operative portion of the judgment states as follows:- “11. Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct stood condoned. The second is to treat the unauthorised absence as a misconduct, hold an enquiry and impose a punishment for the misconduct. 12. An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorised absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorised absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorised absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline. XXX 14. Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like Page No.# 6/6 dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorised absence (unless the rules require otherwise). Where the punishment awarded for the unauthorised absence, does not result in severance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorised absence remains unaccounted it will result in break in service, thereby affecting the seniority, pension, pay, etc. of the employee. Any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment.” 13. In view of the reasons stated above, this Court is of the view that the respondents would have to take either of the two options i.e. either to regularise the leave of the petitioner or to act upon the alleged unauthorised absence period by way of 1964 Rules. The respondents are accordingly directed to initiate action in terms of either of the two options available, within a period of 6 (six) weeks from today. 14. The question of entitlement of the petitioner with regard to any service benefit that might or might not follow, would depend upon the decision and action initiated and concluded by the State respondents. 15. The writ petition is accordingly disposed of. JUDGE Comparing Assistant