[2025:RJ-JP:32247] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 10892/2009 Dr. Raj Kumar Makkar S/o Shri D.R. Makkar, aged about 46 years, Resident of 94/99, Vijay Path, Mansarovar, Jaipur ----Petitioner Versus 1. The State of Rajasthan through Principal Secretary, Medical and Health, Government of Rajasthan, Secretariat, Jaipur 2. The Director (Public Health), Medical and Health Services, Jaipur 3. The Dy. Secretary, Medical and Health Department (Gr.2), Secretariat, Jaipur ----Respondents For Petitioner(s) : Ms. Gunjan Chawla on behalf of Mr. Neeraj Batra, GC For Respondent(s) : Mr. Archit Bohra, AGC with Mr. Prakhar Jain HON'BLE MR. JUSTICE ANAND SHARMA Order 18/08/2025 1. Feeling aggrieved by order dated 10.12.2008 passed by the Director (Public Health), Medical and Health Services, Jaipur whereby services of the petitioner have been terminated in exercise of powers under Rule 86(4) of Rajasthan Service Rules 1951 (for short 'the RSR'), treating it to be a case of deemed resignation, the petitioner has approached this Court by way of filing the instant writ petition. 2. It is submitted that the petitioner was initially appointed vide order dated 01.07.1992, however, since he was absent from 05.09.2001 for a period more than five years, [2025:RJ-JP:32247] (2 of 6) [CW-10892/2009] therefore, one notice under Rule 86(4) of RSR dated 06.10.2007 was issued to the petitioner for granting him an opportunity to extend the reasons of his long absence failing which it shall be treated that he has resigned from Government service. 3. Learned counsel for the petitioner submits that pursuant to aforesaid order dated 06.10.2007 reply was submitted by the petitioner on 02.11.2007 mentioning therein that he could not clear his DM (Neurology) examination in his first attempt in the year 2002 and during that period he was suffering from diabetes and later on in the year 2005 he passed DM (Neurology) from SMS Medical College, Jaipur. Thereafter, he sustained a head injury and took a considerably long time in recovery. He was also having his family responsibilities therefore, on account of such reasons he had to remain away from his official duties. He showed his willingness to join and continue his medical services. 4. Thereafter, one order dated 29.12.2007 was issued by the Deputy Secretary, Medical and Health Department (Group-2) Jaipur permitting the petitioner to join on the post of Junior Specialist (Pediatrics) at Government Hospital, Bharatpur and simultaneously decision was also taken to initiate departmental inquiry for his absence period. As per petitioner in compliance of aforesaid order dated 29.12.2007, he submitted his joining on 21.03.2008 and simultaneously also submitted an application to granting leave. 5. Learned counsel for the petitioner further submits that thereafter, on account of continuous absence due to multiple reasons the petitioner could not join and ignoring his medical condition, in quite arbitrary manner without conducting any [2025:RJ-JP:32247] (3 of 6) [CW-10892/2009] inquiry or without giving any further notice, impugned order dated 10.12.2008 has been passed by the respondents. Such order is arbitrary, illegal and deserves to be quashed. 6. Per contra, learned counsel appearing for the respondents opposed the writ petition and defended the impugned order by stating that being a Government employee, it was bounden duty of the petitioner to continuously attend his duties. He was a medical officer and therefore, such duty was of much higher degree, yet at his convenience the petitioner chose to remain wilfully absent continuously for more than six years therefore, in exercise of powers under Rule 86(4) of RSR, before conducting any action against the petitioner by treating his long absence as his unauthorized an opportunity was given to him vide notice dated 06.10.2007. Although, by giving reply dated 02.11.2007, the petitioner assured the respondent-Department to join pursuant to aforesaid notice and to regularly attend his duties, yet even after issuance of specific posting order dated 29.12.2007, the petitioner did not chose to join at the posting place in accordance with the Rules. In order to mislead the authorities as well as to create artificial evidence, he simply submitted one application dated 21.03.2008 in the receipt and dispatch section at General/Government Hospital, Bharatpur and without joining and resuming that the duties as well as without obtaining any sanction for leave, the petitioner again disappeared. No further application or representation was received by the respondents. Under these circumstances, the conduct of the petitioner reveals that he was not willing to continue the Government service and therefore, deeming clause of Rule 86(4) [2025:RJ-JP:32247] (4 of 6) [CW-10892/2009] has come into picture and the respondents have rightly treated deemed resignation on behalf of the petitioner and accordingly his services have been terminated. Learned counsel submits that the action of the respondents is strictly in accordance with Rules and there is no infirmity or illegality in the impugned order dated 10.12.2008. 7. I have heard learned counsel for the parties and examined the record. 8. In order to adjudicate the dispute involved in the instant writ petition, it is relevant to refer provisions of Rule 86(4) of RSR, which read as under:- "[(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 to 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 reason for such absence or continuation of foreign service, shall be given to the Government Servant before the provisions of this sub-rule are invoked.]" 9. Bare perusal of the aforesaid provision would make it clear that the provision starts from a negative covenant and is, as such, mandatory in nature. It prohibits the Government authorities to grant leave of any kind for a continuous period of exceeding five years. It further enables the competent authority to invoke deeming clause and provides that the Government servant [2025:RJ-JP:32247] (5 of 6) [CW-10892/2009] shall be deemed to have resigned from his service if he remains absent for more than five years. In the instant case, the petitioner has remained absent continuously since 06.09.2001 till date of passing of order dated 10.12.2008, which is obviously a period of more than five years. Hence, by operation of the deeming clause prescribed in aforesaid Rule 86(4), the competent authority was well within its rights to terminate the services of the petitioner by treating it to be a case of deemed resignation. 10. Submissions made by learned counsel for the petitioner that since pursuant to earlier notice dated 06.10.2007 forwarded by order dated 20.10.2007, the petitioner has joined on 21.03.2008 therefore, the earlier absence period of misconduct, if any, cannot be taken into consideration for applying the provisions of Rule 86(4) of RSR, is totally inconceivable, unfounded and baseless. In the instant case, merely submitting an application showing willingness to join, at the dispatch and receipt section would not amount to joining by the petitioner. Petitioner has utterly failed to show anything on record that his joining was acknowledged by the competent authority or else he had ever performed his duties on 21.03.2008. 11. Even otherwise, the petitioner has utterly failed to show that after his alleged joining on a particular day i.e. on 21.03.2008, he continued in the Government service. The lame excuse of being ill has also not been substantiated by placing sufficient documents on record. The petitioner never presented himself before the Medical Board duly constituted by the Government. It is settled rule that no Medical Officer can grant sickness certificate for a period of more than 30 days. [2025:RJ-JP:32247] (6 of 6) [CW-10892/2009] 12. In the instant case, even after alleged joining on 22.03.2008, for a further period of nine months till the date of issuance of impugned order dated 10.12.2008, the petitioner has remained absent from his duties in quite unauthorized and willful manner. 13. Under these circumstances, the respondents have committed no mistake in exercising powers under Rule 86(4) of RSR. I do not find any arbitrariness or illegality in the action of the respondents. 14. Accordingly, the writ petition filed by the petitioner is hereby dismissed. (ANAND SHARMA),J DIVYA /19