The above Writ Petition has been filed by the petitioner praying to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the second respondent in his proceedings O.Mu.No.2026/A5/90, dated 15.2.1990 and quash the same and to direct the respondents to allow the petitioner to join duty as Assistant Professor (Physics) in the 4th respondent college treating the period from 11.10.1989 till the date of joining duty and confer all the consequential benefits including salary, pay fixation and other service perquisites.

2. The case of the petitioner is that he joined duty as Demonstrator in the Management of Chikkaiah Naicker Mahajana College, Erode on 3.1.1966 and served there till 4.8.1969; that thereafter he joined as Demonstrator in the fourth respondent Management on 2.8.1971; that he was promoted as Assistant Professor on 7.10.1977; that while he was working as Assistant Professor, he applied leave for a period of five years on 4.7.1984; that after the expiry of leave, he joined duty on 11.10.1989; that while so, the second respondent in and by his communication dated 15.2.1990 informed that inasmuch as the petitioner was on leave for more than 5 years, he was deemed to have been removed from service and therefore, he could not continue in the 4th respondent college; that he made representation to the second respondent requesting to permit him to join duty and to continue; that however, the second respondent in his proceedings dated 15.2.1990 informed that if there was any sanctioned post in the above college, he might be appointed as fresh candidate; that however, the management did not even give him fresh appointment; that he made representation to the Government on 23.12.2000; that at the time when he applied leave for 5 years, the rule was that he was eligible for a leave of 5 years; that when he was availing leave, the Government issued orders in G.O.Ms.No.1046, Personnel & Administrative Reforms Department, dated 13.11.1987 amending F.R.18 reducing the leave from 5 years to one year; that however he joined immediately after the leave period of 5 years i.e. on 11.10.1989 and therefore, there is no question of removal or deemed to have been removed; that in any event, till date, they have neither removed him from service nor terminated his service; that he has been repeatedly making representations to the authorities and the 2nd respondent also informed the management to take him as fresh candidate. On such averments, he would pray for the relief extracted supra.

3. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents 1 to 3 and the learned counsel appearing for the 4th respondent as well.

4. During arguments, the learned counsel for the petitioner would submit that the petitioner has been in service in the fourth respondent management from 1971 to 1984 and applied leave for 5 years on 4.7.1984; that while he was on leave, the Government by G.O.Ms.No.1046 Personnel and Administrative Reforms Department, dated 13.11.1987 has passed an order thereby amending the F.R.18 reducing the leave from five years to one year; that after expiry of his leave period, he reported duty on 11.10.1989, but he was prevented from continuing in the fourth respondent college without any order having been passed; that though originally he filed the above Writ Petition for a Writ of Mandamus to direct the respondents to allow him to join duty, now having come to know of a communication dated 15.2.1990 sent by the second respondent, Director of Collegiate Education thereby observing that the petitioner should not have been permitted to join duty and if at all, he could have been appointed only as a fresh candidate, the petitioner has amended the prayer to one of Certiorarified Mandamus seeking to set aside the said communication of the second respondent dated 15.2.1990 and to direct the respondents to permit him to join duty; that when he has been working for 17 years and when he applied for leave as per the then existing rules, there is no justification in refusing to permit the petitioner abruptly from continuing in service to join duty after expiry of leave though he joined and worked for few days; that the respondents could have followed due process of law, i.e. framing charges, conducting enquiry so as to afford an opportunity to the petitioner to be heard, they have not done so and therefore, the action of the respondents is unconstitutional and liable to be interfered with by this Court; that if he had been reappointed even as fresh candidate as directed by the second respondent, he could have accumulated some more years of service which will be helpful to him in getting more pension; that now the petitioner has attained the age of superannuation on 30.5.2003, the question of permitting him to join duty does not arise. On such arguments he would pray for the relief extracted supra.

5. The learned Government Advocate would submit that the petitioner went on leave for five years as on 4.7.1984 and he should have joined duty on 3.7.1989, but he reported to join duty only on 11.10.1989 i.e. after the lapse of more than five years; that as per F.R.18 even before its amendment if a person is on leave for more than 5 years shall be terminated without giving any opportunity to the employer for considering the circumstances under which he went on leave and impose punishment according to the nature of explanation; that since the petitioner has attained the age of superannuation on 30.5.2003, the question of permitting him to join duty does not arise. On such arguments he would pray for dismissal of the above Writ Petition.

6. In consideration of the facts pleaded, the circumstances brought forth, having regard to the materials placed on record and upon hearing the learned senior counsel for the petitioner, the learned Additional Government Pleader representing on behalf of the respondents 1 to 3 and the learned counsel appearing on behalf of the fourth respondent, this Court is given to understand that the petitioner applied for leave for a term of 5 years in accordance with the then existing Rules, according to which the petitioner was eligible to avail such a leave for 5 years. While so the Government has issued G.O.Ms.No.1046 Personnel & Administrative Reforms Department, dated 13.11.1987 thereby amending F.R.18 reducing the leave from 5 years to one year. Since this G.O. did not have any retrospective effect on the expiry of the leave period of 5 years he joined duty on 11.10.1989. While so the second respondent in and by his communication dated 15.2.1990 informed the petitioner that since he was on leave for more than 5 years he was deemed to have been removed from service and he could not continue the service of the fourth respondent college. This argument of the 2nd respondent is not acceptable in the sense that at the time the petitioner applied for leave the amendment was not done nor the amending G.O. had any retrospective effect so as to become applicable to the case of the petitioner.

7. These facts are admitted ones but the pleading on the part of the respondents 1 to 3 is to the effect that the petitioner should have joined duty on or before 3.7.1989, but he admittedly joined duty only on 11.10.1989 and therefore, one could see reason in the second respondents communication dated 15.2.1990, informing the petitioner that inasmuch as he was on leave for more than 5 years he was deemed to have been removed from service and therefore, he could not continue in the service of the fourth respondent college and on his representation the second respondent in his proceedings dated 15.2.1990 informed that if there is any sanctioned post in the said college, he might be appointed as fresh candidate. But however, the management did not seem to have given him any fresh appointment. The representation made to the Government on 23.12.2000 and the same had not been properly attended to and hence the above writ petition praying for the relief extracted supra.

8. It could be seen from the facts of the case that the entire drama started exactly two decades back, that was in the year 1984 when the petitioner is said to have applied for the leave for 5 years and the above discussed events have taken place in 1989 and 1990 and the petitioner having slept over a decade or more has woken up thereafter only in the year 2000 when the petitioner is alleged to have made a representation to the Government on 23.12.2000 and since, according to him, the Government did not respond to his representation, he has now come forward to file the above writ petition seeking to quash the order of the second respondent dated 15.2.1990 and consequently to direct the respondents to permit the petitioner to join duty as Assistant Professor (Physics) in the fourth respondents college treating the period from 11.10.1989 till the date of joining duty as continuity of service and confer all consequential benefits including salary pay fixation and other service perquisites. It is nothing but a luxurious relief sought for on the part of the petitioner having himself gone away from the scene for 12 years and no one knows as to where he was and what he was. Under such circumstances, since the petitioner has not been conscious of such of his rights as it is claimed now, it could only be construed that he is not interested in the job in realisation of his duties and responsibilities, thus justifying the action of the fourth respondent in terminating his service even as early as in the year 1989 when he joined duty after an inordinate delay on expiry of the leave period of 5 years and therefore, at this distant point of time it is neither feasible nor necessary in the circumstances of the case for this court to go into such of the assumed rights of the petitioner which he himself has forsaken for over a decade and hence it is only desirable to conclude that the petitioner has missed the bus resulting in the above writ petition becoming only liable to be dismissed for laches and hence the following order:-

In result,

(i) the above writ petition does not merit acceptance, but becomes only liable to be dismissed and the same is dismissed accordingly;

(ii) however, in the circumstances of the case, there shall be no order as to costs.