Non-Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 17425 of 2017 (Arising out of Special Leave Petition (Civil ) No.18737 of

2007)

SHOBHA NELSON                                        .... Appellant(s) Versus

THE STATE OF MADHYA PRADESH & ORS.  ….Respondent(s)

WITH

CIVIL APPEAL No. 17426  of 2017 (Arising out of Special Leave Petition (Civil ) No.19004 of

2007) CIVIL APPEAL No.17428 of 2017

(Arising out of Special Leave Petition (Civil ) No.23332 of 2007)

CIVIL APPEAL No. 17427 of 2017 (Arising out of Special Leave Petition (Civil ) No.21415 of

2007)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.  

Dr. Shobha Nelson and Dr. Sudhir Kumar Nelson went to

Zanzibar in 1975, while they were in Government service of the

State of Madhya Pradesh.  Though they had submitted a joining

report  on  13.08.1991,  they  were  allowed  to  join  back  in

Government  service  only  from  03.01.1996.  Aggrieved,

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Dr. Shobha Nelson and her husband Dr. S.K. Nelson approached

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

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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

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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

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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

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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

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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

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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

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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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