Madhya Pradesh High Court
Smt. Yasmin Iqbal vs The State Of Madhya Pradesh on 1 August, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 1 st OF AUGUST, 2025
WRIT PETITION No. 3091 of 2014
SMT. YASMIN IQBAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Siddarth Sharma - Advocate for petitioner.
Shri K S Tomar - GA for respondent/State.
ORDER
The present petition under Article 226 of the Constitution of India has
been preferred challenging the order dated 28.06.2013 (Annexure P/2)
whereby the period of services of petitioner from 12.08.1993 to 02.10.2002
has been treated as 'dies non' and on that basis, it was held that the petitioner
is not entitled to be regularized w.e.f. 24.12.1998 and she was regularized on
the post of Assistant Professor w.e.f. 03.10.2002.
2. The said order is challenged on the ground that the order of 'dies
non' has been passed by respondent no. 1 without holding any enquiry and
without following the procedure as contemplated under Rule 14 of Madhya
Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966
("hereinafter to be referred as "Rules of 1966"). Thus, it is per se illegal and
has been passed in excess of jurisdiction.
3. In brief, the facts of the case are that the petitioner was initially
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appointed on the post of Assistant Professor Botany in higher education
department under emergency services on 08.11.1989. In pursuance to the
said order, the petitioner joined her services on 16.01.1990. She worked
continuously upto 11.08.1993, thereafter she went on maternity leave and
medical leave w.e.f. 12.08.1993 and subsequently, she had joined her duty as
per order of State Government at Government College, Pawai District Panna
on 03.10.2002. Since the petitioner remained absent from duty w.e.f.
12.08.1993 till 02.10.2002, therefore, the said period was treated as 'dies non'
(non-working period). The State Government vide orders dated 23.09.2003,
19.12.2003, 24.12.2003 and 08.01.2007 regularized so many Assistant
Professors w.e.f. 24.12.1998 but since the petitioner remained absent
12.08.1993 till 02.10.2002 she could not be regularized w.e.f. 24.12.1998.
Since the authority has taken the impugned decision without holding enquiry
under Rule 14 of the Rules of 1966 and had treated the intervening period as
'dies non' thus, challenging the same, this present petition has been filed.
4. Learned counsel for the petitioner submits that no enquiry was
conducted prior to passing of impugned order in relation to dies-non, thus,
on this count alone, the impugned order Annexure P/2 dated 28.06.2013
(Annexure P/2) deserves to be quashed. Learned counsel for the petitioner
while placing reliance on the judgment passed in the matter of Dr. Nemi
Kochar Vs. State of M.P. & Ors. reported in 2007 (III) MPJR 41 contended
that the order of 'dies non' can only be passed after holding an enquiry as
contemplated under Rule 14 of the Rules of 1966. Thus, the order dated
28.06.2013 (Annexure P/2) issued by respondent is patently illegal and is
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totally without jurisdiction, thus, deserves to be quashed.
5. Per contra, learned Govt. Advocate submits that the State
Government vide orders dated 23.09.2003, 19.12.2003, 24.12.2003 and
08.01.2007 regularized so many Assistant Professors w.e.f. 24.12.1998 but
since the petitioner remained absent 12.08.1993 till 02.10.2002 she could not
be regularized w.e.f. 24.12.1998. All the intermediatory letters wrote by the
petitioners to the Authorities were never tendered in the Department and the
same were concocted as bears no seal and signature of the Authority.
6. It is further submitted that 'dies non' is a kind of punishment
inflicted on the government servant for the period of absence without prior
sanction or approval of leave. The requirement of enquiry under Rule 14 is
discretion of the disciplinary authority only after when there is factual
dispute. Thus, the order of penalty was inevitable and therefore, the petition
is misconceived and deserves to be dismissed.
7. Heard counsel for the parties and perused the record.
8. The issue with regard to the fact that any punishment of 'dies non' is
a major penalty and in cases of major penalty is no more res-integra, it is
mandatory to conduct a full-fledged enquiry and only after enquiry, any
punishment can be imposed. It is also well settled that the order of 'dies non'
is stigmatic in nature because the entire service period of an employee would
be counted as break in service and therefore a full-fledged departmental
enquiry is contemplated in the said situation and merely stating that since
there was no factual dispute, therefore, the departmental enquiry was not
required, cannot be accepted.
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9. Thus, this Court has no hesitation to hold that the very action of the
respondents is dehors the provisions of service jurisprudence. Such a harsh
order which is based on alleged mis-conduct is stigmatic in nature and cannot
be passed without holding a full-fledged enquiry. The same has been held by
the Co-ordinate Bench of this Court in the matter of Dr. Nemi Kochar
(supra) which has been relied by the learned counsel for the petitioner.
10. In view of the above, the order dated 28.06.2013 (Annexure -P/2)
cannot be allowed to remain stand and same is hereby quashed. The
Authorities are directed to reconsider the case for the petitioner for
regularization w.e.f. 24.12.1998.
11. With the aforesaid observation, the petition stands disposed of.
12. E-copy/certified copy as per Rules and directions
(MILIND RAMESH PHADKE)
JUDGE
ojha
