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2000 DIGILAW 133 (JK)

Syed Shabir Ahmad (Dr. ) v. State Of J. &K.

2000-07-07

SYED BASHIR-UD-DIN

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1. Petitioner was permitted to take up the foreign assignment in Iran and for the purpose he was granted permission for a period of two years in terms of Government Order No: ES-3/FA/24460-62 dated: 19-01-1980. This period of absence of two years was to be treated as leave without pay in terms of the above order. Petitioner over stayed the above period and returned to join his duties in Feb. 1984. This period of absence from 01-04-1983 to 20-02-1984 was ordered to be treated as dies non in terms of Government Order No: 651 -HME of 1984 dated: 25-09-1984. Petitioner™s grievance is that above period of his absence in connection with employment in Iran from 01-04-1980 to 20-02-1984 is not entered in his service records in terms of above Government Orders Annexure-A and Annexure-C. His further grouse is that while his period of absence from 01-04-1983 to 20-02-1984 was treated as dies-non (Annexure-C), the period(s) of absence of Doctors who were away on foreign assignments without permission, and without any leave was treated as dies-non, but counted towards their increments and other pensionary benefits. Petitioner cites cases of Dr. Mohd Ashraf Wani and Dr. Masood Jahangir on the point of above submission. He has placed Annexure B and D on record. On these pleaded facts, petitioner prays that his period of authorised absence from 01-04-1980 to 31-03-1983 should be treated as leave without pay in terms of Government Order Annexure-A and the period of absence from 01-04-1980 to 20-02-1984 the date when he joined back in the service should be treated at par with the treatment accorded by the Government to the cases of above said two Doctors and many other doctors referred in para 6 of the writ petition. 2. Despite opportunities, respondents have not filed counter. Obviously, the writ averments and allegations are to be taken uncontroverted and deemed to be correct. However, Mr. Kaswoosa, doe not contest the facts appearing in the Government orders Annexure-A, Annexure-C and the service record Annexure-B, placed on record. Even the other two Government orders Annexure-D and E are not disputed. However, Mr. Despite opportunities, respondents have not filed counter. Obviously, the writ averments and allegations are to be taken uncontroverted and deemed to be correct. However, Mr. Kaswoosa, doe not contest the facts appearing in the Government orders Annexure-A, Annexure-C and the service record Annexure-B, placed on record. Even the other two Government orders Annexure-D and E are not disputed. However, Mr. Kawoosa, while acknowledging that the entries in the service record of the petitioner shall have to reflect the actual state of facts as reflected by the Government orders Annexure-A and C and the initial period of absence of petitioner from 01 -04-1980 to 31-03-1983 shall have to be treated on leave without pay and accordingly entered in petitioners service records, he contests the submission of petitioner™s counsel that petitioner is to be treated at par with persons similarly situated referred in para 6 of the writ petition. He contends that even if some orders were passed in favour of other doctors who were on foreign assignment on unauthorised absence that by itself would not justify that petitioner is to be treated and dealt with like-wise. 3. Mr. Jan submits that the petitioner and the persons referred in para 6 were all Assistant Surgeons of Health Department, whereas, these doctors were on unauthorised absence and had taken foreign assignments unauthorisedly yet they were treated differently from petitioner who took the foreign job after being granted leave and permission. The former were given benefit and their service on unauthorised absence has been counted towards increment(s) and other pensionary benefits. The petitioner alone has been signed out for arbitrary and unfair treatment, notwithstanding his authorised absence on leave in terms of permission and sanction of the Government (Annexure-A). Petitioner has been discriminated against and arbitrarily denied the benefit given to the other person. The action (s) of the respondents is wholly illogical, bereft of reason, unfair an violates equality clause of the construction. 4. On consideration, it, is found that the petitioner proceeded to take the employment in Iran with permission of the Government after getting sanctioned leave for a period of two years. His overstay thereafter has to be seen in the context of this authorised absence and permitted assignment. It cannot be looked at, out of the context. Dr. Mohd Ashraf Want and Dr. His overstay thereafter has to be seen in the context of this authorised absence and permitted assignment. It cannot be looked at, out of the context. Dr. Mohd Ashraf Want and Dr. Masood Aalam who had been absent unauthorisedly and had taken up foreign assignment without permission, were given better treatment in so far as their period of unauthorised absence was counted towards increments and other pensionary benefits. While the petitioner appears to have been penalised for having gone abroad with permission and on authorised leave by not counting his authorised absence towards increment(s) and other pensionary benefits. Obviously, petitioner has not been treated fairly--and even handedly. He seems to have been discriminated against and treated unjustly. After all the actions of Governmental authorities and officials have to be reasonable and treatment of its employees even handed. 5. In Sengara Singh and Ors. Vs. State of Punjab & Ors. (AIR 1984 SC 1499), several members of Police Force of Punjab were dismissed for participation in an agitation. Government of Punjab decided to review the cases of dismissed police personnel. Cases of these police personnel were screened by a Committee constituted by the State Government. As follow-up large number of these person were taken back in service and those not taken into service were left out to fend for themselves. Petitioners before the court challenged their order of dismissal. The Supreme Court observed that if the member of police force were guilty of some misconduct and indiscipline, then to condone or overlook misconduct of large number of them and to pick up few for dismissal and leave then to fend for themselves is illogical and treatment meted out to those not reinstated suffered from the vice of arbitrariness under Article 14 of the Constitution. The Court further observed: - 12. Logically the appellants must receive the same benefit which those reinstated received in the absence of any distinguishing feature in their cases. Accordingly, the appellants would be entitled to re-instatement in service......� In result, for the aforesaid reasons the petitioner succeeds. The Court further observed: - 12. Logically the appellants must receive the same benefit which those reinstated received in the absence of any distinguishing feature in their cases. Accordingly, the appellants would be entitled to re-instatement in service......� In result, for the aforesaid reasons the petitioner succeeds. Respondents are directed to reflect the period of leave for the period it is sanctioned in terms of order dated 19-01-1980 (Annexure-A) in petitioners service records and to treat petitioner at par with the doctors referred in para 6 in the matter of treatment of period from 01-04-1983 to 20-02-1984 in declaring the period as dies-non, i.e., ˜no work no pay™ but to count the period from 01-04-1983 to 20-02-1984 towards increment, pensionary benefit etc., of petitioner. Petitioner shall not be paid for the period on the principle ˜no pay no work™. Disposed of.