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2009 DIGILAW 514 (JK)

Mohd. Afzal Wani (Dr. ) v. State Of J. &K.

2009-10-29

BARIN GHOSH, MUZAFFAR HUSSAIN ATTAR

body2009
Muzaffar Hussain Attar, J. 1. "Dies-non" seeks to unveil itself in its true legal character and real contextual spirit. This Latin word has ironically suffered in its texture and legal meaning at the hands of authorities, who as per their own understanding and choice, have been giving different meaning at different times to it. 2. Webster (1913) defines "Dies-non" to mean; "A day on which courts are not held, as Sunday or a legal holiday." "cgda.nic.in" A Government of India (Ministry of Defence) Website defines "Dies-non" to mean; "Neither count as service or is a break in service." "Absence without permission. When on duty left without proper permission. While in office refuse to perform." 3. Appellant who belongs to noble calling of Medical profession even after being out of service seeks to get "Dies-non" explored for the reasons and the consequences not known. 4. Appellant remained unauthorizedly absent for about three years from the respondent-institute where he was employed. The period of unauthorized absence from duty was settled by competent authority in terms of order No. SIMS/Per/597/98-878-81 dated 21st February, 1998 (for short order of 1998). The said order is reproduced as under: "GOVERNMENT OF JAMMU AND KASHMIR S.K. INSTITUTE OF MEDICAL SCIENCES, SRINAGAR Prof. Mohammad Afzal Wani (597) Professor & Head Department of Neurosurgery, SKIMS Sub: Rejoining of duties. Ref: Approval of Honble Chief Minister (Chairman, Governing Body) conveyed vide No. 3871-CS/97 FH dated 9.10.1997 and the reference No. SIMS/Per/597/97-4900-2 dated 31.10.1997. 5. In pursuance of approval of the Honble Chief Minister (Chairman, Governing Body) and the offer made vide Nos. referred to above, your joining report dated 22.01.1998 is hereby accepted on the following conditions:- 1. That the period of your absence w.e.f 11.11.1995 to 21.01.1998 shall be treated as "Dies-non" (not qualifying for any remuneration). 2. That the period of your absence from duty shall not count towards your experience, seniority, pension benefits in line with the Government instructions contained in the rules in such matters." Director & Ex. Officio Secretary to Government" 6. That the period of your absence w.e.f 11.11.1995 to 21.01.1998 shall be treated as "Dies-non" (not qualifying for any remuneration). 2. That the period of your absence from duty shall not count towards your experience, seniority, pension benefits in line with the Government instructions contained in the rules in such matters." Director & Ex. Officio Secretary to Government" 6. Appellant before issuance of the above said order filed writ petition which was registered as SWP No. 1650/1995 in which following reliefs were sought: "a. To issue formal orders regularizing the period of absence of the petitioner w.e.f 23.5.1995 to 29.30.1995 and restrain them from altering the seniority of the petitioner and to consider him for promotion to the post of Director in view of his seniority, merit and suitability. b. Any other, writ, order or direction which this Honble Court may deem fit and proper be also be passed in favour of the petitioner and against the respondents." 7. During the pendency of writ petition SWP No. 1650/1995 and after issuance of order of 1998 appellant filed another writ petition which was registered as SWP No. 1095/1999. The reliefs sought for in the said petition are reproduced as under: i. Certiorari the condition incorporated in the letters No. SIMS/Per/597/97-4900-1 dated 31-10-1997 and No. SIMS/Per/597/98-878-81 dated 21-2-1998 to the effect that the period of absence of the petitioner which has been treated as "Dies-Non" shall not be count for experience, seniority or any other benefit, be struck down/ set aside. ii. Mandamus commanding the respondents to restore the seniority of the petitioner to his appropriate place with an intimation to the Department of Medical Education. iii. Mandamus directing the respondents that after restoring the seniority of the petitioner, consider him for promotion to the post of Director, SKIMS/ to the post of Dean as and when case of any Professor is required to be considered for such promotion/appointment and not to exclude him for such consideration on any ground whatsoever; or in the alternative. iv. Till the respondents rectify the mistake crept in the orders dated 31-10-1997 and 21-2-1998 seniority issue is sorted out, the respondents be directed not to make any promotion to the post of Director or to the post of Dean of the Medical Institute, Soura, Srinagar, in any manner whatsoever. iv. Till the respondents rectify the mistake crept in the orders dated 31-10-1997 and 21-2-1998 seniority issue is sorted out, the respondents be directed not to make any promotion to the post of Director or to the post of Dean of the Medical Institute, Soura, Srinagar, in any manner whatsoever. v. The Honble Court may pass any other order or direction which it may deem proper under the facts and circumstances of the case." 8. During the pendency of this writ petition appellant filed one more writ petition which was registered as SWP No. 1480/2002. The reliefs sought for in the said petition are reproduced as under:- i. By issuance of a writ of Certiorari or any other writ, order or direction, the following para 2 of the order No. SIMS/Per/597/98-878-81 dated 21-2-1998: 2. That the period of your absence from duty shall not count towards your experience, seniority, pension benefits in line with the Government instructions contained in the rules in such matters." be quashed; and ii. By issuance of a writ of Mandamus or any other appropriate writ, order or direction, respondents be directed: a) To treat the period of "dies-non" of the petitioner as extraordinary leave without allowances and count the said period for purposes of experience and seniority; b) To issue a final seniority list of the Professor of the Institute forthwith and show the petitioner as serial No. 2 in the said list i.e. immediately below Dr. Mehraj-ud-Din and above all others who have been appointed as Professors after the petitioner; c) To consider the case of the petitioner for appointment to the post of Director of Institute as and when the vacancy of the Director becomes available. iii. The Honble court may pass any other order of direction which it may deem proper under the facts and circumstances of the case." 9. All the three writ petitions were ordered to be listed together. Perusal of the order dated April 1st, 2005 passed in all the three writ petitions with lead petition SWP No. 1095/1999 reveals that the learned counsel for appellant had made a submission that reliefs sought for in SWP No. 1650/1995 and 1095/1999 are covered by reliefs sought for in writ petition SWP No. 1480/2002. Perusal of the order dated April 1st, 2005 passed in all the three writ petitions with lead petition SWP No. 1095/1999 reveals that the learned counsel for appellant had made a submission that reliefs sought for in SWP No. 1650/1995 and 1095/1999 are covered by reliefs sought for in writ petition SWP No. 1480/2002. Learned counsel for appellant accordingly made a submission before the Honble writ court that the earlier two writ petitions would be covered by the decision which may be rendered in SWP No. 1480/2002. Learned Single Judge in view of these submissions and after considering the matter recorded a finding that decision which would be rendered in SWP No. 1480/2002 will govern and dispose of all the three writ petitions and accordingly directed that SWP No. 1480/2002 shall be taken up for final hearing. The Honble writ court accordingly decided all the three writ petitions vide judgment dated May 3rd, 2005 resulting in dismissal of the writ petition(s). 10. The appellant filed one single appeal against the common judgment passed in three writ petitions, but when confronted with the legal position that he was required to file three separate appeals, CMP No. 120/2005 was filed by the appellant which was considered by the Court. The order dated July 7th, 2005 reveals that the learned counsel for appellant made a submission before the Court that he had prayed before the learned Single Judge that SWP No. 1650/95 and 1095/1999 be dismissed as not pressed, but despite that all the three writ petitions were decided by the common judgment. Learned counsel for the appellant made a submission before the Court that writ petition No. 1650/1995 and 1095/1999 are not pressed. It was specifically provided in the order that appeal shall survive only against judgment rendered in writ petition No. 1480/2002 and other two petitions be treated as dismissed being not pressed. It is in this factual backdrop that the appeal is being considered only in respect of judgment rendered in SWP No. 1480/2002. 11. We have heard learned counsel for appellant. Considered the matter. 12. Mr. It is in this factual backdrop that the appeal is being considered only in respect of judgment rendered in SWP No. 1480/2002. 11. We have heard learned counsel for appellant. Considered the matter. 12. Mr. M.A. Qayoom, learned counsel for appellant placed whole hog reliance on notification SRO No. 321 dated 7th December, 1995 to demonstrate that the order of 1998 is illegal as government instructions appended to Article 163 of Civil Service Regulations (for short CSR) recast vide said notification does not provide that the period of unauthorized absence from duty once settled would deprive the employee of his seniority. Learned counsel for appellant was at pains to explain while referring to the SRO 321 that in the explanation appended to government instructions whatever would not be available to the appellant has been specifically delineated therein. Learned counsel for appellant submitted that as it was not provided in the Government instructions or in the explanation that while settling the period of unauthorized absence from duty as "Dies-non", the employee would be denuded of his seniority, contrary thereto cannot be read into said government instructions and explanation appended thereto. 13. Learned counsel would thus submit that the order of 1998 directing that the period of absence from duty shall not count for experience, seniority and pensionary benefits is thus illegal and this condition contained in order of 1998 deserves to be quashed. Learned counsel also referred to notification SRO No. 514 dated 22nd November, 1999 to indicate that in the explanation appended below note-4 to Article 163, CSR, it has been specifically provided that the employee whose period of unauthorized absence from duty is settled in terms of and as "Dies-non" would lose seniority in his cadre/category by the period which is treated as "Dies-non". Learned counsel accordingly tried to convey that by providing a specific clause in notification SRO 514 about loss of seniority, it becomes clear that it was not the intention of the employer to make the employee to suffer loss of seniority at the time of issuance of notification SRO 321. Learned counsel submitted that as case of appellant is governed by SRO 321 so he is entitled to have benefit of seniority for the period which has been settled as "Dies-non". 14. Learned counsel submitted that as case of appellant is governed by SRO 321 so he is entitled to have benefit of seniority for the period which has been settled as "Dies-non". 14. Before dealing with the submissions of learned counsel for appellant, it will be appropriate to reproduce the notification SRO No. 321 dated 7th of December, 1995 and notification SRO No. 514 dated 22nd of November, 1999: "SRO-321:-In exercise of the powers conferred by proviso to section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to make the following amendments in the Jammu and Kashmir Civil Services Regulations, Volume I, namely:- In the said rules: the existing Government Instruction below Note 4 to Article 163 shall be recast as under:- Government Instruction:-No period of un-authorised leave or absence may be treated as Extraordinary Leave without allowances when a Government servant has at his credit earned leave. Where it is the intention of the competent authority not to allow the concerned Government servant any pay and allowances for the period of un-authorized absence the said period may be treated as "Dies-non" (not qualifying for any remuneration). The "Dies-non in such cases shall not disturb the title of earned leave not shall it constitute an interruption for service qualifying for pension, leave and increment. Explanation:-The import of term "dies-non" is that:- (a) It does not qualify for any remuneration (pay and allowances). (b) It does not count for pension. (c) It does not count of increment. (d) It does not cause any interruption for leave earned up to the date preceding that on which the period of "Dies-non" has commenced unless it is the intention of the competent authority to have such period of leave forfeited in which case mention about it should be made in the order itself. (e) It does not cause any interruption for the past service qualifying for pension. By order of the Government. Sd. (e) It does not cause any interruption for the past service qualifying for pension. By order of the Government. Sd. M.S. Pandit, Additional Chief Secretary (Finance)." SRO-514:-In exercise of the powers conferred by section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to direct that the following amendments shall be made in Jammu and Kashmir Civil Service Regulations Volume-I:- In the said Regulation: The existing Explanation of Government Instruction below note 4 to Art. 163 shall be recast as under:- Explanation:-The word "Dies-non", an abbreviated form of "Dies-non Juriducus means a day on which no legal business is transacted or which is not reckoned for some particular purpose. The period which is directed to be treated as "Dies-non" can not therefore be counted for service benefits otherwise available for that period. In fact, the period required or ordered to be treated as "Dies-non" is by way of concession for permitting the beneficiary thereof to have service in continuation of period before the beneficiary proceeded on unauthorized absence for a particular period Literal .meaning of "Dies-non" would boil down to mean that this period is not capable of being counted at all for purposes of possible benefits to the beneficiary Rights which have accrued to him till the date of his proceeding on unauthorized leave or rights which may accrue to him after he is allowed to join service as a result of direction that the period of absence be treated as "Dies-non" remain quite intact, but no benefit whatsoever can accrue to him as a result of, call it concession or legal fiction of construing the period of unauthorized absence as "Dies-non" under any circumstance. This period cannot count for any purpose, whatsoever. Accordingly the import of the term "Dies-non" is that:- (i) It does not qualify for any remuneration (pay and allowances), (ii) It does not count for pension, (iii) It does not count for increments, (iv) It does not cause any interruption for leave earned up to the date preceding that on which the period of Dies-non has commenced, (v) It does not cause any interruption for the past service qualifying for pension, (vi) It shall not count for experience, (vii) During "Dies-non" the concerned Government servant shall not be entitled for promotion. (viii) The concerned shall lose seniority in his cadre/category by the period which is treated as "Dies-non." By order of the Governor. (Sd.) Ajit Kumar Principal Secretary to Government, Finance Department." 15. In all the three writ petitions the appellant has not even made a whisper, not to talk of making of a lucid and candid statement as to where he was and what he was doing during the period of his unauthorized absence from duty. 16. The laws are made and institutions created not only to resolve disputes between the parties, but also to maintain and preserve the moral fabric of the society. In fact the message conveyed by all the laws whether constitutional or local laws is that the moral fabric of the society shall be maintained and shall not be permitted to be damaged. Every faith, philosophy and thought is based on one common concept that society be built on the edifice of ethics, morality and truthful values. The laws cannot be permitted to be misused and the process of the institutions, more particularly, of the courts of law cannot be allowed to be abused. Anyone who approaches the court of law for seeking settlement of the dispute raised by him is duty bound to come to the court with clean hands and make a clean breast of all the facts. Laws neither favour nor disfavour the party, but only stand by truth. 17. A Government employee whose services are governed by rules is duty bound to obey the same. The unauthorized absence from duty is a serious misconduct and on proper enquiry thereof, an employee can suffer the punishment of dismissal from services as well. The Government, it appears has devised a method to condone the misconduct of unauthorized absence from duty of an employee by applying the concept underlying "Dies-non." On the one hand the employee who has committed misconduct, without any enquiry is allowed to resume his duties and further by applying principle underlying "Dies-non" the employees title to earn leave is not disturbed neither same can constitute an interruption in services qualifying for pension, leave and increment. 18. As already stated unauthorized absence from duty is a misconduct which in a departmental enquiry can get transformed even into dismissal of the employee from the services. 19. 18. As already stated unauthorized absence from duty is a misconduct which in a departmental enquiry can get transformed even into dismissal of the employee from the services. 19. By legal fiction "Dies-non" bridges the gap of period of unauthorized absence from duty, between past and future periods of authorized service, so as to enable the employee to get benefit of earned leave as also benefit of service to qualify for pension, leave and increment on the basis of his authorized services, preceding the period of unauthorized absence from the duty. Thus "Dies-non" acts as a legal bridge to connect two periods of authorized services which are distanced from each other by void created by period of unauthorized absence from duty. 20. The Webster (1913) definition of "Dies-non" means a day on which courts are not held as Sunday or a legal holiday. It, otherwise, means a period or a day on which no legal business is transacted. "cgda.nic.in Website defines "Dies-non" to mean that it shall neither count as service, or will constitute a break in service." "Dies-non has also been defined to mean absence without proper permission; when on duty left without proper permission; while in office refused to perform." 21. It appears to us that "Dies-non" as has been defined by the above said website, is the correct definition of the said Latin expression and appears to be inconsonance with the service jurisprudence. 22. In a situation where an employee in obedience to the service rules continues to discharge his duties regularly and faithfully, is pitted against other employee who treats the same set of service rules in cruel disregard and remains unauthorizedly absent from duty, can by any standard of fairness he be equated in the matter of seeking service benefits under the same set of rules with the employee who performs duties regularly. The employee who suffers break and discontinuation in the length of his service on account of his remaining unauthorizedly absent from duty cannot be given the benefit of seniority, as the fall out of such an action would not only be illegal but would be illogical and unethical as well. Such an act will have the potential of affecting service rights of the employee who faithfully obeys the service rules. Such an act will have the potential of affecting service rights of the employee who faithfully obeys the service rules. The employee committing misconduct cannot be permitted to steal a march over another employee who faithfully obeys service rules and performs duties without fail. A concession cannot be allowed to become a bonanza, as that will encourage indiscipline in service. Law courts cannot place such an interpretation on a rule or a word, which will create illegal and immoral situations. 23. The seniority, in service jurisprudence has reference to continuous length of service. The seniority would thus be measured in terms of continuous length of service. A break caused in the continuity of service by an employee out of his own volition and by acting in cruel disregard to the service rules cannot result in continuation of service by mere condoning his misconduct and settling his period of unauthorized absence from duty by creating a legal fiction called "Dies-non." Such employee cannot get benefit of continuity in service for the purpose of seniority. The word "Dies-non" would not repair the damage caused to the continuity of the service by an employee by his own voluntary act. The "Dies-non" would not be allowed to benefit an employee to such an extent. The period of unauthorized absence from duty constitute a break in service and that period cannot be treated to be continuous period of service for the purpose of seniority. The seniority, at the time of consideration of employees for being appointed by way of promotion to the next higher post does play a vital role. The "Dies-non" can only act as a bridge between the past and future authorized period of services of an employee, but cannot transform the unauthorized period of absence from service into a regular continuous service. 24. The Blacks Law Dictionary defines seniority as under: "Seniority. 1. The preferential status, privileges, or rights given an employee based on the employees length of service with an employer. Employees with seniority may receive additional or enhanced benefit packages and obtain competitive advantages over fellow employees in layoff and promotional decisions. 2. The status of being older or senior." 25. Seniority is a condition attached to service and benefit thereunder can be gained by an employee by continuously rendering service in tune with service rules. Unauthorized absence from service would necessarily denude an employee from gaining such benefit(s). 2. The status of being older or senior." 25. Seniority is a condition attached to service and benefit thereunder can be gained by an employee by continuously rendering service in tune with service rules. Unauthorized absence from service would necessarily denude an employee from gaining such benefit(s). The SRO 321 cannot confer any such benefit on an employee who remains unauthorizedly absent from duty. 26. The notification SRO 321 is specific in its tenor and had it been intention to give benefit of seniority then it would have been specifically detailed out in the said notification SRO. The notification SRO 514 is issued only to clarify the existing position that period settled as "Dies-non" will have the affect to cause loss of seniority. The SRO does not add anything new but is only explanatory in nature. The period settled as "Dies-non" cannot thus be treated as to have the affect of continuation in length of services of the employee. An employee whose period of unauthorized absence is settled in terms of "Dies-non" even on the definition of this "Latin expression" would mean that he would certainly lose seniority for that period in his cadre/category. 27. SRO 321 on its plain language and by the expressions used therein crystallize the benefits which are to be extended to an employee whose period of unauthorized absence from service is treated as "Dies-non". The employer being conscious that seniority in law has reference with continuous length of service, has not consciously, and rightly so, extended the benefit of seniority for the period of "Dies-non" to the employee. The court cannot add anything to SRO 321 and cannot declare that the intention of the employer was to give benefit of seniority in respect of period of unauthorized absence from service to the employee, when same is treated as "Dies-non". 28. SRO 514, as already said is clarificatory and explanatory in nature. It has been clarified that the period which is treated as "Dies-non" cannot count for service benefit, otherwise, available therein. The two notification SROs are dealing with one situation which may accrue in the service career of government employees. The government cannot deal with employees covered by same circumstances in different manner, as that would give rise to an anomalous situation. It cannot be ascribed to Government that it will discriminate between the employees who constitute one single class. The two notification SROs are dealing with one situation which may accrue in the service career of government employees. The government cannot deal with employees covered by same circumstances in different manner, as that would give rise to an anomalous situation. It cannot be ascribed to Government that it will discriminate between the employees who constitute one single class. The notification SROs 321 and 514 are to be read down to make them in tune with the constitutional mandate contained in Articles 14 and 16 of the Constitution of India. Both the notification SROs thus provide that the period which is settled as "Dies-non" will not count for seniority of such an employee. 29. The seniority begets from the length of service of an employee. The period of unauthorized absence treated as "Dies-non" washes away the period of service from an employees service which is treated as "Dies-non". The said period thus cannot be treated as continuous period of service and would not count for seniority. 30. The Division Bench of this Court in case titled Dr. Ashiq Hussain v. State of J&K and ors. reported in 2004 (1) SLJ 143 has dealt with the "Dies-non" at paragraph-11, which is reproduced as under: 11."..The term "dies-non" is a shortened form of "dies non jurisdicus" which means a period during which no legal business is transacted or which is not reckoned for any purpose. Dies non is only a concession for permitting the beneficiary thereof to have subsequent service in continuation of the period of service before the beneficiary proceeded on unauthorized absence. When a period is directed to be treated as "dies-non" the period in question does not count for any service benefit which would otherwise accrue during that period, including pension, increments, experience and seniority. In that view of the matter, the learned Single Judge was not right in observing that the period of unauthorized absence is to be counted towards the experience or seniority of respondent no.4 as Associate Professor or that order dated 21.12.1995, whereby the unauthorized absence of respondent no.4 was accorded, ought to have been challenged by the appellant. The appellant was not required to challenge the order as it never adversely affected him. The appellant was not required to challenge the order as it never adversely affected him. In fact, the order ought to have been challenged by respondent no.4 because it was he who was adversely affected by it inasmuch as the period spent outside the service by him was not be counted for any service benefit and that would also include seniority and experience as Associate Professor required for promotion to the post of Professor. In this view of the matter, the order of the learned Single Judge in this regard is not sustainable in law." 31. For the reasons recorded in this judgment, we subscribe to the view taken by the Honble Division Bench in defining "Dies-non" in Dr. Ashiq Hussains case. 32. Competence of appeal is also under eclipse as principal relief sought in SWP No. 1095/1999, which is dismissed as not pressed, is in all fours identical to prayer made in SWP No. 1480/2002. However, issue having not been raised, no finding can be recorded thereon. This appeal, being meritless, is accordingly dismissed.