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2009 DIGILAW 604 (JK)

Mohd. Yaseen Shah v. State Of J. &K.

2009-12-03

MUZAFFAR HUSSAIN ATTAR

body2009
1. Government order No. 286-HME of 1995 dated 12.6.1995 has the effect of denying petitioner seniority, pay, allowance and other benefits and is sought to be quashed to that extent. 2. It is further prayed that by issuance of writ of Mandamus petitioner be declared to be entitled to get all service benefits including seniority, pay, allowance, etc. 3. Mr. Haqani submitted that petitioner has retired on superannuation from service on 31.10.2000. 4. Objections have been filed by respondents. 5. Heard learned counsel for parties. Considered the matter. 6. Petitioner was working as Extension Educator in the Health and Family welfare Department. Petitioner absented from duty without any permission from the competent authority w.e.f February, 1975. While petitioner was unauthorizedly absent from duty, a committee constituted by the Government, it appears, recommended him for promotion to the next higher post. Petitioner submitted his joining report on 17.10.1988, but the Director Family Welfare refused to allow him to join and sought instructions from the Administrative Department on the ground that the petitioner has remained unauthorizedly absent from duty for long 13 years. He was not allowed to resume his duties. He approached this Court by filing SWP No.1051/1989 and this Court in terms of Order dated 25.7.1989 directed the Government to allow him to join on the post and the salary be also paid to him. 7. Thereafter, the contempt petition was filed and matter was examined by the competent authority with the consultation of Law Department and it was decided that petitioner be allowed to rejoin his duties prospectively without claiming any seniority and other service benefits for the period, he had remained unauthorizedly absent with effect from February, 1975 to the date of passing of the order. Petitioner submitted an undertaking duly attested by the 1st Class Magistrate to the effect that in the event of his being allowed to rejoin in the Department, he shall not claim any seniority, pay, allowances and other service benefits for the period he had remained on unauthorized absence. Government Order No. 286-HME of 1995 dated 12.6.1995 was accordingly issued and it is in this backdrop that the petitioner was allowed to resume his duties. 8. Learned counsel for petitioner submitted that petitioner was entitled to receive salary at least from 17.10.1998, when he submitted his joining report and his seniority benefits could be also extended to him. Government Order No. 286-HME of 1995 dated 12.6.1995 was accordingly issued and it is in this backdrop that the petitioner was allowed to resume his duties. 8. Learned counsel for petitioner submitted that petitioner was entitled to receive salary at least from 17.10.1998, when he submitted his joining report and his seniority benefits could be also extended to him. Learned counsel further submitted that as the petitioner has now retired on superannuation, he would be entitled to get higher pensionary benefits and also salary from the 17.10.1988 onwards. Learned counsel has also referred to some communications and representations placed on writ record by way of filing of application to demonstrate that recommendations to this extent were also made by the Director Family Welfare. 9. Mr. Magray, learned Senior Additional Advocate General appearing for respondents submitted that petitioner has remained unauthorizedly absent from duty for long 13 years, was not even entitled for being allowed to resume his duties. But as the undertaking was given by the petitioner that he will not claim any past service benefits, Government order was passed. Learned counsel further submitted that the earlier writ petition filed by the petitioner seeking certain reliefs having not been pressed, the reliefs sought for in this writ petition cannot be claimed by the petitioner now and it would be deemed that he has relinquished the said reliefs. 10. When a Government employee unauthorizedly absents from service and commits misconduct, he is liable to be dealt with in accordance with the Rules/Government orders occupying the field. On a regular enquiry, a delinquent official can even suffer dismissal from service for having remained unauthorizedly absent from duty. 11. Petitioner remained unauthorizedly absent from the duty for long 13 years. The writ petition filed by him in the year 1989 was not pressed by him. Resultantly, the relief sought in the writ petition by the petitioner would be deemed to have been given up by him. Had the petitioner pressed the relief sought in the writ petition filed in 1989, the judgment would have decided the fate of the case of the petitioner. 12. Petitioner filed an undertaking that he will not claim any seniority, pay, allowances and other service benefits for the period he had remained unauthorizedly absent from service. Had the petitioner pressed the relief sought in the writ petition filed in 1989, the judgment would have decided the fate of the case of the petitioner. 12. Petitioner filed an undertaking that he will not claim any seniority, pay, allowances and other service benefits for the period he had remained unauthorizedly absent from service. There is not even a whisper in the writ petition not to talk of taking any substantial ground as to how and in which circumstances the undertaking was given by the petitioner. The undertaking given by the petitioner is, thus, held to have been given voluntarily. The petitioner who had remained unauthorizedly absent from duty for long 13 years was being allowed to join the post and it appears that petitioner must have felt satisfied that despite serious misconduct, he could secure his job and in these circumstances, he furnished an undertaking. 13. Even otherwise, petitioner from February, 1975 upto 12th June, 1995 when in pursuance of the said Government order joined the service would not be entitled to any service benefit. As allowing any such benefit would be placing premium on the misconduct committed by him. The other employees who continued in service and in faithful obedience to service Rules discharged their duties would suffer if all the benefits sought by the petitioner are allowed to him, despite having remained unauthorizedly absent from duty on his own volition. No credible explanation is forthcoming as to what the petitioner was doing for long 13 years. 14. Allowing the writ petition, in these circumstances, would not only be illegal but would be immoral as well, as many employees would suffer on account of consequences which will flow from such an action. 15. The recommendations made by the authorities have no statutory force and do not cloth the petitioner with any right in law. 16. This petition is an afterthought and a feeble attempt is made on the part of the petitioner to try to seek something more than what he has got in terms of the Government order No. 286-HME of 1995 dated 12.6.1995. Petitioner, on the face of the material available on the record, is precluded from filing petition. 17. For the above stated reasons, this petition is accordingly dismissed.