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2009 DIGILAW 695 (JK)

Aijaz Muzamil (Dr. ) v. State Of J. &K.

2009-12-31

MUZAFFAR HUSSAIN ATTAR

body2009
1. This case was heard on 07.12.2009. Mr. Magray, learned Sr.AAG sought time for production of record. Till date record has not been produced. 2. Petitioner was appointed Assistant Surgeon vide Government Order No.383-HME of 2001 dated 6.6.2001. Petitioner, when he was posted at Sub District Hospital Chadoora, Budgam, proceeded on thirty days earned leave, which leave was sanctioned w.e.f 30.08.1993 vide Order No.ES-3/1-3119/S341-42 dated 29.07.1993. Petitioner failed to join his duties after the expiry of leave and, thus, remained on unauthorized absence from duty. Petitioner was issued show cause notice to explain as to why action as warranted under Article 128 of Jammu and Kashmir Civil Service Regulations may not be initiated against him. The show cause notice failed to evoke any response and instead petitioner sent a telegram seeking extension in his leave. 3. Petitioners services were terminated for having remained unauthorisedly absent from duty vide Government Order No.246-HME of 1996 dated 3.4.1996 w.e.f 30.08.1993, from the date he had remained unauthorisedly absent from duties. Petitioner submitted an application to respondent No.1 in July 1999 and requested that he be allowed to join the services. In response to the application of the petitioner Administrative Officer, Directorate of Health Services, Kashmir Division vide his Communication No.ES-3/1-3119/986 dated 23.07.1999 informed the petitioner that he cannot be permitted to rejoin his duties as his services have been terminated vide Government Order No.246-HME of 1996 dated 3.4.1996. Petitioner thereafter applied to the Government and requested them to extend to him benefit of Government Order No.l83-HME of 2000 dated 07.04.2000, which Government order, inter alia, provided that in such type of cases the applicant be permitted to join and treated as fresh appointee. The Government, accordingly, issued Government Order No.383-HME of 2001 dated 6.6.2001 wherein and whereunder petitioner was allowed to rejoin the department as a fresh appointee (Assistant Surgeon) for all practical purposes and was posted in District Hospital, Budgam. 4. The Government, accordingly, issued Government Order No.383-HME of 2001 dated 6.6.2001 wherein and whereunder petitioner was allowed to rejoin the department as a fresh appointee (Assistant Surgeon) for all practical purposes and was posted in District Hospital, Budgam. 4. This petition is filed by the petitioner wherein he has prayed that by issuance of a writ of mandamus or any other writ or direction respondents be directed to treat the period of absence of the petitioner as Dies-non in the same manner in which the period of absence of other Doctors has been treated in terms of Government Order No.691-HME of 2000 dated 12.10.2000 and other Government orders, mention whereof has been made by the petitioner in para 13 of the writ petition. 5. On notice respondents have filed objections. In the objections it has been stated that the petitioner is not entitled to any benefit as he has been allowed to join as a fresh appointee. It has been also pleaded that petitioner having opted for and accepted his position as a fresh appointee, he is estopped from seeking any benefit, that too after remaining contended for a period of seven years, as writ petition has been filed in the year 2008. Heard learned counsel for the parties. Considered the matter. 6. Learned counsel for the parties argued in tune to their respective pleadings. 7. Mr. M.A. Qayoom, learned counsel for the petitioner referred to various orders placed on the writ record to demonstrate that the period of unauthorized absence from duty in case of number of doctors has been ordered to be treated as Dies-non by the Government. Learned counsel also referred to Government Order No.l45-HME of 2008 dated 23.10.2008 to show that in the case of two Doctors namely Dr. Nisar Ahmad Gasi and Dr. Hakim Vaqar the period of unauthorized absence from duty has been ordered to be treated as on leave, whatever kind due, and remaining period has been ordered to be Dies-non. 8. A person, when appointed to service, though his appointment originates from a contract, but after being appointed to service he attains a status and his service conditions are governed by the service rules. The concept of Dies-non/ or treating the period of unauthorized absence from duty of a Government employee on leave, whatever kind due to him, is available only to an employee who continues to be in service. The concept of Dies-non/ or treating the period of unauthorized absence from duty of a Government employee on leave, whatever kind due to him, is available only to an employee who continues to be in service. These service benefits are not available to a person who has ceased to be a Government employee for the reason of his having been terminated from the service. The service rules occupying the field do not provide for any provision to extend any such benefit to an employee who is out of service and has ceased to be a Government servant. The petitioner of his own has placed on record the communication dated 23.07.1999 (annexure-C) which communication reveals that the petitioner had information on the said date of the fact that his services were terminated w.e.f 3.4.1996. The petitioner being contended with the said Government order did not challenge the same and accepted it. Petitioner, thus, was not a Government servant w.e.f 3.4.1996. Petitioner thereafter applied to the Government and requested for extending the benefit of Government Order No.l83-HME of 2000 dated 07.04.2000 to him. The Government accepted the request of the petitioner issued Government Order No. 383-HME of 2001 dated 6.6.200l and allowed the petitioner to rejoin the department as a fresh appointee. Petitioner has not and in the facts and circumstances of this case could not be aggrieved of the said Government order. Petitioner remained satisfied and contended with the said Government order right up to year 2008, when he ventured to file this writ petition. 9. Petitioner has placed on writ record Government Orders and has prayed for issuance of direction to the respondents to give him like treatment. Perusal of the said Government orders reveal that in some cases the period of unauthorized absence from duty has been treated as Dies-non and in some cases the said period has been treated as Dies-non and also on leave whatever kind due. The treatment so meted out to the said Doctors, without commenting upon the merits of such Government Orders, has been given to them as they continued to be members of the Health Service and they were not dismissed/terminated from service. Such Doctors constituted a different and distinct class. Petitioner was terminated from the service and he formed a different and distinct class in himself. Such Doctors constituted a different and distinct class. Petitioner was terminated from the service and he formed a different and distinct class in himself. The respondents cannot be directed to give same treatment to the petitioner which has been given to those Doctors who continued to remain in service. Issuance of such a direction cannot be countenanced in law as no writ can be issued to direct the Government to treat unequals equally as that would be violative of constitutional guarantees as contained in Article 14 of the Constitution. The writ petition in all fours is meritless. 10. Perusal of Government Order No.l45-HME of 2008 dated 23.10.2008 do reveal that two Doctors who were treated as fresh appointees like the petitioner, their period of unauthorized absence from duty has been treated as Dies-non and leave whatever kind due to the extent of leave due. The said Government order on the face of it is illegal. An illegal benefit has been conferred on the said Doctors. The Doctors to whom the said Government Order relates in law were treated as fresh appointees and the period of unauthorized absence from duty could have not been treated to be either as Dies-non or as leave whatever kind due. The authorities have breached the rules occupying the field with impunity. For what reasons and in which circumstances the said Government Order has been issued nothing is forth coming. The petitioner, however, cannot seek same benefit as no direction can be issued to respondents to repeat the wrong which has been committed by them. 11. Article 14 and 16 of the Constitution of India are possessed of positive traits. These provisions of constitution cannot be invoked for issuing direction for committing a wrong. 12. Petitioner, who was contended with fresh appointment order, it appears has been embolden by the blunders and mistakes committed by some of the executive authorities and it appears that it is for this reason that he has filed this writ petition. 13. Petitioner is estopped from seeking relief as sought in the writ petition. The petitioner for all purposes and intendment is an appointee in the Government service in terms of Government Order No.383-HME of 2001 dated 6.6.2001, as such, is not entitled to seek reliefs from this Court for which petition is filed. 14. For the above stated reasons this petition being meritless is dismissed.