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2011 DIGILAW 360 (JK)

Abdul Qayoom Shah v. State & Ors.

2011-07-22

MUZAFFAR HUSSAIN ATTAR

body2011
(Oral) 1. Petitioner was appointed as Assistant Surgeon in the State Health Services Department way back in the year 1982. Petitioner applied for grant of earned leave for a period of sixty days, which was granted in his favour w.e.f. 4th September, 1995. The petitioner, after expiry of sixty days sanctioned leave, did not rejoin his duties. Petitioner, on 12th June, 2000 approached Directorate of Health Services Kashmir with request that he be permitted to rejoin his duties. The petitioner had remained away from duties for a period of four years nine months and fourteen days from 4th November, 1995, the date on which he was scheduled to resume his duties after the expiry of sanctioned leave. The case of the petitioner was considered by the Government in terms of paragraph-C of Government Order No. 483-HME of 2000 dated 4th August, 2000 and petitioner was allowed to join as fresh appointee. The petitioner, after joining his services approached to the respondents and requested them to treat his period of unauthorized absence from duties as dies-non, and/or as leave whatever kind due to him. The petitioner also approached this Court by filing SWP No. 945/2006 which was disposed of by this Court vide its order dated 4th December, 2006 and respondents were directed to consider the petitioner's representation which may have been or may be filed within two weeks for redressal of his grievances with due regard to the Government Order which was mentioned in the said judgment. Petitioner was given liberty to re-agitate the matter afresh if cause survives. 2. The Government vide Government Order No. 760-HME of 2007 dated 12th November, 2007, considered the claim of the petitioner and rejected the same. It is this order, which is called in question in this writ petition, inter-alia on the ground that similarly circumstanced persons have been given benefit of continuous service and their period of unauthorized absence from duties have been treated either on leave due to them or diesnon. 3. On notice issued, respondents have filed reply affidavit/objections, in which the facts which have been detailed out hereinabove have been mentioned. It has been stated that the petitioner having accepted the Government Order No. 483-HME of 2000 dated 4th August, 2000, he can not turn round and seek a different benefit. 3. On notice issued, respondents have filed reply affidavit/objections, in which the facts which have been detailed out hereinabove have been mentioned. It has been stated that the petitioner having accepted the Government Order No. 483-HME of 2000 dated 4th August, 2000, he can not turn round and seek a different benefit. Respondents have not, however, dealt with the claim of the petitioner in respect of those persons who are said to be similarly circumstanced with him and who have been given a different treatment and thus the petitioner's claim of having been allegedly subjected to invidious discrimination has remained unanswered. 4. Heard learned counsel for the parties. Considered the matter. 5. Learned counsel for the petitioner submitted that the similarly circumstanced persons more particularly one Dr. H. Vaqar Ahmad was given the benefit which was earlier given to one Dr. Gasi Nisar Ahmad as his period of unauthorized absence from duty has been treated as leave whatever kind due to him, and remaining period was ordered to be treated as diesnon. The Government passed Government Order No. 145-HME of 2008 dated 23rd of October, 2008, copy whereof was produced by learned counsel for the petitioner during the course of arguments and same is ordered to be taken on record, and it was submitted that the petitioner being similarly circumstanced is to be given similar treatment. Learned counsel submitted that it is not only Dr. Vaqar Ahmad, but many such doctors whose orders have been placed on writ record, have been given same treatment. Learned counsel submitted that the impugned order in view of the aforementioned facts is unsustainable in law and deserves to be quashed and accordingly prayed that respondents be directed to give similar treatment to the petitioner which was given to the similarly circumstanced persons. 6. Mr. A. M. Magray, Sr. AAG, on the other hand submitted that writ petition is not maintainable as the petitioner had left the job when his services were most needed in the State and as a measure of concession, the petitioner and like persons were allowed to join as fresh appointees. Learned counsel submitted that the petitioner having accepted the order dated 4th August, 2000, in terms of which he was allowed to join his services as fresh appointee, is estopped now to seek the relief as is sought in this writ petition by him. Learned counsel submitted that the petitioner having accepted the order dated 4th August, 2000, in terms of which he was allowed to join his services as fresh appointee, is estopped now to seek the relief as is sought in this writ petition by him. Learned counsel further submitted that if a wrong is committed by any State authority that can not become a ground for giving the similar treatment to the petitioner as that can not be the mandate of Article 14 of the Constitution. 7. The petitioner has undergone training in the Government Medical College, Srinagar and graduated from the college which is being run on funds provided from public exchequer. The petitioner was substantively appointed as Assistant Surgeon in the State Health Services Department. The petitioner's service are governed by statutory rules. The petitioner has protection available to him in terms of Article 311 of the Constitution of India read with Section 126 of the Constitution of Jammu and Kashmir as also provisions as contained in the Jammu and Kashmir Civil Services (Classification Control and Appeal) Rules, 1956. The petitioners services could be terminated in accordance with mandate as enshrined in the aforementioned Constitutional and statutory provisions. 8. Though the statutory protection were available to the petitioner being permanent employee of the State Government but he in turn was also duty bound to follow the mandate of statutory rules, inasmuch as he, could not desert the post and leave his services, observing the same rules in breach. 9. A specific question was asked to Mr. Sofi, as to where petitioner was stationed for a period of four years nine months and fourteen days. The learned counsel on the instructions of his client stated that he had taken employment in Saudi Arabia. 10. In the leave application which is part of the writ record, the ground on which leave was sought was for investigation and treatment and this leave was sought for a period of sixty days which was sanctioned in his favour. 11. The topography of State of Jammu and Kashmir is complex and some inhabited areas are located at such distant places wherefrom it is very difficult for people to reach to towns and cities for getting medical treatment. 11. The topography of State of Jammu and Kashmir is complex and some inhabited areas are located at such distant places wherefrom it is very difficult for people to reach to towns and cities for getting medical treatment. The State Government has been spending huge money on training of the doctors with the avowed purpose of making available service of trained doctors to the people who are residing in the State. 12. What is pleaded at para-3 of the writ petition, is notice as under: - "That after availing of the leave for two months petitioner could not join back his duties due to prevailing turmoil as well as because of unavoidable and domestic reasons and health grounds and accordingly applied for extension of leave to the respondents from time to time." 13. The perusal of the said pleading reveals that petitioner after availing the leave for two months could join back his duties due to turmoil as well as because of unavoidable and domestic reasons and health grounds and accordingly applied for extension of leave to the respondents from time to time. This averment which is supported by an affidavit in view of the statement made at bar by learned counsel for the petitioner is false and untrue. The petitioner was working in Saudi Arabia, 14. Learned counsel for the petitioner was specifically requested to assist the Court as to whether petitioner's leaving his job in the State of Jammu and Kashmir and taking employment in Saudi Arabia would constitute abandonment of services. Learned counsel was also specifically requested to State as to whether the petitioner had sought permission from the State Government and Central Government for taking employment outside the country. The learned counsel in respect of abandonment of services stated that petitioner having reported back for duties in the year 2002 so leaving job would not constitute abandonment of service. 15. The learned counsel further submitted that because of abnormal circumstances into which the State more particularly Kashmir was landed into, the petitioner was forced to leave the State. 16. As already stated in view of the pleadings of the petitioner at paragraph-3 of the writ petition, same is not correct and true statement of fact. Even in the writ petition it is no where spelt out as to what were the reasons which compelled him to leave the State. 16. As already stated in view of the pleadings of the petitioner at paragraph-3 of the writ petition, same is not correct and true statement of fact. Even in the writ petition it is no where spelt out as to what were the reasons which compelled him to leave the State. The statement made when read in conjunction with paragraph-3 of the writ petition and the leave application which is placed on writ record, shows that there was no such urgency involved in the case of the petitioner which would force him to leave the State and a concocted story is being put forth to hoodwink process of administration of justice. 17. The abandonment of services, in service jurisprudence is recognized and in the aforementioned facts and circumstances of the case, it is held that petitioner has abandoned his services. To ascertain as to whether employee has abandoned his services, the intention is to be gathered from surrounding circumstances. The petitioner sought earned leave for sixty days on a false ground, he deserted the post and took up employment in a different country. The very fact that he took employment in a different country without informing his employer and without seeking permission of competent authority would show his intention of abandoning his services and deserting the post on which he was appointed by the State of Jammu and Kashmir. 18. In the facts and circumstances of this case, it is held that the petitioner had abandoned his post, the petitioner betrayed the trust reposed in him and ditched his people when his services were most required by them. 19. The instances which are quoted by the learned counsel for the petitioner can not thus become a basis for meting out same treatment to him. 20. The State Government has infact conferred a benefit on the petitioner by allowing him to rejoin as fresh appointee when as a matter of fact even as on date there are MBBS graduates and post-graduates available who are jobless. 21. This writ petition requires to be dismissed on another ground. The laws are made and institutions are created to maintain the moral fabric of the society. The process of the Court of law can not be allowed to be manipulated and maneuvered on the basis of pleadings which are false. 22. Division Bench of this Court in case titled Dr. Mohammad Afzal Wani Vs. The laws are made and institutions are created to maintain the moral fabric of the society. The process of the Court of law can not be allowed to be manipulated and maneuvered on the basis of pleadings which are false. 22. Division Bench of this Court in case titled Dr. Mohammad Afzal Wani Vs. State of J&K and Ors reported in 2009(11) SLJ 449 has observed as under:- "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. Infact 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 law cannot be permitted to be misused and the process of the institutions, more particularly, of the court of law can not be allowed to be abused. Any one 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 made a clean breast of all the facts. Laws neither favour nor disfavour the party, but only stand by truth." 23. For the above stated reasons this petition is found meritless and is accordingly dismissed.