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2012 DIGILAW 590 (JK)

Parvez Ahmad Zargar v. State & Ors.

2012-09-19

MANSOOR AHMAD MIR

body2012
1. This petition was admitted to hearing by a Co-ordinate Bench of this Court on 21.02.2006. Pursuant to the notices issued, the respondents, on 26.04.2006, caused their appearance through counsel before the Court. They were given time to file counter affidavit. Till 04.06.2008, they did not choose to file the same. Records reveal that on 04.06.2008 the Court passed a pre-emptory order allowing four weeks' time to file counter with stipulation that in case the same was not filed within the time granted, right to file the same shall stand closed. This order, too, has failed to elicit reply from the respondents. Consequently, the matter came up for hearing without there being any rebuttals on record. 2. The case put forth in the writ petition and the facts founding the prayers made in the writ petition may be briefly summarized hereunder. 3. The petitioner, an MD in Medicine, appears to have sought, and proceeded on leave on 29.09.1995 fore-noon while he was posted as Assistant Surgeon at Sub-District Hospital, Chrar-i-sharief. The ground on which leave was sought is stated to have been the conditions then prevalent in the Valley on account of which the petitioner, according to him, had faced lot of problems. The leave application submitted by the petitioner seems to have been forwarded by the Block Medical Officer, Chrar-i-sharief to the Chief Medical Officer, Budgam vide his office No. 425 dated 09.10.1995. This is borne out by communication No. 854 dated 08.03.2000 addressed by the Block Medical Officer, Chrar-i-sharief to the Chief Medical Officer, Budgam, appended as Annexure 'C' to the petition. However, there is nothing on record to show that the leave was either granted or rejected. The petitioner joined back on 01.10.1999 before the Director, Health Services, Kashmir Division, Srinagar. The Director till then seems to have been in aestivation, inasmuch as, he endorsed a copy of the joining report submitted by the petitioner to the Chief Medical Officer, Budgam seeking a report from him, remarking that the doctor concerned is reported to have proceeded on unauthorized absence. The Chief Medical Officer, in turn, endorsed the same to the Block Medical Officer, Chrar-i-sharief. All this is borne out from annexure 'B' appended to the petition. In response, the Block Medical Officer addressed annexure 'C' to the Chief Medical Officer, referred to above. This matter seems to have stalled there. 4. The Chief Medical Officer, in turn, endorsed the same to the Block Medical Officer, Chrar-i-sharief. All this is borne out from annexure 'B' appended to the petition. In response, the Block Medical Officer addressed annexure 'C' to the Chief Medical Officer, referred to above. This matter seems to have stalled there. 4. Meanwhile, the petitioner was selected for super specialization course in Cardiology outside the Jammu and Kashmir State. The petitioner proceeded to attend the said course and, after successfully completing the same, is stated to have returned on 31.08.2002 and again submitted his joining report. This time, the Director, Health Services, Kashmir addressed a communication dated 21.09.2002 to the Financial Commissioner, Health, Family Welfare and Medical Education Department, J&K, Srinagar, referring the whole matter to the Government for further necessary action under rules. 5. The aforesaid letter clearly depicts that no action, whatsoever, had been taken by the Department against the petitioner either on his leave application or with regard to his alleged unauthorized absence. That being the admitted position, it has to have its legal inference and connotation about the subsistence of the petitioner's employment in the Health Department. 6. On 01.01.2003, the Government in the Health and Medical Education Department appears to have issued a notice published in a local daily on the subject of "unauthorized absence of Doctors from duties". 7. The Annexure appended to the notice contains the names of 32 doctors and the petitioner's name figures at serial no. 12 thereof. The petitioner appears to have responded to the notice and submitted his reply. Subsequently, annexure 'G' to the petition shows that another notice dated 18.03.2003 was published in a local daily by Dy. Director, Health Services informing all the aforesaid 32 Doctors that he had been appointed as Enquiry Officer and to contact him personally to clear their position. The petitioner responded thereto. Finally, the Government issued Order no. 983-HME of 2003 dated 09.09.2003 whereby six Doctors, named in annexure to the said order, including the petitioner, were allowed to rejoin the Department as fresh appointees as Assistant Surgeons for all practical purposes. 8. Consequent upon the issuance of aforesaid Government order, the petitioner is stated to have joined at his place of posting shown in the order, namely, District Hospital, Handwara. 8. Consequent upon the issuance of aforesaid Government order, the petitioner is stated to have joined at his place of posting shown in the order, namely, District Hospital, Handwara. However, after joining the Department, the petitioner made a representation to the Minister for Health and Medical Education that his period of absence may be treated as dies-non. The said representation was sent by the Government to the Director, Health Services for his comments. The Director on 10.2.2005 recommended that in view of the circumstances explained by the doctor in his application, the request put forth by him requires to be considered on its proper merits. 9. The grievance projected by the petitioner in this petition is that the representation filed by the petitioner has no doubt been entertained by the respondents but till date no decision has been taken in the matter. The case of the petitioner in nut shell, as put in paragraph 19 of the writ petition, is that he had proceeded on leave and after availing the same, he reported back on duty. Therefore, he had to be permitted to rejoin his duties, but not as a fresh appointee and his period of absence had to be treated as leave whatever kind due to him, and that he has to be given all the consequential benefits viz. promotion, increment etc. That having not been done and instead he having been appointed as a fresh appointee for all practical purpose, the order dated 9.9.2003 is liable to be quashed with a direction to the respondents to treat him in continuous service and to decide his period of absence as leave of whatever kind due to him etc. 10. The petitioner has placed on record a photocopy of Government order no. 486-HME of 2000 dated 04.08.2000 whereby one Dr. Nisar Ahmad Gasi, Assistant Surgeon, too, was allowed to rejoin the department as a fresh appointee. The allegation, as depicted in the order, against the said doctor was similar to the one leveled against the petitioner. Subsequently, Government has passed order No. 1113-HME of 2003 dated 20.10.2003 according sanction to the treatment of period of unauthorized absence in favour of said Dr. Nissar Ahmad Gasi, Assistant Surgeon with effect from 25.02.1996 to 04.08.2000 as leave whatever kind due to him. It was further ordered that the remaining period for which leave was not due shall be treated as 'dies-non'. Nissar Ahmad Gasi, Assistant Surgeon with effect from 25.02.1996 to 04.08.2000 as leave whatever kind due to him. It was further ordered that the remaining period for which leave was not due shall be treated as 'dies-non'. 11. As narrated at the out-set, the respondents have not chosen to file any counter despite the fact that from the date of admission of the petition to hearing on 21.06.2006, more than six years and nine months have elapsed. Therefore, the averments made in the petition and as depicted by the documents appended therewith have remained unrebutted and un- controverted. In such circumstances, legally the factual allegations made in the writ petition have to be taken to have been accepted by the respondents. 12. The only question that needs to be determined is, in the peculiar facts and circumstances of the case, what relief can be granted in favour of the petitioner at this stage. That controversy stands shortened by the respondents themselves, inasmuch in the case of Dr. Nisar Ahmad Gasi, the Government has ordered treatment of his period of absence for which no leave was due as 'dies-non'. In fact, the petitioner through his representation, duly recommended by respondent No. 2, had not sought anything more than that. 13. It is the cardinal principle of law that even where the factual allegations made in a petition have not been rebutted, the Court is still required to see whether the petitioner has been able to make out a case for the relief prayed for by him. The undisputed facts in the present case are that the petitioner had proceeded on leave while he was posted at Sub-District Hospital, Chrar-i-sharief. His leave was not rejected. Admittedly, no action was taken either against him or on his leave application. He returned and duly joined before the Director, Health Services, Kashmir. But no action even thereafter was taken, despite the fact that the Director, Health Services referred his case to the Government. The Government, if it was of the opinion that the petitioner had remained on unauthorized absence, ought to have held an enquiry and made an order against the petitioner warranted under the Rules. The respondents neither terminated the services of the petitioner, nor held him to have abandoned his services. Respondents have also discriminated against the petitioner in comparison to Dr. The respondents neither terminated the services of the petitioner, nor held him to have abandoned his services. Respondents have also discriminated against the petitioner in comparison to Dr. Nisar Ahmad Gasi, who was similarly placed, but was allowed benefit of his past service. 14. Admittedly, the petitioner has not discharged any functions or performed any duties during the period he remained on leave or was unauthorized absent. A Government servant earns his salary and increments in lieu of work performed by him. Petitioner, therefore, cannot claim salary, arrears of pay or increments. However, he would, at least, be entitled to be treated at par with Dr. Nisar Ahmad Gasi, who was similarly situated and in whose case the Government has ordered treatment of his period of absence on leave and the period for which no leave was due as 'dies non'. The petitioner is held to be entitled to, at least, an equal treatment. 15. for all what has been discussed above, this petition is allowed by directing the respondents to consider the case of the petitioner for treating his period of absence from the date he had proceeded on leave from Sub-District Hospital, Chrar-i-Sharief, till the date he was actually allowed to join at District Hospital, Handwara, pursuant to Government order dated 09-09-2003, on the analogy of similarly placed doctors, more particularly that of Dr. Nisar Ahmad Gasi, as on leave whatever due to him under rules, and the period for which no leave was due as ‘dies non’ within a period of six weeks from today. 16. Disposed of along with CMPs.