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2013 DIGILAW 680 (JK)

Atta Mohammad Shah v. State Of J&K

2013-11-25

ALI MOHAMMAD MAGREY

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1. Petitioner, consequent upon his selection by J&K Public Service Commission, vide Government Order No. 811/G/1982 dated 10th November 1982, was appointed as Assistant Surgeon. He proceeded on 30 days' leave from 28th March 1988 and after availing said leave, he extended his leave by further period of 60 days, to which sanction was not granted in view of shortage of doctors. Petitioner was asked to resume his duties but he did not resume his duties and continued to remain absent even after expiry of 60 days, for which he had earlier applied. Petitioner was relieved from Medical College, Srinagar, with a direction to report to Director, Health Services, Kashmir. Petitioner, after having been relieved from Medical College, Srinagar, continued to remain on unauthorized absence and did not join Health Department. He remained absent from 1988 to 1999. It was on 14th October 1999 that a final show cause notice was issued by respondent department to petitioner regarding his unauthorized absence and asked to reply within 21 days. Petitioner appears to have responded to show-cause notice dated 14.10.1999. The respondent department, after that, considered petitioner's case on the lines of Government Order No. 183-HME of 2000 dated 07.04.2000, whereby it is provided that in such type of cases, the applicant be permitted to join but should be treated as "fresh appointee", followed by Government Order No. 473-H&ME of 2000 dated 7th August 2000, appointing petitioner as a "fresh appointee" (Assistant Surgeon) and posted in Sub District Hospital, Kulgam. 2. Petitioner has now come up with writ petition on hand on the grounds that while working as Assistant Surgeon in respondent department he on 28.03.1988 proceeded on 30 days' leave and thereafter sought its extension by 60 days. The petitioner also states in his petition that he submitted so many applications to Principal for extension of his leave and that he believed that leave might have been granted/extended in his favour. It is also made mention of that Principal/Dean vide No. GS-aCR/290-94 dated 16.5.1998 had allegedly directed petitioner to resume duties forthwith which fact came to his knowledge through a show cause notice issued by respondent no. 1 vide No. DIPK. No. 5498-99 dated 14.10.1999. On some improvement, according to petitioner, in the situation of Kashmir, he filed an application to respondent no. 1 vide No. DIPK. No. 5498-99 dated 14.10.1999. On some improvement, according to petitioner, in the situation of Kashmir, he filed an application to respondent no. 1 on 31st May 1999, to allow him to join his duty as his services had neither been terminated nor the post filled and sought same treatment as given to similarly circumstanced doctors. It is averred that instead of allowing petitioner to join the service, respondent no.1 issued show cause notice on 14th October 1999, asking him to show cause within 21 days, to which petitioner filed his Reply on 28th October 1999. It is stated that petitioner vide Government order No. 495-HME of 2000 dated 7.8.2000, was allowed to rejoin the service, in which a stipulation was kept that his appointment shall be treated as fresh appointment. It is also averred that petitioner was left with no option but to rejoin the duty in terms of order dated 7.8.2000. Petitioner also maintains in his petition that vide Government order No. 654-HME of 2001 dated 17.09.2001, he came to be promoted as Consultant Pediatrics. A representation on 14.08.2012, according to petitioner, was made by him to respondents for restoring the service break and treating him as an appointee from September 1982 in the same manner as has been applied in respect of other similarly circumstanced doctors. It is pleaded that vide letter No.Est/3/1-133/2304 dated 28.09.2012, it has been informed that petitioner was initially appointed as Medical Officer in respondent department and after remaining on unauthorized absence, he was allowed to rejoin the department as "fresh appointee" as Medical Officer vide Government Order N0.495-HME of 2000 dated 07.08.2000 and was posted at SDH Kulgam and that thereafter petitioner was appointed as Consultant Pediatrics. Respondent no.1, according to petitioner, vide letter No. HD(Gaz)Gen-174/2012 dated 31.01.2013 has conveyed that petitioner's case is not covered under rules. According to petitioner, his pension case has not been sanctioned by respondents, as such, feeling aggrieved of Government order dated 7.8.2000 and letter dated 31.01.2013. Respondent no.1, according to petitioner, vide letter No. HD(Gaz)Gen-174/2012 dated 31.01.2013 has conveyed that petitioner's case is not covered under rules. According to petitioner, his pension case has not been sanctioned by respondents, as such, feeling aggrieved of Government order dated 7.8.2000 and letter dated 31.01.2013. Petitioner on the strength of grounds urged in the petition, beseeches following relief: i) Certiorari quashing Government Order No. 475-HME of 2000 dated 7.8.2000 in so far as it treats petitioner as a fresh appointee and also quashing Letter No. HD (Gaz)Gen-174/2012 dated 31.01.2013; ii) Mandamus commanding respondents to declare that petitioner's case cannot be dealt with in terms of Government Order No. 183-HME of 2000 dated 7.4.2000; iii) Direction directing respondents to treat the period of absence of petitioner between 27.4.1998 till 7.8.2000 as dies non under and in terms of Article 163 of J&K CSR read with SRO 321 of 1995; iv) Further appropriate writ commanding respondents to reckon petitioner's previous service and unauthorized absence for computation of pension benefits and pay him the pension accordingly as has been done in cases of similarly circumstanced doctors. 3. Heard learned counsel for petitioner and gone through the pleadings and documents placed thereon. 4. Mr. M.R. Thakur, learned counsel for 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 and that in case of many doctors' period of unauthorized absence from duty has been ordered and treated as on leave, whatever kind due, and remaining period has been ordered to be dies-non. 5. Petitioner, to buttress his claim, has placed with his writ petition government orders and has prayed for issuance of direction to respondents to give him like treatment. Perusal whereof reveal that in some cases the period of unauthorized absence from duty has been treated as dies-non and in some cases, said period has been treated as dies non and also on leave whatever kind due. Perusal whereof reveal that in some cases the period of unauthorized absence from duty has been treated as dies-non and in some cases, 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 member of the Health Services and have different set of facts and circumstances, not in commensuration with the set of facts and circumstances projected by petitioner in the writ petition on hand. 6. 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 and/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 abandoned the duty for longer spell of time and ceased to be a government employee for the reason of his having been unauthorizedly absent. In the present case, petitioner remained unauthorizedly absent for long 11 years. After that his case was considered and he was appointed vide Government Order No. 473-H&ME of 2000 dated 07.08.2000 as a "fresh appointee". Petitioner, after 13 years of his fresh appointment in respondent department, has now come up with writ petition on hand seeking quashment of his appointment order qua treating him as a "fresh appointee". 7. The writ petition on hand suffers from vice of delay and laches, that is the sole ground only on which it merits dismissal. Petitioner did not choose to raise a little finger against the appointment order dated 07.08.2000 qua "fresh appointee" for long 13 years, by throwing challenge to the same. It is not appelable to a judicial conscience, which is an embodiment of reasoning, that petitioner, who absented himself from the year 1988 and remained absent for long more than 11 years, did not come forward to tender any explanation for his absence. It is not appelable to a judicial conscience, which is an embodiment of reasoning, that petitioner, who absented himself from the year 1988 and remained absent for long more than 11 years, did not come forward to tender any explanation for his absence. It is only after 11 years i.e. in the year 1999, when a show cause notice was issued to him, to which he responded and consequently his case as a "fresh appointee" in terms of Government Order No. 183-HME of 2000 dated 07.04.2000, was considered and appointment order issued in his favour. The said Government Order No. 183-HME of 2000 dated 07.04.2000, inter alia, provides that in such type of cases, including one on hand, the applicant be permitted to join but should be treated as "fresh appointee". The petitioner in the present case as well on the same lines, on which similarly situated persons have been considered, was permitted to join and appointed as a "fresh appointee" 13 years back. 8. Petitioner, after 13 years, has come before this Court with writ petition on hand, throwing challenge to his appointment order, that has been issued in the year 2000, in so far as it relates to treating him "fresh appointee", without giving any sufficient and material reason for such inordinate delay and laches. The Apex Court as regards such delay has held that such writ petitions are liable to be dismissed when there is inordinate delay. It would be profitable to reproduce the relevant portion of paragraphs 14 and 19 of the judgment hereunder, passed in case State of Maharashtra v. Digambar [ 1995 (4) SCC 683 ]: "......Thus in our view, persons seeking relief against the state under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the court for grant of such discretionary relief, therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such a laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. Powers of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even it is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblame-worthy conduct of the person seeking relief, and the court refused to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct." 9. In case Sudhi Vishnu Panvalkar v. Bank of India, [AIR 1997 SC 2249], the Hon'ble Supreme Court dismissed the writ petition, which was filed after a lapse of three years and six months after the order was passed. In another case titled Scooters India and ors. v. Vijai E.D.Eldered [ 1998 (6) SCC 549 ], the Apex Court has held that writ petition, which was filed six years after passing of the order, was not maintainable. Same ratio has been laid by the Apex Court in another case reported as State of Orissa v. Zlochan Nayak [ 2003 (10) SCC 678 ]. In case 2005 (11) SCC 546 , the Apex Court has held that writ petition filed after gap of three years was not maintainable and dismissed the same on the ground of delay and laches. Same are the views of the Hon'ble Supreme Court in Govt of W.B. v. Tarun K. Roy [ (2004) 1 SCC 347 ], Ghulam Rasool Lone v. State of J&K [2009 (AIR) SCW 5260], 2010 (5) JKJ SC-87, including the view that discretionary jurisdiction under Article 226 of the Constitution may be denied on the ground of delay and laches. It is now well settled law that who claims equity must enforce his claim within a reasonable time. In State of M.P. v. Bhailal Bhai ( AIR 1964 SC 1006 ), the Apex Court held that if there has been unreasonable delay, the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. 10. In State of M.P. v. Bhailal Bhai ( AIR 1964 SC 1006 ), the Apex Court held that if there has been unreasonable delay, the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. 10. In Banda Development Authority v. Moti Lal Agarwal [(2011) 5 SC 394], the Hon'ble Supreme Court held: "In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of BDA and the State Government, the High Court was duty-bound to take cognizance of the long time gap of nine years between the issue of declaration under Section 6(1) and filing of the writ petition, and declined relief to Respondent 1 on the ground that he was guilty of laches because the acquired land had been utilized for implementing the residential scheme and third-party rights had been created. The unexplained delay of about six years between the passing of award and filing of the writ petition was also sufficient for refusing to entertain the prayer made in the writ petition. 11. Petitioner, in the case on hand, has come up before this Court after inordinate delay i.e. 13 years without giving any cogent, material and explicable reason. Thus, on the touchstone of above reasons and case law, the writ petition is hit by the doctrine of delay and laches, as such, deserves dismissal on this count only. 12. As an upshot of the aforesaid discussion, the net result is that the instant writ petition being meritless, is dismissed, accordingly.