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2018 DIGILAW 188 (JK)

Mohammad Iqbal Wani v. State of JK

2018-03-28

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. 1. The facts as these emerge from the study of petition of the petitioner are that National Board of Examination New Delhi held an examination for the DNB Course in Cardiology at Fortis Hospital Mohali. The petitioner participated in it. He was declared to have qualified the examination and in terms of the order dated 24.02.2012, he was required to join the said course upto 9th of March 2012, failing which it was stipulated that the seat will be forfeited. The selection in the said course being a lifetime opportunity for a medico, the petitioner did not want to waste it. He formally filed an application for the grant of study leave before the respondents where he was working as an Assistant Surgeon and the failure on the part of the respondents to take a decision on the said application forced and coerced the petitioner to approach this Court by the medium of SWP No. 427/2012. This Court vide order dated 08.03.2012 passed in the said petition put the respondents on notice. The petitioner has stated that he was verbally directed by the respondents to join the said course at Fortis Hospital, Mohali, till his case is considered and study leave is formally granted in his favour. On the assurance of the respondents the petitioner left the Department of Health and joined the DNB course at Mohali, from where he remained in constant touch with the respondents requesting them to accord sanction to his study leave but to his dismay, the respondents issued a Government Order bearing No. 309-HME of 2013 dated 25.04.2013, directing the termination of his service from the department which is impugned herein this petition. 2. The petitioner has challenged the order aforesaid before this Court on the grounds inter-alia that similarly situated Assistant Surgeons who were working with the petitioner in the department of Health were granted study leave for pursuing the DNB course and other courses both within and outside the state and the order of his termination is an arbitrary exercise of jurisdiction by the respondents. He has not been provided an opportunity of being heard before passing the order impugned and the same is against the Constitutional safe-guards available to the petitioner under Article 311 of the Constitution of India and rules 33, 34 and 35 of the J&K Classification Control and Appeal Rules. He has not been provided an opportunity of being heard before passing the order impugned and the same is against the Constitutional safe-guards available to the petitioner under Article 311 of the Constitution of India and rules 33, 34 and 35 of the J&K Classification Control and Appeal Rules. The petitioner on the set of facts cited above has sought the indulgence of this Court in granting him the following reliefs:- (a) a writ/order/direction in the nature of certiorari be issued in favour of the petitioner and against the respondents thereby quashing the impugned Government Order No. 309-HME of 2013, dated 25.04.2013, so far it relates to the petitioner. (b) a writ/order/direction in the nature of prohibition prohibiting the respondents from giving effect to the impugned order so far as the same relates to the petitioner. (c) a writ/order/direction in the nature of mandamus commanding the respondents to allow the petitioner to complete the DNB course for which he has been selected as per merit and suitability and thereafter allow him to join back his services as were rendered by him prior to issuance of the said impugned order. (d) a writ/order/direction in the nature of prohibition prohibiting the respondents from filling up of the post of the petitioner by any other means as per the impugned order. (e) Any other order or direction which this Hon'ble deems fit and appropriate in the facts and circumstances of the case may also be passed in favour of the petitioner and against the respondents as the same shall be quite in accord with the ends of justice. 3. The respondents have resisted and controverted the petition of the petitioner chiefly on the grounds that the petitioner was appointed as an Assistant Surgeon vide Government Order No. 335-HME of 2010 dated 17.06.2010. He had proceeded on unauthorized absence from his duties w.e.f 02.03.2012, when he was still on probation. Since the petitioner failed to report back for his duties, the Directorate of Health Services, Kashmir, accordingly served a show cause notice to him vide No. Est-3/1-133/1509-12 dated 26.07.2012. The petitioner did not file any response to the notice and the case was forwarded to the Administrative Department. Since the petitioner failed to report back for his duties, the Directorate of Health Services, Kashmir, accordingly served a show cause notice to him vide No. Est-3/1-133/1509-12 dated 26.07.2012. The petitioner did not file any response to the notice and the case was forwarded to the Administrative Department. Accordingly, while giving final opportunity to the petitioner, a final notice was issued to him by the Administrative Department vide No. HME/HRM/55/2011- dated 10.10.2012, where under amongst others, the petitioner was asked to report back to the Directorate of Health Services, Kashmir within 15 days failing which it was declared that it shall be presumed that the petitioner has nothing to say in his defence and disciplinary proceedings as envisaged under Article 128 of CSR Vol-II shall be initiated against him. However, the petitioner again choose not to respond to the said Notice. It is pertinent to mention here that the petitioner as submitted above was still on probation when he left his duties unauthorizedly and Rule 21 (1) of the J&K Civil Services (Classification, Control & Appeal) Rules - 1956 provides as under:- "At any time before the expiry of the prescribed period of probation, the appointing authority may:- a. suspend the probation of a probationer and discharge him from the service for want of vacancy; and b. at its discretion terminate the probation of a probationer and discharge him from the service". It is worthwhile to submit that in pursuance of the said Rule 21(1) of the J&K Civil Services (Classification, Control & Appeal) Rules -1956, the Government Vide Order No. 309-HME of 2013 dated 25.04.2013, terminated the services of the petitioner among others. 4. Since the petitioner absented unauthorizedly from the service and under rules/law lost the service keeping in view the import and purport of Article 128 of CSR (1) read with Rule 21 (1) of J&K Civil Services (CCA) Rules of 1956, therefore, his petition entails dismissal. 5. It has further been pleaded that the petitioner has not approached the Court with clean hands. He has tried to misrepresent the facts. 5. It has further been pleaded that the petitioner has not approached the Court with clean hands. He has tried to misrepresent the facts. It is submitted that when the petitioner was selected and appointed by the Government Medical College Srinagar, vide Order No. 16-GMC (Acad) of 2012 dated 12.04.2012 against a tenure post of the Registrar in Medicine, he had already left the duties in the State Health Department as Assistant Surgeon and had proceeded to join Forties Hospital at Mohali to undergo the DNB Course. Therefore, there was no occasion for the respondents to relieve him to join at GMC, Srinagar. As such the petitioner is wrong in saying that he was discriminated against. 6. The petitioner has filed two supplementary affidavits in which he has stated that a number of medicos similarly situated with him have been extended the benefit of study leave while as his case has not been treated on the same pedestal. He has also pleaded that his case for study leave was not referred by the Director to the Government and the Director slept over the matter for a long time. 7. Heard and considered. 8. What comes to the fore from the perusal of the pleadings of the parties and the allied material on record is that Dr. Tufail Das, who had been appointed as an Assistant Surgeon with the petitioner in the year 2010 and was doing DNB Course outside the state was served a general notice with the petitioner which was published in a local daily and is attached to the petition of the petitioner as Annexure "R". However, the services of Dr. Tufail Das were not terminated as is evident from the order of termination attached to the petition. He was allowed to continue the DNB Course outside the state. The petitioner has also filed a supplementary affidavit, wherein he has specifically stated that his junior namely Dr. Abdul Majid who was appointed as an Assistant Surgeon in the year 2011 was doing DNB Course outside the state. In the same manner Dr. Reyaz Ahmad Latoo and Dr. Muzaffar Ahmad Zargar were directed to undergo Super-Specialty Course outside the state and Dr. Hamid Bashir, Dr. Arshid Rashid, Dr. Mohsin Masood, Dr. Abdul Majid who was appointed as an Assistant Surgeon in the year 2011 was doing DNB Course outside the state. In the same manner Dr. Reyaz Ahmad Latoo and Dr. Muzaffar Ahmad Zargar were directed to undergo Super-Specialty Course outside the state and Dr. Hamid Bashir, Dr. Arshid Rashid, Dr. Mohsin Masood, Dr. Sartaj Ali Bhat and others who were his juniors to the petitioner were also allowed to undergo these courses outside the state without any permission and were continued in service. The petitioner has also stated that Dr. Mohsin joined back after completing DNB Course and a number of doctors are still undergoing the course. It is only Dr. Nahida Akhter, Dr. irfan, Dr. Sheikh Afaaq, and Dr. Mohammad Sajad Bazaz who were terminated while as, others continued to remain in service. It is stated that Dr. Mohammad Nasir Shamas, who was the batch-mate of the petitioner and Dr. Mohamamd Latief were permitted to join back and were not terminated. It is also stated that Dr. Sumaira Maqbool who was undergoing DNB Course at Apollo Hospital was not terminated and Dr. Asim Khan was permitted to join back. Annexure (S1) attached to the supplementary affidavit is a communication dated 23.05.2013 vide which seven doctors were permitted to join back on the completion of their courses which they were undergoing outside the state. 9. On the face of the above, the state cannot apply different set of standards while determining the cases of the similarly situated persons. The action of the state has to be fair and transparent. It has to be based on reason and logic. The state cannot afford to treat the same set of employees on two different pedestals. The case of the petitioner could not have been treated as a sui-generis case by applying different standards in measuring the extent of the benefits to be provided to him. There should be a fairness in the dealings and the agility of the state. 10. Looking at the petition of the petitioner from another perspective, the state Government under a joint order dated 15.06.2007 terminated a number of similarly situated doctors from the service at a time when they were pursuing post-graduation course in various hospitals. The petitioners filed a number of writ petitions before the Court, lead case being that of Syed Asim Razvi i.e. SWP No. 862/2007. The petitioners filed a number of writ petitions before the Court, lead case being that of Syed Asim Razvi i.e. SWP No. 862/2007. The said writ petitions came to be decided by this Court vide Judgment dated 26.05.2011, in which the termination orders were quashed by directing that the writ petitioners be given the benefit of Government Order dated 25.04.2008, vide which the period of undergoing post-graduation has to be counted in service. Some of the petitioners filed the petitions in the Jammu Wing also which were disposed of and decided on the same analogy as had been evolved in SWP No. 862/2007 as a sequel to which all the writ petitioners were given the benefit of Government Order No. 25.04.2008 which reads as under: "I am directed to refer your letter No. RA/6481/MC dated 31.12.2007 regarding the subject cited above and to say that the issue with regard to the selection of the Registrars/Demonstrators was taken up with the law department who have opined that by virtue of government order No. 530-HME of 2005 dated 19.9.2005, the doctors who were appointed as Asstt. Surgeons while undergoing post graduation were allowed to continue with said post graduation courses. Since they were appointed on probation and allowed to continue, the period spent by them for completion of P.G. shall count towards their period of probation. As such the candidates who were appointed as Assistant Surgeons vide government order No. 464-HME of 2005 dated 1.8.2005 and were allowed to complete P.G. courses be allowed to continue as Registrars/Demonstrators under rules." 11. What was directed in the Judgment delivered by this Court in the Syed Asim Razvi's case requires to be detailed and enumerated herein below for the convenience of ready reference:- "petitioner's grievance is that they came to be selected as Assistant Surgeons by the duly selection process by the J&K Public Service Commission. After their selection, they came to be appointed as such. After their appointment, selection for undergoing various Post Graduate Degree/Diploma Courses in the Medial Institutions of the respondent-State was initiated by the Jammu and Kashmir Board of Professional Entrance Examination. The petitioners competed in the selection process and subsequently selected for undergoing the Post Graduate Degree/Diploma Courses. After their selection, they came to be appointed as such. After their appointment, selection for undergoing various Post Graduate Degree/Diploma Courses in the Medial Institutions of the respondent-State was initiated by the Jammu and Kashmir Board of Professional Entrance Examination. The petitioners competed in the selection process and subsequently selected for undergoing the Post Graduate Degree/Diploma Courses. Order No. 404-HME of 2007 Dated 15.06.2007 came to be issued by the respondents, whereby the petitioners were directed to report to their respective place of postings immediately or otherwise their appointment as Assistant Surgeon shall be deemed to have been rescinded. It is, this order, which has been questioned by the petitioners in this writ petition. This Court vide order dated 20.06.2007 stayed the order impugned and allowed the petitioner to pursue their respective courses. During the pendency of this writ petition, CMP No. 2593/2010 came to be filed in which the petitioners have placed on record Government Order No. HD(GAZ) Gen-259/2007 Dated 25.04.2008 which provides that period spent by the petitioners Assistant Surgeons in pursuing their post-Graduation Programmes (MD/Ms) shall be counted towards their period of probation. Learned Counsel for the petitioners states that the benefit of this order may also be extended to the present petitioners. Mr. Magray and Mr. Amir, learned counsel for the respondents states that respondents would have no objection in case benefit of order dated 25.04.2008 is extended in favour of the present petitioners. "In view of the stand taken by the respondents order impugned whereby the appointments of petitioners were directed to be rescinded does not sustain and consequently same is quashed. (The respondents are directed to extend the benefit of Order No. HD(GAZ) Gen-259/2007 dated 25.04.2008 to the present petitioners also. The petitioners shall also be entitled to the consequential benefits.") 12. Under the facts and circumstances evolved in the above judicial precedent, their appears to be no reason and logic in treating the case of the petitioner on a different footing. The petitioners shall also be entitled to the consequential benefits.") 12. Under the facts and circumstances evolved in the above judicial precedent, their appears to be no reason and logic in treating the case of the petitioner on a different footing. The petitioner cannot and could not have been discriminated against and that too on the framework of Annexure (S2) attached to the second Supplementary affidavit filed by the petitioner which is an order bearing No. HD/Legal/GAZ/29/MR-845/2011-13,K dated 03.03.2014 issued by the Government of Jammu and Kashmir Health and Medical Education Civil Secretariat Jammu, on the subject "Deputation of In-service candidates for the PG Courses" which is reproduced below verbatim:- "The Department advised the HOD's to treat the period spent by Assistant Surgeons (Medical Officer) selected by BOPEE on higher studies in the State as study leaves as per the provisions of SRO 122. The said decision was challenged in the court of law by the doctors and as per the directions of the Hon'ble Court, the case was further examined in the department and it was decided to seek the opinion of the Finance Department. The Finance Department in turn had advised as under: "The department is advised to treat the period of higher studies of the petitioners as deputation in terms of the directions of the Hon'ble High Court". In view of the opinion of the Finance Department, the concerned HOD's were advised to implement the judgment in favour of all the petitioners. Despite that various representations, of similar nature have been received, the department has unnecessarily been dragged into litigations and it has been decided that all such cases be provided similar treatment. In this connection, I am directed to intimate you that the Assistant Surgeons (Medical Officer) selected by the BOPEE undergoing PG Courses in Govt. Medical College, Srinagar/Jammu Govt. Dental Colleges, Srinagar/Jammu shall be treated on deputation. 13. The aforesaid Government order does suggest that the period spent in higher course by a medical Officer has to be treated on deputation. In this connection, I am directed to intimate you that the Assistant Surgeons (Medical Officer) selected by the BOPEE undergoing PG Courses in Govt. Medical College, Srinagar/Jammu Govt. Dental Colleges, Srinagar/Jammu shall be treated on deputation. 13. The aforesaid Government order does suggest that the period spent in higher course by a medical Officer has to be treated on deputation. The main plank of the argument of the respondents that the petitioner had not completed the period of probation at a time when he sought admission in DNB Course and, therefore, he was shown the exit pales into insignificance and carries no weight for the reason that on the touchstone of the order aforesaid he had to be treated on deputation when he was undergoing the said course. 14. In view of the preceding analysis, the impugned Government Order No. 309 -HME of 2013 dated 25.04.2013, so far as it relates to the petitioner is quashed and the respondents are directed to allow the petitioner to join back his services as were rendered by him prior to the issuance of the impugned order. The petitioner shall also be entitled to the consequential benefits. 15. Disposed of accordingly.