Reserved On: 18.02.202 vs Dr. Abdul Rehman Mir
2021 Latest Caselaw 333 j&K/2

                                      1


         IN THE HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR

                                    .-.-.
                                                        LPASW No.45/2019

                                                   Reserved on: 18.02.2021
                                               Pronounced on: 22 .03.2021
State of J&K and others
                                                          ........ Appellant(s)
                          Through: Mr. Shah Amir, AAG
      V/s
Dr. Abdul Rehman Mir
                                                        ........ Respondent(s)
                          Through: Mr. Salih Pirzada, Advocate


Coram:      HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
            HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                               JUDGMENT

TASHI-J

1. This Appeal is directed against the judgment and order dated

01.06.2018, passed by the learned Writ Court in SWP No.724/2012,

titled Dr. Abdul Rehman Mir vs. State of J&K & others.

2. From the perusal of the file as also the impugned judgement it shows

that the writ petitioner/respondent had been appointed as Assistant

Surgeon in the year 1989 and adjusted in District Udhampur. It is

contended by the writ petitioner/respondent in his writ petition that he

underwent Junior Residency at Sher-e-Kashmir Institute of Medical

Sciences (SKIMS) and was selected for undergoing Post Graduate

Course in Surgery at SKIMS and thereafter he was selected as

Stipendiary Senior Resident in the discipline of Surgery and its allied

specialty in the year 1998. It had also been claimed by the writ

LPASW No.45/2019

petitioner/respondent in his writ petition before the Writ Court that he

was recommended for appointment as Registrar in the discipline of

Surgery, but, he could not join the tenure post of Registrar as the same

was stayed by the Court and it was only after the stay order was

vacated that he was relieved from SKIMS, so as to allow him to join

as Registrar in the Department of General Surgery at Government

Medical College, Srinagar. It had also been contended by the writ

petitioner/respondent before the learned Writ Court that he completed

three years' Registrarship in the year 2002 and he, accordingly,

submitted his joining report on 17.06.2002 and waited for his suitable

adjustment, but, a show-cause notice was issued to him, to which he

submitted a detailed reply.

3. It was also contended before the learned Writ Court that in terms of

Government Order No.133-H&ME of 2003 dated 20.02.2003, the writ

petitioner was allowed to join the department as a "fresh

appointee".He accepted and acted upon the said order and joined the

department. For the next ten years, the writ petitioner discharged his

duty in the department and remained calm and quiet. However, after a

decade, the writ petitioner/respondent filed a writ petition (SWP

no.724/2012), in which he sought grant of writ of certiorari to quash

his Appointment Order (Government Order No.133-H&ME of 2003

dated 20.02.2003) to the extent of treating him as a fresh appointee.

The writ petitioner also prayed for a direction to writ-

respondents/appellants to treat the "period of absence" of the writ

petitioner, if any, in accordance with the Rules and count the period

LPASW No.45/2019

from the year 1989 to 2003 towards his seniority and give him all the

service benefits.

4. The Reply was filed by the appellants/writ-respondents before the

learned Writ Court. The appellants-writ respondents disputed the

contentions made in writ petition contending therein that the writ

petitioner/respondent was holding the post of Assistant Surgeon and

while working at A.D.Sangaldan, he was granted NOC for undergoing

the Post-Graduation, for one year at SKIMS,Soura, on 02.03.1993,

but, after completion of one year, the writ petitioner-respondent did

not resume his duties and sought NOC for undergoing the

Registrarship in Surgery at SMHS Hospital, Srinagar, which was not

granted to him, and he did not report back to the Department and

chose to remain absent unauthorizedly from the duty. A show cause

notice was issued upon him. It was also submitted by appellants/writ

respondents that writ petitioner remained absent for 05 years. It was

also contended by the writ respondents that request of the writ

petitioner was, however, considered and he was permitted to rejoin the

department as a "fresh appointee", which offer he accepted and he,

accordingly, joined the department as a "fresh appointee".

5. The learned Writ Court in terms of the impugned judgment allowed

the writ petition and quashed the Appointment Order of writ petitioner

(Government Order No.133-H&ME of 2003 dated 20.02.2003) to the

extent it treated the writ petitioner as a fresh appointee and directed

the appellants/writ respondents to count service of the writ petitioner

rendered from the year 1989 to 2003 and restore his seniority at an

LPASW No.45/2019

appropriate place by reckoning his previous service and consequent

thereto grant all the service benefits to the writ petitioner to which he

is entitled to. The appellants/writ respondents are aggrieved of the

said judgment and pray for its setting-aside on the grounds taken in

the appeal.

6. We have heard the learned counsel for the parties and perused the

record.

7. The learned counsel for the appellants/writ respondentshas submitted

that the writ petitioner had been a government employee and his

services were regulated by the Service Rules and therefore, he could

not have remained absent from duty to pursue the higher education. It

is contended that the writ petitioner/respondent was given NOC for

undergoing P.G. for one year at SKIMS, but, without resuming his

duties, he on his own volition took up the assignment as Registrar in

SMHS Hospital, Srinagar, for which he had not even bothered to

obtain a prior permission from his employer/competent authority. This

submission of learned counsel for appellants/writ respondents has

force.

8. There is no dispute about the fact that the writ petitioner was given

only one year's permission for undergoing the Post-Graduation. On

expiry of one year, he did not report to his department/employer,

which he was, otherwise, required as a prudent and disciplined

employee. Without joining the duties, without entering the

office/department, and thereafter without getting his file/case

approved for permission from the competent authority to undergo

LPASW No.45/2019

further studies or any other venture he on his own did whatever he

would like, including taking the job/assignment of Registrarship. The

writ petitioner had not placed on the writ record any permission

granted by the respondent-Health Department to demonstrate or

suggest that he was allowed to take the job/assignment of

Registrarship. This important aspect of the matter has not been taken

into consideration by the learned Writ Court while passing the

impugned judgment.

9. A person upon joining the government service is required not only to

conform to a system of the rules of conduct enjoined upon him by the

Government in discharge of his official duties, but, also observe

certain standards of dignity, discipline and decorum in relation to his

dealings with and duties to the public and even his private life. If the

writ petitioner is permitted all that he has done, it will, obviously,

create precedence for all the government employees, particularly

doctors, to indulge in such acts and get scot free. The writ petitioner

cannot be heard saying that for undergoing higher studies or taking

any assignment/job, he was not required to have prior permission

from his employer/competent authority or that his mere intimation to

the department amounts to grant of permission by the competent

authority to do whatever a government servant likes or choses. The

admitted fact of the case in hand is that the writ petitioner was not

given any permission beyond one year. The important aspect of the

matter is that the respondent/writ petitioner remained unauthorizedly

LPASW No.45/2019

absent from duty and did not work or discharge his duties in the

appellant-department.

10.The writ petitioner in paragraph 03 of the writ petition has claimed

that he was given the No Objection Certificate by the Department to

undergo the Post Graduate Course. The relevant part of the paragraph

03 is reproduced as under:

"03. That after completion of Junior Residency the petitioner was selected for undergoing Post-Graduate Course in Surgery at SKIMS and in order to allow the petitioner to undergo the Post Graduate Course, the Respondent no.1 was pleased to grant no objection in favour of the petitioner so as to allow him to complete his Post Graduate Course in Surgery at SKIMS. Document evidencing the fact is placed on record as Annexure-C........."

11.The writ petitioner in the writ petition has placed reliance on No

Objection Certificate - Annexure C, which according to him had

given him licence to remain unauthorizedly absent from duty for next

three years or till he joined the department as a "fresh appointee". It is

important to reproduce Annexure C of the writ petition hereunder:

"Government of Jammu and Kashmir Health and Medical Education Department ***

Subject: - No Objection to do post-graduate in favour of Dr. Ab.

Rehman Mir, Asstt. Surgeon, A.D.Sangaldan.

...

The Government of J&K has no objection if Dr. Ab. Rehman Mir Assistant Surgeon of J&K Medical Department Service, undergoes post- graduate course at Sher-i-Kashmir Institute of Medical Sciences, Sgr. This will not involve any financial commitment on behalf of the State Government and the period aforementioned will be treated as leave of whatever kind is due to him excluding the study leave. The Certificate is valid for a period of one year from the date of issue.

Sd/-

Addl. Secretary to Govt.

Health and Medical Education Deptt."

12. From perusal of Annexure C to the writ petition it reveals

that the writ petitioner was given one year's leave and nothing else.

LPASW No.45/2019

The writ petitioner/respondent, at that material point of time, ought to

have approached the department and pursued them to extend the leave

period. However, the writ petitioner assumed and presumed as if he

was given unconditional permission for all times to come. The No

Objection, relied upon by the petitioner, per se, demonstrates that it

was a simpliciter leave that too for one year from the date of its

issuance or may be till completion of the course. The record does not

show that there was any extension granted by the Department in

favour of the writ petitioner beyond the course period. Annexure-C

conveys the writ petitioner that there will not be any financial

commitment on behalf of the State Government for the leave

period.This important fact and aspect of the matter has not been

looked into by the learned Writ Court; thus, the impugned judgement

on this count is liable to be set-aside as well.

13.Moreso, the services of the respondent/writ petitioner are also

governed by the J&K Civil Services (Leave) Rules, 1979. Its Rule 61

provides that the study leave may be granted to a government servant

with due regard to the exigencies of the public service to enable him

to undergo in or out of India a special course of study consisting of the

higher studies or specialized training in a professional or technical

subject having a direct and close connection with the sphere of his

duty.

Rule 62 provides that the maximum amount of the study leave,

which may be granted to a government servant shall be ordinarily

twelve months at any one time and during his entire service

LPASW No.45/2019

twenty-four months in all, inclusive of the similar kind of leave for the

study or the training granted under any other rules.

Rule 63 provides that every application for the study leave shall

be submitted through proper channel to the authority competent to

grant the leave. The course or courses of the study contemplated by

the government servant and any examination which he proposes to

undergo shall be clearly specified in such application.

Sub Rule (2) of Rule 63, which applies to the case in hand,

provides that where it is not possible for the government servant to

give the full details in his application or if after leaving India, he is to

make any change in the programme which has been approved in India,

he shall submit the particulars as soon as possible to the Head of the

Mission or the authority competent to grant leave as the case may be

and shall not unless prepared to do so at his own risk, commence the

course of study or incur any expenses in connection therewith until he

receives the approval of the authority competent to grant the study

leave for the course.

Sub Rule 4(a) of Rule 64 provides that on completion of the

course of the study, the government servant shall submit to the

authority which granted him the study leave, the certificates of

examination passed or the special courses of the study undertaken,

indicating the date of the commencement and the termination of the

course with their remarks, if any, of the authority incharge of the

course of the study. However, in the present case, the respondent/writ

petitioner has not submitted after completion of the P.G. Course, the

LPASW No.45/2019

certificates of the said course, indicating the date of the

commencement and the termination of the P.G. Course. Nothing has

been placed on the writ record by the respondent/writ petitioner in this

regard. Thus, the respondent/writ petitioner has violated the basics of

the Service Rules governing his services.

14.The learned counsel for the respondent has contended that the writ

petitioner was holding a civil post and without taking recourse to the

mode prescribed for terminating the services of an employee, who has

remained on unauthorized absence, the appellant-department has

treated the writ petitioner as a fresh appointee, which under law is

impermissible. When the relation of an employee and employer exists,

the employer has no right to treat his employee as a fresh appointee.

We may mention here that was not it an obligation and duty of

the writ petitioner to resume his duties after completion of the course;

was not it the responsibility and duty of the writ petitioner, after

resuming the duties, to apply seek permission from competent

authority for taking the assignment/job of Registrarship or any other

assignment.

The writ record shows that the writ petitioner after completion

of the P.G. Course has never joined the appellant-department. He,

upon completion of the P.G. Course in SKIMS Soura, was relieved by

the authorities of SKIMS on 16.10.1997 vide order No.172 of 1997 -

Annexure D with the writ petition. He on next day, i.e., 17.10.1997

again joined SKIMS as Junior Resident, which fact is evident from

LPASW No.45/2019

Office Order No.ACAD/80 of 1997 dated 21.10.1997 - Annexure E

to the writ petition. He has not placed on the writ record any piece of

paper that he applied through Proper Channel and his application was

forwarded by appellant-department to SKIMS. He has not placed on

the writ record any document to substantiate that permission was

granted in his favour to take the assignment/job of Junior

Residentship. The writ petitioner has not placed on the writ record any

document to show that he was relieved by the appellant-department to

join as Junior Resident in the SKIMS.

The matter does not end here. The writ petitioner even after

completion of the Junior Residentship did not bother to report to

appellant-department. He further went ahead. He applied for Senior

Residentship. He has not placed on the writ record that he applied for

Senior Residentship through Proper Channel. The writ petitioner has

not annexed with the writ record any piece of evidence to substantiate

that the permission was granted by the appellant-department in his

favour for taking the assignment/job of Senior Residentship in

SKIMS.

Thereafter the writ petitioner on his own volition went for the

Registrarship. Here again, the writ petitioner did not report to the

appellant-department for resuming his duties. The writ petitioner did

not apply through Proper Channel. The writ petitioner did not seek

any permission from appellant-department to take the assignment of

the Registrarship. The writ petitioner was not relieved by appellant-

department, then how he can be treated like other employees/doctors,

LPASW No.45/2019

who during this period had first applied through proper channel,

sought permission from appellant-department and were properly

relieved by the appellant-department for taking such assignments.

When show cause notice was issued to initiate proceedings under law

against him, he requested to allow him to rejoin the department in

terms of Government Order No.183-HME of 2000 dated 07.04.2000,

which request was considered and accepted, which culminated in

issuance of the Government Order No.133-HME of 2003 dated

20.02.2003, whereunder the petitioner was allowed to rejoin the

appellant-department as a fresh appointee as Assistant Surgeon and

was directed to report to the Director, Health Services. He accepted to

be a fresh appointee and remained satisfied for next ten years. After

inordinate delay and laches of a decade, he came up with the writ

petition.

In such circumstances, the writ petitioner cannot be heard

saying that he was immune to these statutory obligations that were

cast upon him when he joined the government service. His conduct

reflects his non-seriousness towards his job and profession. He as a

doctor holds a pious position. He cannot act like an ordinary man who

does not know nitty-gritty of a responsible doctor. Even as on today a

doctor is a respectable person in our society than any very important

personality. The doctor has traditionally enjoyed a special status in

any society, and there are high ethical and legal requirements. It is

believed that a "real" doctor should be a role model for the general

LPASW No.45/2019

public not only in the matters of health, but also morality.Thus, a

doctor is a responsible citizen in our country.

15.The unauthorized absence of the writ petitioner from duty was wilful.

There was no compelling circumstance given by the writ petitioner

which prevented him from joining the services after completion of the

P.G. Course. It may be added here that the doctors have a divine job

to discharge, therefore, by conduct they are required to supply light so

as to embrace into its fold respect to the faith and confidence reposed

in the system by the public, particularly the patient care. Maintaining

the highest standard of integrity can be more fragrant/cherished by

maintaining the highest standard of sophistication, behaviour and

attitude. Small deviation will make it ugly.

16.It may be noted that the employee who suffers break and

discontinuation in the length of his service on account of his

remaining unauthorizedly absent from duty cannot be given the

benefit of seniority as the fall out of such an action would not only be

illegal,but, would be illogical and unethical as well. Such an act will

have the potential of affecting service rights of the employees, who

faithfully obey the service rules. Employee committing misconduct

cannot be permitted to steal a march over another employee who

faithfully obeys service rules and performs duties without fail. A

concession cannot be allowed to become a bonanza as that will

encourage indiscipline in service. It is well settled law that courts

cannot place such an interpretation on a rule or a word, which will

create illegal and immoral situations.

LPASW No.45/2019

17.Learned counsel for the respondent/writ petitioner has contended that

the writ petitioner was not in a bargaining position as he was without

salary for a period of more than nine months and he had not only to

feed himself, but, his family as well, so he joined in pursuance of the

Government Order bearing no.133-H&ME of 2003 dated 20.02.2003.

It is contended that the respondent/writ petitioner immediately

thereafter moved a representation for settlement of his period and not

to treat him a fresh appointee. Non-consideration constrained him to

again file a representation, he was under a bona fide belief that the

final orders about the period in dispute would be passed, but, the

appellant-department slept over the matter for some unknown and

undisclosed reasons, so he filed the writ petition, which was allowed

by the learned Writ Court. The learned counsel for respondent has

relied upon Central Inland Water Transport Corporation Ltd and

anr. vs. Brojo Nath Ganguly and anr. reported in AIR 1986 SC

1571.

18.To contradict the submissions of the learned counsel for the writ

petitioner-respondent, Mr. Shah Aamir, learned AAG, appearing on

behalf of appellants-writ respondents, has contended that persons

seeking relief against the State under Article 226 of the Constitution

of India, be they citizens or otherwise, cannot get discretionary relief

available thereunder unless they fully satisfy the 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 and therefore, where a Court grants relief to a

LPASW No.45/2019

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. Learned counsel has also contended that 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 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 be necessarily depend upon

unblameworthy conduct of the person seeking relief, and the court

refused to grant the discretionary relief to such power, when he

approaches it with unclean hands or blameworthy conduct. The

learned counsel for appellants has relied upon Scooters India and ors

Vs. Vijai E. V. Eldred reported in (1998) 6 SCC 549; State of

Orissa vs. Lochan Naik (dead) by LRs reported in(2003) 10 SCC

678; CheripalliMadarvs. Assistant Div. Engineers and orsreported

in (2005) 11 SCC 546; Atta Mohammad (Dr) vs. State and

orsreported in 2014 (1) JKJ 337 (HC).Submission of Mr Shah

Aamir, learned AAG, has force. The writ petitioner acted upon the

Government Order No.133-H&ME of 2003 dated 20.02.2003 and

joined the appellant-department as a fresh appointee. If the writ

petitioner was aggrieved of the Government Order No.133-H&ME of

LPASW No.45/2019

2003 dated 20.02.2003, he could have after joining the appellant-

department, if he felt to be on receiving end, sought redressal of his

grievances. However, he remained silent for next ten years and

thereafter came up with a writ petition. Such act on part of the writ

petitioner cannot be overlooked.

19.The Supreme Court in Sudhi Vishnu Panvalkar vs. Bank of India

reported in AIR 1997 SC 2248, dismissed the writ petition which was

filed after three years and six months after the order was passed. In the

present case, the respondent/writ petitioner has filed the writ petition

after ten years. Thus, such inordinate delay cannot and should not be

overlooked.

20.In Scooters India and ors. vs. Vijai E. D. Eldered reported in 1998

(6) SCC 549, the Apex Court has held that the writ petition, which

has been 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 vs. Zlochan Nayak [2003 (10) SCC

678] and it was held by the Apex Court that the writ petition filed

after the gap of three years was not maintainable and dismissed the

same on the grounds of delay and laches. Same are the views of the

Apex Court in Govt of W.B. vs. Tarun K. Roy [2004 (1) SCC 347],

Ghulam Rasool Lone vs. State of J&K [2009 (AIR) SCW 5260],

including the view that the 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 claim equity must enforce his

claim within a reasonable time. Even in Banda Development

LPASW No.45/2019

Authority vs. Moti Lal Agarwal reported as (2011) 5 SCC 394, the

Apex Court held that even if the objection of delay and laches had not

been raised by the other-side, the High Court was duty bound to take

cognizance of the long-time gap of nine years between the issue of

declaration/order and filing of the writ petition, and declined the relief

to the petitioner on the ground that he was guilty of laches.

21.The above well settled law is also squarely applicable to the case in

hand. However, the learned Writ Court has not taken into account the

above settled law while passing impugned judgement, which,

therefore, requires tobe set-aside.It is mentioned here that the

judgement cited by the learned counsel for the respondent/writ

petitioner is distinguishable from the facts and circumstances of the

present case and does not render any help to him.

22.We have noticed that the State Government has in fact conferred a

benefit on the writ petitioner by allowing him to rejoin as a fresh

appointee when as a matter of fact there were/are MBBS graduates

and post-graduates available who are jobless. The writ petition of the

respondent/writ petitioner 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 cannot be

allowed to be maneuvered on the basis of pleadings which are false

and incorrect. In fact the message conveyed by all the laws whether

constitutional or a local law is that the moral fabric of the society shall

be maintained and shall not be permitted to be damaged. Every faith,

philosophy and thought are based on one common concept that

LPASW No.45/2019

society be built on the foundation of ethics, morality and truthful

values. The laws cannot be permitted to be misused and the process of

the institutions, more particularly, of the court of law cannot be

allowed to be abused. Anyone 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.Viewed thus, this appeal is allowed and the impugned judgment and

order dated 01.06.2018, passed by the learned Writ Court in SWP

No.724/2012, titled Dr. Abdul Rehman Mir vs. State of J&K & others,

is set aside. Resultantly, the writ petition filed by writ petitioner-

respondent is dismissed.

                                       (SANJAY DHAR)                   (TASHI RABSTAN)
                                           JUDGE                             JUDGE
                Srinagar
                22.03.2021
                Madan Verma-PS
                                Whether approved for reporting? Yes.




MADAN LAL VERMA
2021.03.22 15:34
I attest to the accuracy and
integrity of this document