Jammu & Kashmir High Court - Srinagar Bench
Reserved vs Dr. Showkat Ali Mufti on 23 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
h475
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
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LPA No. 268/2023
Reserved
R on 08.05.2025
Pronounced
v on 23.05.2025
e
Dr. Fayaz Ahmad Sofi
S/O Abdul Ahad Sofi
R/O Gulababad, Arampora, Sopore,
Aged
...Appellant(s)
Through:- Mr. G. A. Lone, Advocate.
V/s
1. Dr. Showkat Ali Mufti
S/O Mohd Syed Mufti
R/O Bijbehara, Anantnag,
At present Alochi Bagh (Silk Factory Road) Srinagar.
2. U.T. of J&K through Commissioner-Secretary,
Medical Education Department, J&K Government,
Jammu/Srinagar.
3. Director, Sher-i-Kashmir Institute of Medical Sciences,
Soura, Srinagar.
...Respondent(s)
Through:- Mr. Mohsin Qadri Sr. AAG with
Ms. Maha Majeed, Assisting Counsel For 2&3
Mr. Hakim Suhail Ishtiyaq, Advocate For R-1.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Sanjeev Kumar-J
1. This intra Court appeal arises from an order and judgment dated 13-
10-2023 passed by a learned Single Judge of this court ['the Writ Court'] in
SWP No. 30/1998 clubbed with SWP No. 15/2004 whereby the Writ Court
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has allowed SWP No. 30/1998 and dismissed SWP No. 15/2004 as
'infructuous'.
2. The brief resume of the factual antecedents leading to the filing of this
appeal may be necessary.
3. The respondent No.1 Dr. Showkat Ali Mufti, who was possessed of
Degree of MBBS and MD in Medicines, and was serving in the State Health
Department as an Assistant Surgeon, was appointed as Lecturer, General
Medicines, in the Sher-e- Kashmir Institute of Medical Sciences, Srinagar,
['the Institute'] against a leave/migrant vacancy initially for a period of one
year vide Government Order No. 15-IMS of 1993 dated 16-08-1993. There
was, however, stipulation in the said Government Order that the services
rendered by the appointees against migrant/leave vacancies shall be counted
for eligibility for higher post subject to certain conditions enumerated in the
said Government Order. With regard to the persons appointed in the
Departments of General Surgery and General Medicines, there was a further
stipulation that the experience gained by them while working against the
migrant/leave vacancies shall be treated as teaching experience in their
respective disciplines and, that they shall have their seniority maintained as
such.
4. In the year 1994, the Government vide its Order bearing Order No.
14-IMS of 1994 dated 13-10-1994 ['the Government order of 1994'] ordered
that the appointments of faculty staff made in the Institute against migrant
vacancies shall be deemed to be appointments against temporary vacancies.
It is in the same order it was provided that the appointment of faculty
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members including the respondent No.1 herein shall be deemed to have been
made against temporary leave vacancies and that they shall continue till such
time they are regularized or the incumbents holding such posts on regular
basis join, whichever is earlier. There was further stipulation in the
Government Order of 1994 providing that faculty members appointed
against temporary leave vacancies in the department shall be regularized on
the basis of seniority and/or merit if so defined by the Epic Selection
Committee in their cases as soon as the regular post, which such faculty
member is holding, becomes available in that department.
5. It seems that while the respondent No.1 was working as
Lecturer/Assistant Professor in the Institute against the migrant/leave
vacancy, he came to be selected for admission to DM/MCH course in the
subject of Pulmonary Medicines at Post Graduate Institute of Education and
Research (PGI) Chandigarh. One of the pre-conditions for admission to
DM/MCH course was deputation/sponsorship of the candidate from his
employer. The respondent No.1 had already been issued a sponsorship
certificate in advance i.e. on 26-10-1995. Notwithstanding the issuance of
sponsorship certificate by the Director of the Institute dated 26-10-1995, the
respondent No.1, who was at the relevant point of time working against a
temporary leave vacancy, was not relieved by the Institute to enable him to
join the DM/MCH Course at PGI Chandigarh. Feeling aggrieved, the
respondent No.1 filed SWP No. 934/1996 before this Court. A learned
Single Judge vide interim order dated 29-06-1996 directed the Institute to
relieve the respondent No.1 forthwith so as to enable him to join his course
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at PGI Chandigarh. A further direction was issued to the respondents to pay
to the respondent No.1 dues, as may be admissible under rules. He, instead,
pursued some course i.e. MRCP in the United Kingdom. Since the
respondent No.1 had left temporary services as Lecturer in the Institute for
pursuing Higher Education, first in PGI Chandigarh and then in the United
Kingdom, the Director, who was also Ex-Officio Secretary to the
Government issued Office Order No. SIMS 840 of 1996 dated 03-12-1996
reverting the respondent No. 1 to his parent Department i.e. Health and
Medical Education Department of the Government with effect from the date
he had proceeded to PGI Chandigarh for undergoing the DM/MCH course in
Pulmonary Medicines. This Order was not put to challenge by the
respondent No. 1 immediately after its issuance. The trigger point came only
when the respondent Institute issued Advertisement Notification No. 2 dated
13th November, 1997 notifying recruitment process for the Post of Assistant
Professor in various specialities including the General Medicines. The
respondent No. 1 applied for the Post of Assistant Professor, General
Medicines, however in view of the Institute holding him ineligible to apply
for the post advertised by the respondent Institute, the respondent No. 1 filed
SWP No. 30/1998. In the said Writ Petition, the respondent No. 1 challenged
Office Order No. SIMS 840 of 1996 dated 3rd December, 1996 whereby he
stood reverted to his parent Department of Health and also sought a direction
to the respondent Institute to treat him as an employee of the Institute.
6. He also sought a direction to the respondent- Institute to allow him
to participate in the process of selection for the post and consider him for his
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appointment as Assistant Professor in General Medicines. In this selection
process initiated vide advertised Notification No. 2 of 1997, the appellant
herein as well as the respondent No. 1, both participated and neither of the
two made the grade. The appellant herein challenged the selection process
before this court in SWP No. 1284/ 2001 titled "Dr. Fayaz Ahmed Sofi Vs.
State of J&K and Ors" which was disposed of by a learned Single Judge of
this Court on 12-06-2003. The judgment is reported as 2003(3)JKJ 154. The
learned Single Judge found merit in the Writ Petition and opined that the
selection process for the post of Assistant Professor in General Medicines
was tainted requiring quashment of the entire selection process. The learned
Single Judge, however, stopped short of quashing the selection process, in
view of the respondent Institute having made an offer to appoint the
appellant on the post of Assistant Professor, which was available due to an
incumbent Assistant Professor having abandoned his services. The Court
took note of the aforesaid offer and allowed the writ petition without
quashing selection process, but issuing direction to the respondent-Institute
to appoint the appellant on the post of Assistant Professor in the discipline of
General Medicines forthwith. This judgment of the learned Single Judge was
called in question in LPA No. 110/2003 by one Dr. Rafi Ahmed Jan. The
appeal was partly allowed to the extent of expunging the observations made
by the learned Single Judge in the judgment in respect of selection of
respondent Nos. 4 to 6, however, the judgment in respect of the appellant
herein and his subsequent appointment against the post of Assistant
Professor, General Medicines was not disturbed.
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7. So far so good, after the appointment of the appellant herein as
Assistant Professor vide Government Order No. 971-HME of 2003 dated
14th July 2003, the respondent No. 1, who despite his participation in the
selection process under the Court orders had failed to make the grade, started
manipulating his regularization with the respondent-Institute. Vide
communication No. SIMS 302 07 (XVII)/2001-1195 dated 21.08.2003, the
respondent-Institute requested the Government to modify the appointment
order of the appellant herein to provide that the appointment of appellant
would be against a temporary leave vacancy and consequently issue order of
confirmation of respondent No.1 as Assistant professor on regular/
temporary basis. Interestingly, the recommendation made by the respondent-
Institute were accepted by the Government and vide Government Order No.
1142-HME of 2003 dated 22-08-2003 sanction was accorded to the
modification of earlier Government Order dated 14-07-2003. The appellant
was ordered to be appointed and adjusted against the temporary vacancy
whereas the respondent No.1 was confirmed as Assistant Professor from the
date of his appointment as such. It seems that the serious error committed by
the Government on the recommendations of the respondent-Institute,
whereby the order of appellant was modified in the manner aforementioned,
came to the subsequently corrected. The Department of Health and Medical
Education vide Government Order No. 1273-HME of 2003 dated 17-12-
2003 withdrew the Government Order No. 1142 of 2003 dated 22-08- 2003.
It is this order passed by the Government which was called in in question by
the respondent No.1 in SWP No. 15/2004.
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8. Both the writ petitions, as is evident from the judgment impugned,
came to be contested by the official respondents as well as the appellant
herein who was arrayed as private respondent No.3 in SWP No. 30/1998,
and respondent No.4 in SWP No. 15/2004. Having considered the rival
contentions, the writ Court came to the conclusion that the writ petition
raised purely three instances for adjudication vis-à-vis the validity of the
impugned Orders:
I. Order No. SIMS 840 of 1996 dated 03-12-1996, relieving the
respondent No.1 to his parent Department i.e. H&ME;
II. Government Order No.1273-HME of 2003 dated 17-12-2003,
withdrawing the order of confirmation of the appointment of
respondent No.1 with effect from 19-07-2001;and
III. Order No. SIMS 16 (P) of 2009 dated 17-01-2009 regularising
the service of respondent No.1 with effect from 01-02-2007.
9. The writ Court, having adverted to and considered the validity of the
aforesaid three orders, came to the conclusion that with the acceptance of
appointment as Lecturer/Assistant Professor in General Medicines against
the temporary leave vacancy in the respondent-Institute, the respondent No.1
had ceased to be an in-service candidate and, therefore, could not have been
reverted to his parent Department. It was also opined by the writ Court that
the respondent-Institute having issued a sponsorship certificate in favour of
respondent No.1 to enable him to join the MD/MCH Course a PGI,
Chandigarh, and promising him payment of emoluments/stipend during the
Course, were estopped from turning around and take the plea that respondent
No.1 had abandoned the services of the respondent-Institute. The principle
of promissory estoppel was pressed into service by the writ Court to fortify
its opinion.
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10. Be that as it may, in view of the aforesaid opinion arrived at by the
writ Court, the writ petition SWP No.30/98 was allowed and impugned
Order dated 03-12-1996, reverting the respondent No.1 to his parent
Department was quashed. The writ Court also directed respondent-Institute
to regularise the services of respondent No.1 with effect from 16-08-1993 in
view of availability of post held by Dr. Mohd. Ramzan who had left the
vacancy since 30-05-1988. A further direction was issued to the respondent-
Institute to reckon the services of respondent No.1 with effect from his
initial appointment on 16-08-1993 as qualifying service for the purpose of
pension. Some of the directions were even beyond the relief claimed by the
respondent No.1 in his writ petition. Having allowed SWP No.30/98 the writ
Court declared SWP No. 15/2004 as infructuous but, at the same time,
quashed Government Order No..1273-HME of 2003 dated 17-12-2003
impugned in the said writ petition.
11. Having heard learned Counsel for the parties and perused the material
on record, we are of the considered opinion that the judgment passed by the
writ Court is wholly erroneous and contrary to the settled legal position.
12. There is no dispute with regard to the fact that respondent No.1, who
was holding the post of Assistant Surgeon in the Department of Health on
substantive basis, came to be engaged as Lecturer/ Assistant Professor in the
Department of General Medicines in the respondent-Institute against a
migrant/leave vacancy. It needs to be mentioned that in the wake of
onslaught of militancy in the year 1990 the members of the minority
community staying in the Kashmir valley had to flee to save their lives.
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These persons were forced to leave the valley due to worsening law and
order situation and they settled in other parts of the country. The
Government Employees working in Kashmir Valley were no exception. Due
to this mass exodus of the minority community, including the employees of
such community, various posts in the Government fell vacant. With a view
to run the administration, the local eligible candidates were temporary
engaged against these migrant vacancies with a stipulation that they shall be
permitted to continue till the return of incumbents of the posts. It is in these
circumstances and keeping in view the qualification possessed by respondent
No.1 he came to be engaged against one of the migrant vacancies of
Lecturers, (which was later designated as Assistant Professor) in the
Discipline of General Medicines in the respondent-Institute. He did not
resign from his substantive post of Assistant Surgeon in the Department of
Health nor had he applied for leave/migrant vacancy through proper channel
as is observed by the writ Court in the impugned judgment. It was thus a
pure and simple case of abandoning the permanent service of Assistant
Surgeon with a view to take up the higher assignment of Lecturer/Assistant
Professor in the respondent-Institute, though on a temporary migrant/leave
vacancy. It is also not in dispute that when the respondent No.1 was selected
to undergo MD/MCH Course at PGI, Chandigarh, in the year 1996, he was
working against a temporary migrant vacancy and was not holding any civil
post in the respondent-Institute or under the Government. That being the
position, the respondent-Institute was under no obligation to sponsor his
DM/MCH course or to release him salary/stipend which may be available to
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a Government employee deputed for acquiring higher qualification. As a
matter of the fact, the Civil Service Regulations, was not applicable him.
13. True it is that at the time of his admission at PGI Chandigarh
respondent No.1 had managed a certificate from respondent-Institute but
perusal of the said certificate would clearly indicate that this sponsorship
certificate was not based on facts but was tailor-made by the than Director to
further the interest of the respondent No.1. It is mentioned in the sponsorship
certificate that respondent No.1 was a permanent employee of the
respondent Institute whereas the fact remains that he was working only
against a temporary migrant vacancy having been engaged without any
selection process. Respondent No. 1 was a permanent employee of Health
Department and could have been sponsored for higher studies only by his
employer.
14. Be that as it may, when respondent No.1 was relieved by the
Government to undergo the MD/MCH Course at PGI, Chandigarh, that too
pursuant to an ad- interim order passed by a Bench of this Court in SWP No.
934/1996, it was clearly mentioned by the Government that the respondent
No.1 was undergoing the MD course at PGI, Chandigarh, at his own risk and
responsibility. It is also interesting to note that respondent No.1 though got
admission in MD/MCH Course at PGI, Chandigarh, but left the same mid-
way to do some other Course in the United Kingdom. It was a clear case of
respondent No.1 not only abandoning his permanent services as Assistant
Surgeon of the Department of health but it was also a case of leaving his
temporary service of Lecturer/Assistant Professor in General Medicines in
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the respondent-Institute. Ordinarily, the institute should have just struck off
his name from the list of temporary Faculty Members working in the
Institute against the leave/migrant vacancies. The respondent-Institute, in
our opinion, took a lenient view of the matter and instead reverted him to his
parent Department of Health. The respondent No.1, should have been
thankful to the respondent-Institute for having put him back in the service
which he had long abandoned to pursue higher studies though without the
permission of his employer i.e. the Department of Health.
15. The representation of the Government contained in Government Order
of 1993 and Government Order of 1994 were without any consequences for
the respondent No.1. The stipulation in Government Order of 1994, that the
Faculty Members appointed against temporary leave vacancies shall, in due
course, be regularized on the basis of their merit and seniority against the
available regular vacancies of the post, such faculty Member was holding,
could be taken benefit of only by those who were continuously in the service
of the respondent-Institute and were in position on the date of regular
vacancies becoming available in the Department. Such offer of
regularization, contained in Government Order of 1994, was, however,
subject to the conditions enumerated in the Government Order of 1993,
which clearly stipulated that the services rendered by the Faculty Members
while working against the temporary leave/migrant vacancies would be
counted for eligibility for the higher post, provided the performance of the
appointee during temporary period had remained satisfactory; the appointee
has to his credit two scientific papers in indexed National/International
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Medical Journals as first authors or first co-authors published during the
period of temporary appointment; and, that the appointee had remained
regular at the Institute campus to be available for duty round the clock. It
was categorically provided in the Government Order of 1993, whereby
respondent No.1 was engaged, that unauthorised absence would entail
termination of his temporary services.
16. We are aware that admission of respondent No.1 in DM Course at
PGI, Chandigarh, was after he was formally relieved by the Government,
but, his leaving the Course mid-way and joining some other Course in
United Kingdom, was undoubtedly without permission of his employer. It
was thus a clear case of unauthorised absence even from the temporary
service entailing termination of his service.
17. Viewed from any angle, respondent No.1 cannot legitimately claim to
be in the continued employment of respondent No.1, notwithstanding his
unauthorised absence during the period he was pursuing some Course in
United Kingdom. It is in these circumstances we are of the considered
opinion that the doctrine of promissory estoppel, as is explained elaborately
by the writ Court, was not attracted at all. The respondent-Institute was
perfectly within its competence to either terminate the services of respondent
No.1 or to revert him to his parent Department i.e. Department of Health
where he was serving as Assistant Surgeon prior to his appointment as
Lecturer in the respondent-Institute against a migrant vacancy in the year
1993.
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18. We also fail to understand as to how the writ Court has granted him
certain reliefs, which respondent No.1 has not even prayed from in his writ
petition. For facility of reference the prayer clause of SWP No. 30/1998 is
set out below:-
"In view of the submissions made hereinabove, it is
humbly prayed that by issuing appropriate order, writ or
direction:-
(i) Order No. 840 of 1996 dated 03.12.1996 be
quashed;
(ii) Respondents be directed to treat the petitioner as
an employee of Sheri Kashmir Institute of Medical
Sciences, Srinagar; and respondent No. 2 be
directed to allow the petitioner to participate in the
process of selection for the post of Assistant
Professor and to consider him for appointment to
such post."
19. It is true that while filing the supplementary pleadings, respondent
No.1 has also prayed for regularization of his services with effect from the
date the post of Lecturer became available in the Institute but that was not a
part of the prayer made in the writ petition.
20. Be that as it may, since we do not find any fault with the order
impugned in the Writ Petition No.30/1998 i.e. Order No. SIMS 840 of 1996
dated 903-12-1996, as such, we see no reason or justification to direct the
respondent-Institute to regularise the services of respondent No.1 from a
particular date, i.e. when the vacancy became available in the respondent-
Institute. We, however, cannot lose sight of certain developments that took
place during the pendency of the writ petition before the writ Court.
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21. The respondent No.1, who had abandoned his services for pursuing
the medical Course in United-Kingdom, came to be engaged again as
Assistant Professor, General Medicines, against available temporary leave
vacancy vide Government Order No. 22-IMS of 2001 dated 09-07-2001 and
his services were later regularised against the post of Assistant Professor,
General Medicines with effect from 01-02-2007 in terms of Order No.
SIMS-16(P) of 2009 dated 17-01-2009. We, therefore, clarify that,
notwithstanding, that we have found the impugned judgment rendered in
SWP No.30/1998 wholly unsustainable, we do not wish to disturb the
regularization of services of respondent No.1 ordered by the respondent-
Institute as Assistant Professor, General Medicines, with effect from 01-02-
2007.
22. So far as SWP No. 15/2004 is concerned, suffice it to say that the writ
Court, having held this writ petition as 'infructuous', could not have issued
Certiorari to quash Order No. 1273-HME of 2003 dated 17-12-2003
impugned in the said writ petition. Otherwise also, there should be no doubt
that the appointment of appellant herein as Assistant Professor in General
Medicines was in pursuance of and in compliance with the judgment passed
by a Bench of this Court in SWP No. 1284/ 2001 titled "Dr. Fayaz Ahmed
Sofi Vs. State of J&K and Ors, which judgment stood approved by the
Division Bench in LPA No.110 of 2003 on 17-04.2009. The issuance of
Government Order No. 1142-HME of 2003 dated 22-08-2003 whereby the
order of appointment of the appellant herein as Assistant Professor was
modified was wholly unwarranted, to say least, completely perverse. The
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Order was tailor-made to sub-serve the illegitimate interest of respondent
No.1 and the same was rightly withdrawn by the Government by issuance of
Government Order No.1273 of 2003 dated 17-12-2003, the order which was
subject matter of challenge in SWP No.15/2004.
23. Even on merits we find that there is no legal infirmity or illegality in
the Government Order dated 17-12-2003, impugned in SWP No.15/2004,
and, therefore, there was no occasion for the writ Court to quash the said
order.
24. For the forgoing reasons, we find merit in this appeal and,
accordingly, the judgment and order dated on 13-10-2023 is set aside.
Resultantly the appointment of the appellant as Assistant Professor in the
Department of General Medicines, made in terms of Government Order
No.791-HME of 2003 dated 14-07-2003 shall remain intact. The respondent
No.1 shall be deemed to have been regularised as Assistant Professor, in
General Medicines with effect from 01-02-2007, as envisaged in Office
Order No. SIMS 16 (P) of 2009 dated 17-01-2009. The services rendered by
respondent No.1 as Assistant Professor, General Medicines, while working
in temporary capacity in the respondent-Institute from time to time, shall be
reckoned only towards qualifying service for the purposes of pension.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
Srinagar.
23 .05.2025
Anil Raina, Addl. Registrar/Secy
Whether the order is speaking : Yes
Whether the order is reportable: Yes
