IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH
AT SRINAGAR
LPASW No. 19/2019 c/w
LPASW No. 149/2018
Reserved on: 06.11.2024
Announced on: 29 .11.2024
State of JK and others …Petitioner(s)/Appellant(s)
Through: Mr. Ilyas Nazir Laway, Government Advocate with
Mr. Mohd Younis, Assisting Counsel
Vs.
Faisal Mushfeen Qureshi ...Respondent(s)
Through: Mr. Z.A. Qureshi, Sr. Advocate with
Ms. Monsia Manzoor, Advocate in LPASW No. 19/2019
Mr. M.Y. Bhat, Sr. Advocate with
Mr. Sajid, Advocate in LPASW No. 149/2018
CORAM:
HON’BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
LPASW No. 149/2018
1. The present appeal has been filed by the appellants who are aggrieved
by the order dated 28.03.2018 passed in SWP No. 807/2013 and SWP
No. 427/2012.
2. The brief facts necessary to appreciate the present case are as follows.
3. The National Board of Examination, New Delhi, held an examination
for the DNB Course in Cardiology at Fortis Hospital, Mohali. The
respondent participated in the same and was declared qualified and in
terms of the order dated 24.02.2012, he was required to join the said
th
course by 9 March 2012, failing which, his seat would have been
forfeited. The respondent applied for grant of study leave before the
appellants where he was working as an Assistant Surgeon and the
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failure on the part of the appellants to take a decision on the said
application compelled the respondent herein to approach this Court by
way of SWP No. 427/2012. This Court, vide order dated 08.03.2012
passed in the said petition, issued notice to the appellants herein. It was
also the case of the respondent herein that the appellants had verbally
assured him that his case would be considered and study leave was
formally granted in his favour and that he could join the course at Fortis
Hospital, Mohali. On the said assurance of the appellants, the
respondent left the Department of Health and joined the DNB Course at
Mohali. Thereafter, the appellants herein issued a Government order
dated 25.04.2013 directing the termination of the respondent from the
services of the Department which was impugned before the learned
Single Judge by way of SWP No. 807/2013.
4. Before the learned Single Judge, the respondent challenged the order of
termination on the grounds that similarly situated Assistant Surgeons
who are working with the petitioner/respondent herein in the
Department of Health were granted study leave for pursuing the DNB
course and other courses both within and outside the State and that the
order of his termination was an arbitrary exercise of jurisdiction by the
appellants herein. It was further averred before the learned Single Judge
that the respondent was not provided an opportunity of being heard
before passing the order of termination.
5. Before the learned Single Judge, the respondents have resisted and
controverted the petition filed by the respondent herein on the grounds
that the respondent was appointed as an Assistant Surgeon on
17.06.2010 and that he proceeded on unauthorized absence from his
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duties w.e.f 02.03.2012, when he was still on probation and that, as the
respondent failed to report for his duties, the Directorate of Health
Services, Kashmir, served a show cause notice on him dated 26.07.2012
and as the respondent did not file any response to the said notice, the
case was forwarded to the Administrative Department, where a final
opportunity was given to the respondent and other similarly situated like
him on 10.10.2012 to report back to the Directorate of Health Services,
Kashmir, within 15 days, failing which, it would be presumed that the
noticed persons had nothing to say in their defence and disciplinary
proceedings as envisaged under Article 128 of CSR Vol-II shall be
initiated against him. The respondent once again chose not to respond to
the said notice. As the respondent absented unauthorizedly from service,
with the aid of Rule 21(1) of the J&K Civil Services (Classification,
Control & Appeal) Rules -1956, his service was terminated.
6. The Learned Single Judge was influenced by the fact that several others
who were similarly situated like the respondent herein, who had gone
for higher education while still being on probation were allegedly
accommodated by the appellants herein, and that the case of the
respondent was not dealt at parity with them. In other words, the
Learned Single Judge was of the opinion that others so similarly
situated as the respondent were not terminated from service and were
allowed to complete their post-graduation even though they had availed
of the same during the period they were in probation. The Learned
Single Judge has also referred and relied upon the judgment passed by
Learned Single Judge in Syed Asim Razvi (SWP No. 862/2007), which
was decided vide judgment dated 26/05/2011, by which the termination
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orders were quashed by this Court by directing the petitioners therein to
be given the benefit of Government order dated 25.04.2008. The said
order has been reproduced in the impugned order itself and having gone
through the same, this Court is of the opinion and that the Learned
Single Judge had misconstrued the Government order dated 25.04.2008,
which was applicable and provided for the seniority of those Assistant
Surgeons to be maintained while they were undergoing post-graduation
education as in-service candidates.
7. Learned counsel for the respondent has submitted that similarly situated
persons were granted the benefit of both, concluding their higher
education and also the protection of the seniority by Government order
dated 25.04.2008. However, learned counsel for the appellants has
pointed out that the said Government order would not apply in the case
of the respondent herein as that covered only such persons who were
already undergoing the higher education and were thereafter selected to
the post of Assistant Surgeons and so were permitted to continue with
the post-graduation studies rather than leave their studies midway to
join service. He has further submitted that the case of the respondent
herein was one where the respondent had first joined service and during
his probation applied and secured a seat for post-graduation and then
applied for leave which, however, was not granted and thereafter stayed
away without leave on account of which he was terminated. Learned
counsel for the appellants has drawn the attention of this Court to Rule
61 (4) (i) relating to study leave under the Civil Services (leave) Rules,
1979. He has also referred to Rule 62 (a) of the said Rules. Both these
Rules shall be referred to in the course of this order.
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8. Heard the learned counsel for the respective parties and perused the
record of the learned Single Judge.
9. From the order which is under challenge, it is clear that the Learned
Single Judge has firstly proceeded on the premise that identically
situated persons were granted the benefit of continuation in service for
which the respondent herein was terminated. It is also clear that the
Learned Single Judge has misconstrued the Government order dated
25.04.2008. As regards the first premise on which the Learned Single
Judge proceeded, this Court is of the opinion that if a previous action of
the State is wrong on account of the same being violative of existing
law, the same cannot be perpetuated in order to grant relief to other
similarly situated persons in violation of the law. In other words, there
can be no question of negative parity.
10.The Government order mentioned hereinabove clearly reveals that its
application was in those cases where a person was already pursuing
post graduation and during that time was selected in service as an
Assistant Surgeon. The Government order protects such persons by
permitting them to continue with their higher education lest the time
that they spent in pursuing the post graduation before entering service,
is wasted. The said Government order does not apply in those cases,
where the person joins the service as an Assistant Surgeon and while
being on probation applies for post graduation and is selected for it in
the light of Rule 61 (4) (i), which provides for study leave to be granted
for those who are in Government service as per the Civil Services
(leave) Rules 1979. The aforementioned provision provides that study
leave shall not ordinarily be granted to a Government servant who has
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not rendered three year service in the Government or where he
continues to be a probationer and has not completed the said period of
probation satisfactorily whichever is later. Therefore, it is apparent that
the respondent herein who was on probation and while being a
probationer was selected for higher studies, was not eligible for the
grant of study leave as per 61(4) (i).
11.Under the circumstances, this appeal is allowed and the order passed by
the Learned Single Judge is set aside.
12.The appeal stands disposed of.
LPASW NO. 19/2019
13.In this case, the respondent herein had joined government service as an
Assistant Surgeon and was on probation. During that time, he applied
for and was selected for postgraduate studies and so he applied for leave
and joined the institution for postgraduate studies. He was finally
terminated from service after notice was issued to him to join his place
of posting within 15 days and the respondent not having done so, was
removed from service. The Learned Single Judge has allowed the writ
petition relying upon the judgment of the Coordinate Bench in SWP No.
807/2013 (Dr Mohammed Iqbal Wani Vs. State of JK and others).
However, the said judgment on the basis of which the Learned Single
Judge has relied upon and has granted relief to the respondent herein on
the grounds of parity, has been set aside by this Court in LPA No.
149/2018.
14.Under the circumstances, the case is remanded to the Learned Single
Judge with a request to decide afresh on the facts and circumstances,
which may be peculiar to the case of the respondent uninfluenced by
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this order.
15.The appeal stands disposed of.
16. A copy of this order/judgment be placed on the record file of each of
the appeals.
(
PUNEET GUPTA) (ATUL SREEDHARAN)
JUDGE JUDGE
SRINAGAR:
29 .11.2024
ARIF
Whether the order is reportable? Yes/No
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