SYED FAHEEM ALI BUKHARI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS writ appeal is directed against the judgment and order dated 25 -11 -2000 recorded by learned Single Judge in SWP No. 250/2000.

(2.) ON consideration the appeal stands admitted. Notice issued to the learned counsel for the respondents, they take notices.

(3.) WE have heard Mr. R.A. Jan earned counsel for the appellants as well as Mr. M.I. Qadri SAAG for the official respondents and Mr. A. Haqani learned counsel for respondent No. 4. The incontrovertable facts leading up to the present writ appeal are : that the appellant was appointed as Medical Assistant on 08 -11 -1998 and was posted at Jawahir Lal Nehru Memorial Hospital Srinagar. The post of Medical Assistant later on came to be re -designated as Pharmacist; that the appellant proceeded on 90 days leave w.e.f. 08 -06 -1993. Later on, on expiry of this leave, 45 days earned leave was again sanctioned in his favour commencing from 30 -08 -1993. Thereafter 120 days half pay leave was granted in his favour w.e.f. 13 -10 -1993; that the appellant after the expiry of said leave sanctioned in his favour did not resume his duties, he applied for further spell of 9 months leave w.e.f. 01 -07 -1995 which does not appear to have been sanctioned and he did not report to his duties; that respondent No. 3 issued notice on 05 -12 -1997 calling upon the appellant to report to his duties within a period of 15 days failing which proceedings for his termination from service as admissible under rules shall be initiated against him. This notice came to be published in the issue of Daily Aftab dated 11 -12 -1997. Pursuant to this notice, the appellant did not report to his duties. However, this notice came to be replied by his father. On 14 -05 -1998, the appellant appeared before the office of the respondent No. 3 submitted his joining report but was not permitted to join instead respondent No. 1 came to issue a show cause notice dated 14 -12 -1999 calling him upon to show cause as to why his services may not be terminated under Article 128 of Jammu and Kashmir Civil Service Regulations for remaining un -authorisedly absent from duty. Aggrieved by the said notice dated 14 -12 -1999, the appellant approached this court through the medium of writ petition wherein, he came to seek indulgence of the court for the issuance of writ of certiorari to quash the said show cause notice being illegal, improper and ultra vires and nonest in the eye of law and also for the issuance of writ of mandamus directing the respondents to permit the petitioner to resume his duties as per his joining report dated 14 -05 -1998, and to mark his attendance also and to pay him salary. The respondents 1 to 3 and also respondent No. 4 who came to be appointed in the leave arrangement of the appellant when he proceeded on leave filed their objections separately. In their objections the respondent 1 to 3 have assailed the maintainability of the said petition inter alia on the ground that the appellant has abandoned his services by remaining unauthorised absent for years together. The respondent No. 4 also came to assail the maintainability of the writ petition inter alia on the ground that he has not approached the court with clean hands because he has suppressed the facts of his going to Saudi Arabia where he took a foreign assignment, he visited Pakistan after a valid visa where he went training in holding of sophisticated weapons in Pakistan Occupied Kashmir, this fact was admitted by him when he was apprehended by the police and that the Director General of Police J&K State by virtue of his communication in this regard has informed Director Health about the involvement of the appellant in subversive activities. The respondents have also stated that while serving in Saudi Arabia he contracted marriage with a Philippine girl namely Maria. The learned Single Judge on conclusion of the writ proceedings after hearing the parties came to dispose of the writ petition with directions to the official respondent to hold enquiry initiated by them and complete the same within four months and also with the direction that the relief prayed for release of salary and for permission to join against the post shall be dependent upon the result of the enquiry. This order of the learned Single Judge is impugned in this appeal.