ASHOK KUMAR SHARMA Vs. STATE

JUDGEMENT

(1.) THIS petition seeks the indulgence of the Court for the issuance of a writ of mandamus directing the respondents to allow the petitioner to join his services as teacher. Appointed as a teacher in the year 1980, the petitioner proceeded on sanctioned leave with effect from 8,5.1983 to 11 -5 -1985. Subsequently, he applied for extension of leave on the basis of his ailment and did not join for more than a couple of years thereafter. He, by virtue of his joining report addressed to the Headmaster, High School Brijnagar (Annexure PD) sought permission for allowing him to join the duties. Respondent No. 5 declined the permission and pointed out that his lien was already shifted to a school headed by respondent No. 4. The petitioner was not allowed to join by respondent No. 4 as well. Aggrieved of the respondents, omission to allow him to join the duties, he has filed the present petition.

(2.) OBJECTIONS have been filed in which the respondent.", while admitting the factual position stated that in terms of Art. 133 of the J&K Civil Services Regulations (hereinafter called Regulations), the petitioner was deemed to have been out of the state employment.

(3.) ON a plain construction Art. 113 of the Regulations, lam not in a position to agree with Mr. Singh, learned counsel for the respondent -Stale. This is so because of two reasons : first, that it is after 5 years that a presumption of a person being out of service can be drawn. The period intervening the two dates i.e., 8 -5 -1983 and 3 -5 -1988, falls short of five years, therefore, this rule is not applicable and has been applied in anticipation of its coming into force. Secondly, that Art. 113 of the Regulations proceeds on a presumption. A presumption is an off -shoot of fiction of law and can be rebutted. Before drawing a presumption in terms of Art. 113, a finding is to be recorded by the competent authority. That finding is supposed to be based upon some proof and while giving such a finding, the person in respect of whom an order is passed should be heard. I am not inclined to perceive of such a presumption in absence of an inquiry. Law can in no ease allow an order to be passed against a person without affording him an opportunity of being heard. If that is done, it is sure to cause miscarriage of justice. I, therefore, am not in a position to agree with Mr. Singh learned counsel for the State in coming to a conclusion that the prolonged absence of the petitioner in the instant case, has debarred him from allowing claim to the post he was holding on substantive basis.