TAQADUS GULZAR ALI Vs. STATE

JUDGEMENT

(1.) APPLICATION of SRO No. 321 dated 7.12.1995 or SRO No. 514 dated: 22.11.1999 is the sole question involved in the present petition. Since the issue is purely a legal one, Mr. Lone, learned counsel appearing for the respondents did not choose to file any reply. The admitted facts as stated in the petition are that the petitioner who was working as Accounts Assistant with the respondent -University, applied for study leave with effect from 1.11.1995 for two years. He was asked to resume duty vide letter dated: 17.6.1998. He, however, submitted his joining report on 22.6.1999. Vide order dated: 25.9.1999 petitionerâ„¢s joining report was accepted and he was allowed to work pending final decision regarding his aunauthorized absence from duty. Respondent No. 1 passed an order No. 443 (Estt:) of 2000 dated: 21.12.2000 whereby period of absence with effect from 7.11.1995 to 21.6.1999 is treated as Dies -non . This was said to be in terms of SRO 514 dated 22. 11.1999. Petitioner has called in question this order to the extent it treats the period of absence of the petitioner as "Dies -non" and deprives him of all the benefits available to him in terms of earlier SRO 321. Petitioner has also assailed the constitutional validity of SRO 514. Since the learned counsel appearing for the parties agreed that the issue can conveniently be resolved by deciding the question of applicability of the relevant SRO, the controversy regarding constitutional validity of SRO 514 need not to be gone into.

(2.) ADMITTEDLY on the date the petitioner submitted his joining report i.e. on 20.6.1999, it was SRO 321 dated: 7.12.1995 which in operation and regulated the question of authorized leave or absence. For the purpose of brevity, the said SRO is quoted as under: - SRO 321: - In exercise of the powers conferred by proviso to section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to make following recommendations in the Jammu and Kashmir Civil Services Regulations Volume I, namely: - In the said rules: The existing Government instruction below note 4 to a Article 163 shall be recast as under: - Government Instruction: No period of un -authorized leave or absence may be treated as Extraordinary Leave without allowances when a government servant has at his credit earned leave. Where it is the intention of the competent authority not to allow the concerned government servant any pay and allowances for the period of unauthorized absence, the said period may be treated as Dies -non (not qualifying for any remuneration). The Dies -non in such cases shall not disturb the title of earned leave nor shall it constitute an interruption for service qualifying for pension, leave and increment. Explanation - The import of term dies -non is that: - (a) It does not qualify for any remuneration (pay and allowance). (b) It does not count for pension. (c) It does not count for increment. (d) It does not cause any interruption for leave earned up to the date preceding that on which the period of Dies -non has commenced unless it is the intention of the competent authority to have such period of leave forfeited in which case mention above it should be made in the order itself. It does not cause any interruption for the past service qualifying for pension. By order of the Governor.

(3.) DESPITE the joining of the petitioner, the period of his absence was not decided, it was only on 25.9.1999, the Registrar of the respondent -University passed an order No.510 (Estt:) of 1999 dated: 25.9.1999 saying that the joining of the petitioner is pending final decision regarding his unauthorized absence from duty. The fact remains that the petitioner was working with effect from the date of his joining i.e.. 20.6.1999. As a consequence of passing of order, dated: 25.9.1999, the issue appears to have been considered and finally vide impugned order no.433 (Estt.) of 2000 dated:26.12.2000, the period of absence of the petitioner with effect from 1.11.1995 to 21.6.1999 came to be decided and the same was treated as dies -non. This decision was taken on the basis of the rules dealing with unauthorized absence as formulated (amended) vide SRO: 514 dated: 22.11.1999. The important stipulation in this order is the unauthorized period of absence of Mr. Taqadus Gulzar Ali, Accounts Assistant with effect from 7.11.1995 to 21.6.19991 is treated as Dies -non. In view of the above stipulation, petitionerâ„¢s joining was accepted/regulated with effect from 21.6.1999.