SHOWKAT ALI ZARGAR Vs. STATE

JUDGEMENT

(1.) THIS writ petition questions order of removal of the petitioner -Associate Professor from the establishment of Sher -i -Kashmir Institute of Medical Sciences (SKIMS for short), emanating from overstay on leave. It is seen that in the year 1992 leave for 92 days was sanctioned in his favour which was availed of w.e.f. 14.03.1992 (see page 21 of the writ petition). Extension of leave was sought by him but was not conceded to, consequently, a show cause notice vide No.SIMS/Per/345/93 -6101 -4 dated 26.05.1993 which came to be challenged by medium of SWP No.1664/93, but the writ Court declined to place restraint on the respondents from going ahead with further proceedings in furtherance of impugned show cause notice and on the assumption that the petitioner did not respond to the notice, order of removal vide No.SIMS/Per/543/93 -8864 -76 dated 08.12.1993 was issued which reads: GOVERNMENT OF JAMMU & KASHMIR SHER -I -KASHMIR INSTITUTE OF MEDICAL SCIENCES SRINAGAR Sub: Removal of Dr. S. A. Zargar, Associate Professor, Deptt. of Gastroenterology from the services of SKIMS. Ref: Approval of H.E. the Governor, J&K State (Chairman, Governing Body, SK Institute of Medical Sciences) vide His No. 2263 dated 24.11.1993. Whereas 92 days earned leave w.e.f. 28.03.1992 to 27.06.1992 in continuation to winter vacation sanctioned vide No. SIMS 213 of 1992 dated 25.02.1992 was sanctioned in favour of Dr. S.A. Zargar (543), Associate Professor, Deptt. of Gastroenterology, and, On expiry of the leave the doctor did not resume his duties and instead asked for extension which was rejected and conveyed to him telegraphically vide this office No: SIMS/Per/543/92 -3182 dated 15.07.1992. and. Inspite of the instructions conveyed to the doctor, he did not join duties back, and, The doctor has failed to resume duties and the institute cannot afford his continued absence, and, In terms of the rules as applicable to his services. unauthorized absence from duty involves loss of appointment, and, Dr. S. A. Zargar was charge sheeted vide No. SIMS/Per/543/93 -3618 -20 dated 21.08.1992 for remaining on unauthorized absence from duty and was asked to explain as to why action as contemplated under rules may not be initiated against him. His reply was supposed to reach this office within 21days from the date of issue of this letter, and, One Mr. S.S. Zargar replied to the charge sheet on 02.11.1992 and same was not found satisfactory, and, An Enquiry Committee was constituted vide Office Order No. SIMS/345 of 1993 dated 26.04.1993 to enquire into the continued unauthorized absent case of Dr. S.A. Zargar from duty, and, The said Committee decided to give a chance of personal hearing to the doctor and accordingly the doctor concerned was requested to appear before the said committee on 17.05.1993 at 11 AM for personal hearing, and, The communication in this behalf was sent to the concerned doctor by registered A.D. post yet the doctor failed to appear before the said committee on schedule date, and, On going through the report of Enquiry Committee, the competent authority have come to the preliminary conclusion that Dr. Zargar be asked to show cause as to why he shall not be removed from the services of the Institute for remaining on continued unauthorized absence from duty, and, The said doctor was asked to show cause as to why his services shall not be removed from the Institute for remaining on continued unauthorized absence from duty vide this office No.SIMS/Per/543/93 -6101 -04 dated 26.05.1993 and the reply was supposed to reach this office within one month from the date of issue of this notice, and, Instead of replying the show cause notice, he approached Court of law and filed a writ petition SWP No. 1664/93 to evade resumption of duties in the Institute, and, In pursuance of court directives in the matter of above cited writ petition, Dr.S.A. Zargar was given an opportunity to appear before the enquiry committee constituted in this behalf to conduct enquiry into his unauthorized absence as mentioned above vide No: SIMS/Per/543/92 -8069 -71 dated 04.10.1993 and was supposed to appear before the committee constituted or approach the convenor of the committed (Joint Director. Admn.) for being heard in person within the stipulated period of 15 days form the date of issue of the notice as mentioned, and, The doctor failed to avail the opportunity of being heard by the committee constituted for the purpose as mentioned above. Now, therefore, Dr. S. A. Zargar (543), Associate Professor, Deptt. of Gastroenterology. S.K. Institute of Medical Sciences, Srinagar is hereby removed from the services of SKIMS for remaining willfully and unauthorized absent from duty w.e.f 18.06.1992 (FN). However this order is issued without prejudice to the recovery of outstanding in the books of SKIMS against his name. By order. Sd/ - Director No: SIMS/Per/543/93 -8864 -76 Dated 8th, December, 1993. 

(2.) THE order aforementioned was challenged by medium of SWP 210/1994 and during pendency of the writ petition, the petitioner was re -employed on the post of Associate Professor by following order: GOVERNMENT OF JAMMU AND KASHMIR SHER -I -KASHMIR INSTITUTE OF MEDICAL SCIENCE SOURA SRINAGAR Subject : Appointment of Faculty. Ref: i) Recommendation of the committee constituted vide Government Order No. 26 -IMS of 1997 dated November 18.1997. ii) Approval of Honâ„¢ble Chief Minister (Chairman, Governing Body. SKIMS) conveyed vide No. CMS/886/98 dated 18.08.1998. GOVERNMENT ORDER NO. 24 -IMS OF 1998. DATED: SEPTEMBER 10,1998. Sanction is hereby accorded to appointment of Dr. Showkat Ali Zargar as Associate Professor in the department of Gastroenterology in the pay scale of Rs. 5100 -7300 on temporary basis. By order of the Government of Jammu and Kashmir.  The order of re -employment necessitated laying of a motion for amendment of the writ petition which was disposed of by the writ Court along with writ petition on 13.09.2000 in the following terms: Petitioner has filed an application seeking amendment of the petition. This is because of the certain intervening developments. This petition is accordingly disposed of with the following directions: - i) The petitioner may, if so advised prefer a fresh petition. Writ petition filed shall be registered in the current year. ii) In the event of petitioner filing the writ petition within a period of six weeks from today, the writ petition would be deemed to have been admitted: iii) Learned counsel who is appearing for the respondents today shall file counter within a further period of eight weeks. Thereafter the writ petition shall be listed for hearing. A copy of this order would be placed on the file of the writ petition which the petitioner wish to file in the period stipulated above. For a period of six weeks, from today, the present status quo of the petitioner shall not be touched. This order shall be subject to variation as and when the matter is brought before the Court after the amended petition is filed. In the event of failure to file amended petition within the time allowed the interim direction shall stand vacated automatically. The writ petition as also the CMP stands disposed of. Delay and latches for the period the petition was pending in this Court shall be excluded. 

(3.) HAVING been permitted to file a fresh writ petition, present amended SWP 1378/2000 was filed on 19.09.2000. The decision admits no ambiguity on the count that the petitioner had sought amendment of the SWP No. 210/1994 but the Court on its own directed him to file a fresh writ petition, consequently, the present writ petition on a variety of grounds, one being invidious discrimination. The contention is founded on the following Government orders: GOVERNMENT OF JAMMU AND KASHMIR SHER -I -KASHMIR INSTITUTE OF MEDICAL SCIENCES SOURA SRINAGAR Sub: Regularization of period of absence in favour of Dr. M. L. Babu, Assistant Professor, Neurosurgery, Sher -i -Kashmir, Institute of Medical Sciences, Srinagar. Ref: Director SKIMS Srinagarâ„¢s letter No.SIMS -Per -520/87 -1453 dated 29.04.1987. Government Order No.209 -ME of 1987 Dated 19.06.1987 Ex -Post Facto sanction is accorded to the grant of leave whatever kind due in favour of Dr. M.L. Babu, Assistant Professor, Department of Neurosurgery, Sher -i -Kashmir Institute of Medical Sciences, Srinagar w.e.f. 17.03.1985 to 25.11.1985. By order of the Government of J&K.  Government of Jammu & Kashmir  Health & Medical Education Department Subject: Rejoining of doctors whose services were terminated. Reference: Cabinet Decision No. 374 dated 22.09.1995. Government Order No.713 HME of 1985 Dated: 30.09.1985 In supersession of Government order No.263 -HME of 1984 dated 13.04.1984 Government Order No.579 -HME of 1985 dated 1.8.1985 and Government Order No.442 -HME of 1984 dated 21.06.1984, the following doctors are hereby permitted to rejoin in the institutions in the disciplines shown against each. 1. Dr. Mohd. Ashraf Wani Lecturer Blood Bank and Hematology, Medical College, Srinagar. 2. Dr. Altaf Hussain Asstt. Prof. Orthopedics Medical College, Srinagar. 3. Dr. Masood Nehvi Asstt. Surgeon/Medical College, Psychiatry, Medical College, Srinagar. By order of the Government of J&K." Subject: Ex -India leave availed by Dr. M.I. Qadri, Asstt. Prof. Clinical Hematology, SKIMS, Srinagar, regularization thereof. Reference: Director, SKIMS Memo No.SIMS/PER/227/86/1864 dated 11.10.1986. Government Order No.941 -HME of 1986 Dated 14.10.1986 It is, hereby ordered that: - i. The order of termination of Dr. M.I. Qadri, Asstt. Professor, Department of Clinical Hematology SKIMS issued vide Government order No. 126 -IMS of 1985 dated 17.10.1985 is revoked and his previous service restored. ii. Dr. M.I. Qadri, is granted extra ordinary leave w.e.f. 1.05.1985 to September 29, 1985. iii. The joining report of Dr. M.I. Qadri, submitted on September 30th , 1985 is hereby accepted. iv. Joining report of Dr. Qadri, for the post of Associate Professor submitted on September 30th ,1985 is also accepted. v. The period from September 30, 1985 to November 7, 1985 is treated as period on duty rendered by Dr. Qadri. By order of the Government of Jammu & Kashmir.  The orders aforementioned indicate that the Government has not only regularized the period of absence but extended the leave also. Dealing with the contention, Mr. Magray submitted that when Dr. Qadri had absented second time regularization was denied. The argument is advanced simply to be rejected because the petitioner first timer absentee has pressed into service first time treatment accorded to Dr. Qadri to claim similarity. It may be reiterated that Dr. Qadriâ„¢s termination was revoked and period of his absence was treated on leave and in respect of other doctors leave was extended, conversely, extension was denied to the petitioner, thus subjected to hostile discrimination violating the mandate of article 16(1) of the Constitution of India, which envisages equality of opportunity in respect of employment.