BASHIR AHMAD SHAH Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner had proceeded abroad (England) for higher studies after obtaining no objections certificate from the obtaining no objection certificate from the government vide communication No. MDA -73 Dated 18 -11 -1976 which is reproduced here under: - "Sub - Grant of to no -objection certificate in favour of Dr. Bashir Ahmed shah Assistant Surgeon to proceed abroad for higher studies. I am directed to convey no objection of the health and F.I. Department of Dr. Bashir Ahmed Shah Assistant Surgeon Civil Secretariat Dispensarys proceeding abroad for higher studies for a period of two years subject to the following terms and conditions : - (i) The state government will not bear any financial liability during the study/ training period; (ii) The doctor will not claim any promotion or higher scale of pay out side the normal course merely on the basis of higher qualification; and (iii) On his return he will be retaken in service only as Assistant surgeons. The period of his absence abroad shall be regularised under rules after he actually hands over the charge of his post for the purpose. A copy of charge of the post by doctor may be supplied to this department also."

(2.) PETITIONER left the country in April, 1977 subsequent to the no objection. The petitioner overstayed for five years and about nine months in connection with his studies. The petitioner resumed his duties on 21st. Jan. 1985. After resuming the duties the petitioner sought regularisation of the above said period on the analogy adopted by the respondents in case of doctors whose particulars stand reflected in the application. The petitioner has made a specific averment in the writ petition that the respondent No. 3 had made a recommendation to the respondent No. 2 for regularising his services on the analogy evolved in respect of other similarly situated doctors. The petitioner has annexed government order forming annexures P1 and P2 which substantiate his argument that the similarly doctors have been allowed certain benefits including the increment whereas these benefits are denied to the petitioner.

(3.) PETITION came to be admitted by virtue of order dated 25 -05 -1992. Several opportunities were granted to file counter. Counter was not filed. Petition came up for consideration on 27/9/1993 before the court. Court granted last and final opportunity of three months to the respondents to file counter and it was provided in the order itself that failure to file the counter would lead to the presumption of correctness in respect of averments contained in para 6 (Sub -paras a, b, and c). State did not choose to avail of the opportunity to file the counter, as such, averments made by the petitioner in the writ petition are unrebutted. The court has forewarned the respondents that in case they choose not to file the counter, presumption of correctness would work against them, that apart, the averments being unrebutted, no option is left for the court but to presume correctness. On this view of the matter it becomes necessary to find out as to what is connoted by the avernments reflected in the above said para and sub -paras and conjoint reading of these paras depicts that respondents have regularised the periods spend by the doctors on foreign assignments, allowing them the increments whereas in case of petitioner deviation is resorted to.