GH HASSAN MIR Vs. STATE

JUDGEMENT

(1.) THE petitioner claims to be appointed as orderly in the year 1970 on adhoc basis in the respondent institute and subsequently confirmed on the said post. The petitioner further claims that in order to get his wife medically treated at Delhi he submitted leave application on 9th March 1981 requesting therein for sanction of leave for a period of three months. The petitioner thereafter claims to have sought medical leave as also leave without pay for six months. The petitioner claims that he reported for duty in the year 1982 but the respondents did not allow him to join. The petitioner submitted representation to the respondents for allowing him to join duties. The representation annexed with the writ petition is dated 15th June 1997. The petitioner has thus prayed for issuance of writ of mandamus to direct the respondents to allow the petitioner to join his services and give him all service benefits which would have been given to him had he been allowed to join his service in time. The petitioner further prays for issuance of mandamus commanding the respondents to pay salary to him and other monitory benefits for the period he was kept out of service by respondents with further direction for being promoted to next higher post.

(2.) DURING pendency of the writ petition Regional Engineer College was taken over by Central Government and the name of the college has been changed from Regional Engineering College to National Institute of Technology. The petitioner during the pendency of the writ petition moved an application for allowing him to change the cause title of the writ petition. The amended writ petition has been filed.

(3.) IN the reply filed by respondents 2 and 3 objections were raised about the maintainability of the writ petition on the ground that the petitioner has voluntarily relinquished his employment in the erstwhile engineering college with effect from 18.04.83. Further objection is raised by respondents that as the college was a Society registered under J&K Societies Act the employees of the said college as such were not holding any post under the State and the erstwhile college was not amenable to writ jurisdiction as employees were not coming under the protective umbrella of Article 311 of the Constitution of India. The respondents have further stated that the erstwhile college was held to be an authority under article 12 of the Constitution and was thus, amenable to writ jurisdiction only so far claim would be made of violation of the guarantees as contained in part -III of the Constitution. It is further pleaded that petitioner who held the post of Laboratory Attendant right from his engagement had shown lack of interest to discharge his duties properly which is proved by the fact that in the short span of service he applied for various kinds of leave particulars whereof have been given at para 4 under the head "statement of material facts". It has been further pleaded that petitioner applied for one year leave w.e.f., 19th April, 1983 upto 18th April 1984 and after expiry of the leave period petitioner failed to resume his duties and has voluntarily relinquished his employment in the erstwhile Society. It has been further pleaded that petitioner has failed to resume his duties pursuant to the communication No. REC/PD/84/470 dated 12.06.1984 which was send to him under registered postal cover wherein he was asked to resume his duties and also to explain for having remained un -authorizedly absent. After having failed to respond to the said communication, another communication bearing No.REC/PD/85/5147 -48 dated 10th Sept. 1985 was served upon petitioner to inform him once again to join his duties on or before 01.10.1985 and it was further informed in the said communication that in the event of his failure to resume his duties he shall be deemed to have voluntarily relinquished the employment in the erstwhile college. The copy of the communication dated 10th Sept. 1985 has also been placed on record along with the reply. The petitioner having again failed to respond, constrained the respondents to issue notice bearing No. REC/PD/85/5911 -12 dated 6th Dec. 1985 giving final opportunity to petitioner to resume duty on or before 12th Dec. 1985. It was further conveyed in the said communication that in case the petitioner fails to resume duties in the college his services shall stand automatically terminated. The petitioner instead of resuming his duties applied for final withdrawal of GP Fund which was sanctioned, released and disbursed to him vide receipt dated 3rd Oct. 1987. The stand of the respondents is thus, the petitioner has abandoned/voluntarily relinquished his employment. The respondents have further stated that the writ petition has been filed in the year 1997 and no explanation whatsoever has been given for filing the delayed writ petition.