M.A. Wani (Prof.) vs SKIMS, Srinagar

Hakim Imtiyaz Hussain, Judge

Petitioner Professor M.A. Wani is the Professor and Head of the Department, Neuro Surgery in Sher-i-Kashmir Institute of Medical Science

Soura, Srinagar. He joined the Institute in April, 1982 and has made valuable contribution towards the development of the Department of Neuro

Surgery of the Institute. In January 1995 he proceeded on winter vacation up to 28.2.1995 with the permission of the concerned authority. In

continuation of the vacations he availed 83 days earned leave w.e.f. 1.3.1995 to 22.5.1995. He applied for extention of leave but the same was

rejected on 24.6.1995 and he was asked to resume the duties 'failing which disciplinary action shall be taken'.

The petitioner however, did not join, consequently on 22.9.95 a charge sheet was issued to him for having remained on unauthorised absence from

duties. He reported back to duty on 30.9.95. and by means of order No. SIMS-760 of 1995 dated 7.10.95 the Director of the Institute allowed

him to join w.e.f. 30.9.1995, pending issuance of formal order regarding his unauthorised case. He submitted his reply to the charge sheet on

13.10.95 but according to the petitioner no orders were issued by the respondents regarding regularisation of the period of unauthorised absence.

According to the petitioner it was because of the inaction on the part of the respondents in not deciding his case that he was forced to file a writ

petition SWP NO. 1650/95 before this court for a direction to the respondents to issue formal orders regularising the period of absence of the

petitioner w.e.f. 23.5.95 to 29.3.95/ and refrain from altering the seniority of the petitioner and to consider him for promotion to the post of

Director in view of his seniority, merit and suitability.

This court on 24.11.1995 issued notices and directed that the petitioner's stautus viz-a-viz his seniority shall not be adversely affected. In

November, 1995 the petitioner again absented from duty. According to the petitioner he was forced to proceed on leave because of his personal

unavoidable and pressing reasons. He requested the respondents to grant him leave and also settle his earlier leave case. On 15.4.1996 an Enquiry

Committee was constituted to hold enquiry into the unauthorised absence of the petitioner. On 18.6.96 the Enquiry Committee asked the petitioner

to appear before it on 25.6.96 but the petitioner failed to appear before the Committee. The Committee, however, decided to give one more

chance to the petitioner and he was directed to appear before the Committee on 12.7.1996. This notice for appearance before the Committee was

published in three Daily's that is 'the Af tab in its edition dated 6.7.1996, Alsafa' in its edition dated 2.7.1996 & 'Greater Kashmir' in its issue dated

3.7.1996. Besides registered notice on last address left with the respondents was also sent which however, was received back with the report of

the postal authorities that the petitioner was not available at the residence.

The petitioner states that he approached the Chief Minister who happens to be the Chairman Governing Board of the Institute who on 9.10.1997

approved his case for permitting him to rejoin his duties. The petitioner was thereafter vide letter No. SIMS/PER/597/97-5900-2 dated

31.10.1997 issued by the Administrative Officer (Personnel) informed that he has been allowed to rejoin his duties from November 1997 on the

following conditions:-

That the period of his absence w.e.f. 11.11.1995 to 21.1.1998 shall be treated as 'Dies Non' (not qualifying for any remuneration), and that he

shall furnish an undertaking that he will not claim any pay dues/emoluments for the period he remained way from duties.

That the period of his absence from duty shall not count towards his experience, seniority, pension benefits in line with the Government

instructions contained in the rules in such matters.

The petitioner was accordingly asked to report to the Institute within a period of 15 days positively or otherwise disciplinary action will be

carried on under rules. In response to the letter dated 31.10.1997, the petitioner resumed his duties on 11.11.1997. The letter dated 31.10.97

was followed by another letter No. SIMS/PER/597/98-878-81 Dated 21.2.1998 by means of which the petitioner was informed that his joining

report dated 22.1.1998 has been accepted on the following conditions:-

That the period of his absence w.e.f. 11.11.1995 to 21.1.1998 shall be treated as 'Dies Non' (not qualifying for any remuneration).

That the period of his absence from duty shall not count towards his experience, seniority, pension benefits in line with Govt. instructions contained

in the rules in such matters.

Since both the letters dated 31.10.1997 & 21.2.1998 provided that the petitioner's absence from duty shall not count towards his experience,

seniority, pension and other benefits he submitted three representations on 27.1.1998, 31.5.1998, and 29.6.1998 to the respondents requesting

them that even though his period of absence has been treated as 'dies-non', he is entitled to seniority for the period and that necessary correction

be effected in the said orders. Even the Government, it is alleged by the petitioner, held the view that the period treated as 'Dies non' will not

operate as a break in service and will not effect the seniority and experience of the petitioner. In this behalf a communication No.

ME/SKIMS/25/99 dated 18./2.1999 was addressed by the Additional Secretary to Government, Medical Education Department to Respondent

No. 2, informing him that the period of absence treated as 'Dies non' has not to count for purposes of pay, increment and pension of the petitioner

but it does not constitute a break in service, therefore, the implication is that the seniority of an employee whose period of absence is treated 'Dies

non', remains intact. He accordingly informed him that the condition incorporated in the order dated 31.10.1997 and 21.2.1998 providing that the

period of absence shall not count towards seniority was bad in law and necessary amendments may be made in the same. The Director however,

took no action on the letter of the Govt. as no amendment was made in the said orders. The petitioner therefore submitted another application to

the Chief Minister requesting him to direct Respondent No. 2 to make necessary amendments in the orders dated 31.10.97 and 21.2.1998 and to

restore the seniority of the petitioner amongst the Professors of the Institute. No action, however, was taken in the matter.

It is the inaction on the part of the respondents that has, according to the petitioner, compelled him to move this court through the medium of this

petition with the following reliefs:-

i/ Certiorari, the condition incorporated in the letters No. SIMS/Per 7597/97-4900-2 dated 31.10.97 and No. SIMS/per/597/98-878-81 dated

21.2.1998 to the effect that the period of absence of the petitioner which has been treated as 'Dies-non' shall not be count for experience, seniority

or any other benefit, be struck down/set aside.

ii/ Mandamus commanding the respondents to restore the seniority of the petitioner to his appropriate place with an intimation to the Department of

Medical Education;

iii/ Mandamus directing the respondents that after restoring the seniority of the petitioner consider him, for promotion to the post of Director,

SKIMS/to the post of Dean as and when case of any Professor is required to be considered for such promotion/appointment and not to exclude

him from such consideration on any ground whatsoever or in the alternative,

iv/ Till the respondents rectify the mistake crept in the orders dated 31.10.97 and 21.2.1998 and seniority issue is sorted out, the respondents be

directed not to make any promotion to the post of Director or to the post of Dean of the Medical Institute, Soura Srinagar in any manner

whatsoever.

Respondents have filed a detailed counter in the case and Ld. Counsel appearing for the Institute also made available record of case for perusal

of this Court. The respondents have taken the stand that the order treating the period of absence is in accordance with the existing rules and that

the petitioner has joined back the duty after agreeing to the decision of the authorities that the period of absence was not to count for seniority and

experience.

Heard. I have considered the matter and have gone through the record.

The petitioner's case in nutshell is that though the respondents have permitted him to join the duties and he too has in compliance to the directions

of the authorities resumed his duty but the period of absence has been treated as 'Dies-Non' and it has specifically been stated in the order that his

period of absence shall not count for experience, seniority or any other benefit. This, according to the petitioner, has been done in violation of the

rules. The petitioner's case is that there is no rule which provides that the period of absence which has been treated as 'Dies non' shall not count for

seniority or experience. According to him once the period is regularised the period will not constitute a break in service rendered by the employee.

The period of 'Dies-non, has not to count for purposes of increment, pay and pension but it does not effect the seniority of the employee and by

treating the period of absence as 'Dies-non' the service of the employee remains intact and his seniority remains unaffected.

Mr. M.A. Qayoom appearing for the petitioner has drawn my attention to the various rules and Government orders on the subject. Referring to

the Govt. Instructions to Article 163 recasted vide F.D. Notification SRO 321 dated 7.12.1995 the learned Counsel submits that there is no

mention in the said SRO that the period treated as 'Dies non' shall not qualify for seniority or experience. He has also referred to the

communication addressed by the Additional Secretary to Govt. Medical Education Department to the Director SKIMS, Soura vide No.

ME/SKIMS/25/99 dated 18.2.1999 (Annexure-H). in which the Director was informed as under:

Kindly refer your letter No: SIMS/Per/597/98/3444-45 dated 13.8.1998 regarding representation of Dr. M.A. Wani Prof. & Head of Neuro

Surgery. In this connection a copy of the representation of Dr. M.A. Wani received from Chief Minister's Secretariat (copy enclosed) was

examined and it is felt that in pursuance of article 133 and the clarifications issued by the Finance Department in this behalf, the period of absence

treated as dies-non has not to count for purposes of pay, increments and pension of an employee. However, this does not constitute a break in

service rendered by an employee before the period of his absence. The implications are, therefore, that the seniority of an employee whose period

of absence is treated as dies-non remains intact. Accordingly the proviso that the period of absence shall not count towards seniority incorporated

in your order issued under No: SIMS/Per 597-98/878-81 dated 21.2.1998 is bad in law. The seniority of the doctor will remain the same as it

was before the period that was treated as dies-non. Necessary amendment to the proviso may, therefore, be made accordingly under intimation to

this department.

Ld. Counsel has also referred to SRO 514 dated 22.11.1999 by means of which it has been directed that the period treated as 'Dies non' shall

not count for experience. According to the Ld. Counsel this SRO was issued in the year 1999 while as the order impugned was passed in the year

1997 as such the instructions contained in the said SRO that the period of Dies non shall not count for experience cannot be made applicable to

the present case and since these instructions were not in existence at the time the impugned order was passed, the respondents cannot ignore the

seniority and experience of the petitioner.

Per contra, Mr. Magray appearing for the State submits that the respondents had initiated an enquiry to go into the unauthorised absence of the

petitioner, from duty and that despite the pendency of the enquiry the petitioner was allowed to resume duty and his joining report accepted vide

order dated 21.10.98 on the condition that the period of Dies-Non shall not count towards his seniority or experience. This order according to the

Ld. Counsel was made with the consent of the petitioner on his showing willingness to join the duty. It is stated that on 13.5.98 the petitioner even

submitted an application for retiring him prematurely but the same was rejected on 20.5.98. His representations regarding counting his period of

dies-non towards his experience and seniority were however discussed in 24th meeting of Governing body in which a Sub-Committee was

constituted to look into the matter. On 1.2.2000 the Sub-Committee recommended that the case be examined by the Government. The

Government however, maintained the order dated 21.2.1998. According to the Ld. counsel petitioner's period of absence has been rightly treated

as ""Dies non' and that its effect is that the period of absence cannot count for the experience or seniority of the petitioner.

Much emphasis was laid by Mr. Magray on the fact that since the petitioner has agreed to treat his period of absence as 'Dies-non' not

counting for seniority and experience, he cannot now dispute the same. I do not find force in the contention on the grounds that the condition has

been put not on the basis of any agreement arrived at but in terms of the rules on the subject. The order provides:-

That the period of your absence from duty shall not count towards your experience, seniority, pension and other benefits in line with the

Government Instruction contained in the rules in such matters.

The words' in line with the Government Instruction contained in the rules in such matters' contained in the order, as rightly pointed out by Mr.

Qayoom, refer to rules on the subject or not to any agreement between the parties. Thus while judging the validity of the order we have to go to

the rules on the subject.

A very short question arises for adjudication as to whether the period of unauthorised absence of the petitioner from duty which has been

treated 'Dies-Non' by the respondents can count for seniority and experience under the relevant service rules. The question is not res integra as the

Division Bench of this Court in Dr. Ashiq Hussain v. State of J&K 2004(1) SLJ 143 has settled this question. The court observed as under:-

The term 'Diesnon' is a shortened form of ""dies non jurisdicus"" which means a period during which no legal business is transacted or which is not

reckoned for any purpose. Dies non is only a concession for permitting the beneficiary thereof to have subsequent service in continuation of the

period of service before the beneficiary proceeded on unauthorised absence. When a period is directed to be treated as 'dies non', the period in

question does not count for any service benefit which would otherwise accrue during that period, including pension, increments, experience and

seniority.

Earlier there were no rules regarding the settlement of the period of unauthorised absence. The J&K Civil Service Regulation and the J&K

Civil Service Leave Rules of 1979 were silent on this point. Rule 14 (ii) (b) of the Jammu & Kashmir Civil Services (Leave) Rules 1979 dealt with

the cases where a Government employee takes service or employment under a non-Government employment. The rule provides.

14(ii)(b) A Government servant desirous of taking up service or employment under a non-Government employer may be required to resign his

appointment before taking up any other service or employment, except where grant of permission to serve elsewhere is considered desirable in any

exceptional case. In the latter case a Government servant shall be treated as temporarily transferred to the private body/organization from his

parent organization. He will neither be treated as on leave, nor allowed any pay and allowance for the period involved. The period of such absence

shall not, however, exceed the total period of leave due to him at the time of his joining other service subject to a maximum of 5 years. The

Government servant may have a right to return to his parent service/Department during such absence provided the post from which he proceeded

exists at the time of his return and has not been filled up subsequently. In case of his re-absorption in State service such a Government servant will

count for leave (and also pension) his service prior to his taking up service elsewhere. He will forfeit the benefits of promotion, increase in pay etc,

which but for his taking up service elsewhere would have become due to him in the normal course during the period of his absence.

In the year 1995 provisions relating to 'Dies-non' were for the first time incorporated in the rules by means of the Government Instructions to

Article 163 of the J&K Civil Service Regulations. It provides as under:-

Government Instructions. No period of un-authorised 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 un-authorised 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.

These Government instructions, therefore, provided that the period of 'Dies-non' will not qualify for any remuneration, pension or increment.

The only effect of it was that it does not cause any interruption for leave earned or in the past service qualifying for pension. Perusal further shows

that the rule nowhere provides that the period treated as 'Dies-non will count for duty for the purpose of experience or seniority. True the SRO

issued in the year 1999 (SRO 514 of 1999) cannot be made applicable to the present case as it is not retrospective in nature but then the

petitioner has to show that there was a rule under which his period of absence can be treated as duty.

Government servants are governed by various service rules right from their entry into service till the service ends either by retirement or

otherwise. Every incident of service and the conditions are governed by the express rules. There cannot be any benefit by implication. If an

employee seeking a benefit under the rule must show that the rules expressly provide him such benefit. The petitioner, if wants to get benefit of

seniority or experience, during the period treated as 'Dies-non' must show that the rules contain a provision under which he can get such a benefit.

Reference in this behalf may be made to Note 1 to Art. 14-B(b) J&K CSR which provides:

No leave of any kind can be treated as duty for the purpose of any rule, unless the contrary is expressly stated therein.

This provision expressly provides that no period spent on leave can be treated as duty unless it is specifically provided by the rule. Thus period of

absence treated as 'Dies-non' cannot be treated to count for experience or seniority unless there are express rules for it.

There was no express rule in the year 1997, when the period of absence of petitioner was settled, which provided for counting the period treated

as Dies-non for the purpose of seniority and experience. Respondents have, therefore, rightly directed that period of absence of the petitioner

which has been treated as 'Dies-non' shall not count for seniority or experience.

Under these circumstances I find no merit in the present petition which is hereby dismissed.