Showkat Ali Zargar, Dr. vs State and others

This writ petition questions order of removal of the petitionerAssociate Professor from the establishment of SheriKashmir 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 videNo.SIMS/Per/345/936101 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 videNo.SIMS/Per/543/ 93886476

dated 08.12.1993 was issued which reads:

GOVERNMENT OF JAMMU and KASHMIR

SHERIKASHMIR INSTITUTE OF MEDICAL

SCIENCES

SR1NAGAR

Sub: Removal of Dr. S. A. Zargar, Associate Professor, Dept. of Gastroenterology from the services of SKIMS.

Ref: Approval of H.E. the Governor. JandK State (Chairmap, 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, Dept. 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/ 923182 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/543/93361820 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 21 days from the date of issue of this letter, and,

One Mr. S. A. Zargar replied to the charge sheet on 02.11.1992 and the same was not found satisfactory, and,

Ap 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/543/93610104 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/543/92806971

dated 04.10.1993 and was supposed to appear before the committee constituted or approach the convenor of the committee (Joint Director,

Admn.) for being heard in person within the stipulated period of 15 days from 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, Dept. of Gastroenterology, SK. 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/543/93886476 Dated: 8th, December, 1993.

The order aforementioned was challenged by medium of SWP 210/1994 and during pendency of the writ petition, the petitioner was

reemployed on the post of Associate Professor by following order:

GOVERNMENT OF JAMMU AND KASHMIR SHERIKASHMIR INSTITUTE OF MEDICAL SCIENCESSOURA SRINAGAR

Subject: Appointment of Faculty. Ref: i) Recommendation of the committee constituted vide Government Order No.26IMS of 1997 dated

November 18, 1997.

ii) Approval of Hon'ble Chief

Minister (Chairman, Governing Body, SKIMS) conveyed vide No.CMS/886/98 dated 18.08.1998.

GOVERNMENT ORDER NO. 24IMS 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.51007300 on temporary basis.

By order of the Government of Jammu and Kashmir.

The order of reemployment 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.

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

KASHMIRSHERIKASHMIR INSTITUTE OF

MEDICAL SCIENCES SOURA SRINAGAR

Sub: Regularization of period of absence in favour of Dr. M. L. Babu, Assistant Professor, Neurosurgery, SherIKashmir, Institute of Medical

Sciences, Srinagar.

Ref: Director SKIMS Srinagar's letter No.SIMSPer520/871453 dated 29.04.1987. Government OrderNo.209ME of 1987 Dated: 19.06.1987

ExPost Facto sanction is accorded to the grant of leave whatever kind due in favour of Dr. M.L. Babu, Assistant Professor, Department of

Neurosurgery, SherIKashmir Institute of Medical Sciences, Srinagar w.e.f.17.03.1985 to 25.11.1985.

By order of the Government of JandK.

Government of Jarnrnu and KashmirHealth and Medical Education Department

Subject: Rejoining of doctors whose services were terminated.

Reference: Cabinet Decision No.374 dated 22.09.1995.

Government Order No.713 HMEof 1985

Dated: 30.09.1985.

In supersession of Government order ' No.263HME of 1984 dated 13.04.1984 Government Order No.579HME of 1985 dated 1.8.1985 and

Government Order No.4.42HME of 1984 dated 21.06.1984, the following doctors are hereby permitted to rejoin in the institutions in the

disciplines shown against each:

l.Dr.MohdAshrafWant Lecturer Blood Bank and Hematology, Medical College, Srinagar.

Dr.Altaf Hussain Asstt. Prof. Orthopedics Medical College, Srinagar.

Dr. Masbod Nehvi Asst. Surgeon/Medical College, Psychiatry, Medical College, Srinagar. By order of the Government of JandK.

Subject: ExIndia leave availed by Dn 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.

126IMS 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, 30*, 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 and 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 absented has pressed into service first time treatment accorded to Dr. Qadri to claim similarity. It

may be reiterated that Dr. Qadri'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.

Next it was contended that order of the writ Court was also not cared about. To appreciate the contention, it is imperative to revert to the

judgement of the writ Court in SWP No. 1664/ 1993, and the relevant observation is extracted:

......However, if he appears before the Enquiry Committee in good faith and wants to associate himself with the enquiry, he shall be allowed to do

so, and in that case the enquiry shall be conducted strictly in accordance with law and he shall be afforded full opportunities of being heard before

passing any adverse order against him. lie shall be furnished with the necessary documents and copy of the inquiry proceedings to enable him to

make an effective representation/reply to the charge sheet or to represent his case properly. In case he does not appear before the Enquiry

Committee, even then the enquiry shall be conducted strictly in accordance with law......

It is seen from operative part of the judgment that the petitioner could not succeed in getting the reliefs sought excepting a direction requiring the

respondents to afford an opportunity to him of being heard before passing any order adverse to his rights with further direction to furnish

documents and copies of the enquiry proceedings to enable him to make an effective representation with a further observation that if petitioner

does not appear before the enquiry committee even then the respondentcompetent authority shall have to conduct the enquiry strictly in

accordance with law. In pursuance of the said decision dated 16.09.2003 the petitioner laid a demand through a legal notice dated 30.09.1993 for

documents and for fixation of date of hearing delivered against receipt on 01.10.1993. Stand of the respondents is that in compliance with the

judgment a notice was issued to the petitioner vide No.SIMS/Per/543/92806971 dated 04.10.1993 but despite opportunity neither original copy

of notice nor acknowledgement receipt was produced. So much so, record has miserably failed the respondents to name the date on which the

petitioner was required to appear for hearing before the enquiry officer. Thus, not only an inference of failure on the part of the respondents to

comply with the direction of the Court does arise but such omission at the same time amounts to breach of rule 33 of the Jammu and Kashmir

(Classification. Control and Appeal) Rules, 1956 (CCA Rules for short) and cumulative effect of such failure tantamounts to unheard

condemnation.

It was also contended that charge sheet is without jurisdiction. To appreciate the contention, it may not be impertinent to notice that the

petitioner had marked his entry in the Institute on the strength of recommendation of Apical Selection Committee constituted for selection as is

evidenced by his order of appointment itself which reads:

Subject: Appointment of Lecturer in the Department of General Medicine, SheriIKashmir Institute of Medical Sciences, Srinagar.

Reference:!: Recommendations of the X meeting of the Apical Selection Committee held on April 16 and 17,1983.

ii. Decision of the Governing Body taken on 30.04.1983

iii. Cabinet Decision No. 176 dated 7.5.1983. Government Order No.71 IMS of 1983 Dated: June 14, 1983.

Sanction is hereby accorded to the appointment of following Sr. Residents as Lecturers in the SheriKashmir Institute of Medical Sciences, Srinagar

in the scale of 1400601760 on regular/temporary basis against the posts shown against each:S.No. Name of the appointee Adjusted against

........

Dr. ShowkatAli Zargar Lecturer in the department doOf General Medicine for Gastroenterology.

By order of the Government of Jammu and Kashmir...

He was appointed as Associate Professor vide Government Order No.25IMS of 1989 dated 24.07.1989 which is reproduced hereunder:

GOVERNMENT OF JAMMU AND KASHMIR SHERIKASHMIR INSTITUTE OF MEDICAL SCIENCES SOURA SRINAGAR

Subject: Appointment of Faculty Staff

Ref: i) Recommendation of the XVIII meeting of

2.

Apical Selection Committee held on July 6, 1989. ii) Approval of Hon'ble Chief Minister

(Chairman, Governing Body) dated 19.07.1989. GOVERNMENT ORDER NO. 251MS OF 1989.

DATED.: July 24,1989.

Sanction is hereby accorded to the appointment of following persons in SheriKashmir Institute of Medical Sciences, Srinagarasper details given

hereunder on temporary basis :

Dr. Showkat Ali Zargar Asso. Prof.

Gastroenterology (51007300)

2.................. ................

By order of the Government of Jammu and Kashmir.

With a view to understand the challenge thrown in its right perspective it needs to be borne in mind that there is no dispute to the effect that the

impugned order of removal has been passed by dint of Section 126 of the Jammu and Kashmir Constitution, 1956 which may be extracted:

Dismissal, reduction or removal of persons employed in civil capacities under the State(1) No person who is a member of a civil service of

the State of holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

A plain reading of the above referred constitutional provision depicts that a member of civil service shall not be dismissed or removed from service

by an authority subordinate to the appointing authority but it makes no mention of the authority competent to initiate the disciplinary proceedings,

therefore, reference to the CCA rules which regulate the disciplinary proceedings as per stand of RespondentSKlMS becomes necessary and

relevant to the issue is sub rule 4 of rule 33, which reads:

(4) The competent authority may in

quire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose""].

The language of the rule aforementioned makes it manifestly clear that it is the competent authority which can frame the charge, however, after

charge is framed it has the power to appoint an enquiry officer to enquire into the charge so framed. Situations are conceivable where rules do not

indicate the officers competent to initiate the departmental proceedings and in absence of rules to the contrary it cannot be canvassed that

appointing authority alone can initiate enquiry but where rules specifically cite the authority competent to frame the charge, it has to be that

authority. In the case on hand it is the CCA Rules which are applicable to the SKIMS and sub rule 4 of rule 33 is very clear to the effect that

competent authority alone can frame the charge. Who is the competent authority, rule 34 of CCA Rules, 1956 assumes significance which reads:

After the inquiry against a Government servant has been completed, and after the authority competent to impose penalty has arrived at

provisional conclusions in regard to the penalty to be imposed, the Government servant charged shall, if the penalty proposed is dismissal, removal

or reduction in rank, be supplied with a copy of the proceedings prepared under rule 33 excluding the recommendations, if any, in regard to

punishment, made by the officer conducting the inquiry and asked to show cause by a particular date which affords him reasonable time, why the

proposed penalty should not be imposed on him.

(Emphasis supplied by me)

What is deducible from a conjoint reading of sub rule 4 of rule 33 and rule 34 is that competent authority is the one which has the power to impose

penalty and such authority is spelt out in subsection 1 of Section 126 of the Constitution of Jammu and Kashmir which admits no ambiguity on the

count that it is the appointing authority which has the competence to impose penalty. Who is the appointing authority of the petitioner parties are at

variance. According to learned counsel for the petitioner, it is the Government, whereas contention of the RespondentSKIMS is that it is the

Chairman of the Governing Body. This controversy need not detain the Court because admittedly the charge is neither framed by the Government

nor by the Chairman of the Governing Body and fact remains that charge is signed by the Joint Director and framed by the Administrative Officer

and both of them lack the jurisdiction. What is the fall out of such incompetent action reference to the judgment in case Ghulam Qadir Bhat Versus

University of Kashmir and others reported in SLJ 1984 page 311 becomes imperative and the relevant para may be noticed:

(2) ......

(3)

(4) The competent authority may inquire into the charges itself or if it considers it necessary so to do it may appoint an inquiry officer for the

purpose.

.A plain reading of the Rule shows that it prescribes that the competent authority or the appointing authority shall on being satisfied on the basis of

the facts and material available before it, that charges are required to be framed against the delinquent officer, shall so frame definite charges and

serve the same on the delinquent concerned along with the statement of allegations seeking his explanation by way of written statement of defence

and further enquiring from him if he wants personal hearing. If the delinquent denies the charges, the competent authority, on the basis of the

material before it, may decide either to proceed or not to proceed against the delinquent, should, however, the competent authority decide to

proceed further, it shall order an enquiry into the charges, which stand already served on the delinquent by the competent authority and an Enquiry

Officer would then be appointed by the authority. The Enquiry Officer shall thereafter, hold an enquiry into these charges and conclude the enquiry

in accordance with the rules of natural justice.

(Emphasis supplied by me) 5.

The grievance of the petitioners therefore, that they have been greatly prejudiced by the non compliance with the requirement of the Rule cannot

be said to be unfounded. The counter affidavit filed by Mr. SS Rizvi, then Registrar of the University admits that the charges were framed not by

the competent authority before the appointment of Dr. Z.U. Ahmad as the Enquiry Officer but by the enquiry officer himself after he was so

appointed. The procedure adopted in all these cases, therefore, is clearly in violation of Rule 33 (Supra) and that violation itself renders not only

the order of punishment bad, illegal and invalid but also vitiates the entire proceedings from the stage Dr. Z. U. Ahmad was appointed as the

Enquiry Officer. In taking this view, 1 am fortified by a judgment of the Calcutta High Court in 1982 Labour and Industrial Cases, 1578 wherein

under some what similar circumstances identical view has been expressed.

The ratio decedendi of the judgment makes it manifestly clear that if charge sheet is framed by an enquiry officer and not by the competent

authority, entire proceedings including the order of punishment are bound to vitiate. Infirmity goes deeper because the Joint Director is not the

enquiry officer even. Law is settled that when a statute prescribes exercise of power by a particular authority, it has to be exercised by that

authority alone unless there is a proper sub delegation which is wanting.1 There is another difficulty for the respondents. According to the statement

made at the bar by Mr. Magray power was delegated to the Director' the Chief Minister and not by the cabinet that too somewhere in the year

1993, whereas charge was framed against the petitioner in the year 1992. There being no power available to the Director at the relevant point of

time to frame the charge, sub delegation of power is a nullity, resultantly, both charge sheet as also order of removal are rendered liable to be set

aside and are quashed

Back to the orders of appointment of the petitioner as Lecturer and Associate Professor reproduced hereinabove, it transpires that his

appointing authority is the Government which position is disputed by appearing counsel for the respondents contending that the Chief Minister in

the capacity of Chairman of the Governing Body of the Institute is possessed of the power of appointment of the faculty members. Regarding

framing of charge by the Joint Director Mr. Magray placed reliance on contemporaneous record to canvas that power was conferred by the

Director upon the Joint Director. Notes 70 to 72 authors of which have been identified by Mr. Magray may be extracted:

Note 70. May kindly peruse and sign the charge sheet placed across the file.

SdAA.O Sd/Joint Director.

Note 71. Spoken to A/Director, who has desired that the doctor be charge sheeted and the notice to this effect may be issued over the signatures

of Joint Director (Adm) hence submitted please. SdAA.O. Sd/Joint Director.

Note 72. Director may kindly see and confirm the action taken.

Signed on 22.08.1992 Signature of the Director on 27.08.1992.

It transpires from above reproduction that charge was framed by the Administrative Officer and was put up before A/ Director who instead of

signing it, proposed that same be signed by the Joint Director. That is how the Joint Director signed the charge sheet on 21.08.1992. It is apposite

to notice here that as per stand of the respondents, the charge sheet was issued by the Joint Director on 21.08.1992 whose action was confirmed

by the Director on 27.08.1992, apparently, subsequent to the framing of charge. Is such confirmation valid in law, answer is readily available from

judgment of the Division Bench of this Court in Syed Showkat Hussain Vs. State of JandK and others reported in 1989 SLJ 296, which dealt with

an order of suspension confirmed by the competent authority on a subsequent date. Dealing with the confirmation, the bench ruled:

A bare reading of the rule shows that an employee of the Corporation can be placed under suspension by the appointing authority or by any other

authority to which the appointing authority is subordinate or any other authority empowered by the Corporation in that behalf. That the Secretary

of J and K Tourism Development Corporation is neither the appointing authority nor the authority who had been empowered by the Corporation

to place the petitioner under suspension is not disputed. The impugned order, issued on 1.4.1988 was, therefore, issued by an authority which was

not competent to place the petitioners under suspension. The submission of Mr. Hakim that on 15.7.1988, the action of the Secretary was

confirmed by the Commissioner and Secretary to Government Tourism Department and therefore the impugned order got validated requires a

notice only to be rejected. The order issued on 1.4.1988 was issued by an authority which was not competent and the subsequent confirmation of

the action on 15.7.1988 cannot cure the defect which had rendered the order dated 1.4.1988 as an unauthorized order and which for all intents

and purposes was non est.

Applying the ratio of the judgment it emerges that power has to be exercised by an officer in whom it has been vested unless sub delegation of

power is authorized by the statute itself but no provision of law is brought to the notice of the Court which would empower the Director to sub

delegate the power. Obviously, the charge sheet is without jurisdiction.

This brings me to the argument of Mr. Magray that the Director has the power to frame the charge and initiate enquiry against an Associate

Professor. Contention of Mr. Magray is that the Chief Minister is the Chairman of the Governing Body of the SKIMS and he has empowered the

Director to frame the charge by a general order. Refuting the contention, Mr. Jan has placed reliance on the decision of the Governing Body of the

Institute taken in its XX meeting, held on June, 4, 1991 vide Agenda Item No.12, which may be noticed:

that the Hospital will have a Governing Body with Chief Minister and other members of the Cabinet as its members to facilitate easy and

expeditious disposal of its cases.

Relying on the said governing body's decision, it is contended that the power is with the Governing Body which comprises of the Chief Minister

and the Cabinet which would mean that conferment of power by the Chief Minister alone is invalid. Apart from that power is said to have been

conferred on the Director somewhere in the year 1993 whereas charge was framed in the year 1992. Admittedly in the year 1992 Director was

not possessed of the power at all. Faced with unescapable legal snag ail other grounds were given up by learned counsel for the respondents.

Viewed thus, sub delegation of power to the Joint Director is devoid of legal sanction rendering the charge sheet ab initio void.

I will be failing in my duties if it is not noticed that learned counsel for the petitioner vehemently staked claim for salary in the eventuality of

petitioner's success in the writ petition on the strength of judgment of the apex Court in Union of India and another Vs. Sr. Babu Ram Lalla

reported in AIR 1988 SC 344 which reads:

We agree wholly with the reasoning and conclusion of the High Court. Since the order of termination of service of the respondent was rightly held

to be a nullity he was entitled to be paid salary on the footing that he had always continued in service and the void order was never in existence in

the eye of law. The appeal, therefore, fails and is dismissed with no order as to costs.

The claim for salary has been advanced on the plea that it was critical ailment of petitioner's father in law which forced the petitioner to rush to PGI

Chandigarh and no such cause was available to those doctors who overstayed on leave and they were in no manner on better footing as compared

to the petitioner, yet Government conceded to the prayer for extension/regularization of the period of their absence. It was further contended that

petitioner's conduct and performance has all along been satisfactory, that is why he was reinducted by the respondents independently of indulgence

of the Court way back in the year 1998 and petitioner's employer has absolutely no complaint against his performance. No doubt the judgment

supra ' has allowed salary to the petitioner therein and the mandate of the judgment has to be followed but condition precedent is similarity of facts

which is wanting as is evident from reinduction of the petitioner into service that too during the pendency of the writ petition and without any

direction from the Court. That is an event which makes world of difference. Thus while adhering to the mandate of the judgment to the effect that

petitioner shall be deemed to be in continuous service treating the impugned order of removal as non est, there shall be a direction against grant of

pecuniary benefits for the period he has remained out of service.

Disposed of along with all connected CMPs. No order as to costs.