State of Jammu & Kashmir and Others vs Dr. Mohammad Yousuf Rather

The instant appeal is directed against judgment dated 16.09.2005 rendered by the learned Single Judge in SWP No. 1312/2000. The writ

petitioner-respondent Dr. M. Y. Rather produced on record a so called order dated 28.09.1998. The order which incorporates names of various

doctors interpolated the name of the writ petitioner-respondent by replacing Dr. M. Y. Bhat shown at serial no.1. The learned Single Judge has

been effectively mislead because the fabricated order constituted the basis of the judgment. It is appropriate to mention that vide order dated

28.09.1998 the services of the writ petitioner- respondent were regularised on the post of Lecturer (Medicine). The operative portion of the

impugned judgment reads thus:-

Vide Government order No. 594-ME of 1998 dated 28.9.1998, the govt. in relaxation of the rules regularized the adhoc appointment of the

doctors as lecturers in the discipline shown against each against the clear vacancies. The petitioner figures at S. No. 1 who has been regularized in

the discipline of Medicine. The order has been given prospective effect. Relevant portion of the order reads as under:-

Sanction accorded to the:-

inregularization, in relaxation of rules, of adhoc appointments of the following Doctors as Lecturers in the disciplines shown against each against the

clear vacancies. S. No. Name of the Doctor Department

Dr. M. Y. Rather Medicine (Dr. M.Y. Bhat)?

Dr. Abdul Samad Medicine

Dr. Ghulam Hassan Bhat Surgery

Dr. Ghulam Rasool Shah Surgery

Dr. Manjeet Singh Surgery

Dr. Nisar Ahmad Surgery

Dr. Muzafar Ahmad Mirza CD&TD

Dr. Haleema Akhter Gyna

Dr. Asifa Jan -do-

Dr. Abdul Majeed Wada S&IM

This order will have prospective effect. The seniority of all the Doctors regularized shall be determined separately.

We heard the matter in detail yesterday and asked the learned Senior Additional Advocate General to produce the original record. From the

original record, it is revealed that order dated 28.9.1998 (at Page 76) was passed, inter alia, in respect of one Dr. M. Y. Bhat and not in respect

of Mr. M. Y. Rather, writ petitioner-respondent. The so called order (Annexure-K) which was produced before the Writ Court is fabricated piece

of evidence which the Writ petitioner-respondent has placed on record. Somehow, the document was not verified by the respondent-State and its

contents were also inadvertently admitted. However, the Cabinet decision at Page Nos. 65 to 73, show that it was Mr. M. Y. Bhat and not the

writ petitioner-respondent ( M. Y. Rather) whose services were regularized. It was on the basis of aforesaid Cabinet decision that the order of

regularization dated 28.09.1998 was passed where the name of Dr. M. Y. Bhat figured at serial no. 1.

Mr. Qayoom appearing for the writ petitioner-respondent, at the outset, states that he may be permitted to withdraw the writ petition because

the whole relief has been claimed on the basis of a document which we find is a fabricated piece of evidence. He has pleaded for a lenient view

because of various adverse conditions which prevailed in the Valley. The writ petitioner-respondent has lived in and served the State during

militancy and has also lost 20 years. Consequently he would not earn any pension.

Ordinarily, we would have initiated criminal action and contempt proceedings against the writ petitioner-respondent. There is a catena of

judgments which would show that principles of law in that regard are well settled. If a person produces a fabricated document on record he loses

the right of hearing of his case on merit as he has approached the Court of equity with soiled hands besides attracting criminal action. In that regard

reliance may be placed on a recent judgment of the Hon'ble Supreme Court in case of K.D. Sharma Vs. Steel Authority of India Ltd. and Others,

.

However, we are inclined to take a lenient view. Writ petitioner- respondent was substantive holder of the post of Assistant Surgeon in

department of Health. There was mass exodus of Lecturers from the Valley in 1991-1992 and he was retained in Medical College as Lecturer

(Medicine) after he completed his registrarship. He was continued and adjusted as Lecturer vide order No. 418-HME of 1993 dated 27.04.1993.

On writ petition, SWP No. 1103/1993, this Court issued directions that he would be permitted to continue till regularly selected person was to be

appointed. He could not succeed in regular selection. In the year 1995 he proceeded on 90 days earned leave w.e.f. 27.11.1995 which was

granted. He applied for extension of leave for 3 months. Then he applied for leave without pay as it was found that a threat had been extended to

him and to his family by some unknown gunman which compelled him to remain out of the Valley. In the year 1999 he received a communication

bearing No. GS-MC/L-adhoc/Med/234-40 dated 25.05.1999 whereby he was informed that he should deem himself to have been relieved by

the College after availing sanctioned leave. He approached the respondents for resumption of his duties as lecturer in Government Medical

College, Srinagar but the respondents avoided on one pretext or the other. Later he found that vide Govt. order No. 499-HME of 2000 dated

7.8.2000 issued by respondent No. 1, relying on Govt. Order No. 183-HME of 2000 dated 7.4.2000, he was allowed to rejoin the department

as a fresh appointee and posted in Uri Block. He has already lost his past service and pension. There was allegedly a threat to his life and his family

by a gunman. He started working in Malaysia. Thus a peculiar situation is at hand. Therefore, keeping in view the facts and circumstances in which

the writ petitioner-respondent was placed, we refrain from initiating criminal action against the writ petitioner- respondent. However, we feel that

cost has to be imposed upon him to meet the ends of justice. Accordingly, writ petition is dismissed as withdrawn without liberty to the writ

petitioner-respondent to file a fresh one on the same cause of action. However, the writ petitioner-respondent shall pay to the appellants-State Rs.

25,000/- as costs. The cost shall be paid within a period of four weeks from today, failing which the matter be listed before this Bench in the 5th

week commencing from August 13, 2012.

The appeal is, accordingly, disposed of.