Syed Aijaz Faride vs State

The petitioner having qualified his post graduation in the discipline of 'Geography' succeeded in getting admission in Ph.D. Programme in the

faculty of Natural Sciences, Jamia Milia Islamia, New Delhi. The petitioner's studies commenced from 11/05/1993 on ""Impact of Tourism on

Ecology, Economy and Society of Kashmir"". During this process, the petitioner availed of a chance to apply to the Jammu and Kashmir Service

Selection Board in response to an advertisement notice. He appeared in the interview and his performance has begotten his selection and a

recommendation at the hands of the Jammu and Kashnur Service Selection for his appointment as a teacher vide No. SSB/SS/96/SSB/21/96

dated 01/08/1996. The recommendation was acted upon and the respondent No.2 issued an order of appointment in favour of the petitioner vide

order No.224 of 1996 dated 06/08/1996 and in compliance thereto the petitioner joined his duties.

The petitioner submitted an application to the respondent No.4 on 25/02/1997 requesting for grant of leave for a period of three months of

whatever kind, from 1st. of March, 1997 and availed of the leave. The leave was extended by the petitioner from time to time till submission of the

thesis and reported back to the respondent No.4 to resume his duties but he was not allowed to join on one or the other pretext, ultimately

permission was refused on the ground of termination of services, leaving no option for him but to challenge the order of termination bearing No.

CEO/B/Absence13580610 dated 30/08/97 through the medium of this writ petition. Alongside, an application for interim relief was also filed and

while considering the writ petition for admission and the CMP for grant of interim relief on 20/01/1998. Mr. M.I.Qadiri learned counsel for the

respondents made a suggestion to the court that instead of granting interim relief, the writ petition be heard and disposed of finally and sought time

to file objections. In view of the stand taken no interim relief was allowed and three weeks time was granted to file objections. On 09/02/1998 Mr.

Qadiri sought further time to file objections and the petition came up for consideration on 17/02/1998, but the matter could not be considered

because of non availability of Mr. Qadiri, therefore, the petition could not be heard finally in terms of order dated 09/02/1998 but was considered

for admission only and such consideration resulted in admission of the writ petition after hearing LC for the parties and a schedule for final disposal

was spelt out. In the CPM the respondents conceded to allow the petitioner to resume his duties subject to the outcome of the writ petition, a

statement to this effect was made by the learned counsel for the respondents which forms part of the file of the court and on the oasis of such

statement operation of the impugned order was stayed in so far as it pertains to the petitioner and the petitioner was allowed to resume duties.

Counter was not filed, right to file counter was closed. Since the respondents failed to file the counter, Mr. Qadiri requested the court to appreciate

the plight of the petitioner in the light of the official record, accordingly he was allowed to produce the record which I am going to deal with a bit

later.

The respondents have failed to rebut the averments made in the writ petition supported by an affidavit and presumption of correctness can safely

be drawn in favour of factual statements, but since the record is before me, I would like to test the veracity of these averments on the strength of

the record available.

In para 7and8 of the writ petition, it is stated that after availing of leave the petitioner reported for duties but the respondent No.4 declined

permission on the ground that his services stand terminated. In para 6 of the writ petition, it is submitted that the petitioner had left behind his

address for correspondence with the respondent No.4, but before issuing the order of termination, the petitioner was not at all informed anything

about fate of his leave applied for, nor was he asked to resume the duties and according to the submission of the LC for the petitioner the entire

action has been taken without any notice to him. It is apt to mention here that perusal of the impugned order depicts that notices were issued to

absentees vide NO. CEOP/11715800 dated 31/07/1997 requiring them to explain their unauthorised absence and to resume their duties by or

before 05/08/1997. Conjoint reading of paras of the impugned order depicts that the respondent NO.3 has passed the impugned order on the

assumption that the notice has been served on the petitioner, therefore, the questions which call for an answer are:

a) Whether the petitioner was informed about the rejection of his leave application?

b) Whether the petitioner was served with any notice requiring him to resume duties?

The answer to these questions has to be derived from the record made available by the respondents, therefore, examination of the relevant

documents is necessary.

The petitioner has submitted leave application on 25/02/1997 seeking leave for three months with effects from 01/03/1997 and in the

application it is specifically mentioned that the petitioner is required to proceed to Delhi where he had taken up his research studies in the year

1993. This application forms page (1) of the record of the respondents. There is nothing on the record of die respondents to show that this

application was rejected at any point of time. Whereas the communication bearing No.ZEO/M/4445 dated 12/04/1997 forming page (4) of the

record of the respondents reveals that petitioner having been allowed to avail of leave for more than a month, the respondent No.4 chose to seek

instructions from the respondent NO.3 in respect of treatment to be accorded to the application of the petitioner and responding to the said

communication, the respondent No.3 vide his No. CEO/Leave/I 189 dated 30/04/1997 forming page (5) of the record of the respondent,

informed the respondents No.4 that no leave could be granted to the petitioner and directed him to inform the petitioner accordingly, but there is

nothing on the record of the respondents to indicate that this information was ever conveyed to the petitioner. Another application was received by

the respondent No.4 through which petitioner sought extension in leave with effect from 01 /06/1997 for a period of two months and instructions

were sought vide No. ZEO/M/116/97 dated 3II 05/1997 forming page (5) of the record of the respondents by the respondent No.4 from the

respondent No.3 and while seeking instructions the respondent No.4 has made a mention that the petitioner was informed through the Headmaster

of the school to report on duties, but examination of the record of the respondents reveals that this is a false statement which has been made by the

respondent No.4 because there is absolutely no communication even worth the name which would indicate that at any point of time the

Headmaster was placed under instructions to inform the petitioner about the rate of his leave applied for, however, a copy of communication dated

31/05/1997 has been forwarded to the Headmaster also instructing him to inform the petitioner to report to his duties immediately despite the fact

that the respondent No.4 who is a signatory of the communication knew that the petitioner was in Delhi undergoing Ph.D Programme and was not

in the school, therefore, it was not possible for the Headmaster to communicate with the petitioner on his school address and it is evident that the

petitioner was not informed to resume the duties and short of notice, the respondents could not have expected him to leave his studies halfway and

rejoin duties and I am satisfied that the petitioner was never informed about rejection of his leave application, question (a) is answered accordingly.

Dilating on question(b), relevant it is to reiterate that the petitioners order of termination has been issued by respondent No.3 on the presumption

that notice requiring the petitioner to resume the duties by 5th of August, 1997 was served on him. In this view of the matter, it is important to

ascertain as to whether at all petitioner was served with the notice directing him to resume the duties by 05/08/1997 and if the reply is in

affirmative, respondents may have some justification to say that the petitioner was provided an opportunity to escape termination and in this

direction page (9) of the departmental file assumes relevance which is a notice styled to be one issued in compliance to notice forming page (8) to

the departmental file, but a cursory glance at the notice reveals otherwise which is evident from the fact that notice has been prepared by the clerks

on 05/08/ 1997 and signed by respondent No.4 on 08/08/ 1997. Mr.Qadiri's contention is that it is not 08/ 08/1997 but is 05/08/1997. Even if it

is assumed for the sake of argument that the notice was issued on 05/08/1997, yet the respondents were required to ensure its service on the

petitioner who was within their knowledge at Delhi and by no stretch of imagination can any possibility and probability be presumed in respect of

service of the notice on 05/08/1997 which is the date of issuance of the notice. Thus, there is no other conclusion available excepting the one that

the respondents have not been fair in their dealings visavis petitioner and such unfairness is also evident from the fact that the notice has been

prepared on 05/08/1997 and signed on 05/08/1997as per the contention of Mr. Qadri, although it appears 08/08/1997. Be it 5th or 8th of

August, 1997, it does not make much difference and unfairness of the respondents is further evident from the date of dispatch of the notice which is

31/07/1997, which hints at the manipulation of the record so as to escape the clutches of law. The respondents were asked to explain then position

in this matter, but instead of projecting any excuse, the respondent No.2 has addressed a communication to her counsel bearing NO.

DSE/Writ/3065/ 744 dated 22/07/1998, contents of which read as under:

In respect of the above case, you are authorised to make commitment before the Hon'ble Court that if allowed the department will conduct a

thorough enquiry into the matter and will punish the culprits under rules who will be found involved in the case"".

In view of the stand taken by the respondent No.2 ,1 leave this area open to be embarked upon with a firm hope that the enquiry into the matter

shall be initiated and concluded expeditiously in accordance with the procedure established under law, however, with a view to rule out the

possibility of any mischief and as a matter of abundant caution, a photo copy of page (9) which is a notification issued under No.ZEO/M/27779

dated 31/07/ 1997, shall be retained on the file of the court by the Registrar Judicial/Dy. Registrar Judicial after getting it attested by respondent

No.3 and such photostate copy shall form part of the file of the court.

Now reverting back to the merits of the case, it is apt to mention here that during the course of argument, Mr. M.I.Qadiri has made a statement

at the bar which has been reduced into writing and forms part of the file, wherein he has submitted that the corrigendum forming part of the

departmental file was issued on 01/09/1997 which has rendered the order of termination inoperative. He has further submitted at the bar that the

corrigendum has neither been revoked nor shall it be revoked by respondent No.3 . The corrigendum issued by the respondent is reproduced

hereunder:

Please treat the clause"" following which they should themselves to have been terminated from services without any further notice"" omitted in the

above notification dated 30/08/1997

In view of the corrigendum so issued, the impugned order of termination is rendered non existent and the controversy is narrowed down, but

since the petitioner has claimed consequential reliefs as well, therefore, the matter needs to be dealt upon and in this behalf, it is relevant to notice

that the respondents have chosen not to file the counter and presumably with a view to suppress the correct facts from the court and the matter

needs to be examined in the light of annexures to the writ petition and departmental files and the material so available makes it amply clear that the

impugned order was passed on the presumption of failure attributed to the petitioner to resume his duties despite service of notice. An in depth

examination of the record reveals that no notice even worth the name was served on the petitioner and the respondents 3 and 4 have dealt with the

matter casually.

What is deduced from a narrative of factual aspects is that the order of termination was virtually revoked by corrigendum dated 01/09/1997 and

it being so, the respondents 3 and 4 had absolutely no authority to refuse the permission to the petitioner to join his duties. It is relevant to notice

here that in para (7) page (4) of the writ petition, a specific averment has been made by the petitioner that he had resumed his duties on

29/11/1997 and had submitted his joining report forming annexure (PE) to the writ petition and this averment is substantiated by a communication

of respondent No.3 bearing No. CEO/B/2076263 dated 06703/ 1997 to 28/11/1997 and the said communication also depicts that a request has

been made to respondent No.2 for taking up the matter with administrative department for settlement of the payment and according to Mr. M.I.

Qadiri a recommendation had already been made by the respondent No.3 vide communication No. CEP/B/2076262 dated 06/01/1998 and a

perusal of the said communication substantiates Mr. Qadiri's submission and I leave it to be decided by the respondents who may have regard to

the fact that the petitioner has been made to pay through his nose because of an urge to complete the Ph.D, which course has a direct and close

connection with the sphere of his duties as a teacher, thus in public interest and the period involved is only of a few months.

What emerges further from the record produced by the respondents and the averments made in the writ petition is that the petitioner has

proceeded on leave after applying to the drawing and disbursing authority that is respondent No.4 who in turn made a recommendation to

respondent No.3 for grant of sanction. The petitioner completed his Ph.D and resumed his duties on 29/11/1997, but respondents 3 and 4 did not

allow him to join and it was only in compliance to the order of the court passed on 20/02/1998 that the petitioner was allowed to resume his

duties, thus he was restrained from discharging his duties for no fault of his from 29/11/1997 to 26/02/1998 notwithstanding the fact that he had

persuaded the respondent No.4 to allow him to resume the duties, therefore, the petitioner is entitled to the salary for the said period which

commences from29/l 1/1997 to25/02/1998.

No doubt, the respondents have revoked the order of termination, yet with a view to appreciate the controversy in its right perspective, it

needs to be noticed that the petitioner was appointed by Director School Education as a teacher, but the order impugned which has an effect of

terminating his service was passed by Chief Education Officer. True it is that CEO has the power to make the appointment against the posts of

teachers in the district cadre, but such power has no relevance to the petitioner's case because petitioner's appointment has been made by the

Director School Education and die appointment has not been made for a particular district and the CEO being an authority subordinate to the

Director, who is the appointing authority of the petitioner, therefore, the order of termination could not have been passed by respondent No.3 and

the issue involved is squarely covered by a full bench judgment of this court reported in JKLR 1971 page 558 and on the strength of the said

judgment the impugned order being without jurisdiction it appears that the respondents have therefore chosen to stick to the corrigendum.

For the aforementioned reasons, I order as under:

a) Order of termination is declared nonest on the strength of corrigendum in so far as it relates to the petitioner and the petitioner is held entitled to

all consequential benefits;

b) The respondents shall pay the salary to the petitioner for the period commencing from 297 11/1997 to 26/02/1998 treating him on duty for the

said period;

c) Respondents shall settle the petitioner's claim of leave for the period commencing from 01/03/ 1997 to 28/11/1997 expeditiously;

d) In view of the peculiar circumstances of the case, no order as to costs.