M S MALIK Vs. STATE

JUDGEMENT

(1.) THE petitioner who claims to have been selected by the Government of India for an assignment with the Government of Iran prays for the issuance of the directions for quashing Govt. Order No. 121 -ME of 1981 dated 23,3.1981 promoting respondents 4 to 6 from the post of Assistant Professor to the post of Associate Professor as also the Govt. order No. 416 -HME of 1984 dated 2.8.1983 by which sanction to the adhoc appointment of the aforesaid respondents to the post of Professors was issued by the respondents 1 & 2. The petitioner further claims the issuance of mandamus directing the respondents 1 to 3 to consider him to the post of Assistant Professor retrospectively as if no order was passed in favour of the respondents 4 to 6 for the grant of all emoluments and service benefits to which he would have been entitled to had he not been allegedly supersede in terms of Govt. order No. 121 -ME of 1981 dated 23.3.1981. It is further prayed that respondents 1 be to 3 directed to issue a seniority list after redressing the grievances of the petitioner in accordance with his original position which he claims to holding in terms of the service records maintained by the respondents.

(2.) THE facts giving rise to the filling of the petition as disclosed by the petitioner are that he was appointed as Assistant Professor Surgery in the Govt. Medical College, Srinagar in terms of Govt. order No. 242/MS/G of 1969 dated 17.6.1969. While working as Assistant Professor of Surgery he was selected for assignment in Iran by the Department of Personnel and Administrative Reforms Ministry of External Affairs, Government of India. New Delhi The petitioner claims to have received a letter a dated 24th May 1975 whereby he was informed that he haying been selected for the assignment with the Government of Iran, he should fill up and return within a period of three days an attestation from in triplicate. In pursuance of the communication received from the External Affairs of Ministry, the petitioner applied to the respondents 1 to 3 through respondent No 3 praying for no objection certificate so as to proceed to Iran. The respondents 1 and 2 considered the petitioners application and issued a no objection certificate vide No, 429 -ME -GM//3 (iii) dated 10.7.1975 issued by Dy. Secretary to Government, Medical Education Department in the name of respondent No. 3. The no objection certificate did not specify any time period. The petitioner submits that under rules he was entitled to avail of the foreign assignment for a period of five years After availing five years of foreign assignment the petitioner was supposed to rejoin his duties in the month of Oct. 1980, but in the month of Sept. 1980 Iran -Iraq war broke out as a result of which he was nor relieved by the Govt. of Iran and was not in a position to come from Iran and rejoin his service in Govt. Medical College, Srinagar. In May, 1981 the Director Manpower and Service Division, Indian Embassy, Tehran, Iran certifying therein that the petitioner had been working in the Department of Health as General Surgeon from Oct. 14,1975 till May, 1981 and that his five yeas period deputation was over in October. 1981 It is further submitted that it was stated in the said letter that the petitioner did submit his resignation for the release for rejoining his duties back to India but as Government of Iran had no replacement for him, notwithstanding his repeated requests, he was not relieved till May, 10, 1981. It is further submitted that it was certified that the departure of the petitioner from Oct.1980 to May,1981 was due to the need of Govt. of Iran. After being relieved on 10th May, 1931, the petitioner came back to Srinagar and joined his duties as Assistant Professor of surgery, in Government. Medical College, Srinagar on June 4th, 1981. On 15th December 1981 the Government issued an order No. 593 HGME of 1981 by which the petitioners period spent on foreign assignment with effect from 1.1019/5 to 3.6.1981 was treated as leave without pay and allowances in relaxation of note to Art. 153 of the J&K C.S.R. The Government issued another order bearing No. 538 -HME of 1982 dated 20.8.1982 directing that the period of the petitioner spent on foreign assignment from 1.10 75 to 3.6.1981 shall count towards his increment. In the month of March, 1981 some promotions were to be made in the department of Medical Education by the respondents 1 to 3 and the petitioner claims that he being the senior most Assistant Professor of Surgery was entitled to be considered for those promotions. However without considering the petitioner for promotion the respondents issued order No. 121 -ME of 1981 dt. 23.3.1981 whereby respondents 4 to 6 were promoted to the post of Associate Professor who according to the petitioner were junior to him & were not entitled to the promotion over his head without considering his claim. After the issuance of the orders impugned in the writ petition, the petitioners brother namely Abdul Latif Malik filed representations to the Addl. Secretary to Government, Medical Education Department, stating therein that since Iran was at war with Iraq, his brother the petitioner, could not be contacted despite. The fact that the Ministry of External Affair had been approached, and that promotions should not be made in his absence which adversely affected his rights. The petitioner claims to have been submitted representations against the order of promotions issued in favour of respondents 4 to 6 but nothing was done in this behalf. The representations were rejected vide letter No. ME -GM -478/73 dated 20.10.1983. The petitioner was promoted to the post of Associate professor vide Govt. order No. HME -83 dated 31.1.1983, but at the same time the respondents 5 to 6 were promoted to the post of Associate Professor of Surgery on adhoc basis vide Government, order No. 416 -HME of 1983. The petitioner seeks the reliefs as prayed for by him on the ground that as he was senior to respondents 4 to 6 he was entitled for being promoted to the post of Associate Professor in the year 1981 in preference to respondents 4 to 6 under the Jammu and Kashmir Classification, Control and Appeal Rules. He was on deputation to Iran after being selected by the Government of India to which the Government of Jammu & Kashmir had not objected. He was entitled to be considered for promotion even in his absence. As he could not rejoin his duties on account of breaking out of war between Iran and Iraq, he was prevented from rejoining his duties, therefore, the respondents were not justified in not considering him for promotion. The petitioner claims that he has to be deemed on duty. The representations made by the petitioner had been rejected illegally and in contravention of the service rules. The petition has refer ed to som precedents to show that some doctors were considered for promotion while they were on foreign assignment. According to him Dr. Mohd Shafi Khan was promoted as Associate Professor in Dermatology, Medical College, Srinagar vide Govt. order No. 37/HME of 1983 dated 31.1.1983. Dr. B.K. Parihar was promoted as Associate Professor in Medicine, Medical College, Jammu vide Govt. order No. 87/HME dated 31.1.1933 Dr. Mohd Shafi was promoted as Associate Professor in department of Medicine, Medical College, Srinagar vide Govt. order No. 91 -HME dated 31.1.1983. Similarly Dr. Khaliq Jahangir has been promoted vide Govt. order No. 91 -HME.

(3.) IN the counter affidavit filed on behalf of the respondents 1 and 2 it is admitted that the petitioner had gone on foreign assignment but as per rules the period provided for such assignment is initially for two years extenable to three years. The total absence for foreign assignment cannot exceed five years in any case. After proceeding to Iran the petitioner never reported back after two years nor did he take any steps for extention of his foreign assignment. He also did not inform the State of his whereabouts and remained unauthorisedly absent. Some posts of Associate Professor were lying vacant in Jammu and Srinagar Hospitals which were required to be filled under J&K Medical Education (Gazetted) Service Recruitment Rules. 1979 and were referred to Public Service Commission in 1981. The DPC/PSC held their meeting in March, 2981 and considered the case of the petitioner alongwith other doctors for promotion to the post of Associate Professor. The DPC recommended the promotion of respondents 4 to 6 in consequence of which they were promoted on probation for a period of two years. The petitioner reported back on 4th June, 1981 and was allowed to rejoin. His period from 1.10.1975 to 3.6.1981 was treated as on duty without pay and allowance vide Govt. order No 593 HME of 19g1 dated 15.12.1931. His period of absence on foreign assignment was also counted towards his inocements vide Govt. order dated : 20th August 1982. He was promoted as Associate Professor on regular temporary officiating basis vide Govt. order dated 31st June, 1983. Respondents 5 and 6 were promoted as Associate Professor in Surgery, when the petitioner had to complete his probation period. While making the promotions, rules were strictly complied with. The contention the petitioner that he was senior to respondents 4 to 6 has been denied. According to the respondents during the Iran -Iraq war, Iran Government had expelled all the Indian nationals from that Country but the petitioner managed and succeeded remaining there Respondents 4 to 6 were promoted on the recommendations of the Public Service Commission after considering the case of the petitioner alongwith other doctors for promotion. The subsequent promotion of the petitioner as Associate Professor in the year 1983 is admitted The petitioner is admitted to be senior as Assistant Professor in Surgery than respondents 4 to 6 but it is submitted that his promotion claim to the post of Associate Professor was considered by the PSC/DPC in March, 1981 and as he was on unauthorised absence the PSC recommended respondents 4 to 6 for promotion to the post of Associate Professor who were accordingly promoted.