Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Permod Kohli, J.
Taqadus Gulzar Ali - Appellant
Versus
State & Ors. - Respondent
SWP No. 730/2001
Decided On : 30 August, 2003
SRO - Application of SRO No. 321 dated 7.12.1995 or SRO No. 514 dated: 22.11.1999 - SRO 321, SRO 514 - The court discussed the applicability of SRO 321 and SRO 514 in determining the period of absence of the petitioner and the benefits available to him. The court held that the petitioner is entitled to all benefits envisaged by SRO 321 as it was in operation at the time of his resuming duty, and SRO 514 has no retrospective operation.
Fact of the Case:
The petitioner, an Accounts Assistant, applied for study leave and resumed duty after a period of absence. The respondent-University treated the period of absence as 'Dies-non' based on SRO 514, which the petitioner challenged, asserting his entitlement to benefits under SRO 321.
Finding of the Court:
The court found that the petitioner is entitled to benefits under SRO 321 as it was in operation at the time of his resuming duty, and SRO 514 has no retrospective operation. The impugned order treating the period of absence under SRO 514 was quashed.
Issues: The main issue was the applicability of SRO 321 and SRO 514 in determining the petitioner's period of absence and entitlement to benefits.
Ratio Decidendi: The court held that the petitioner's rights are to be considered as on the date of his resuming duty, and as SRO 514 has no retrospective operation, the petitioner is entitled to benefits under SRO 321.
Final Decision: The petition was allowed, and the impugned order treating the period of absence under SRO 514 was quashed. The petitioner was directed to be allowed benefits in accordance with the meaning of the word 'Dies-Non' as provided under SRO 321.
learned counsel appearing for the respondents did not choose to file any reply. The admitted facts as stated in the petition are that the petitioner who was working as Accounts Assistant with the respondent-University, applied for study leave with effect from 1.11.1995 for two years. He was asked to resume duty vide letter dated: 17.6.1998. He, however, submitted his joining report on 22.6.1999. Vide order dated: 25.9.1999 petitioner™s joining report was accepted and he was allowed to work pending final decision regarding his aunauthorized absence from duty. Respondent No. 1 passed an order No. 443 (Estt:) of 2000 dated: 21.12.2000 whereby period of absence with effect from 7.11.1995 to 21.6.1999 is treated as Dies-non. This was said to be in terms of SRO 514 dated 22. 11.1999. Petitioner has called in question this order to the extent it treats the period of absence of the petitioner as "Dies-non" and deprives him of all the benefits available to him in terms of earlier SRO 321. Petitioner has also assailed the constitutional validity of SRO 514. Since the learned counsel appearing for the parties agreed that the issue can conveniently be resolved by deciding the question of applicability of the relevant SRO, the controversy regarding constitutional validity of SRO 514 need not to be gone into.
2. Admittedly on the date the petitioner submitted his joining report i.e. on 20.6.1999, it was SRO 321 dated: 7.12.1995 which in operation and regulated the question of authorized leave or absence. For the purpose of brevity, the said SRO is quoted as under:-
SRO 321: - In exercise of the powers conferred by proviso to section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to make following recommendations in the Jammu and Kashmir Civil Services Regulations Volume I, namely: -
In the said rules:
The existing Government instruction below note 4 to a Article 163 shall be recast as under: -
Government Instruction: No period of un-authorized 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 unauthorized 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.
Explanation- The import of term dies-non is that: -
(a) It does not qualify for any remuneration (pay and allowance).
(b) It does not count for pension.
(c) It does not count for increment.
(d) It does not cause any interruption for leave earned up to the date preceding that on which the period of Dies-non has commenced unless it is the intention of the competent authority to have such period of leave forfeited in which case mention above it should be made in the order itself. It does not cause any interruption for the past service qualifying for pension.
By order of the Governor.
3. Despite the joining of the petitioner, the period of his absence was not decided, it was only on 25.9.1999, the Registrar of the respondent-University passed an order No.510 (Estt:) of 1999 dated: 25.9.1999 saying that the joining of the petitioner is pending final decision regarding his unauthorized absence from duty. The fact remains that the petitioner was working with effect from the date of his joining i.e.. 20.6.1999. As a consequence of passing of order, dated: 25.9.1999, the issue appears to have been considered and finally vide impugned order no.433 (Estt.) of 2000 dated:26.12.2000, the period of absence of the petitioner with effect from 1.11.1995 to 21.6.1999 came to be decided and
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
