Unauthorised absence cannot be treated as 'Dies-non' where prior acknowledgement of absence for education exists; regularization for seniority is required.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP/WP(C) No. 452/2012 was transferred from the Hon’ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/7493/2020 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court with following prayer:

“(a) An appropriate writ, or direction in the nature of Writ of certiorari quashing Government Order No. 312-HME of 2010 dated 31.05.2010 by virtue of which the period of three years spent by the petitioner on Post- Graduate training i.e. 15.07.1997 to 03.07.2000 after applying for necessary NOC, has been treated and regulated as “Dies-non” as per SRO 514 dated 22.02.1997.

(b) An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to treat the period of three years spent by the petitioner for undergoing post-graduate course as on duty and grant her all consequential benefits including the arrears of salary, increments, allowances, seniority, promotion and all other benefits to which the petitioners is fully and legally entitled to.

(c) Any other relief, which this Hon’ble Court, in the facts and circumstances of the case deems fit and proper.”

3. The facts of the case as averred by the applicants in their pleadings are as follows:

a) That the petitioner after nomination by PSC, jointed the Govt. Ayurvedic Dispensary Thalora, Udhampur on 20.05.1995 as Medical Officer.

b) That after competition of two years of regular service with the respondents, petitioner decided to go for higher studies, therefore, she applied with the respondents for issuance of No Objection Certificate (in short NOC) qua pursuing the higher studies.

c) The respondent no. 3 after receipt of application of the petitioner seeking NOC for M.D. (Aryrveda) forwarded the same to the respondent no. 2. Then respondent no. 2 in turn forwarded the same to the Administrative Department vide his communication dated 11.07.1997.

d) That respondent no. 1 after receipt of application of the petitioner seeking NOC for undergoing higher studies, sought comments/views/recommendations of respondent No. 2 vide communication dated 9.9.1997 to the extent of duration of training course and how the absence of the petitioner will be treated in case she is selected for the said training course.

e) That the respondent NO. 1 vide Govt. Order No. 231-HME of 1998 dated 25.03.1998 posted one Dr. Lakhwinder Singh Medical Officer, (ISM) in place of the petitioner herein, who proceeded to undergo higher studies and the Government in this order specifically endorsed the fact of petitioner has gone for her P.G. course. In the same Govt. order, the respondent No. 2 was directed to draw the salary of the petitioner from Government Ayurvedic Dispensary.

Needless to mention that the respondent No. 2 did not take this Govt. order seriously and because of his casual approach in the matter, the present anomaly has arisen.

f) That during the period when the case of the petitioner was under consideration for NOC, the petitioner because of certain severe problem at her domestic front, applied for two months earned leave which was duly sanctioned in her favour. During this leave period, the petitioner was selected at Shri Ayurvedic Maha Vidyalaya, Nagpur for P.G course.

g) That since all the respondents were in know of the fact that the petitioner had to pursue/undergo her P.G course for which she had, well in advance, applied for the NOC, therefore, the petitioner was given an impression that NOC has been issued and on this presumption, the petitioner started undergoing her P.G. course. This action on the part of the petitione