Jammu & Kashmir High Court – Srinagar Bench
Mst. Rubia Akhter vs Union Territory Of J&K Through on 1 March, 2025
Bench: Sanjeev Kumar, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 3313/2023
Reserved On: 18.02.2025
Pronounced On: 01 .03.2025
Mst. Rubia Akhter, Age 50 Years
D/O: Abdul Gani Ganie
W/O: Hilal Ahmad Ganie
R/O: Bandipora, Kashmir.
... Petitioner(s)
Through: Mr. M.Y. Bhat, Sr. Advocate with
Mr. Sajid Ahmad, Advocate
Vs.
1. Union Territory of J&K through
Commissioner Secretary to Education
Department, Civil Secretariat, /Jammu
Srinagar.
2. Director School Education, Kashmir,
Srinagar.
3. Personal Officer Directorate of School
Education (Inquiry Officer), Kashmir.
...Respondent(s)
Through: Mr. Abdul Rashid Malik, Sr. AAG with
Mr. Mohd Younis Hafiz, Assisting Counsel and
Ms. Rahella Khan, Assisting Counsel
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
WP(C) No. 3313/2023 Page No. 1 of 8
JUDGMENT
Per: Sanjeev Kumar-J
1. The petitioner, Rubia Akhtar, is before us in a writ petition
filed under Article 226 of the Constitution of India, to throw challenge to
an Order and Judgment dated 29th March 2023, passed by the Central
Administrative Tribunal, Srinagar Bench, [“the Tribunal”], in TA No.
4537/2021, titled “Mst. Rubia Akhtar vs. State of J&K and Others“. The
petitioner also seeks a writ of certiorari to quash Order No. 1433-DSEK of
2014, dated 2nd December, 2014, along with the inquiry report. The
petitioner wants that her period of absence with effect from 19th June,
2007, onward be treated as on duty with all consequential benefits.
2. Briefly put the facts as projected by the petitioner before the
Tribunal are that, the petitioner was appointed as a Class-IV employee in
the School Education Department vide Government Order No. 393-GAD
of 1996, and was adjusted as Lab Bearer at Government Higher Secondary
School, Nowhata, against available post. For remaining unauthorizedly
absent from service, the petitioner was placed under suspension by the
Director of School Education, Kashmir, vide Order No. 4047-DSEK of
2004, dated 2nd September, 2004. The petitioner was subsequently
reinstated from suspension Vide Order No. 763-DSEK of 2005, dated 12th
April, 2005, passed by the Director of School Education, Kashmir. The
intervening period was treated as on leave whatsoever due.
3. Following her reinstatement, the petitioner claims to have
approached the respondents to join her duties, but she was not permitted
by the respondents to do so. The petitioner in the year 2005 itself, that is,
WP(C) No. 3313/2023 Page No. 2 of 8
immediately after her reinstatement, filed a suit before the civil Court,
praying therein for the issuance of a decree of mandatory injunction
directing the respondents herein to treat the period of her illness as on
leave until she recovers and rejoins her duties. The suit was later
abandoned and the same came to be dismissed for non-prosecution.
4. The petitioner, as is claimed, moved an application before
the respondents on 19th June, 2007, seeking payment of half salary with
effect from June 2005 and her transfer to District Bandipora. However, the
respondents neither allowed the petitioner to join her duties nor she was
transferred to District Bandipora. Consequently, the petitioner filed SWP
No. 785/2011, which came to be disposed of by a Single Bench of this
Court vide judgment dated 26th July, 2013. The respondents were directed
to allow the petitioner to resume her duties, with liberty to inquire into her
unauthorized absence in accordance with the applicable rules, after
affording her a reasonable and adequate opportunity to project her case.
The respondents were further directed to deal with the period of
unauthorized absence i.e., from 12th April, 2005, till the date she was
allowed to resume her duties dependent upon the outcome of such inquiry.
5. In compliance with the judgment passed in SWP No.
785/2011, the petitioner was allowed to join her duties, and an Inquiry
Officer was appointed on 18th February, 2014. Based on the outcome of
the inquiry, the petitioner’s period of absence from 12th April, 2005, till
the date of her joining was ordered to be treated as ‘dies non’ vide Order
No. 1433-DSEK of 2014 dated 2nd December 2014. It is this order, along
with the inquiry report, which was called in question before this Court by
WP(C) No. 3313/2023 Page No. 3 of 8
way of a writ petition, which was later on transferred to the Tribunal and
registered as TA No. 4537/2021.
6. The writ petition/TA was contested by the respondents by
filing their objections. The order of treating the unauthorized absence of
the petitioner as ‘dies non’ passed by the respondents was sought to be
justified on the ground that the petitioner had failed to provide a proper
explanation for her unauthorized absence, even after her reinstatement
from suspension. It was thus contended that, since the petitioner during the
period from 12th April, 2005, till the petitioner actually joined her duty
pursuant to the direction passed by this Court, the petitioner did not
perform any duties, and, therefore, the principle of “no work no pay” was
applicable.
7. After hearing the learned counsel for the parties and
perusing the record, the Tribunal came to be conclusion that the impugned
order issued by the Director School Education, Kashmir, bearing No.
1433-DSEK of 2014 dated 2nd December, 2014, was in tune with Article
136 of the Jammu and Kashmir Civil Service Regulations, read with SRO
514 dated 21st November, 1999. The Tribunal, accordingly, dismissed the
TA filed by the petitioner in terms of the judgment impugned in this
petition.
8. Having heard learned counsel for the parties and perused the
material on record, we are of the considered opinion that the judgment
passed by the Tribunal is entirely in consonance with the law and does not
warrant any interference by this Court.
WP(C) No. 3313/2023 Page No. 4 of 8
9. Indisputably, the petitioner was transferred to Government
Higher Secondary School, Noonar, Ganderbal, where she submitted her
joining report on 1st January, 2002. She proceeded on maternity leave with
effect from 1st June, 2002, and availed various types of leaves till 31st
December, 2003. She resumed her duties after the end of her leave and
after the winter vacations of 2003, and continued to discharge her duties at
Government Higher Secondary School, Ganderbal, till 15th April, 2004.
10. The petitioner remained unauthorizedly absent with effect
from 16th April, 2004, and was thus placed under suspension by the
Director School Education, Kashmir, vide Order dated 2nd September,
2004. Having regard to some explanation tendered by her, the petitioner
was reinstated vide Order No. 763-DSEK of 2005 dated 12th April, 2005,
and the period of her absence was treated as on leave whatsoever due to
her including extraordinary leave. The petitioner, as is apparent from the
documents on record, was not willing to join the Government Higher
Secondary School, Ganderbal, even after her reinstatement. With a view to
avoid her joining and to pressurize the respondents for her transfer to
Bandipora, she filed a civil suit for a decree of mandatory injunction
before the civil Court, in which she inter alia prayed for a direction to the
respondents to treat her period of illness as on leave till she would recover
and rejoin her duties. The averments made in the suit clearly reflect the
unwillingness of the petitioner to join her duties even after her
reinstatement ordered vide Order dated 12th April, 2005. The civil suit, for
reasons best known to the petitioner, was not pursued and was thereafter
dismissed for non-prosecution. After the dismissal of the suit, the
petitioner filed a writ petition bearing SWP No. 785/2011, which was
WP(C) No. 3313/2023 Page No. 5 of 8
disposed of by the learned Single Bench of this Court vide Order dated
26th July, 2013. The writ Court issued following directions:-
(i) To allow the petitioner to resume her duty; and
(ii) Liberty to inquire into her unauthorized absence in
accordance with rules, affording petitioner a
reasonable and adequate opportunity of being heard
and treating the period of her unauthorized absence,
with effect from 12th April, 2005, till she actually
joined, dependent upon the outcome of an inquiry.
11. In compliance with the aforesaid judgment, the Director
School Education, Kashmir, appointed the Inquiry Officer and also
permitted the petitioner to join her duties. The inquiry was conducted in
the light of the recommendations made by the Inquiry Officer, the
petitioner was allowed to join the duties and the period of her
unauthorized absence was treated as ‘dies non’. This was done by the
Director School Education, Kashmir, vide order dated 2 nd December,
2014, which was called in question in TA No. 785/2011.
12. In the backdrop of the aforesaid admitted factual position,
when we consider the grievance of the petitioner as projected in this
petition, we find the same totally misconceived and without any substance.
The petitioner cannot dispute the fact that she was suspended from the
services in the year 2004, because of unauthorized absence. She was
fortunate enough to have her suspension revoked vide order dated 12 th
April, 2005. The respondents showed compassion and accepted the
explanation tendered by the petitioner that she was not well and
WP(C) No. 3313/2023 Page No. 6 of 8
accordingly treated the period of suspension as on leave of whatsoever
kind due. Unfortunately, the petitioner did not join back her services even
after her reinstatement from suspension. A civil suit filed by her before the
civil Court spills the beans and belies the statement of the petitioner that
she was though willing to join but was not permitted to do so by the
respondents.
13. Be that as it may, the matter as discussed above landed
before the learned Single Judge of this Court again, wherein a direction
was issued to the respondents to hold an inquiry into the unauthorized
absence of the petitioner and permit her to join. The inquiry ordered was
restricted to take a decision with regard to the treating the period of
unauthorized absence of the petitioner. The inquiry was conducted by the
Inquiry Officer and the period of absence which remained totally
unexplained and was tantamount to unauthorized absence was treated as
‘dies non’ in terms of Regulation 163 of the Jammu and Kashmir Civil
Service Regulations. The Tribunal has rightly concluded that the inquiry
which led to treating the period of unauthorized absence of the petitioner
as ‘dies non” was conducted in presence of petitioner and in which the
petitioner was provided sufficient opportunity to defend herself. Even
before this Court the petitioner could not explain her absence from the
date of reinstatement till she actually joined after the intervention of the
Court made in SWP No. 785/2011.
14. As a matter of fact, the conduct exhibited by the petitioner
throughout her career is suggestive of the fact that she is an incorrigible
absentee and the respondents have still shown pity and compassion with
her. The petitioner, in the given facts and circumstances explained above,
WP(C) No. 3313/2023 Page No. 7 of 8
should have felt satisfied with the order dated 2nd December, 2014, and
performed her duties diligently after joining. However, she decided to
litigate in the Court.
15. For the reasons given and the discussion made hereinabove,
we uphold the judgment passed by the Tribunal and as a result dismiss
this petition along with all connected CM(S).
(PUNEET GUPTA) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
01.03.2025
"Mir Arif"
(i) Whether the Judgment is Reportable? Yes/No.
(ii) Whether the Judgment is speaking? Yes/No.
MIR ARIF MANZOOR
I attest to the accuracy and
authenticity of this document
03.03.25
WP(C) No. 3313/2023 Page No. 8 of 8
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