AI Structured Summary
Not yet generated for this judgment
Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
i)Allow the instant application of the applicant along with costs: ii) Direct the respondents to immediately accept the resignation tendered by the applicant against the post of Medical Officer, on 23.07.2019;
Central Administrative Tribunaliii) Direct the Respondent No.3 to release the entire salary of the applicant w.e.f. August 2019 till date along with interest @ 12% per annum;
iv) Direct the respondents to not to treat the applicant as an in-service candidate for any future employment against any other post in the same or any other department/medical college of Jammu and Kashmir Government;
v)Any other relief which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case may also be granted in favour of the applicant and against the respondents.
The facts of the case as averred by the applicant in his pleadings, are as follows:
The case of the applicant, as projected in the Original Application, is that he was appointed as a Medical Officer in the Health Department of the erstwhile State of Jammu and Kashmir pursuant to the recommendations of the J&K Public Central Administrative TribunalService Commission, vide Government Order No. 333-HME of 2018 dated 29.05.2018. He was thereafter posted in the Health Department and was serving at Emergency Hospital, Batote, District Ramban.
It is stated that after completion of his Post-Graduation, the applicant became eligible to seek appointment as Registrar/Demonstrator/Tutor/Senior Resident in Government Medical College, Jammu. According to him, experience as Registrar was necessary for acquiring eligibility for further appointment in the Medical Education Department as Lecturer/Assistant Professor. When an advertisement dated 03.06.2019 was issued for engagement of Registrar in the Department of Dermatology, Government Medical College, Jammu, the applicant sought permission/NOC from the competent authority to participate in the selection process. However, he was informed that since he was still on probation as a Medical Officer, NOC could not be granted and that, if he wished to join the tenure post of Registrar, he would have to resign from the post of Medical Officer.
Aggrieved, the applicant approached the Hon’ble High Court of Jammu and Kashmir by way of WP(C) No. 2325/2019, Dr. Mubashar Mashqoor Mir v. State of J&K and Others. By interim order dated 18.06.2019, the Hon’ble High Court directed that the applicant be permitted to participate in the selection process notwithstanding non-issuance of NOC by the Administrative Department. The applicant thereafter came to be selected for the post of Registrar and tendered his resignation from the post of Medical Officer. The writ petition was finally disposed of on 26.07.2019 with a direction that, in the event of his selection as Registrar in the Department of Dermatology, he be permitted to undergo the said tenure keeping in view the resignation tendered by him.
The applicant states that he tendered his resignation on 23.07.2019. The same was forwarded by the Block Medical Officer to the Chief Medical Officer, Ramban on the same date; thereafter by the Chief Medical Officer to the Director Health Services on 24.07.2019; and ultimately by the Director Health Services to the Administrative Department vide communication dated 18.09.2019. According to the applicant, despite completion of this process, no final decision on his resignation was communicated to him for a considerable period.
Meanwhile, Government Medical College, Jammu, vide Order No. GMC-264 of 2019 dated 07.08.2019, permitted the applicant to join as Registrar. Pursuant thereto, vide communication dated 08.08.2019, he was directed to report to the Head of the Department of Dermatology, SMGS Hospital, Government Medical College, Jammu, and he submitted his joining report on 08.08.2019 itself.
The grievance of the applicant is that although he was allowed to work as Registrar, the Chief Accounts Officer, Government Medical College, Jammu, was directed to treat him as a non-PSC candidate for purposes of drawal of salary and to release the same only after verification of his character antecedents and confirmation regarding acceptance of his resignation by the Administrative Department. The applicant asserts that he continued to discharge duties as Registrar for more than three years, but no remuneration was released to him during the said period. He relies upon an experience certificate dated 27.08.2022 issued by Government Medical College, Jammu, to demonstrate that he had worked as Registrar.
It is further pleaded that the applicant submitted representations dated 01.08.2019 and 17.08.2022 requesting the respondents to accept his resignation, but no decision was taken for a long period. His contention is that he was only a probationer in the Health Department and had not acquired substantive status in the post of Medical Officer. According to him, continued non-acceptance of his resignation exposed him to the possibility of being treated as an in-service candidate for future selections, despite the fact that he had already left the Health Department and undergone Registrarship as a non-PSC/open-market candidate.
The applicant further submits that there is a distinction between in-service Registrars and candidates appointed from the open market. Whereas in-service candidates are paid the salary attached to their parent posts, open-market candidates are entitled to consolidated remuneration. His grievance is that, despite being treated as a non-PSC candidate, neither consolidated remuneration nor salary as an in-service candidate was paid to him. He therefore seeks acceptance of his resignation with effect from 23.07.2019, release of the remuneration claimed by him for the period of his Registrarship, and a direction that he should not be treated as an in-service candidate for future employment.
The respondents have filed their written statement wherein they have averred as follows: -
Respondents No. 1 and 2, in their written statement, do not dispute that the applicant was appointed as Medical Officer vide Government Order No. 333-HME of 2018 dated 29.05.2018 and was posted at Emergency Hospital, Batote, District Ramban. They also acknowledge that the applicant tendered his resignation from the post of Medical Officer with effect from 23.07.2019 and that the same was forwarded to the competent authority for consideration.
The respondents, however, state that certain procedural formalities were required to be completed before the resignation could be acted upon. The applicant was required to apply for NOC/vigilance clearance through the e-vigilance system and to submit the matter after obtaining the requisite clearance. His particulars were uploaded for vigilance clearance vide Form No. 162145 dated 14.11.2022. Thereafter, vigilance clearance was obtained from the General Administration Department on 25.11.2022.
The respondents further submit that, after receipt of vigilance clearance, the applicant’s probation was terminated and he was discharged from the J&K Health and Family Welfare (Gazetted) Services with effect from 23.07.2019 on his own request, vide Government Order No. 06-JK(HME) of 2023 dated 02.01.2023. Thus, according to them, the principal relief regarding acceptance of resignation no longer survives for consideration.
As regards the claim for salary, the respondents contend that since the applicant stood discharged from the Health Department with effect from 23.07.2019, no question of payment of salary by the Health Department for any period thereafter arises. On this basis, they plead that the Original Application has substantially rendered itself infructuous and deserves to be dismissed.
Heard learned counsel for the parties and perused the pleadings made by them.
The controversy, in our considered view, now lies in a narrow compass. During the pendency of the Original Application, the respondents themselves processed the resignation of the applicant after obtaining vigilance clearance and, vide Government Order No. 06-JK(HME) of 2023 dated 02.01.2023, terminated his probation and discharged him from the J&K Health and Family Welfare (Gazetted) Services with effect from 23.07.2019, i.e., the very date from which the applicant had sought to resign.
Thus, so far as the prayer regarding acceptance of resignation is concerned, the grievance of the applicant stands redressed during the pendency of the proceedings. Importantly, however, the Government itself has given retrospective effect to his discharge from 23.07.2019. Consequently, there can be no justification now for treating the applicant as an in-service Medical Officer for any period subsequent to 23.07.2019. His status for the period thereafter has necessarily to be determined in accordance with the engagement actually undertaken by him as Registrar in Government Medical College, Jammu.
The remaining and substantial grievance of the applicant relates to non-payment of remuneration for the services rendered by him as Registrar. On this aspect, we find the stand taken by Respondents No.1 and 2 to be misconceived. Their contention is that since the applicant stood discharged from the Health Department with effect from 23.07.2019, no salary from August 2019 onwards is payable to him. This submission overlooks the essential distinction between the applicant's employment as a Medical Officer under the Health Department and the subsequent services rendered by him as Registrar under Respondent No.3.
The applicant is not claiming salary as Medical Officer for the period subsequent to his resignation. His claim is for remuneration for the work actually performed by him as Registrar in the Department of Dermatology, Government Medical College, Jammu. The record itself shows that Respondent No.3 permitted him to join, accepted his joining report and allowed him to discharge duties as Registrar. The communication dated 08.08.2019 further contemplated that he would be treated as a non-PSC candidate for purposes of drawal of remuneration, subject to completion of the prescribed formalities.
The applicant has specifically pleaded that Registrars selected from the open market/non-service category are paid consolidated remuneration, whereas in-service Registrars are entitled to the salary admissible against their parent posts. His grievance is that although the respondents treated him as a non-PSC candidate, even the consolidated remuneration payable to such candidates was not released.
Once the respondents permitted the applicant to join the post of Registrar and admittedly availed of his services, they cannot deny him the remuneration attached to the category in which they themselves treated him. The State and its instrumentalities are expected to act as model employers. An employee or an appointee cannot be permitted to work for years and thereafter be deprived of the remuneration legitimately payable for the work actually performed. Administrative delay relating to acceptance of resignation or vigilance clearance, particularly when such resignation has subsequently been accepted retrospectively from 23.07.2019, cannot be used to deprive the applicant of monetary consideration for services rendered under a separate engagement.
There is yet another aspect of the matter. The applicant had tendered his resignation as far back as on 23.07.2019 and the same travelled through the official channel. It was forwarded by the concerned authorities but remained pending for a considerable period. Ultimately, after vigilance clearance, the respondents themselves discharged him retrospectively from the date of resignation. The applicant cannot be made to bear the financial consequences of such administrative delay when there is no material to suggest that he was responsible for the withholding of the decision.
We are, therefore, of the considered opinion that the applicant is entitled to the remuneration admissible to a non-PSC/open-market Registrar for the entire period during which he actually discharged duties as Registrar in the Department of Dermatology, Government Medical College, Jammu. At the same time, since his resignation from the post of Medical Officer has been given effect from 23.07.2019, he would not be entitled to claim salary of the substantive post of Medical Officer for any period subsequent thereto. His monetary entitlement shall be confined to the remuneration/consolidated wages admissible for his Registrarship for the period actually worked.
The prolonged withholding of the applicant's earned remuneration also calls for payment of reasonable interest. Salary or remuneration for work performed is not a bounty. Once it becomes due, an unexplained and prolonged withholding thereof causes financial prejudice to the person who has rendered the service. In the facts of the present case, the applicant cannot be adequately compensated merely by directing payment of the principal amount after several years.
Accordingly, the Original Application is allowed with the following directions:
The discharge of the applicant from the J&K Health and Family Welfare (Gazetted) Services with effect from 23.07.2019, already ordered vide Government Order No. 06-JK(HME) of 2023 dated 02.01.2023, shall be treated as final for all purposes. Central Administrative TribunalThe applicant shall not be treated as an in-service Medical Officer for any selection/employment pertaining to a period subsequent to 23.07.2019 merely on account of the delayed formal acceptance of his resignation.
Respondent No.3 shall verify the exact period during which the applicant actually worked as Registrar in the Department of Dermatology, Government Medical College, Jammu, commencing from his joining on 08.08.2019, and shall calculate and release to him the consolidated remuneration/wages admissible from time to time to a non-PSC/open-market Registrar for the entire period of service actually rendered by him.
The arrears so determined shall carry simple interest @ 6% per annum from the date on which each monthly remuneration became due till the date of actual payment, considering that the applicant had actually rendered services but was deprived of the corresponding remuneration for reasons not attributable to him.
Central Administrative Tribunald) The entire exercise of calculation and payment of arrears together with interest shall be completed within a period of 12 weeks from the date of receipt of a certified copy of this order.
It is clarified that the aforesaid direction relates only to the remuneration admissible for the services actually rendered by the applicant as Registrar and shall not be construed as granting him salary of the post of Medical Officer after 23.07.2019.
With the aforesaid observations and directions, the Original Application stands allowed. Pending M.A(s), if any, shall also stand disposed of.
No order as to costs.