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Judgment
Order no.161 of 2016 dated 08.11.2016 passed by the Chief Education Officer, Srinagar, respondent no.3 in the petition, purportedly in compliance of Court decision dated 31.07.2012 in the petitioner's earlier writ petition, SWP no.193/2005, is under challenge in this petition. By the said order, respondent no.3 has accorded sanction to the grant of extra ordinary leave without emoluments / allowances in favour of the petitioner with effect from 20.06.2003 to 23.09.2013 in relaxation of the rules.
The petitioner, a Government teacher, had submitted a resignation on 31.03.2003 with a condition to allow him to resume his duties within five years. However, before its acceptance, he sought to join back and submitted a joining report on 20.06.2003. It is thereafter that respondent no.2 issued order no.5507-DSEK of 2004 dated 06.12.2004 according post facto sanction to the acceptance of resignation that had been tendered by the petitioner with effect from 31.03.2003.
The petitioner challenged the aforesaid order dated 06.12.2004 in writ petition, SWP no.193/2005. That writ petition was disposed of by the Court by judgment dated 31.07.2012, inter alia, directing as under:
"For the above stated reasons this petition is disposed of in the following manner:
By issuance of writ of certiorari, the order No.5507 DSEK of 2004 dated 06.12.2004 issued by respondent no.2 is quashed. It is declared that the petitioner is in employment of the respondents. The petitioner shall be allowed to join and resume his duties.
Respondents shall consider and take decision in respect of intervening period from 31st March, 2003 till he resumes his duties in accordance with rules."
Consequent upon the above Court order, respondent no.3 has passed the impugned order dated 08.11.2016 which, inter alia, reads and records as under:
"Whereas the petitioner Mr. Raja Anis Ali approached the Honourable High Court of J&K through the medium of SWP No.193/2005, the Honourable High Court vide order dated 31.7.2012 quashed the DSEK Order No.5507-DSEK of 2004 and directed the respondents to allow the petitioner to join and to take a decision in respect of intervening period.
Whereas the petitioner was according(ly) allowed to join vide Chief Education Officer, Srinagar's Order No.718 Dt. 18.11.2013 and posted at Boys High School Habbak Homehair, leaving intervening period undecided.
Whereas the Directorate of School Education Kashmir vide No.DSEK/Legal/57/05/150-152 Dated 12.3.2015 sought necessary instructions from the Administrative Department with regard to the treatment of intervening period.
Whereas the Administrative Department vide Communication No.Edu/Legal/K/245/2012 Dated 4.4.2016 duly communicated by the Directorate of School Education Kashmir vide endorsement No.DSEK/Legal/57/05/554 dated 18.10.2016 directed to decide the intervening period of the petitioner w.e.f 20.6.2003 to 23.9.2013 as on leave whatever kind due to the petitioner with rules.
Whereas on the perusal/verification and report submitted by the concerned Headmaster, no leave stands at his credit as per service records as per prevailing Leave Rules other than Extra Ordinary Leave applicable under Rule 32.
Now, in view of the Honourable High Court directions and to settle the intervening period of the petitioner, sanction is hereby accorded to the grant of Extra Ordinary Leave without emoluments/allowances in favour of Mr. Raja Anis Ali, Teacher Govt. Boys High School Habbak Homehair (Srinagar) w.e.f 20.6.2003 to 23.09.2013 in relaxation of rules."
(Underlining supplied)
The petitioner has challenged the aforesaid order on the ground that he was not allowed to resume his duties and was compelled to be out of service. Relying on certain judgments of the Supreme Court and this Court mentioned in ground (b) of the writ petition, the petitioner claims that he has to be treated on duty and is entitled to full back wages for the period he was made to remain out of service.
Respondents have filed their reply wherein they have stated that the impugned order has been passed on the directions of the Administrative Department, and that the impugned order is neither illegal nor without jurisdiction. It is further stated by them that the judgments cited in the writ petition by the petitioner are not attracted in the facts and circumstances of the case.
I heard learned counsel for the parties and considered the matter.
From a bare perusal of the impugned order it becomes axiomatic that it has been issued by respondent no.3 on the directive of the Administrative Department communicated to the Director, School Education Department, Kashmir, in terms of communication no.Edu/Legal/K/245/2012 dated 4.4.2016 who, in turn, has endorsed the same to respondent no.3 under endorsement no.DSEK/Legal/57/05/554 dated 18.10.2016, directing to decide the intervening period of the petitioner with effect from 20.6.2003 to 23.9.2013 as on leave whatever kind due to the petitioner under rules. According to respondent no.3 there is no leave, except extra ordinary leave, due to the petitioner. The petitioner has not challenged the Government's direction as contained in the aforesaid communication dated 18.10.2016 addressed to the Director School Education on which the impugned order is founded. Even if the impugned order is quashed for any reason, the Government's directive as contained in the said communication will stand in the way of implementation of any order passed by this Court. This Court will not pass an order for the sake of it which would be inexecutable. The fault lies with the petitioner that he has not challenged the Government's communication in question.
At the same time, it may be observed here that the judgments quoted by the petitioner in his writ petition and the one in Union of India v. Sri Babu Ram Lalla, AIR 1988 SC 344, cited at the Bar are not even remotely attracted to the facts of the present case. In the judgments quoted in ground (b) of the writ petition, the petitioners had either been terminated or discharged from service and their such orders had been quashed by the Courts. So are the facts involved in Union of India v. Sri Babu Ram Lalla (supra). In the instant case, the petitioner had himself tendered resignation. Therefore, the ratio of the judgments is not applicable herein.
The Court, in the circumstances, thinks it appropriate to refrain from commenting on the legality or otherwise of the impugned order.
This petition for the above reason is dismissed alongwith its connected MP. Dismissal of the writ petition will, however, not come in the way of the petitioner to take appropriate legal course to challenge the Government's communication etc., subject to just exceptions of law.
No order as to costs.