‘State Can’t Treat Same Set of Employee On Different Pedestals’

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Srinagar—Observing that action of the state has to be fair and transparent, the State High Court on Wednesday quashed an order by virtue of which a doctor was terminated by the government is 2013.

Dr. Mohammad Iqbal Wani had filed a petition before the high court that National Board of Examination New Delhi held an examination for the DNB Course in Cardiology at Fortis Hospital Mohali. He participated in it and was declared to have qualified the examination. On 24 February 2012, he was required to join the course upto March 2012, failing which it was stipulated that the seat will be forfeited. The selection in the course being a lifetime opportunity for a medico, he did not want to waste it and formally filed an application for the grant of study leave before the government where he was working as an Assistant Surgeon and the failure on the part of the government to take a decision on his application “forced and coerced” him to approach the high Court in 2012.

On 08 March 2012, the high court put the government on notice. Dr Wani stated that he was verbally directed by the government to join the course at Fortis Hospital, Mohali, till his case was considered and study leave was formally granted in his favour. On the assurance, Dr Wani stated that he left the Department of Health and joined the DNB course at Mohali, from where he remained in constant touch with concerned authorities requesting them to accord sanction to his study leave. However, Dr Wani said that to his dismay, the government issued an Order (No. 309-HME of 2013) 25 April 2013, directing the termination of his service from the department.

Dr Wani challenged the termination order on the grounds inter-alia that similarly situated Assistant Surgeons who were working with him in the department of Health were granted study leave for pursuing the DNB course and other courses both within and outside the state and the order of his termination was an arbitrary exercise by the government. Dr Wani said that he was not provided an opportunity of being heard before passing the order and the same was against the Constitutional safe-guards available to him under Article 311 of the Constitution of India and rules 33, 34 and 35 of the J&K Classification Control and Appeal Rules.

The government on the other hand resisted and controverted the petition of Dr Wani chiefly on the grounds that he was appointed as an Assistant Surgeon on 17 June 2010. “He had proceeded on unauthorized absence from his duties w.e.f 02.03.2012, when he was still on probation. Since the petitioner failed to report back for his duties, the Directorate of Health Services, Kashmir, accordingly served a show cause notice to him. The petitioner did not file any response,” the government said, adding that he was finally terminated from the services.

After hearing both the parties, the court said that the state cannot apply different set of standards while determining the cases of the similarly situated persons. “The action of the state has to be fair and transparent. It has to be based on reason and logic. The state cannot afford to treat the same set of employees on two different pedestals,” a bench of Justice M K Hanjura said, adding that Dr Wani could not have been treated as a sui-generis case by applying different standards in measuring the extent of the benefits to be provided to him. “There should be fairness in the dealings and the agility of the state,” the court said quashed the Government Order (No. 309 –HME OF 2013 dated 25.04.2013, so far as it relates to Dr Wani. “The respondents are directed to allow the petitioner (Dr Wani) to join back his services as were rendered by him prior to the issuance of the impugned order. (He) shall also be entitled to the consequential benefits,” the court added.

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