Jammu & Kashmir High Court - Srinagar Bench
Dr. Showkat Ali Mufti vs State Of J&K Through Commissioner/ on 13 October, 2023
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on : 12.09.2023
Pronounced on : 13.10.2023
Case:- SWP No. 30/1998
CM No. 14/2009 (3850/2009)
CM No. 7530/2022
Dr. Showkat Ali Mufti, Age 36 years, .....Petitioner(s)
S/o Mohammad Syed Mufti,
R/o Bijbehara, District Anantnag at present
Aloochi Bagh (silk factory road) Srinagar.
Through: Mr. Hakim Suhail Ishtiyaq, Advocate with
Ms. Naubahar Khan, Advocate
Vs
1. State of J&K through Commissioner/ ..... Respondent(s)
Secretary, Medical Education
Department, J&K Govt. Jammu/ Srinagar.
2. Director, Sher-e-Kashmir Institute of
Medical Science, Soura, Srinagar.
3. Dr. Fayaz Ahmad Sofi, S/o Abdul Ahad
Sofi, R/o Gulabad, Arampora, Sopore.
Through: Mr. Sajad Ashraf, GA.
Mr. G. A. Lone, Advocate for R-4.
C/W
Case:- SWP No. 15/2004,
CM No. 2/2004 (21/2004)
CM No. 1/2004 (279/2004)
CM No. 5130/2022
Dr. Showkat Ali Mufti, S/o Mufti Mohd. Syed, .....Petitioner(s)
R/o Alochibagh, Srinagat, at present Assistant
Professor General Medicine, SKIMS, Soura
Srinagar. Age 45 years.
Through: Mr. Hakim Suhail Ishtiyaq, Advocate with
Ms. Naubahar Khan, Advocate
Vs
1. State of J&K through Commissioner/ ..... Respondent(s)
Secretary, Medical Education
2 SWP No. 30/1998
c/w
SWP No. 15/2004
Department, J&K Govt. Jammu/ Srinagar.
2. S.K. Institute of Medical Sciences
through its Director Soura, Srinagar.
3. Apical Selection Committee through its
Member Secretary (Director SKIMS)
Soura Srinagar.
4. Dr. Fayaz Ahmad Sofi, S/o Abdul Ahad
Sofi, R/o Gulabad, Arampora, Sopore.
Through: Mr. Sajad Ashraf, GA.
Mr. G. A. Lone, Advocate for R-4.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGEMENT
1. This judgment will dispose of two petitions filed by the Petitioner herein, wherein the petitioner seeks protection and enforcement his legal and fundamental rights by exercise of extra- ordinary writ jurisdiction conferred under Article 226 of the Constitution to undo the wrong committed by the Respondent in regularizing his service from a later date and not from the date of his initial appointment otherwise warranted under law and in the facts of the present case. The Petitioner seeks the reliefs claimed in the two petitions primarily on the ground of violation of the promise extended by the Respondent-Institute itself.
2. Before adverting to the grounds of challenge urged in the petition and the stand taken by the Respondents in their reply, facts emerging from the pleadings need a reference in brief hereunder:-
Petitioner, after completing his MBBS degree in July, 1984 from University of Kashmir was appointed as Assistant Surgeon in the Directorate of Health Services, Kashmir, Srinagar after participating in the selection process undertaken by the Public Service Commission. The actual date of appointment, 3 SWP No. 30/1998 c/w SWP No. 15/2004 however, is not borne out from the records, nonetheless, the same is insignificant having regard to the issued in the petitions at hand.
Petitioner passed his post-graduation (MD) in General Medicine from the Sher-e-Kashmir Institute of Medical Sciences, Soura (for short the 'Institute') in November, 1984. The Petitioner was thereafter appointed as Senior Resident in the Institute vide Government Order No. 09-IMS of 1990 dated 03.05.1990. The said appointment was for a period of two years, however, vide Government Order No. 12-IMS of 1992 dated 04.09.1992, the Petitioner was appointed for a further period of two years.
In the year 1993, the Institute, facing dearth of staff on account of incumbents having migrated from Kashmir during turmoil or absented themselves, initiated a selection process for filing up the temporary vacancies of various faculty posts for a period of one year or till such time the migrants/absentees return whichever was earlier. The Petitioner, along with other candidates applied, and upon being selected by the Apical Selection Committee, was appointed as Lecturer in General Medicine by the Institute vide Government Order No. 15-IMS of 1993 dated 16.08.1993. The order dated 16.08.1993 was a general order providing for appointment of as many as eight (08) doctors in various disciplines, wherein the Petitioner figured at serial no. three (03).
4 SWP No. 30/1998c/w SWP No. 15/2004 The order dated 16.08.1993 contained various conditions some of which are reproduced as under:
"Services rendered by all the above appointees on the respective post shall be counted for eligibility for higher post subject to the condition that their performance during temporary appointment shall be judged in terms of their publications in Standard Medical Journal/teaching and patient...."
"The appointees selected in the Departments of General Surgery and General Medicine will have their teaching experience in their respective disciplines and shall also have their seniority maintained as such......"
Prior to the issuance of the order dated 13.10.1994, a standing decision was taken by the Apical Selection Committee of the Institute in its meeting held in July, 1994 wherein it was decided as under:
"A faculty member appointed against temporary leave vacancy in a department shall be regularized on the basis of seniority and/or merit, if so defined by the Apical Selection Committee in their cases as soon as regular vacancy of the post such a faculty member is holding, becomes available in that department."
Since the appointment of Petitioner was for a period of one year or till such time the migrants/absentees return whichever was earlier, the Petitioner, along with other doctors, was again appointed as Lecturer in General Medicine vide Government Order No. 14-IMS of 1994 dated 13.10.1994, wherein he figured at serial no. nine (09). The order dated 13.10.1994 also 5 SWP No. 30/1998 c/w SWP No. 15/2004 contained certain important conditions which are extracted and reproduced as under:
"It is hereby ordered that the appointments of faculty staff made at the Institute of Medical Sciences, Srinagar against migrant vacancies shall be deemed to be appointments against temporary leave vacancies."
"It is further ordered that the appointment of following persons ordered vide Govt. Order No: 9-IMS of 1992 dated 16.7.1992 read with Govt. Order No:
16-IMS of 1993 dated 16.8.1993 and Government Order No. IMS of 15-IMS of 1993 dated 16.8.1993 shall also be deemed to have been against temporary leave vacancies till such time they are regularized or the incumbents holding such posts on regular basis return, whichever is earlier."
"The other terms and conditions of the above appointments shall remain unchanged."
"It is further ordered that a faculty member appointed against the temporary leave vacancy in a department shall be regularized on the basis of seniority and/or merit, if so defined by Apical Selection Committee in their cases, as soon as regular vacancy of the post such faculty member is holding becomes available in the department"
The conditions laid down in the order dated 13.10.1994 were in tune with the decision of the Apical Selection Committee. It is also relevant to point out that in terms of the order dated 13.10.1994, the appointment of the doctors figuring in the said order, including the Petitioner vide Government Order No. IMS of 15-IMS of 1993 dated 16.8.1993 were deemed 6 SWP No. 30/1998 c/w SWP No. 15/2004 to have been against temporary leave vacancies till such time they are regularized or the incumbents holding such posts on regular basis return, whichever is earlier. The effect of this condition was that whenever the doctors appointed against temporary leave vacancies would be regularized, the same would date back to their date of initial appointment, which in the case of the Petitioner would be 16.8.1993.
In the year 1996, the Petitioner was selected for undergoing DM/M.Ch. course in the subject of Pulmonary Medicine at Post Graduate Institute of Medical Education & Research, (PGI) Chandigarh. The Petitioner was offered admission, however, the same was subject to various conditions including one that the Petitioner was required to be sponsored by his employer on certain terms and conditions. On being offered admission, the Petitioner requested the Institute to relieve him in order to allow him to join at PGI, Chandigarh, which the Institute failed to do constraining the Petitioner to approach this Court vide SWP No. 934/1996. This Court vide order dated 29.06.1996 while issuing notice directed the Respondents including the Institute to relieve the Petitioner without default in order to allow him to join at PGI, Chandigarh and also to pay him dues as admissible under rules. Upon passing of the order dated 29.06.1996, the Institute wrote to the Health and Medical Education Department vide communication No. SIMS/Per/3172/95/2538 dated 03.07.1996. The H&ME Department vide communication No. SKIMS-12/96 dated 05.07.1996 7 SWP No. 30/1998 c/w SWP No. 15/2004 directed the Institute to relieve the Petitioner to join at PGI, Chandigarh and the Institute was informed that case of the Petitioner for study leave and decision viz- a-viz period of study was referred to ARI (Trgs).
The Institute finally relieved the Petitioner to join at PGI, Chandigarh w.e.f. 09.07.1996 vide Order No. SIMS 48 of 1996 dated 06.07.1996. It is important to note here that prior to the admission having been offered to the Petitioner, the Institute had issued a sponsorship certificate in favour of the Petitioner dated 26.10.1995, the contents of which are also important and are extracted and reproduced hereunder:
"SPONSORSHIP CERTIFICATE Certified that Dr. Showkat Ali Mufti S/o Mohd. Syed Mufti is a permanent/regular employee of the Institute of Medical Sciences, Soura, Srinagar.
This Institute for all purposes is a state government department and recognized by the Medical Council of India, New-Delhi.
Further, certified that if selected for the course applied for by the applicant, he will be suitably employed by us after the completion of this training course to work in the specialty in which in which the training is received by him at PGI, Chandigarh.
Further certified that no financial implications in the form of emoluments/stipend etc. will devolve upon PGI, Chandigarh during the entire period of applicant's course. Such payment will be the responsibility of sponsoring/deputing authority."
What is discernible from the offer letter supra issued by the PGI, Chandigarh is that the admission 8 SWP No. 30/1998 c/w SWP No. 15/2004 of the Petitioner was, as mentioned hereinabove, subject to the sponsorship by the Institute. Once the Petitioner was relieved by the Institute w.e.f. 09.07.1996, he joined the course at PGI, Chandigarh.
Almost four (04) months after relieving the Petitioner to join at PGI, Chandigarh, the Institute vide Order No. SIMS 840 of 1996 dated 03.12.1996 relieved the Petitioner and reverted his service back to his parent department i.e. Health and Medical Education Department, J&K with effect from 09.07.1996. It is this order which is impugned in the first petition being SWP No. 30/1998.
The petition was first considered by this Court on 15.01.1998 and while issuing notice in the main petition, this Court while considering the application seeking interim relief being CMP No. 64 of 1998, this Court directed the Institute to consider the Petitioner for appointment as Assistant Professor (Medicine) subject to his eligibility and notwithstanding the impugned order, which selection was directed to remain subject to outcome of the petition.
That during the pendency of the petition (SWP No. 30/1998), the Petitioner filed a miscellaneous application being CMP No. 3317/2000 seeking direction upon the Institute to allow the Petitioner to join against the post of Lecturer (re-designated as Assistant Professor by then) to which he stood appointed in terms of the Government Order No. 15- IMS of 1993 dated 16.08.1993. Besides the contentions raised in the main petition, it was pleaded 9 SWP No. 30/1998 c/w SWP No. 15/2004 in the said application that pending this petition, the Petitioner had completed his MRCP degree from United Kingdom. This Court vide order dated 29.01.2001 directed the Institute to allow the Petitioner to join against the post on which he had been appointed in the year 1994.
A letters patent appeal was filed by the Institute against the order dated 29.01.2001 being LPA No. 134/2001. The Division Bench of this Court vide order dated 23.08.2001 disposed of the said appeal as infructuous in view of the statement made by the counsel for the Institute to the effect that the post against which the Petitioner had been seeking re- joining had been re-advertised and the Petitioner had been selected and appointed vide Government Order No. 22-IMS of 2001 dated 09.07.2001. A condition was provided in the said order which reads as under:
"As an exception, the services rendered by the above appointees against the temporary leave vacancy shall be counted as experience to become eligible for higher posts in their respective specialties subject to judgment of their performance during temporary appointment in terms of teaching and patient care......"
Since this petition remained pending for more than two decades, a series of events have occurred viz-a-viz the service of the Petitioner. The said events have been brought on record by way of a supplementary affidavit filed by the Petitioner.
10 SWP No. 30/1998c/w SWP No. 15/2004 The Institute addressed a communication to Principal Secretary to Government, Health and Medical Education Department, vide reference number SIMS 302 07(XXVIII)2002-1569 dated 22.07.2002, wherein a proposal was moved by the Institute for regularization of the service of the Petitioner with effect from the date of the post of Assistant Professor in General Medicine would become vacant on account of voluntary retirement or superannuation of Dr. Mohd. Ramzan Dar. Subsequently vide Order No. 619 of 2003 dated 16.06.2003, Dr. Mohd. Ramzan was removed from the rolls of the Institute w.e.f. 30.05.1988. Since a post became available in the respective department, the Institute reiterated its proposal to regularize the Petitioner, however, w.e.f. 09.07.2001 in terms of the standing decision of the Apical Selection Committee. This was done vide communication addressed to Secretary to Government, Health and Medical Education Department, vide reference number SIMS 302 07(XXVIII)2001-828 dated 25.06.2003.
In the meanwhile, one Dr. Fayaz Ahmad Sofi filed a writ petition bearing SWP No. 1284/2001 challenging the appointment of various doctors including the Petitioner. This Court vide judgment dated 12.06.2003, directed the Institute to appoint the said doctor against the post which was likely to become vacant. This Court observed that the selection committee had not properly assessed the merit of the candidates, however, kept the selection of the doctors including that of the Petitioner intact.
11 SWP No. 30/1998c/w SWP No. 15/2004 The H&ME Department, in compliance of the judgment dated 12.06.2003, issued Government Order No. 791-HME of 2003 dated 14.07.2003 thereby appointing said Dr. Fayaz Ahmad Sofi as Assistant Professor on temporary/permanent basis in the Department of General Medicine.
The Institute, realizing that it was the Petitioner who had the right of regularization against the vacant post, he being more meritorious than Dr. Fayaz Ahmad Sofi, again took up the matter with H&ME Department vide communication vide reference no. SIMS 302 07 (XVII)/2001-1195 dated 21.08.2003 and requested the Department to modify the appointment order of Dr. Fayaz Ahmad Sofi dated 14.07.2003 to the effect that his appointment be ordered against temporary leave vacancy and for issuance of order of confirmation of service of the Petitioner as Assistant Professor on regular/temporary basis from the date of his appointment as such.
Agreeing to the recommendation of the Institute, the H&ME Department issued Government Order No. 1142-HME of 2003 dated 22.0.2003 whereby sanction accorded to the modification of Government Order No. 791-HME of 2003 dated 14.07.2003 to the extent that the appointment of Dr. Fayaz Ahmad Sofi was ordered against temporary leave vacancy and the service of the Petitioner was confirmed as Assistant Professor on regular/temporary basis from the date of his appointment as such.
12 SWP No. 30/1998c/w SWP No. 15/2004 One of the doctors, namely Dr. Rafi Ahmad Jan, who was one of the respondents in SWP No. 1284/2001 challenged the judgment dated 12.06.2003 by way of a letters patent appeal being LPA No. 110/2003 filed on 16.08.2003. The Petitioner, who had not received any notice of the writ petition, immediately upon receipt of the notice in the said LPA, filed his cross objections against the judgment impugned therein dated 12.06.2003.
On 17.12.2003, the H&ME Department issued Government Order No. 1273-HME of 2003 whereby the Government Order No. 1142-HME of 2003 dated 22.0.2003 was withdrawn. This Government Order No. 1273-HME of 2003 dated 17.12.2003 issued by the H&ME Department has been impugned by the Petitioner in SWP No. 15/2004. This Court on consideration of the said petition, vide order dated 16.01.2004, ordered that the present status of the Petitioner be maintained and the impugned Order No. 1273-HME of 2003 dated 17.12.2003 shall not be given effect.
In the reply filed on behalf of the respondents in SWP No. 15/2004 supra the stand taken by the official respondents is that the judgment dated 12.06.2003 passed by this Court in SWP No. 1284/2001 filed by Dr. Fayaz Ahmad Sofi, wherein observations were made against the selection of the Petitioner besides other doctors, came to the knowledge of the Respondents after passing of the Government Order No. 1142-HME of 2003 dated 22.10.2003 and it was 13 SWP No. 30/1998 c/w SWP No. 15/2004 only on the basis of those observations that the Government Order No. 1273 - HME of 2003 dated 17.12.2003, impugned therein, was issued.
This Court while considering SWP No. 15/2004, vide order dated 02.05.2005, observed that the impugned order has been passed on the basis of the directions passed in the judgment dated 12.06.2003 in SWP No. 1284/2003 which was under challenge in LPA No. 110/2003 and that the disposal of the appeal would have a direct bearing on the petition. Therefore, the petition was directed to be listed after the disposal of the said LPA.
The said LPA along with the cross-objections filed by the Petitioner were allowed by the Division Bench of this Court vide judgment dated 17.04.2009 wherein it was held as under:
"The net result of the discussion, as above, is that the petitioner has been adjusted in the post which was lying vacant, for, the incumbent thereof is absconding. The State Government itself showed an inclination to adjust the writ petitioner to the said post. In the event the incumbent of the post is reinstated, the situation that may arise has been directed to be sorted out by the State Government. In the circumstances, the observations made in the judgment and order under appeal in respect of the selection of the respondent nos. 4 to 6 are redundant, for, on the basis thereof neither the right of the petitioner has been pronounced nor the claims 14 SWP No. 30/1998 c/w SWP No. 15/2004 of respondent nos. 4 to 6 in the writ petition have been interfered with. We see no reason for keeping those observations on the file of the records.
In the circumstances, we allow the appeal as well as the cross objection and thereby set aside all observations in the judgment and order under appeal as regards selection of respondent no. 4 to 6 to the writ petition. There shall be order as to costs."
Another development which took place during the pendency of these petitions is that the Institute, in pursuance of the Assessment Merit Promotion Scheme of 2005 notified vide SRO No. 378/200, initiated the process for promotion of Assistant Professors as Associate Professors, wherein the Petitioner was excluded from zone of consideration on the ground that the Petitioner stood appointed as Assistant Professor on 09.07.2001, therefore, as on the date of consideration for promotion in terms of the scheme supra, the Petitioner did not have four years regular service as Assistant Professor as such was given effect of such promotion w.e.f. 01.07.2006 vide Government Order No. 03-SKIMS of 2008 dated 25.01.2008. This order was questioned by the Petitioner before this Court by way of a writ petition being SWP No. 130/2006. This Court allowed the said petition vide judgment dated 27.08.2009 holding that the period of service rendered by the Petitioner from 1993, i.e. the date of his first appointment as Lecturer (later re- designated as Assistant Professor) till 1996 i.e. till the 15 SWP No. 30/1998 c/w SWP No. 15/2004 date the order impugned in SWP No. 30/1998 was passed, was required to be considered for determining the eligibility of the Petitioner as the terms used in the rules was 'regular' and not 'continuous'. Though the Petitioner was given the benefit of the period of service rendered from 1993 to 1996 for the purpose of promotion as Associate Professor, yet the issue whether the Petitioner was entitled for regularization w.e.f. 1993 of 2001 still remained open in the petition at hand.
During the pendency of various petitions filed by the Petitioner, the Institute issued another order bearing No. SIMS 16 (P) of 2009 dated 17.01.2009 by virtue of which the appointment of the Petitioner as Assistant Professor made against temporary leave vacancy vide Government Order No. 22-IMS of 2001 dated 09.07.2001 was regularized w.e.f. 01.02.2007.
The Petitioner while supplementing his pleadings in SWP No. 30/1998, by way of the affidavit supra, has prayed for regularization of his service w.e.f. the date the post of Lecturer became vacant in the Institute.
Heard learned counsel for the parties and perused the record.
3. The order dated 03.12.1996 has been impugned on various grounds raised in the petition. The primary ground, out of which the other grounds germinate, urged by the counsel for the Petitioner is that the Petitioner was selected as Lecturer against temporary leave vacancy by the Institute on the basis of merit and ability, independent of his appointment as Assistant Surgeon in 16 SWP No. 30/1998 c/w SWP No. 15/2004 H&ME Department. As such once the Petitioner was appointed against temporary vacancy and extended promise of regularization not once but twice and the Petitioner having changed his position on the basis of such promises, and also the other doctors appointed with the Petitioner having been regularized, the Institute could not have issued the impugned order thereby discontinuing the service of the Petitioner as Lecturer in the Institute. Here a reference to the doctrine of Promissory Estoppel would be appropriate being relevant herein as deliberated also evolved.
Neither the appointment orders dated 16.8.1993 and 13.10.1994 nor any other document on record show that the Petitioner had applied through proper channel in order to seek the benefit of his service rendered in H&ME Department or that he was on deputation to the Institute and he had retained his lien in the parent-H&ME Department. What is discernible from the appointment orders dated 16.8.1993 and 13.10.1994 that he was considered as a regular candidate and not as an in-service candidate and was appointed on the basis of this merit, independent of his earlier service, which he had probably abandoned when he sought appointed in the Institute.
4. Since no reply has been filed by the Institute to the said petition, Mr. Sajad Ashraf, learned counsel appearing for the Institute, upon being asked about the reason which compelled the Institute to issue the impugned order dated 03.12.1996, informed the Court about the communication dated 11.11.1996 received from PGI, Chandigarh wherein the Institute was informed that the Petitioner had absented from duty w.e.f. 15.10.1996 and despite having been directed to join back, he did not resume his course at Chandigarh and thus the Petitioner having deserted the course at Chandigarh, he was relieved by way of the impugned order. When 17 SWP No. 30/1998 c/w SWP No. 15/2004 asked about the communication dated 11.11.1996, Mr. Sajad referred to the impugned order dated 03.12.1996 wherein while endorsing the said order to the Secretary to Government, Health & Medical Education Department, a reference had been made to the communication dated 11.11.1996.
5. To rebut the contention of the counsel for the Institute, the counsel for the Petitioner drew the attention of this Court to para 8 of the petition in SWP No. 30/1998 wherein the Petitioner had specifically pleaded that after he joined the course, he represented to the Institute to release his salary and other dues which he had to deposit at PGI, Chandigarh, however, they did not bother to release the same. It has further been pleaded that when the Institute did not release the salary, he personally visited the Institute requesting them to either release the salary and other dues in order to enable him to continue with his course or else allow him to join against his post. It has then been pleaded that since the Institute did not release the salary and other dues, he could not continue with his studies at PGI, Chandigarh.
6. It is pertinent to note here that the counsel for the Petitioner submitted at bar that the Government Order No. 1142- HME of 2003 dated 22.0.2003 was not challenged by Dr. Fayaz Ahmad Sofi, which statement has not been denied by Mr. G. A. Lone, learned counsel appearing for Dr. Fayaz Ahmad Sofi- Respondent No. 3 in SWP No. 30/1998 who was impleaded in the said petition as respondent vide order dated 28.12.2022.
7. The questions which arise for adjudication before this Court are viz-a-viz the validity of the following orders:
i. Order No. SIMS 840 of 1996 dated 03.12.1996, relieving the Petitioner to his parent Department i.e., H&ME;18 SWP No. 30/1998
c/w SWP No. 15/2004 ii. Government Order No. 1273 - HME of 2003 dated 17.12.2003, withdrawing the order of confirmation of appointment of Petitioner w.e.f. 09.07.2001; and iii. Order No. SIMS 16 (P) of 2009 dated 17.01.2009, regularizing the service of the Petitioner w.e.f. 01.02.2007.
8. Having regard to the facts and circumstances of the case of the Petitioner in light of the law laid down by the Apex Court as also this Court, it is manifest without any doubt, that the Institute extended promise to the Petitioner, not only once but twice; firstly, in terms of the condition laid down in the appointment order dated 13.10.1994 which condition was based on the standing decision of the Apical Selection Committee taken by it in its meeting held in July, 1994 wherein it was decided that a faculty member appointed against temporary leave vacancy in a department shall be regularized on the basis of seniority and/or merit, if so defined by the Apical Selection Committee in their cases as soon as regular vacancy of the post such a faculty member is holding, becomes available in that department, and secondly, while issuing the sponsorship certificate to allow the Petitioner to join the D.M./M.Ch. course in Pulmonary Medicine at PGI, Chandigarh to the effect that the Petitioner would be suitably employed by the Institute after the completion of this training course to work in the specialty in which in which the training is received by him at PGI, Chandigarh and that no financial implications in the form of emoluments/stipend etc. will devolve upon PGI, Chandigarh during the entire period of applicant's course and that such payment will be the responsibility of sponsoring/deputing authority.
Once the Petitioner went to join the course at PGI, Chandigarh, in furtherance of the assurance of the Institute that 19 SWP No. 30/1998 c/w SWP No. 15/2004 emoluments/stipend etc. will be its responsibility, the Institute could not have refused to pay the emoluments as promised which constrained the Petitioner to leave the course midway. Once the Petitioner was forced to abandon the course midway due to the refused of the Institute to pay the emoluments as promised, there was no occasion for the Institute to relieve him as well on account of abandonment of the course midway, which reason has been given by the counsel for the Institute during the course of argument. The Petitioner, thus has been punished twice, both times for the fault of the Institute. Had the Institute not agreed to sponsor the Petitioner to undergo the course at PGI, Chandigarh, the Petitioner might not have left the service of the Institute and would have been regularized like other doctors appointed with him prior to 2000.
9. Thus, it is clear that the Petitioner, on the basis of the promise tendered to him by the Institute, altered his position the Institute is bound by the promise and the Petitioner can and has rightly sought its enforcement against the Institute. The impugned order is liable to be quashed on this count alone.
Here a reference to the doctrine of promissory estoppels as deliberated and evolved would be appropriate being relevant herein:-
The principle of promissory estoppel against the government was recognized by the Apex Court way back in the year 1951 in its judgment delivered in the case titled Collector of Bombay v. Municipal Corporation of The City of Bombay & ors. [reported as 1951 AIR 469, 1952 SCR 43] wherein the Apex Court observed as under:
"Can the Government be now allowed to go back on the representation, and, if we do so, would it not 20 SWP No. 30/1998 c/w SWP No. 15/2004 amount to our countenancing the perpetration of what can be compendiously described as legal fraud which a court of equity must prevent being committed? .......... Whether it is the equity recognised in Ramsden's case((1866) L.R. 1 H.L. 129), or it is some other form of equity, is not of much importance. Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power. As pointed out by Jenkins C.J. in Dadoba Janardhan's case ((1901) I.L.R. 25 Bom. 714), a different conclusion would be "opposed to what is reasonable, to what is probable, and to what is fair."
The doctrine of promissory estoppel found its most eloquent exposition in the case titled Union of India & ors v. M/s. Indo-Afghan Agencies Ltd. [reported as 1968 SCR (2) 366] wherein the Supreme Court has held as under:
"Under our jurisprudence the Government is not exempt from liability to, carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise, solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances. in which the obligation has arisen."
In M/s Motilal Padampat Sugar Mills v. State of Uttar Pradesh & ors. [reported as 1979 AIR SC 621, 1979 SCR (2) 641]:-
"24.................21 SWP No. 30/1998
c/w SWP No. 15/2004 The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Govt. would be held bound by the promise and the promise would be enforceable against the Govt. at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Art. 299 of the Constitution. It is elementary that in a republic governed by the rule of law, no one, howsoever high or low, is above the law. Everyone is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel? Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by considerations of "honesty and good faith"? Why should the Government not be held to a high "standard of rectangular rectitude while dealing with its citizens"? There was a time when the doctrine of executive necessity was regarded as sufficient justification for the Government to repudiate even its contractual obligations, but, let it be said to the eternal glory of this Court, this doctrine was emphatically negatived in the Indo-Afghan Agencies case ( AIR 1968 SC 718 ) and the supremacy of the 22 SWP No. 30/1998 c/w SWP No. 15/2004 rule of law was established. It was laid down by this Court that the Government cannot claim to be immune from the applicability of the rule of promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter its future executive action. If the Government does not want its freedom of executive action to be hampered or restricted, the Government need not make a promise knowing or intending that it would be acted on by the promisee and the promisee would alter his position relying upon it. But if the Government makes such a promise and the promisee acts in reliance upon it and alters his position, there is no reason why the Government should not be compelled to make good such promise like any other private individual. The law cannot acquire legitimacy and gain social acceptance unless it accords with the moral values of the society and the constant endeavour of the Courts and the legislatures must, therefore, be to close the gap between law and morality and bring about as near an approximation between the two as possible. The doctrine of promissory estoppel is a significant judicial contribution in that direction. But it is necessary to point out that since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promiseee and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government 23 SWP No. 30/1998 c/w SWP No. 15/2004 should be held bound by the promise made by it. When the Government is able to show that in view of the facts which have transpired since the making of the promise, public interest would be prejudiced if the Government were required to carry out the promise, the Court would have to balance the public interest in the Government carrying out a promise made to a citizen which has induced the citizen to act upon it and alter his position and the public interest likely to suffer if the promise were required to be carried out by the Government and determine which way the equity lies. It would not be enough for the Government just to say that public interest requires that the Government should not be compelled to carry out the promise or that the public interest would suffer if the Government were required to honour it. The Government cannot, as Shah, J., pointed out in the Indo-Afghan Agencies case, claim to be exempt from the liability to carry out the promise "on some indefinite and undisclosed ground of necessity or expediency", nor can be Government claim to be the sole judge of its liability and repudiate it "on an ex parte appraisement of the circumstances". If the Government wants to resist the liability, it will have to disclose to the Court what are the subsequent events on account of which the Government claims to be exempt from the liability and it would be for the Court to decide whether those events are such as to render it inequitable to enforce the liability against the Government. Mere claim of change of policy would not be sufficient to exonerate the Government from the liability, the Government would have to show what precisely is the changed policy and also its reason and justification so the Court can judge for itself which way the public interest lies and what the 24 SWP No. 30/1998 c/w SWP No. 15/2004 equity of the case demands. It is only if the Court is satisfied, on proper and adequate material placed by the Government, that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the Court would refuse to enforce the promise against the Government. The Court would not act on the mere ipse dixit of the Government, for it is the Court which has to decide and not the Government whether the Government should be held exempt from liability. This is the essence of the rule of law. The burden would be upon the Government to show that the public interest in the Government acting otherwise than in accordance with the promise is so overwhelming that it would be inequitable to hold the Government bound by the promise and the Court would insists on a highly rigorous standard of proof in the discharge of this burden. But even where there is no such overriding public interest, it may still be competent to the Government to resile from the promise "on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position" provided of course it is possible for the promisee to restore status quo ante. If, however, the promisee cannot resume his position, the promise could become final and irrevocable."
26. We then come to another important decision of this Court in Turner Morrison and Co. Ltd. v. Hungerford Investment Trust Ltd. (1972) 3 SCR 711 : ( AIR 1972 SC 1311 ) where the doctrine of promissory estoppel was once again affirmed by this Court. Hedge, J. speaking on behalf of the Court, pointed out:
25 SWP No. 30/1998c/w SWP No. 15/2004 "Estoppel' is a rule of equity. That rule has gained new dimensions in recent years. A new class of estoppel i.e. promissory estoppel has come to be recognised by the courts in this country as well as in England. The full implication of 'promissory estoppel' is yet to be spelled out."
The learned Judge, after referring to the decisions in High Trees case, (1956-1 All ER
256) Robertson v. Minister of Pensions (1949) 1 KB 227 (supra) and the Indo-Afghan Agencies case ( AIR 1968 SC 718 ) pointed out that "the rule laid down in these decisions undoubtedly advances the cause of justice and hence we have no hesitation in accepting it."
31. We may point out that in the latest decision on the subject in Radhakrishna Agarwal v. State of Bihar, (1977) 3 SCC 457 : ( AIR 1977 SC 1496 ) this Court approved of the decisions in the Indo- Afghan Agencies case ( AIR 1968 SC 718 ) and Century Spg. & Mfg. Co.'s case ( AIR 1971 SC 1021 ) and pointed out that these were cases "where it could be held that public bodies or the State are as much bound as private individuals are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position to their disadvantage or have acted to their detriment on the strength of the representations made by these authorities." It would, therefore, be seen that there is no authoritative decision of the Supreme Court which has departed from the law laid down in the celebrated decisions in the Indo-Afghan Agencies 26 SWP No. 30/1998 c/w SWP No. 15/2004 case and the Century Spg. & Mfg. Co.'s case. The law laid down in these decisions as elaborated and expounded by us continues to hold the field.
This Court in the judgment delivered in the case titled Khurshid Ahmad Tarzan v. University of Kashmir & ors. [reported in 2015 (1) SLJ 262] has held as under:
"16. It is well settled law that once a promise is made or assurance is extended and the person whom tosuch promise or assurance is extended, makes change in his circumstance, principle of promissory estoppel would come in play and the authority making the promise or extending assurance estoppel from withdrawing from such promise."
10. The impugned order dated 03.12.1996 seems to have been issued by the Institute reeling under the misconception that the Petitioner still retained the lien of his earlier service in the H&ME Department, when fact of the matter was that the Petitioner had applied for appointment as Lecturer against temporary leave vacancy as a regular candidate and not as an in-service candidate. His participation in the selection and consequent appointment as Lecturer in the Institute was independent of his service as Assistant Surgeon in H&ME Department. Neither the appointment orders dated 16.8.1993 and 13.10.1994 nor any other document on record shows that the Petitioner had applied through proper channel in order to seek the benefit of his service rendered in H&ME Department or that he was on deputation to the Institute and he had retained his lien in the parent-H&ME Department. What is discernible from the appointment orders dated 16.8.1993 and 13.10.1994 that he was considered as a regular candidate and not 27 SWP No. 30/1998 c/w SWP No. 15/2004 as an in-service candidate and was appointed on the basis of this merit, independent of his earlier service, which he had probably abandoned when he sought appointed in the Institute. Thus, the Institute could not have issued the order impugned and is liable to be quashed.
11. The perusal of the record ex-facie tends to show that the Petitioner had, in the year 1993, sought appointment as Lecturer against temporary leave vacancy in the Institute. In the year 1994, the Petitioner was promised that he would be regularized in the Institute as soon as a regular vacancy would arise in the Institute. For all practical purposes, the Petitioner was an employee, even though temporary, of the Institute. The impugned order dated 03.12.1996 has the effect of terminating the employer-employee relation between the Institute and the Petitioner, thus, in a way amounts to termination of service of the Petitioner, which could not have been done without conducting an inquiry, moreso when the impugned action had been taken on the basis of allegation of abandonment of course at PGI, Chandigarh sponsored by the Institute when the fault was attributable to the Institute and not the Petitioner. It is a settled principle of law that even a temporary employee is entitled to protection under Article 311(2) of the Constitution of India. Thus, the impugned order is violative of Article 14 of the Constitution of India for having been passed without adhering to the principles of natural justice.
12. Since the Petitioner has now retired, the only relief which the Petitioner is be entitled to is the reckoning of his service w.e.f. 16.08.1993 as qualifying service for the purpose of pension.
13. In view of what has been observed above, this petition is allowed in the following manner:
28 SWP No. 30/1998c/w SWP No. 15/2004 i. Writ of Certiorari is issued quashing the impugned Order No. SIMS 840 of 1996 dated 03.12.1996 issued by the Respondent-Institute.
ii. Writ of Mandamus is issued commanding the Respondent-
Institute to regularize the service of the Petitioner w.e.f. 16.08.1993, in view of the availability of post held by Dr. Mohd. Ramzan Dar having become vacant w.e.f. 30.05.1988.
iii. Writ of Mandamus is issued commanding the Respondent-
Institute to reckon the service of the Petitioner w.e.f. his initial appointment on 16.08.1993 as qualifying service for the purpose of pension. Break in service w.e.f. 03.12.1996 to 09.07.2001 be dealt in terms of Article 205(a) of the J&K Civil Services Regulations, 1956 in view of the anomalous situation created due to actions of the Respondent-Institute. It is, also made clear that the period of break in service caused due tothe issuance of the impugned order shall also be reckoned as qualifying service for pension.
14. In view of the quashment of the Order No. SIMS 840 of 1996 dated 03.12.1996 issued by the Respondent-Institute, SWP No. 15/2004 has become infructuous.
Even otherwise also, so far as Government Order No. 1273 - HME of 2003 dated 17.12.2003, withdrawing the order of confirmation of appointment of Petitioner w.e.f. 09.07.2001; and Order No. SIMS 16 (P) of 2009 dated 17.01.2009, regularizing the service of the Petitioner w.e.f. 01.02.2007, are concerned, the same are not legally sustainable in the facts and circumstances of the case at hand for the following reasons:
i. The Government Order No. 1273 - HME of 2003 dated 17.12.2003 admittedly has been passed on the basis of the observations made by this Court in its judgment dated 12.06.2003 passed in SWP No. 1284/2001 filed by Dr. Fayaz 29 SWP No. 30/1998 c/w SWP No. 15/2004 Ahmad Sofi vs State of J&K & Ors. The observations made in the said judgment have been set-aside by the Division Bench of this Court vide its judgment dated 17.04.2009 passed in LPA No. 110/2003 titled Dr. Rafi Ahmad Jan vs State of J&K & Ors. Thus, once the basis for passing the impugned order no longer exists on record, the impugned order cannot stand independently and is liable to be quashed. For the reasons stated, the impugned Government Order No. 1273 - HME of 2003 dated 17.12.2003 is, therefore, quashed.
ii. The Order No. SIMS 16 (P) of 2009 dated 17.01.2009, though not directly under challenge in either of the petitions, yet the same cannot sustain primarily for two reasons; one, quashing of the Order No. SIMS 840 of 1996 dated 03.12.1996 and Government Order No. 1273 - HME of 2003 dated 17.12.2003 renders the impugned order inconsequential and second, the said order having been passed in violation to the order dated 16.01.2004 passed by this Court in SWP No. 15/2004 is void ab-initio and is, therefore, quashed.
Disposed of.
(JAVED IQBAL WANI) JUDGE SRINAGAR 13.10.2023 Muneesh Whether the order is speaking : Yes Whether the order is reportable : Yes