WP(C) No. 3313/2023 Page No. 1 of 8 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. 2 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. 3 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. 4 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. 5 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. 6 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 2nd 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 12th 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. 7 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. 8 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