Excelsior Correspondent
JAMMU, Dec 21: Chief Justice of State High Court, Justice N Paul Vasantha-kumar today held that Government servant turned militant cannot get back employment on surrender under the Rehabilitation Policy of the State Government.
This was made clear by the Chief Justice while dismissing the petition filed by one Irshad Ahmad Bhat, who was seeking his Government service back under the Rehabilitation Policy for the surrendered militants.
The case of petitioner was that the Government had promised to rehabilitate the surrendered militants and on the basis of this promise he had surrendered before the Superintendent of Police, District Pulwama on September 1, 2004. The petitioner was initially employed as Junior Engineer and posted in Sub-Division Kishtwar. He remained absent from duty with effect from May 1999 and joined the militants camp. In September 2004, he surrendered before the police along with arms and ammunition.
In October, 2004, he submitted the joining report before the Executive Engineer, PHE Division Kishtwar and in violation of the Service Rules, the Executive Engineer allowed the petitioner to join his duty. The Chief Engineer concerned issued a notice calling upon the petitioner to show cause as to why the joining report be not treated as invalid.
The petitioner submitted his explanation and admitted that he remained absent from duty without permission from the competent authority for over 14 years. After considering the reply, the Government issued order No.57 PW (Hyd.) of 2005 dated 25.02.2005 and declared the joining report as invalid. The order was challenged by contending that without conducting enquiry, the joining report was cancelled.
During pendency of the writ petition, the Government issued another order bearing Govt. Order No.158 PW(Hyd.) of 2006 dated 29.03.2006 whereby enquiry was ordered under Rule 33 of the Classification, Control and Appeal Rules by Commissioner of Enquiries against the petitioner.. Thereafter, the Government thought it fit to exercise powers under Proviso (c) to Sub-Section(2) of Section 126 of the Constitution of Jammu and Kashmir and ordered that it is not expedient to hold enquiry into the matter and the petitioner was dismissed from service with immediate effect by Government Order No.369 GAD of 2007 dated 02.04.2007.
This order was challenged by contending that the Government having ordered to conduct enquiry in the year 2006 by order dated 29.03.2006, it was improper on the part of the Government to dispense the enquiry and dismiss the petitioner by invoking the proviso(c) to Sub-Section(2) of Section 126 of the Constitution of Jammu and Kashmir.
After hearing Senior Advocate PN Raina with Advocate JA Hamal, Chief Justice observed, “rehabilitation policy dated 31.01.2004 nowhere deals with the Government servants joining the militant ranks or camps and on surrender can get back their employment”.
“The counsel appearing for the petitioner fairly agreed that there is no such rehabilitation policy announced by the Government. He further submitted that Government has permitted certain surrendered militants to re-join in Government service and the petitioner is discriminated. This submission can be accepted”, Chief Justice said.
“However, before the court of law, unless there is a policy or rule to seek a right to claim Government post by a surrendered militant the same cannot be enforced. Any indulgence shown by the Government permitting the militants to report back for duty as claimed may be on peculiar circumstances of the case”, Chief Justice further said, adding “in this case the petitioner has not reported for duty for 14 years, 4 months and 14 days without giving any intimation. Article 113 of the J&K CSR clearly states that if a Government servant does not report for duty for five years, he is to be treated to have abandoned the service”.
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