No Salary Payable For Period Of Unauthorized Absence During Higher Studies Without Official Deputation: J&K HC

A Division bench of the Jammu and Kashmir High Court comprising Justice Sanjeev Kumar and Justice Sanjay Parihar held that Post-graduate studies pursued without official deputation or permission do not entitle government employees to salary under Article 44-A of J&K Civil Service Regulations, 1956. Background Facts The respondents were appointed as Assistant Surgeons and Medical Officers in the Health Department of Jammu & Kashmir vide Government Order No.592-HME of 2011 dated 28.10.2011. At the time of their appointment, both respondents were already pursuing postgraduate medical courses at Government Medical College (GMC), Jammu. They did not physically join their duties at the Directorate of Health Services. The respondent No. 1 submitted her joining report through the Principal of GMC Jammu, while respondent No. 2 formally joined the office of the Deputy Commissioner, Leh on 15.11.2011 but continued her PG studies at GMC Jammu. Later an extension for joining the Directorate was granted to respondent No. 2 in 2014. The respondents were relieved from GMC Jammu upon completion of their courses in June and October 2013, respectively. Then they submitted their joining reports at the Directorate of Health Services and were posted as Assistant Surgeons/Medical Officers. However, the UT of J&K officials (petitioners) did not pay the respondents their salary and allowances for the period they were undergoing their postgraduate studies. Aggrieved by the non-payment, the respondents filed OA No.1330/2021 before the Central Administrative Tribunal (CAT), Jammu Bench. They sought a direction for the release of their salary for the period. They claimed entitlement under Article 44-A of the J&K Civil Service Regulations, 1956, and also citing parity with other similarly situated doctors who had previously been granted such benefits. The Tribunal allowed the OA. It held that the respondents' case was covered under Article 44-A and directed the petitioners to pay the salary and allowances. Aggrieved by the same, the petitioners filed the writ petition before the High Court. It was submitted by the petitioners that the respondents, after having performed the ritual of submitting joining reports, had abandoned their services without permission of the employer and pursued their postgraduate courses in Government Medical College, Jammu. Therefore, they were not entitled to the benefit of pay and allowances attached to the post of Assistant Surgeon/Medical Officer for the period of their unauthorized absence. Further the provisions of Article 44-A of the Regulations of 1956 were not attracted in the case. On the other hand, it was submitted by the respondents that the judgment passed by the Tribunal was correct. It was argued that in view of the clear provisions of Article 44-A of the Regulations of 1956, Government servants deputed in Training Schools, Colleges, Institutions within the State shall, during the period of such training/instructive courses, be entitled to receive their pay and allowances which they would have drawn but for their deputation to such training. Findings of the Court It was observed by the Court that the Tribunal failed to apply the true scope of Article 44-A of the J&K Civil Service Regulations, 1956. It was emphasized by the court that this provision applies only when a government servant is officially deputed for training or instructive courses that are connected with their immediate job profile and do not form an essential qualification for the post. The proviso to Article 44-A explicitly excludes courses involving higher studies or specialized professional training lasting beyond eight weeks. It was further observed that the respondents were never deputed by the government to undergo the postgraduate courses. They were already pursuing these courses at the time of their appointment and chose not to join their duties physically. Therefore, their case did not fall under Article 44-A, but it was a case of unauthorized absence from service. The judgment in Union Territory of J&K v. Javed Iqbal was relied upon by the court wherein it was held that Article 44-A allows pay during trainings/ courses which are connected with their immediate and current job profile only but it excludes higher or specialized courses over eight weeks. It was held by the Court that the respondents, who were yet to complete their probation, were not eligible to apply for study leave, as permissible under Rules 61 and 62 of the J&K Civil Service (Leave) Rules, 1979. Thus, their absence while pursuing higher studies remained unauthorized, and claiming salary for such a period was not sustainable. It was directed by the court to the Government to establish a proper mechanism to regulate cases of employees pursuing higher studies. The employees or doctors who abandon service or remain unauthorizedly absent, even for...

No Salary Payable For Period Of Unauthorized Absence During Higher Studies Without Official Deputation: J&K HC

Namdev Singh

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