Srinagar: An employee working on ad hoc, contractual or in any other temporary basis cannot be denied leave for being ill, the Jammu and Kashmir High Court has ruled.
Allowing a petition filed by a woman Rehbar-e-Taleem (ReT) teacher from Kargil, Zohra Banoo, a single bench of Justice Muzaffar Hussain Attar said an ailing employee will not be in a position to perform his or her duties.
Zohra was engaged as a teacher under ReT scheme on consolidated pay under the Sarva Shiksha Abhiyan (SSA) on 17 October, 2005. In 2010, she applied for leave because of some ailment and other domestic problems. However, she was denied it by the authorities who contended that a ReT teacher was not entitled to any kind of leave.
“Faced with the situation, she was compelled to submit her resignation,” her counsel Hakim Suhail Ishtiaq submitted before the court. “It cannot be expected of a human being to continue to remain healthy and able bodied and discharge his or her duties regularly and without any fail,” the court said, terming as “arbitrary and unjust” the government stand that a ReT was not entitled to any kind of leave.
“The state and its authorities were duty bound to grant leave to (Zohra Banoo) as she had sought the same being ill. Some ailments, if not taken care of and treated properly, can deprive a person of his or her life,” the court said, holding that the refusal to grant leave to her was an unjust act on the part of the concerned authorities.
“To ensure that her life was not put to any kind of jeopardy, (she) was compelled to submit her resignation. This resignation, in law, cannot be said to be voluntary,” the court said while allowing her petition maintaining that she had had not tendered the resignation out of free will.
On 9 February 2011, the Court had directed that the vacancy of ReT teacher, created due to Zohra’s resignation, shall not be filled up till next date of hearing. The interim direction continued thereafter, which means that the vacancy was still available.
“A resignation is that which one submits out of his or her own free will and without being compelled by the circumstances to do the same. The (government’s action) in not granting leave to (her) and in accepting the resignation, is arbitrary and violative of Article 14 and 21 of the Constitution of India, in as much as, (she) has been deprived of her livelihood as well,” the court said and set aside Chief Education Officer Kargil’s order, accepting her resignation.
“(She) shall be deemed to be in continuous service of the (education authorities). The period, for which she remained out of service, shall be counted for the purpose of her regularisation as General Line Teacher. However, she would not be entitled to any salary or wages for that period,” the court said and directed the authorities to issue necessary orders for reinstating and giving her posting commensurate to her status within four weeks.