Srinagar: The Jammu and Kashmir High court has overturned a government order whereby a senior doctor was treated as fresh appointee in 2003 despite rendering his services as doctor from the year 1989.
The court of Justice M K Hanjura in a detailed judgement passed on 1 June, 2018 quashed government order no.133-H&ME of 2003 wherein Doctor Abdul Rehman Mir was treated as fresh appointee.
The court directed government to count the service of the petitioner rendered by him from the year 1989 to 2003 and restore his seniority at an appropriate place by reckoning his previous service and consequent thereto grant all service benefits to the petitioner to which he is entitled to.
The Petitioner, Doctor Abdul Rehman Mir aggrieved of the government order passed on 20 February, 2003 had moved a petition before High court in 2012 through his counsel Salih Pirzada.
In his argument, Counsel Pirzada had submitted before court that by treating the petitioner as a fresh appointee the entire service rendered by him previously has been put at naught. By this act of the authorities, the petitioner has not only lost his seniority but his increments, chances of promotion and other service benefits including pensionary benefits to which he is entitled to on the basis of his previously rendered services.
On the other hand, state counsel M I Dar had argued that why the petitioner had accepted the government order and had joined as fresh appointee.
To this, the counsel for the petitioner has strenuously argued that by virtue of the superior position of the authorities vis-à-vis the petitioner, he was made to comply with the impugned order in as much as the petitioner had no option but to kneel down before the respondents.
The petitioner counsel had further stated that since he (Petitioner) was not in a bargaining position as he was without salary for a period of more than nine months and the fact that he had not only to feed himself but his family as well, he joined in pursuance of the Government Order bearing no.133-H&ME of 2003 dated 20th February 2003. He had immediately thereafter moved a representation for settlement of his period and not to treat him a fresh appointee. “Non-consideration constrained him to again file a representation before concerned authorities vide letter dated 30th October 2009 but too was not responded well. In the meantime he filed an RTI application but the response was very vague and finally a petition was moved before this court for grant of justice and relief,” petitioner counsel had told court.
After hearing both the parties, the court held that in the context of the unequal bargaining power of the respondent department qua the petitioner who was desperate for salary, the condition contained in the impugned order qua treating the petitioner as a fresh appointee through unequal bargaining power is nothing but an unconscionable covenant, forced by the respondent State on a person (petitioner) who hardly had any strength to resist the might of the respondent department. In fact, the petitioner had practically no choice in the matter and had to relinquish his claim for earlier service(s) rendered by him for long years. This type of covenant cannot be said to be right or reasonable and amounts to unconscionable contract, as has been held by the Supreme Court in the case of Central Inland Water Transport Corp Ltd. V. Brojo Nath Ganguly (supra). The act of the respondents culminated in the impugned order concerning treating him a fresh appointee, violates one of the great rules of the natural justice.
“Therefore taking the reasons and observations the writ petition is allowed. Government order no.133-H&ME of 2003 dated 20th February 2003, issued by the respondent no.1, to the extent it treats the petitioner as a fresh appointee, is quashed. The respondents are directed to count the service of the petitioner rendered from the year 1989 to 2003 and restore the seniority of the petitioner at an appropriate place by reckoning his previous service and consequent thereto grant all service benefits to the petitioner to which he is entitled to,” Justice Hanjura ordered.