2018 PLP (C (PLC(CS))

CH. MUHAMMAD IBRAHIM ZIA, CJ.

The captioned petition for leave to appeal has arisen out of the judgment of the High Court dated 19.09.2017, whereby writ petition filed by the petitioner, herein, has been dismissed.

2. The precise facts of the case as alleged are that the petitioner, herein, was appointed in Hydro Electric Board on 09.01.1992, confirmed on 03.01.1996 and promoted as Deputy Director on 14.09.1998. He applied for Ex-Pakistan leave which was granted vide order dated 25.04.2002 for four months. He was also granted Ex-Pakistan leave for 120 days with full pay from 11.05.2002 to 07.09.2002. Thereafter, he remained on leave without pay from 08.09.2002 to 12.05.2007 (sanctioned through different orders at different times). It is further alleged that during the study leave abroad, the petitioner fell ill and remained under treatment. He applied for medical leave through applications dated 26.11.2007, 23.06.2008 and 24.08.2009, however, without considering the same his services were terminated by the department vide order dated 18.09.2015. The petitioner challenged the said order through a writ petition before the High Court, which has been dismissed through the impugned judgment, hence, this petition for leave to appeal.

3. Raja Sajjad Ahmed Khan, Advocate, the learned counsel for the petitioner, after narration of necessary facts submitted that the impugned judgment of the High Court is against law and the facts, even the dates have been wrongly mentioned. The termination order has been incompetently issued without following the law and providing opportunity of hearing to the petitioner. The petitioner has long service in his credit. According to rules and peculiar facts of this case it was enjoined upon the authority to sanction the prayed medical leave. He further argued that the petitioner tried to join the service but the respondents did not allow him. They have also ignored the undertaking and the assurance given by the petitioner. All these aspects have not been properly considered by the learned High Court which resulted into miscarriage of justice. While stating the case history he referred to different applications, leave sanctioning orders and some procedural statutory requirements and submitted that the propositions involved are of public importance, hence, grant of leave is justified.

4. When the learned counsel for the petitioner was confronted that leaving aside all the claims of the petitioner regarding sanction of medical leave upto year 2009, how he justifies the remaining period of absence till passing of the impugned order; he only answered that the petitioner submitted the joining report but the respondents did not allow him to join the service.

5. I have considered the arguments of the learned counsel for the petitioner and examined the record made available. According to petitioner's own relied and produced record after almost 11 years service, he continuously availed leave from 11.05.2002 till 07.09.2002. Initially, he availed 120 days ex-Pakistan leave. Thereafter, he availed leave without pay from 08.09.2002 to 12.05.2007 (the period comes to almost five years). He claims that he applied for study leave from 13.05,2007 to 17.07,2008 which was not sanctioned. He also claims that due to health problem he applied for medical leave and in this regard submitted applications on 26.11.2007, 23.06.2008 and 24.08.2009. He himself mentioned in paragraph 9 of the memo. of petition for leave to appeal that the prayed medical leave was not sanctioned and the department initiated disciplinary proceeding against which he filed a writ petition and got issued a status quo order. The writ petition was dismissed vide order dated 23.12.2011. Thus, leaving aside all other claims, as mentioned hereinabove, according to the petitioner's own stated facts he is unable to justify almost four years' absence from dismissal of writ petition on 23.12.2011 till the issuance of termination order on 18.09.2015. According to the produced record, the initiation of disciplinary proceedings were well in his knowledge as he challenged the same through writ petition which was ultimately dismissed.

6. Under the provisions of Azad Jammu and Kashmir Civil Servants Act, 1976 and the rules made thereunder, the civil servants as well as the employees of statutory body are bound to follow the prescribed law in the prescribed manner and no one according to his own sweet-will can opt to remain absent for years' period and thereafter approach the Court for relief. According to the settled principle of law, the relief in the extraordinary writ jurisdiction is discretionary and the foremost condition for grant of such relief is that the party has to approach the Court with clean hands. The remedy under the extraordinary writ jurisdiction cannot be granted to justify the illegal acts of a person who approaches the Court with unclean hands just to misuse the process of law and the Courts. While dealing with almost identical proposition this Court in the case reported as Dr. Ashiq Hussain Bhatti v. Azad Government and others [2016 SCR 365], held that:- "

7. So far as the argument of the learned counsel for the appellant regarding entitlement for leave according to his length of service is concerned, it has no substance as the appellant himself has submitted that after availing sanctioned leave, he remained absent from duty for a pretty long period without any duly sanctioned leave by the competent Authority. No doubt, the privilege of leave is available to the civil servants but for taking benefit of the same, there is a mode prescribed by law, especially the Leave Rules. It is not the sweet discretion of the civil servants to remain absent without adopting proper course provided by law for sanction of leave and that too for more than 5 years' period. Therefore, this argument having no substance is hereby repelled." Same principle has been followed in the case reported as Azad Jammu and Kashmir Government and others v. Mehr-un- Nisa and others [2016 SCR 594], wherein, it has been observed as under:- "The superior courts of Pakistan and Azad Jammu and Kashmir have time and again held that a civil servant having remained absent from duty for more than five years ceased the status of civil servant. The respondent has not come in the High Court with clean hands. The impugned judgment of the High Court is based on surmises and conjectures, which is liable to be set aside." Similarly, in an unreported case titled Tariq Mehmood v. Azad Government and others [Civil Appeal No.164/14 decided on 22.11.2017), this Court held that:- "

6. The contention of the learned Advocate representing the appellant that it was enjoined upon the department to intimate the appellant about the fate of the applications submitted by him from abroad for extension in deputation period, is devoid of any force. Firstly; it is not proved that the applications were duly submitted to the department for extension in the deputation period and secondly; if it is assumed that the applications for extension were, in fact, submitted, even then the department has not taken any action upon them, therefore, it was the duty of the appellant, herein, to report back in the department immediate after expiry of his deputation period. The appellant, herein, has deliberately absented himself from the duty and remained serving outside the country. It may be stated that for further education, it was enjoined upon the appellant to get the study leave properly sanctioned and thereafter joined the college for the purpose. In absence of proper sanction of the leave, absence/misconduct committed by the appellant cannot be condoned." In this state of affairs, the impugned judgment of the High Court is well in accordance with law calling for no interference. The petitioner has failed to make out any valid ground for grant of leave. For the above stated reasons, finding no force, this petition stands dismissed. No order as to costs. ZC/8/SC(AJ&K) Leave refused.