Doctors undergoing PG medical courses without joining duty not entitled to salary: HC

The matter concerned two doctors who were appointed as Assistant Surgeons/Medical Officers in the Department of Health in 2011. At the time of their appointment, both doctors were pursuing their postgraduate courses in the Government Medical College, Jammu.

One doctor (Dr. Kumari) forwarded her joining report through the Principal of the Government Medical College, Jammu to the Director of Health Services, Jammu. The other doctor (Dr. Bhushan) joined the office of the Deputy Commissioner, Leh on 15.11.2011 and continued to pursue her PG Course in Government Medical College, Jammu. Extension to her joining in the Directorate of health Services, Jammu or Kashmir for further posting was granted by an order dated 15.01.2014.

However, no such order was passed for Dr. Kumari, who, upon her relieving from the Government Medical College, Jammu, was permitted to join the Directorate of Health Services, Jammu.

The doctors neither joined as Assistant Surgeons/Medical Officers in the Directorate of Health Services physically nor did they perform the duties of Assistant Surgeon/Medical Officers even for a day. They continued to pursue their post-graduation courses from Government Medical College, Jammu and were ultimately relieved, on completion of the postgraduate courses, by the Principal Government Medical College, Jammu by an order dated 08.06.2013.

After being relieved from GMC Jammu, the doctors submitted their joining reports in the Directorate of Health Services and were accordingly posted as Assistant Surgeons/Medical Officers to which post they stood appointed by the Government in the year 2011. Since they were not paid any salary during which they were undergoing PG medical courses in the medical college Jammu (for the period w.e.f. 28.10.2011 to 08.06.2013 for Dr. Kumari and w.e.f. 28.10.2011 to 14.10.2013 for Dr. Bhushan), they joined together and approached the CAT bench, seeking a mandamus to the Government authorities to pay them salary and allowances for the said period.

They had sought relief on the ground that their case was governed and covered by Article 44-A of the J&K Civil Service Regulations, 1956 and therefore, they were entitled to pay allowances attached to the post of Assistant Surgeon/Medical Officer even for the period they had not performed their duties as such and instead were undergoing postgraduate courses in their respective disciplines in the Government Medical College, Jammu.

Relief was also claimed on the parity of some similarly situated persons, who had previously been granted the benefit of salary and allowances for the period they had undergone postgraduate courses in the GMC, Jammu.

On the other hand, the Government submitted that at the time of their appointment, the doctors were already pursuing their postgraduate courses and therefore, chose not to join their services as Assistant Surgeons/Medical Officers physically. However, they physically joined the Directorate of Health Services after they were relieved by the Principal of GMC Jammu after successfully completing their postgraduate courses. Therefore, the Government argued that the doctors became members of the service only after they physically joined in the department and started performing the services of Assistant Surgeon/Medical Officer.

In February 2025, the Tribunal, after considering their case, directed the Government to pay them salaries and allowances for the duration of their studies, relying on Article 44-A of the J&K Civil Service Regulations, 1956.

Challenging the order, the Government approached the HC bench. The court observed that the true meaning and import of Articles 44-A and 44-F of the Regulations of 1956 have been elaborately discussed in a Division Bench judgment of the Court in the case of Union Territory of J&K and another v. Javed Iqbal, 2024.

Relying on the said order, the HC bench observed, "It is, thus, trite that Article 44-A would be attracted only where a Government servant is deputed to receive trainings/instructive courses in the Training Schools, Colleges, Institutions within the State provided such training/instructive courses are connected with their immediate and current job profile only and do not form an essential qualification either for holding a post to which the Government servant stands appointed or for promotion to the next higher post. The proviso appended to Article 44-A clearly exclude from the applicability of the Article to the courses of study in a specialty/subject consisting of higher studies or specialized training in professional or technical subject lasting beyond eight weeks. Such courses, which require regular attendance, shall be governed by Rule 61, 62 and 67 of the Jammu and Kashmir Civil Service (Leave) Rules 1979."

"Unfortunately, the Tribunal has not reproduced Article 44-A in its entirety and has picked up only a part of it for the reasons, which are not discernible from the judgment impugned," it further observed.

The court referred to Article 44-A and observed:

"From a perusal of Article 44-A in its entirety, one would clearly find that the same is not attracted in the case on hand. The respondents were never deputed to receive any training/instructive courses in the Government Medical College, Jammu. The respondents were already pursuing their PG courses in Government Medical College, Jammu when they were appointed as Assistant Surgeons/Medical Officers. They were not even permitted by their employer i.e. department of health to continue to pursue their PG courses, much less were ever deputed for the courses they were undergoing. It is a clear case where the respondents have chosen not to join their appointment physically and pursued their postgraduate courses without permission from their employer."

Therefore, the court termed the case of the doctors as an issue of abandonment of service or unauthorised absence and noted,

"The case of the respondents was one of the abandonment of service/unauthorised absence from duty. We appreciate the courage of the respondents having approached the Court of law to seek salary for the period of their unauthorized absence."

"That being the position, the respondents must remain contented with the fact that the petitioners have not initiated any disciplinary proceedings against them for remaining unauthorizedly absent from service for more than two years and instead permitted them to join back as Assistant Surgeons/Medical Officers, a post to which they were appointed in the year 2011," it further observed.

The court also asked the Government to ensure compliance with the directions contained in paragraph No.21 of the judgment rendered in Javed Iqbal (supra) and put in place a proper mechanism to regulate such cases.

"They shall also ensure that in the cases where an employee/doctor abandons his services and remains aunauthorisedly absent even for pursuing higher courses of study beneficial to his/her job is treated as delinquent employee and proceeded in disciplinary proceedings. Such employees, who are undergoing higher courses at the time of their appointment or selected subsequently for such courses, may apply to the employer for permission to undergo these courses, which permission shall be governed by the mechanism to be put in place by the petitioners, as directed by this Court in Javed Iqbal’s case. It would mitigate the difficulties of such employees and also foster discipline in service. This is an issue, on which an urgent call is required to be taken by the Government," it observed while allowing the appeal by the Government.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/high-court-of-jammu-and-kashmir-301184.pdf

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