ASHIQ HUSSAIN Vs. STATE OF J&K

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against judgement dated 23.10.1998 passed by the learned Single Judge in SWP No. 2302 of 1996 whereby the writ petition filed by the appellant herein has been dismissed.

(2.) APPELLANT and respondent No. 4 are the members of Jammu and Kashmir Medical Education (Gazetted) Service. Appellant was appointed as Lecturer in Government Medical College, Srinagar, on 30th January, 1981 and respondent No. 4 was appointed as such on 4th November, 1976. Respondent No. 4 worked as Lecturer upto 14th March, 1978 and from 15th March, 1978 till 1st October, 1981 he remained on foreign assignment. On 1st October, 1981 he rejoined against the post of Lecturer in the Department of Surgery, Government Medical College, Srinagar, and continued on the said post till he was promoted as Assistant Professor on 31st January, 1983. The appellant was promoted to the post of Assistant Professor on 31st January, 1984. In terms of the relevant Rules, namely, the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 (hereinafter referred to as the "1979 Service Rules"), the next promotional post for Assistant Professor is Associate Professor. The minimum teaching and research experience for promotion to the post of Associate Professor as prescribed is, "five years as Assistant Professor in Surgery in a Medical College or a recognized medical teaching institution such as AIIMS, New Delhi, PGI, Chandigarh, JIMER, Pondicherry; and such other institutions as are recognized by the Medical Council of India". Accordingly, respondent No. 4 could be eligible for promotion to the post of Associate Professor on 31st January, 1988. However, vide Order No. GS -MC/AP.169/10364 -68 dated 3.11.1986 issued by Principal, Government Medical College, Srinagar, respondent No. 4 was promoted as Associate Professor on ad -hoc basis for a period of six months or till the post was filled up by the competent authority, whichever would fall earlier. Obviously, respondent No. 4 did not have the requisite five years minimum teaching experience as on the date of issue of the aforesaid order dated 3.11.1986. The said order was confirmed by the Government Vide its order No. 2 - HME of 1987 dated 22nd January, 1987. The period of six months ad -hoc appointment of respondent No. 4 expired on 2nd May, 1987. There was no extension granted in his favour simultaneous with the expiry of the term of six months. However, on 28th July, 1987 the Government issued Order No. 275 of 1987 according sanction to further extension to ad -hoc promotion of some Doctors, including respondent No. 4. There was a specific condition imposed in the order to the following effect:

(3.) IT appears that four posts of Professors fell vacant in the department of Surgery of Medical Education Department. Consequently, Under Secretary to Government, Health and Medical Education Department addressed communication dated 8th March, 1996 to the Secretary, Public Service Commission, Jammu, requesting him to place the matter before the Departmental Promotion Committee for consideration of the doctors mentioned therein for promotion to the said posts. In the said communication, it was mentioned that the posts were required to be filled up in accordance with the provisions of the J&K Medical Education (Gazetted) Service Recruitment Rules, 1979. Two Doctors, namely, Dr. B. K. Parihar, Associate Professor, Surgery, Medical College, Jammu, and the appellant herein, were stated to be eligible for promotion to the posts of Professors. In respect of Dr. Ghulam Jeelani, respondent No. 4, it was stated that the said Doctor was on foreign assignment and that the said period had been ordered to be treated as dies -non and shall not count for seniority and related service benefits. Respondent No. 4 herein appears to have filed a writ petition, SWP No. 675/96 before the Jammu wing of this Court challenging communication dated 8.3.1986. In that writ petition, on 23rd May, 1996, the Court issued an interim order, directing that the case of respondent No. 4 will also be considered alongwith others without taking into consideration letter dated 8th March, 1986. After the Court passed the aforesaid direction, Under Secretary to Government Medical Education Department addressed communication dated 24th June, 1996 to the Secretary, Public service Commission. In that communication, the Commission was informed as under: