- (1.)PETITIONER on completion of M .Sc. in Bio -Chemistry was employed on temporary basis as Demonstrator in Department of Bio -Chemistry of University of Kashmir for various spells of service w.e.f 26 -4 -1981 to 1 -81. 4 -4 -1982to 11/82, 1 -4 -1983 to 11/83, 1 -4 -1384 to 11/84 and 6 -1 -1985 to 22 -4 -1985. Thereafter, on selection under rules she was appointed as Lecturer in the Department on 18 -4 -1985 (Annexure -P2. subject to ridder that she will have to complete her Ph.D. within a period of five years from the date of appointment order. This order was follow by confirmation order of December 1987 (Annexure P3., confirming her as such lecturer on completion of the probation period beginning from 22 -4 -86. Petitioner proceeded on earned leave from September 20, 1987 followed by half pay leave and leave with out pay. From para 10 of the counter affidavit, it is shown that 89 days earned leave and 40 days half pay leave has been sanctioned to her, but extra ordinary leave is not sanctioned. As petitioner in terms of appointment order was required to complete Ph.D. degree within five years, so she was on look to pursue the Doctorate Course and get the degree. After initial hick -ups, she ultimately got an opportunity to serve Bostan Dana Farbar Cancer Institute USA, affiliate to Institute of Harward Medical Institute, where she had the chance of getting herself admitted to Ph.D. course. However, the respondents in the meanwhile issued an order on 21 -4 -89 informing petitioner that in case she fails to join her duties by 15 -6 -89, her services shall stand automatically terminated. This termination order is impugned on number of grounds. It is alleged that without taking into consideration rule 39 Sub Rule 3 of leave rules of Kashmir University and without passing an order thereto, the termination notice could not have been issued more so when petitioner was on look out to complete the requirement of completing the course of Ph.D. a condition attached to her appointment order. Besides it is alleged that petitioner being permanent employee of University, her service cannot be terminated without a proper inquiry in compliance with provisions of Section 126 of J&K Constitution and parameters of Article 311 of the Fedral Constitution.
(2.)REPLY has been filed. There is not much dispute about the facts stated. Mr. Bazaz submits that the petitioner could not have been granted leave under Rule 39 of the Leave Rules of University of Kashmir, for the reason that the petitioner was not a teacher and had not three years service. Besides, the petitioner failed to resume duties, therefore, she was served impugned notice of termination.
(3.)HEARD .
At the outset of Mr. Qadri tenders statement that the petitioner who is presently serving in United States, is not intending and has no intention to resume her duties as lecturer in Bio -Chemistry Department of Kashmir, University. This statement of Mr. Qadri is recorded and taken note of. However, Mr. Qadri submits that petitioners case for extra ordinary leave for three years could not have been brushed aside by the University and the respondents cannot get away by declining petitioners leave, for the reason that petitioner fulfills the criteria of having served the department for over three years before she accepted job outside India. Section 39(3. reads as under: -

"39(3. A teacher in permanent employment may be granted extraordinary leave not exceeding 2 years at a time but this limit may be permitted upto 3 years if the leave is required for accepting job outside India provided the officer concerned has put in at least 3 years service in this University on the date of proceeding on leave. This leave may be combined with any other kind of leave but total absence form duty shall not exceed 5 years in all".