V.K.JHANJI, J. - (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:
"The ad -hoc promotions of these doctors shall subsist for a period of six months after giving break of 2 days between the two spells of their ad -hoc promotion or till posts are filled up by Departmental Promotion Committee whichever is earlier."

Respondent No. 4 states to have continued on ad hoc basis in terms of the aforesaid order. In the year 1988, the Government in terms of letter dated 26th October, 1988 addressed to the Principal, Government Medical College, Srinagar permitted some Doctors, including respondent No. 4, to proceed to Saudi Arabia to take up foreign assignment subject to the conditions that the period of deputation would be two years which would not be extended further, and failure to report back for duty on expiry of the deputation period will make the concerned Doctor liable for termination from service. Respondent No. 4, however, did not avail the permission so granted at his request. On 16th March, 1990 the Government issued order No. 294 -GR -HME of 1990 according sanction to the retrospective promotion of respondent No. 4 as Associate Professor with effect from 31st January, 1988. This was the date on which he had otherwise become eligible for being promoted to the post of Associate Professor in terms of the 1979 Service Rules. The appellant herein was promoted as Associate Professor on 13th August, 1990. On 15th June, 1991, ostensibly, in pursuance of the permission granted in his favour in October, 1988, respondent No. 4 proceeded on foreign assignment to Saudi Arabia. In terms of the conditions imposed by the government in letter dated 26th October, 1988, respondent No. 4 was to return and Join his duties on 15th June, 1993, which he did not do. On 15th November, 1994, when respondent No. 4 was on unauthorized absence, the Government issued Seniority List of the members of Surgery Department of Medical Education Service. In the said seniority list, against the post of Associate Professors, respondent No. 4 was shown at S.No. 2 and appellant herein was shown at S. No. 3. After the issuance of the aforesaid seniority list, respondent No. 4 joined his duties on 3rd December, 1994. He was permitted to resume his duties by the Principal Government Medical College, Srinagar, at his own risk and responsibility. Aggrieved by the action of the respondents in showing respondent No. 4 in the seniority list, he having been unauthorisedly absent from duty, and the permission granted in favour of respondent No. 4 to join his duties, the appellant herein and some other faculty members, made a representation to the Government. This representation was not decided. The appellant, alongwith two other Doctors, filed writ petition, SWP No -580 of 1995, before the Jammu Wing of this Court wherein, on 2nd June, 1995, the Court directed that pending settlement of respondent No. 4s foreign assignment and unauthorized leave, he shall not get any preference for promotion to the higher post as against the petitioners therein. Subsequent to the aforesaid court direction, Government issued order No. 614 -HME of 1995 dated 21st December, 1995 settling the unauthorized period of absence of respondent No. 4. The order reads as under:

"Whereas Dr. Ghulam Jeelani, Associate Professor, Surgery, Government Medical College, Srinagar, was permitted vide letter No. HD -Coord/90/88 dated 26.10.1988 to take up foreign assignment for a period of 2 years with specific condition that no extension would be granted; Whereas the doctor did not avail of the permission so granted and continued to work in Medical College, Srinagar, till 14.6.1991; Whereas the doctor submitted a departure report with Principal Medical College, Srinagar, with effect from 15.6.1991 for taking up the assignment with reference to the permission granted by the Government around three years before; Whereas the doctor while on foreign assignment at Saudi Arabia proceeded to London of his own for undergoing one years diploma course; Whereas no proper permission was obtained by the doctor for undergoing said diploma course; Whereas the doctor did not resume duties after expiry of foreign assignment period and instead requested for extension in the period of said assignment till May, 1995; Whereas the request of the doctor was rejected and was directed to resume the duties; Whereas the doctor resumed his duties on 3.12.1994; Whereas the Principal Medical College, Srinagar, in views of patient care allowed the doctor to join his duties on his own risk and responsibility; Whereas the doctor requested for settlement of his period of absence on foreign assignment; Now, in consideration of the facts of the case and the Rules applicable, it is hereby ordered: (a) that the action taken by Principal Medical College, Srinagar, in allowing Dr. Ghulam Jeelani, Associate Professor, Surgery to Join his duties in Government Medical College, Srinagar, with effect from 3.12.1994 is hereby confirmed; (b) That the period of two years (out of the period from 15.6.1991 to 2.12.1994) is treated under rule 14(b) of J&K Civil Service (Leave) Rules, 1979 without pay and allowances. The period will not count for pension, increments and other benefits of service; and (c) The remaining period of absence of one year 5 months and 17 days is treated as Dies -non not to qualify for pension, increments and other service benefits. Both the spells of absence so treated shall not constitute any break in service. By order of the Government of Jammu and Kashmir". (Underlining supplied) The effect of the aforesaid Government was that the period from 15.6.1991 to 2.12.1994 was not to be taken into account for any kind of service benefit.

(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:
" The date of appointment of Dr. B. K Parihar and Dr. Ghularn Jeelani as Associate Professors is 31.1.1988 by Government Order No. 294 -(GR) HM?E of 1990 dated 16.4.1990 where under Dr. Ghulam Jeelani has been appointed as Associate Professor (copy enclosed for ready reference). The dates indicated in the Seniority list published vide Government Order No. 695 -HME of 1994 dated 15.11.1994 are not correct, which will be borne out. Accordingly, Dr. Jeelani completed teaching experience as on 18.6.1996 and as such he is eligible for promotion to the post of Professor Surgery. His case may therefore be placed before the D. P. C. for consideration."

In pursuance of the recommendations made by the Departmental Promotion Committee vide their letter dated 11th July, 1996, the Government issued order No. 494 -HME of 1996 dated 26th July, 1996 according sanction to the promotion of various Doctors. By virtue of the aforesaid order, both respondent No. 4 as well as the appellant herein were promoted to the post of Professors with effect from 25th June, 1996. Respondent No. 4, however, was shown at S.No. 2 whereas appellant was shown at S. No. 3 of the aforesaid Government order. Aggrieved of the promotion of respondent No. 4, by which he was placed senior to the appellant, he filed a writ petition, SWP No. 2302/96. In the said writ petition, the appellant challenged the seniority list issued on 15th November, 1994; letter dated 24th June, 1996 whereby Under Secretary to Government Medical Education Department declared respondent No. 4 to be eligible for promotion to the post of Professor as having acquired the requisite experience on 18th June, 1998 and the Government order dated 26th July, 1996, according sanction to the promotion of respondent No. 4 as Professor. The learned Single Judge dismissed the writ petition in terms of the impugned judgment. Hence this appeal.