Judgment

Tashi Rabstan, J.—This Appeal is directed against the judgment and order dated 01.06.2018, passed by the learned Writ Court in SWP No.724/2012, titled Dr. Abdul Rehman Mir vs. State of J&K & others.

2. From the perusal of the file as also the impugned judgment it shows that the writ petitioner/respondent had been appointed as Assistant Surgeon in the year 1989 and adjusted in District Udhampur. It is contended by the writ petitioner/respondent in his writ petition that he underwent Junior Residency at Sher-e-Kashmir Institute of Medical Sciences (SKIMS) and was selected for undergoing Post Graduate Course in Surgery at SKIMS and thereafter he was selected as Stipendiary Senior Resident in the discipline of Surgery and its allied specialty in the year 1998. It had also been claimed by the writ petitioner/respondent in his writ petition before the Writ Court that he was recommended for appointment as Registrar in the discipline of Surgery, but, he could not join the tenure post of Registrar as the same was stayed by the Court and it was only after the stay order was vacated that he was relieved from SKIMS, so as to allow him to join as Registrar in the Department of General Surgery at Government Medical College, Srinagar. It had also been contended by the writ petitioner/respondent before the learned Writ Court that he completed three years’ Registrarship in the year 2002 and he, accordingly, submitted his joining report on 17.06.2002 and waited for his suitable adjustment, but, a show-cause notice was issued to him, to which he submitted a detailed reply.

3. It was also contended before the learned Writ Court that in terms of Government Order No.133-H&ME of 2003 dated 20.02.2003, the writ petitioner was allowed to join the department as a “fresh appointee”. He accepted and acted upon the said order and joined the department. For the next ten years, the writ petitioner discharged his duty in the department and remained calm and quiet. However, after a decade, the writ petitioner/respondent filed a writ petition (SWP no.724/2012), in which he sought grant of writ of certiorari to quash his Appointment Order (Government Order No.133-H&ME of 2003 dated 20.02.2003) to the extent of treating him as a fresh appointee. The writ petitioner also prayed for a direction to writ-respondents/appellants to treat the “period of absence” of the writ petitioner, if any, in accordance with the Rules and count the period from the year 1989 to 2003 towards his seniority and give him all the service benefits.

4. The Reply was filed by the appellants/writ-respondents before the learned Writ Court. The appellants-writ respondents disputed the contentions made in writ petition contending therein that the writ petitioner/respondent was holding the post of Assistant Surgeon and while working at A.D. Sangaldan, he was granted NOC for undergoing the Post-Graduation, for one year at SKIMS, Soura, on 02.03.1993, but, after completion of one year, the writ petitioner-respondent did not resume his duties and sought NOC for undergoing the Registrarship in Surgery at SMHS Hospital, Srinagar, which was not granted to him, and he did not report back to the Department and chose to remain absent unauthorizedly from the duty. A show cause notice was issued upon him. It was also submitted by appellants/writ respondents that writ petitioner remained absent for 05 years. It was also contended by the writ respondents that request of the writ petitioner was, however, considered and he was permitted to rejoin the department as a “fresh appointee”, which offer he accepted and he, accordingly, joined the department as a “fresh appointee”.

5. The learned Writ Court in terms of the impugned judgment allowed the writ petition and quashed the Appointment Order of writ petitioner (Government Order No.133-H&ME of 2003 dated 20.02.2003) to the extent it treated the writ petitioner as a fresh appointee and directed the appellants/writ respondents to count service of the wri