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IN THE HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

.-.-.

LPASW No.45/2019

Reserved on: 18.02.2021

Pronounced on: 22 .03.2021

State of J&K and others

…….. Appellant(s)

Through: Mr. Shah Amir, AAG

V/s

Dr. Abdul Rehman Mir

….…. Respondent(s)

Through: Mr. Salih Pirzada, Advocate

Coram: HON’BLE MR. JUSTICE TASHI RABSTAN, JUDGE

HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

TASHI-J

1. 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 judgement 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

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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

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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

petitio