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2003 DIGILAW 303 (JK)

Ashiq Hussain (Dr. ) v. State Of J. &K.

2003-10-08

SYED BASHIR-UD-DIN, V.K.JHANJI

body2003
Per V. K. Jhanji, C.J., (Acting) 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. 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. 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. 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 & Kashmir". Both the spells of absence so treated shall not constitute any break in service. By order of the Government of Jammu & 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. 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." 4. 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. 5. We have heard learned counsel for the parties at length and have carefully gone through the record. 6. The grievance of the appellant is that respondent No. 4 was not eligible to be considered for promotion with effect from 25th June, 1996, since he did not have the requisite teaching experience of 5 years as Associate Professor as on 24th June, 1996. It is not in dispute that vide order dated 26th July, 1996 both, the appellant as well as respondent No. 4 have been promoted as Professors. Apparently, as such, no prejudice could be claimed by the appellant. It is not in dispute that vide order dated 26th July, 1996 both, the appellant as well as respondent No. 4 have been promoted as Professors. Apparently, as such, no prejudice could be claimed by the appellant. But respondent No. 4 has been shown over and above the appellant in the promotion order. That has given the appellant a cause to agitate the matter before this court. Promotions from one rank to another in the Medical Education Department are to be made on the basis of teaching experience of varied lengths prescribed for different posts.Seniority in a particular rank however is not wholly irrelevant. In the event two or more candidates have the required prescribed teaching experience in a particular rank, seniority in that rank comes into play for purposes of determining the order in which the names of such eligible candidates are to be referred to the Public Service Commission for according consideration to formulate their recommendations. In the event of parity in merit, it also determines the position of the respective candidates to be assigned in the recommendations so formulated by the Public Service Commission and the consequent order of promotion. At the stage of Professors especially, seniority in that rank would be determinative factor for appointing the Head of Department of the particular discipline and then under the 1979 Service Rules, of course, the post of Principal of a College is the most coveted position. It is in that perspective that the grievance projected assumes importance and requires examination of the matter by this Court, as it involves the service rights of the appellant. The recommendations of the Public Service Commission are based on communication dated 24th June, 1996 addressed by Under Secretary to Government, Medical Education Department, to the Public Service Commission, declaring respondent No. 4 eligible for promotion to the post of Associate Professor. The appellant in this writ petition had taken a specific plea that, as on 24th June, 1996, respondent No. 4 fell short of 22 days in his teaching experience on the post of Associate Professor. The state Government did not file any counter affidavit. The appellant in this writ petition had taken a specific plea that, as on 24th June, 1996, respondent No. 4 fell short of 22 days in his teaching experience on the post of Associate Professor. The state Government did not file any counter affidavit. However, the Public Service Commission in its counter- affidavit stated that the case of respondent No. 4 was considered by the Departmental Promotion Committee in its meeting held on 18th April, 1996, but his case was deferred as he did not possess the requisite teaching experience on the date the Departmental Promotion Committee met. However, on the basis of the subsequent Government letter dated 24th June, 1996 and the interim order passed by the court, he was recommended for promotion to the post of Professor. The case of respondent No. 4 before the writ-court was that he was senior at all stages, i.e. at the stage of Lecturer, Assistant Professor and Associate Professor qua the appellant and so he was entitled to be thus shown senior to the appellant in the seniority list of Associate Professors. His further case was that the experience gained by him while working against the post of Associate Professor on ad hoc basis has also to be counted towards the experience and his experience as, Associate Professor has to be computed together with the period of his ad hoc appointment. He further submitted that the Government had regularized his unauthorized absence vide Government order dated 21.12.1995 and that order having not been challenged by the appellant, his promotion to the post of Professor cannot be said to be bad in law. In other words, respondent No. 4 in his reply sought to defend communication dated 24th June, 1996 written by Under Secretary to Government, Medical Education Department, to the Public Service Commission on the ground that the Government, while computing his teaching experience, had taken his ad hoc appointment as Associate Professor into account. In his Rejoinder affidavit, the appellant stated that the ad hoc appointment of respondent No. 4 as Associate Professor on 3rd November, 1986 was dehors the 1979 Service Rules, as on that date he had not gained the requisite five years teaching experience as Assistant Professor. Therefore, his ad hoc appointment as Associate Professor was inconsequential and, consequently, the said ad hoc period would not count towards the teaching experience of respondent No. 4 as Associate Professor. Therefore, his ad hoc appointment as Associate Professor was inconsequential and, consequently, the said ad hoc period would not count towards the teaching experience of respondent No. 4 as Associate Professor. In the Judgment under appeal, the learned Single Judge observed that in absence of the challenge to the said ad hoc promotion of respondent No. 4 as Associate Professor, the validity of that promotion cannot be examined and that too after a decade from the date when such a challenge could have been raised. The learned Single Judge has held as under: "The Rules nowhere provide that the teaching experience in a teaching hospital in the capacity of Associate Professor shall not count towards required requisite teaching experience if it is not gained by regular appointment to the post of Associate Professor. There is no provision in the Rules that the teaching experience gained on ad hoc appointment will be excluded. There is virtually no difference in the teaching experience is concerned, whether it is gained on regular appointment or on ad hoc or ex-officio designation. As the Rules do not provide that the teaching experience gained on promotion on ad hoc basis shall not count towards the requisite teaching experience, so the teaching experience, so the teaching experience gained by the respondent in the instant case, while holding the post of Associate Professor on ad hoc basis cannot be ignored in determine his eligibility for appointment as Professor." 7. It be seen that in terms of communication dated 8.3.1996 addressed by Under Secretary to Government, Medical Education Department to the Public Service Commission, respondent No. 4 was stated to be not eligible for being considered for promotion to the post of Professor. Subsequently, by reference to Government order dated 16.4.1990, in letter dated 24th June, 1996, it was stated that the date of appointment of Dr. Ghulam Jeelani as Associate Professor is 31.1.1988. It was also stated therein that the date of appointment as Associate Professor of respondent No. 4 indicated in the seniority list published on 15.11.1994 was not correct. In the seniority list referred to above, the date of appointment of respondent No. 4 was shown as 14.6.1988. This obviously was wrong. The Commission was informed that "accordingly Dr. Jeelani completed teaching experience as on 18.6.1996". In the seniority list referred to above, the date of appointment of respondent No. 4 was shown as 14.6.1988. This obviously was wrong. The Commission was informed that "accordingly Dr. Jeelani completed teaching experience as on 18.6.1996". It is not understandable from this communication as to how was the period of five years teaching experience of respondent No. 4 computed to fix 18.6.1996 as the date on which the said period of five years was completed. We shall advert to this aspect a bit later but presently, one thing is clear from this communication that the Government did not count either the period of ad hoc appointment of respondent as Associate Professor or the period spent by him outside the post between 15.6.1991 to 2. 12.1994 (both days inclusive) towards his teaching experience as Associate Professor. This is so because it is the case of respondent No. 4 that he was continuously holding the post of Associate Professor on ad hoc basis with effect from 3rd November, 1986 to 30th January, 1988, i.e., a period of about one year, two months and twenty nine days. Admittedly, in communication dated 8.3.1996, he was shown to be ineligible. Had the Government counted the period of ad hoc appointment towards his teaching experience, then, the date of completion of five years teaching experience of respondent No. 4 would not be 18th June, 1996 but would fall one year, two months and 29 days earlier to that, i.e., somewhere around 20th March, 1995. Or in other words, then the period of five years experience would have been counted from 3rd November, 1986, the date he was appointed on ad hoc basis as Associate Professor which would again come somewhat around 20th March, 1995. As noticed above, in communication dated 24th June, 1996, the date of completion of his five years experience is shown to be 18th June, 1996. That means the Government has not, and, in fact, could not have, taken the period of ad-hoc appointment of respondent No. 4 into account. Respondent No. 4 did not feel aggrieved of communication dated 24th June, 1996. He, in fact, is relying on this communication. That means the Government has not, and, in fact, could not have, taken the period of ad-hoc appointment of respondent No. 4 into account. Respondent No. 4 did not feel aggrieved of communication dated 24th June, 1996. He, in fact, is relying on this communication. Therefore, if the Government itself did not include that period in the teaching experience of respondent No. 4, the question is whether this Court, in order to answer the positive assertions made by the appellant, can compute that period towards the teaching experience of respondent No. 4. The learned Single Judge was required to examine the validity of communication dated 24th June, 1996 on the basis of the above facts and figures especially those narrated in the communication itself which, in fact, had been impugned in the writ petition. In that letter, it was nowhere stated that the Government had given the benefit of ad hoc appointment of respondent No. 4 towards computation of his total period of experience as Associate Professor. It was rather unambiguously stated therein that the appointment of respondent No. 4 as Associate Professor was 31.01.1988, meaning thereby that his teaching experience had to be counted from that date, excluding the period he had spent out of the post. This clarification was necessitated because of a mistake that had crept in the seniority list wherein the date of promotion of respondent No. 4 as Associate Professor was mentioned as 14th June, 1988 instead of 31st January, 1988. Even then, respondent No. 4 fell short by 22 days in his five years teaching experience as Associate Professor. The statement made in the communication that respondent No. 4 had completed his five years teaching experience as Associate Professor on 18.6.1996 was palpably incorrect. Since there was a specific averment made in the writ petition in this regard, it was for the Government to have explained it. The Government, as observed earlier, chose not to file any counter. Respondent No. 4 also did not reply this specific averment. He instead sought to import the experience gained by him in his capacity as having worked on ad hoc basis. This was not the reason on which he was declared eligible to be considered for promotion to the post of Professor. Respondent No. 4 also did not reply this specific averment. He instead sought to import the experience gained by him in his capacity as having worked on ad hoc basis. This was not the reason on which he was declared eligible to be considered for promotion to the post of Professor. The case before the learned Single Judge was not the one where the Government had given the benefit of ad hoc appointment to respondent No. 4 and the appellant was aggrieved of that, nor was, in fact, the non-inclusion of that period under challenge before the Court on behalf of respondent No. 4. The fact of the matter is that neither did the Government give that benefit to respondent No. 4, nor was it in challenge before the court. It was only in response to the reply of respondent No. 4 made to that effect that the appellant by way of filing rejoinder-affidavit had to place relevant facts on record of the Court. The real issue before the Court was the validity of communication dated 24th June, 1996 in context of the incorrect statement made therein that respondent No. 4 had gained his five years teaching experience as Associate Professor on 18.6.1996. Therefore, the learned Single Judge was not right in taking the ad hoc appointment of respondent No. 4 as Associate Professor into account for computing his eligibility criterion. Reliance on Asim Kumar Bose v. Union of India, AIR 1983 SC 509 by the learned Single Judge was equally not correct because, in that case, the refusal on the part of the concerned competent authority to take into account the teaching experience of the appellant therein was under challenge before the Court. In the present case, respondent No. 4 did not challenge communication dated 24th June, 1996 wherein his ad-hoc appointment as Associate Professor was not taken into account. In that view of the matter, the observations of the learned Single Judge, as quoted above, cannot be sustained. Communication dated 24th June, 1996 was against facts and violative of the rights of the appellant insofar as respondent No. 4, by dint of the impugned promotion, was made senior to the appellant in the rank of Professors when, in fact, respondent No. 4 was not at all eligible for promotion on that date. Communication dated 24th June, 1996 was against facts and violative of the rights of the appellant insofar as respondent No. 4, by dint of the impugned promotion, was made senior to the appellant in the rank of Professors when, in fact, respondent No. 4 was not at all eligible for promotion on that date. Even assuming that ad-hoc appointments have any relevance though, in the present case, not counted for any purpose by the Government, even then an important question arises for consideration. On 3rd November, 1986, respondent No. 4 was not eligible for appointment as Associate Professor. One has to have five years, teaching experience as Assistant Professor to be eligible for promotion to the post of Associate Professor. The question that arises is: "whether the ad hoc appointment of respondent No. 4 as Associate Professor, when he was not eligible, under the 1979 Service Rules to be appointed as Associate Professor, could be included in the teaching experience for purposes of promotion to the post of Professor?" As observed earlier, the learned Single Judge on this count has decided in favour of respondent No. 4 and held him eligible for being promoted to the post of Professor. Respondent No. 4 was promoted to the post of Assistant Professor on 31st January, 1983. In terms of the 1979 Service Rules for promotion to the post of Associate Professor, a person is required to have a teaching experience of five years as Assistant Professor. Accordingly, respondent No. 4 could have become eligible for promotion as Associate Professor on 31st January 19 88. However, he was promoted on ad hoc basis as, Associate Professor on 3rd November, 1986 by the Principal, Government Medical College, Srinagar, on the recommendation of the Head of the Department of Surgery. On that date, respondent No. 4 had gained an experience of only three years and ten months. Therefore, he was not eligible for being appointed as Associate Professor. A perusal of the order promoting respondent No. 4 as Associate Professor on ad-hoc basis clearly indicates that the same was made for administrative exigency. It may be mentioned here that 1979 Service Rules do not provide for ad-hoc appointments. Therefore, he was not eligible for being appointed as Associate Professor. A perusal of the order promoting respondent No. 4 as Associate Professor on ad-hoc basis clearly indicates that the same was made for administrative exigency. It may be mentioned here that 1979 Service Rules do not provide for ad-hoc appointments. It is only by virtue of the power conferred by virtue of Rule 14 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 that such ad-hoc appointments are made Rule 14 aforesaid may be quoted hereunder: "14. Temporary appointments. -- (1) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a vacancy in a post borne on the cadre of service, class or category and the masking of an appointment to such vacancy in accordance with these rules would involve undue delay, excessive expenditure or administrative inconvenience, the appointing authority may appoint a person otherwise than in accordance with these rules temporarily until a person is appointed in accordance with these rules but such temporary appointment shall in no case exceed three months on each occassion. (2) ... (3) ... (4) A person appointed under sub-rule (1) shall not be regarded as a probationer in such service, class or category, or be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category." From a bare reading of the aforesaid provision of the relevant Rules, it will be discernible that ad-hoc appointments are made in exigencies of service and they do no confer any right of whatever kind, be it seniority, experience, preference or probationary treatment, on the ad hocee. In terms of Rule 5 of the 1979 Service Rules, the post of Associate Professor is a Selection Post and such selection is to be made by the Public Service Commission/ Departmental Promotion Committee having regard to various factors mentioned in Rule 8 thereof. The ad-hoc appointment of respondent No. 4 as Associate Professor was not only dehors Rules 5 and 8 of the Rules, but was also made in violation of the prescribed eligibility criterion. For all purposes, therefore, the ad hoc appointment of respondent No. 4 was not according to Rules. The ad-hoc appointment of respondent No. 4 as Associate Professor was not only dehors Rules 5 and 8 of the Rules, but was also made in violation of the prescribed eligibility criterion. For all purposes, therefore, the ad hoc appointment of respondent No. 4 was not according to Rules. That being so, the experience to be counted on the post of Associate Professor would not relate back to the date of his ad-hoc appointment. In this connection, reference may be had to a judgment of the Apex Court in D.N. Agrawal v. State Of M. P., (1990) 2 SCC 553. In that the appellants, while still not eligible for promotion having not completed the qualified period of service, were initially promoted on ad-hoc basis. Later they were selected by Departmental Promotion Committee on regular basis and appointed as such to the promotion post of Assistant Engineers on their completing the qualified period of service along with others. Subsequent thereto, seniority list was issued wherein the appellants were shown to have been appointed as Assistant Engineers from the date their appointment on selection by Departmental Promotion committee was made. They challenged the seniority list seeking benefit of ad-hoc service rendered by them. The Supreme Court held that ad-hoc period of service, while he were still not eligible for promotion having not completed qualified period of service, could not be counted for the purposes of their seniority in the cadre of Assistant Engineer. In the present case the criterion for promotion is not the seniority but it is the teaching experience which is relevant . Applying the ratio of the Judgment in D.N. Agrawal v. State of M.P. (supra), respondent No-4 experience cannot be related back to his date of ad-hoc appointment. Respondent No. 4 cannot take benefit of the ad hoc service twice, i.e., first for counting it towards the prescribed period of teaching experience as Assistant Professor for purposes of promotion on regular basis to the post of Associate Professor and then for the purpose of having gained experience required for purposes of promotion to the post of Professor. In our considered view, when a certain length of teaching experience on a particular post is prescribed as the eligibility qualification and unless a person possesses that qualification, he cannot be considered eligible for appointment or promotion to the next higher post. In our considered view, when a certain length of teaching experience on a particular post is prescribed as the eligibility qualification and unless a person possesses that qualification, he cannot be considered eligible for appointment or promotion to the next higher post. As a necessary corollary, experience gained on a post, while a person is still not eligible for appointment or promotion to that post, cannot be taken into account for purposes of promotion to the next higher post. The order of the learned Single Judge in this regard to the contrary is not sustainable in law. 9. There is another important aspect of the matter. The confirmation accorded to the ad-hoc appointment of respondent No. 4 as Associate Professor with effect from 3rd November, 1986 by the Government in terms of order dated 28.1.1987 did not constitute a relaxation in the prescribed eligibility qualification of having five years teaching experience as Assistant Professor for promotion to the post of Associate Professor. In fact, under the 1979 Service Rules, the Government does not have such power of relaxation. However, there are some general notes appended to the Rules after the last Schedule. Note 10 thereunder reads as under: "10. In all cases, the qualifications and experience should be as mentioned in the above schedule. However, in case, candidates with the requisite experience are not available, a reference be made to the Medical Council of India for consideration on merits and Government may relax the experience qualification on the recommendation of the Council in consultation with the Commission." 10. It is nobodys case that anything as as contained in the above note appended to the schedules was done. That being so, the ad hoc appointment of respondent No. 4, other than meeting the administrative exigency of the College, was inconsequential both in terms of any advantage for respondent No. 4 or disadvantage for the appellant. This is further buttressed by the fact that, in terms of order dated 16. 4.1990; the Government ordered the promotion of respondent No. 4 with effect from 31" January, 1988. The proposition propounded that the appellant ought to have challenged the initial ad-hoc appointment as Associate Professor of respondent No. 4 is preposterous since, under the relevant Rules, such ad-hoc appointment did not confer any right or claim on respondent No 4 and, therefore, there was no cause for the appellant to have challenged the same. The proposition propounded that the appellant ought to have challenged the initial ad-hoc appointment as Associate Professor of respondent No. 4 is preposterous since, under the relevant Rules, such ad-hoc appointment did not confer any right or claim on respondent No 4 and, therefore, there was no cause for the appellant to have challenged the same. In fact, when the Government issued order dated 16th April 1990 promoting respondent No. 4 from 31st January, 1988, it was he who ought to have felt aggrieved of his promotion from 31st January, 1988, if he had any claim to such promotion or teaching experience from the date he was appointed on ad hoc basis. He did not do so at that time, ostensibly because he knew that his appointment on ad-hoc basis was against the Rules and that he did not fulfil the eligibility criterion prescribed under the Rules and, therefore, he was not entitled to claim any advantage or benefit on that account. Therefore, the observations of the learned Single Judge on this score to the contrary are not sustainable. 11. The learned Single Judge has alternatively held respondent No. 4 to be eligible for promotion to the post of Professor on the ground that his unauthorized absence was regularized by the Government in terms of order dated 21.12.1995 and, therefore, respondent No. 4 retained his seniority as against the appellant. On that count, therefore, respondent No. 4 was rightly promoted to the post of Professor Government order dated 21.12.1995 ,whereby the unauthorized absence of respondent No. 4 was regularized has also been used against the appellant by saying that the order having not been challenged by the appellant; he cannot be allowed to contend that the said order of the Government is against the Rules. Mr. Qayoom, learned counsel for the appellant, in this regard submitted that the appellant is not aggrieved of Government order dated 21. 12.1995 whereby unauthorized absence of respondent No. 4 was regularized. This is so for the simple reason that in that order itself the Government has made it clear that the period of absence 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 and that the period will not count for pension, increments and other benefits of service. This is so for the simple reason that in that order itself the Government has made it clear that the period of absence 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 and that the period will not count for pension, increments and other benefits of service. Further, in relation to the remaining period of absence of one year five months and seventeen days, the Government ordered that the said period will not count for pension and other service benefits of respondent No. 4 Mr. Qayoom subimitted that a reading of the order makes it clear that the period was not to constitute break in service. Government Order dated 21.12.1995 in regard to the initial period of two years has to be read together with Rule 14(b) [should actually read as 14(ii)(b)] of the Jammu and Kashmir Civil Services (Leave) Rules, 1979, (hereinafter referred to as, `the Leave Rules). Rule 14(ii)(b) of the Leave Rules provides as under: "14(ii)(b) A Government Servant desirous of taking up service or employment under a non-Government employer may be required to resign his appointment before taking up any other service or employment, except where grant of permission to serve elsewhere is considered desirable in any exceptional case. In the latter case a Government servant shall be treated as temporarily transferred to the private body organization from his parent Organization. He will neither be treated as on leave, nor allowed any pay and allowance for the period involved. The period of such absence shall not, however, exceed the total period of leave due to him at the time of his joining other service subject to a maximum of 5 years. The Government servant may have a right to return to his parent service/Department during such absence provided the post from which he proceeded exists at the time of his return and has not been filled up subsequently. In case of his re-absorption in State service such a Government servant will count for leave (and also pension) his service prior to his taking up service elsewhere He will forfeit the benefits of promotion, increase in pay etc which but for his taking up service elsewhere would have become due to him in the normal course during the period of his absence." 12. A reading of both, i.e., Government order dated 21.12.1995 and Rule 14(ii)(b) (supra), together leaves no manner of doubt that the said period was not to count for pension and increment and respondent No. 4 forfeited the benefit of promotion and pay etc., which would accrue in the normal course, during the period of his absence. The remaining period of one year, 5 months and 17 days has been treated as dies non. The term "dies non" is a shortened form of "dies non jurisdicus" which means a period during which no legal business is transacted or which is not reckoned for any purpose. Dies non is only a concession for permitting the beneficiary thereof to have subsequent service continuation of the period of service before the beneficiary proceeded on unauthorised absence. When a period is directed to be treated as `dies non, the period in question does not count for any service benefit which would otherwise accrue during that period, including pension, increments, experience and seniority. In that view of the matter, the learned Single Judge was not right in observing that the period of unauthorised absence is to be counted towards the experience or seniority of respondent No. 4 as Associate Professor or that order dated 21.12.1995, whereby the unauthorised absence of respondent No. 4 was accorded, ought to have been challenged by the appellant. The appellant was not required to challenge the order as it ever adversly affected him. In fact, the order ought to have been challenged by respondent No. 4 because it was he who was adversely affected by it inasmuch as the period spent outside the service by him was not to be counted for any service benefit and that would also include seniority and experience as Associate Professor required for promotion to the post of Professor. In this view of the matter, the order of the learned Single Judge in this regard is not sustainable in law. 13. The contention of respondent No. 4 is that he has been senior to the appellant all through and was appointed to the post of Associate Professor much before the appellant. Therefore, according to him, he had a right to be promoted head of the appellant. In fact, the learned Single Judge has said much emphasis on this aspect of the matter. Therefore, according to him, he had a right to be promoted head of the appellant. In fact, the learned Single Judge has said much emphasis on this aspect of the matter. Rule 10 of the 1979 Service Rules says that seniority of the members of the service shall be regulated under the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. In terms of Rule 24 of the aforesaid Rules of 1956, seniority has reference to the service, class, category or grade with reference to which the question on has arisen and is to be determined by the date of first substantive appointment to such service, class, category or grade, as the case may be. Ordinarily, under Rule 24 of the Classification, Control and Appeal Rules, 1956, length of service to be reckoned from the date of first substantive appointment on a given post determines the seniority of a person. Under the 1979 Service Rules, it is not the mere length of service on a given post which is relevant but it is the teaching experience which is relevant. Rule 24 of the Classification, Control and Appeal Rules, 1956 has, therefore, to be read together with Rule 7 of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 which lays down the eligibility criteria for recruitment and promotion to the posts borne on the service. The term "seniority" has, therefore, to be construed to mean the length of teaching service rendered by a member and consequently the teaching experience gained by him on a given teaching post. This may be explained as follows: Suppose `A is promoted on a given post on 1st January of a particular year requiring, say, five years teaching experience for promotion to the next higher post. Thereafter, `B is promoted to the said post on 1st January of the following year. Ordinarily, `A would complete his teaching experience on 31st December, five years after his promotion, whereas `B would be completing his teaching experience of five years one year after `A. If, however, `A remains out of the teaching post for some period, say, two years, his teaching experience would be deferred by two years. Ordinarily, `A would complete his teaching experience on 31st December, five years after his promotion, whereas `B would be completing his teaching experience of five years one year after `A. If, however, `A remains out of the teaching post for some period, say, two years, his teaching experience would be deferred by two years. In the meantime, five years after the date of first substantive appointment of `A, if a higher post is to be filled up, despite having been appointed on the feeding post one year earlier to `B, `A would not be eligible for consideration for promotion to the higher post because he lacks five years teaching experience. Therefore, date of first substantive appointment on the feeding post does not help `A. In other words, under the 1979 Service Rules, date of first substantive appointment in relation to the length of service on the feeding post as contemplated in Rule 24 of the classification, Control and Appeal Rules, 1956 loses its relevance. Instead it is the teaching experience gained from the date of first substantive appointment which becomes relevant. To put it in the simplest terms, under the 1979 Service Rules, seniority has reference to teaching experience to be counted from the date of first substantive appointment on a given post. Therefore, the length of teaching experience would be determinative of the seniority in the feeding post between two competing candidates. As a necessary corollary, even if the names of `A and `B are referred simulteneously for filling up the next higher post, `B would retain the seniority over `A, not the vice-versa. Strictly speaking, therefore, the length of teaching experience, in excess of the prescribed teaching experience, would be determinative of the inter-se seniority between two faculty members on a given post. At the time of promotion, in the event of parity in merit between two competing candidates, their seniority position is to be determined by their relative seniority on the feeding post. In the present case, the appellant completed his five years teaching experience on 12.8.1995 whereas respondent No. 4 as on that date had not completed the said teaching experience. Therefore, the contention of respondent No. 4 that he was senior to the appellant is untenable. His seniority got tilted pursuant to Government order dated 21.12.1995 which he has not chosen to challenge at any stage. Therefore, the contention of respondent No. 4 that he was senior to the appellant is untenable. His seniority got tilted pursuant to Government order dated 21.12.1995 which he has not chosen to challenge at any stage. Therefore, the appellant was senior to respondent No. 4 and at the time of promotion, even if respondent No. 4 was eligible, though we have found him not to be, that position could not be disturbed, unless there was any disparity in their inter-se merit. In fact, disparity in merit has not been urged at any time. 14. Summarising all what has been discussed above, it is not in dispute that respondent No. 4 was promoted to the post of Associate Professor on regular basis with effect from 31st January, 1988. He continued to work as such till 14th June, 1991 where-after he proceeded on foreign assignment. He resumed his duties on 3rd December, 1994. He was promoted as Professor from 25th June, 1996. The total period for which respondent No. 4 worked as Associate Professor on regular basis is thus comprised of two spells i.e. one from 31st January, 1988 to 14th June, 1991 (3 years, 4 months and 13 days) and from 3rd December, 1994 to 24th June, 1996 ( 1 year, 6 months and 23 days). Computing these two spells, the total period for which respondent No. 4 worked as Associate Professor upto 24th June, 1996 comes to 4 years, 11 months and 8 days. Therefore, the requisite experience of five years teaching experience as Associate Professor of respondent No. 4 as on 24th June, 1996 fell short by 22 days. It is not, therefore, comprehensible as to how did the Under Secretary to Government, Medical Education Department, come to the conclusion that respondent No. 4 had completed his 5 years teaching experience on 18th June, 1996. Rule 7 of the 1979 Service Rules prescribes that a person shall not be eligible for recruitment / promotion to a post in the service unless he possesses the qualifications and fulfils the requirements of recruitment prescribed for that post in Schedule II appended to the Rules. The aforesaid Rule is mandatory in nature and it unambiguously states that "a person shall not be eligible". In terms of Schedule II, for promotion to the post of Professor, a person has to have the prescribed teaching experience of five years as Associate Professor. The aforesaid Rule is mandatory in nature and it unambiguously states that "a person shall not be eligible". In terms of Schedule II, for promotion to the post of Professor, a person has to have the prescribed teaching experience of five years as Associate Professor. Length of service in Medical Education Department by itself is not the eligibility qualification for purposes of making promotions from one post to another for purposes of making promotions from one post to another in terms of the Rules. If a person falls short of the prescribed teaching experience, over all length of service will not be a substitute for the experience. Respondent No. 4 was promoted on ad-hoc basis as Associate Professor on 3rd November, 1986 when, admittedly, he was not eligible for such appointment. Clearly thus, excluding the period of adhoc appointment as Associate Professor and the period spent on foreign assignment, the teaching experience of respondent No. 4 fell short of five years. The appellant having been promoted as Associate Professor on 13.8.1990 completed his five years teaching experience as Associate Professor on 12.8.1995. The four posts of Professors fell vacant on 1.1.1993, 1.4.1993, 1.12.1993 and 1.1.1996. The first letter referring the names of two Doctors, including that of the petitioner, was addressed to the Public Service Commission on 8th March, 1996. On that date, even going by the subsequent letter dated 25th June, 1996 of Under Secretary to Government, Medical Education Department, respondent No. 4 was not eligible for being promoted to the post of Professor. According to the Public Service Commission the first meeting of the Departmental Promotion Committee was convened on 18th April, 1996. On that date, neither the name of respondent No. 4 was referred for consideration of his promotion to the Public Service Commission, nor was he eligible for such consideration. The Public Service Commission in its counter-affidavit have stated that "among others, the case of one Dr. Gh. Jeelani Associate Professor (Surgery) was discussed in the DPC meeting held on 18.4.96. The case of Dr. Jeelani was deferred as he did not possess the requisite experience on the date of DPC meeting ....". What prevented the Public Service Commission from making recommendations in respect of the two Doctors referred to it by the Government when it met on 18th April, 1996 is not disclosed. This casts a heavy cloud on the whole affair. Jeelani was deferred as he did not possess the requisite experience on the date of DPC meeting ....". What prevented the Public Service Commission from making recommendations in respect of the two Doctors referred to it by the Government when it met on 18th April, 1996 is not disclosed. This casts a heavy cloud on the whole affair. In any case, the statement made in the communication dated 24th June, 1996 addressed by Under Secretary to Government, Medical Education Department to the Public Service Commission, that respondent No, 4 had completed the teaching experience of five years on 18th June, 1996, was incorrect and against record. That being so, the communication in question, being incorrect and detrimental to the interests and rights of the appellant, in as much as respondent No. 4 was promoted over and above him, is liable to be quashed. Consequently, the recommendations of the Public Service Commission and Government order dated 26th July, 1996 insofar as the same relate to respondent No. 4 are also liable to be quashed. The appellant had also challenged the seniority list of Associate Professors issued by the Government on 15.11.1994. We have already made our observations with regard to determination of seniority in the service and, in view of thesubsequent developments and the order we are proceeding to pass in this appeal, that seniority list loses its weight and significance. Therefore, there would be no difference whether the seniority list is quashed or not. 15. In view of the above, the impugned judgement of learned Single Judge dated 23.10.1998 is set-aside. The writ petition of the appellant is allowed. Communication dated 24th June, 1996 addressed by Under Secretary to Government, Medical Education Department to the Public Service Commission and the consequent recommendations of the Public Service Commission and the consequent recommendations of the Public Service Commission together with Government Order No. 494-HME of 1996 dated 26th July, 1996 in relation to respondent No. 4 are quashed. The State is left free to refer the name of respondent No. 4 to the Public Service Commission for consideration of his case for retrospective promotion to the post of Professor from the date he completed five years teaching experience as Associate Professor which, as observed, as on 24th June, 1996, fell short by 22 days This process shall be completed within three months. Consequently, the seniority list of the Professors, Surgery, shall be redrawn on the basis of the respective dates of appointment of the faculty members.