JUDGMENT : D.S. Thakur, J. Caveat No. 2299/2018 Discharged. LPASW No. 62/2018 & MP No. 1/2018 1. The present Letters Patent Appeal has been preferred against the judgment and order dated 05.02.2018 passed by the learned Single Judge in writ petition bearing SWP No. 1283/2013. 2. Briefly stated the material facts are as under: 3. Petitioner-respondent No. 1 herein filed a petition for the issuance of a writ of certiorari for quashing all promotions made in favour of the private respondent/appellant herein claiming that the same were in violation of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules of 1979 (For short, Rules of 1979). The petitioner- respondent No. 1 herein also sought a mandamus, inter alia, to re-draw the seniority of private respondent/appellant herein vis-à-vis the petitioner/respondent No. 1 herein especially keeping in view the period of unauthorized absence of the private respondent/appellant herein of approximately 4 years 10 months and 20 days, which had been treated as ‘dies non’. 4. The case as set up by the petitioner/ respondent No. 1 herein before the writ court was that she was appointed as Lecturer on 27.1.1992, as Assistant Professor vide Government Order No. 741-HME of 1996 dated 13.12.1996 w.e.f., 25.6.1996, as Associate Professor w.e.f., 1.10.2004 vide Govt. Order No. 420-HME of 2005 dated 14.7.2005 and as Professor w.e.f., 1.10.2009 vide Govt. Order No. 184-HME of 2010 dated 20.3.2010. 5. As per the petitioner/respondent No. 1 herein, the private respondent/appellant herein came to be appointed as Lecturer on 01.06.1987, as Assistant Professor, notionally w.e.f., 23.4.1994 to 24.6.1996 and substantively w.e.f., 25.6.1996 vide Govt. Order No. 494-HME of 1996 dated 26.7.1996. 6. It was stated in the petition that the private respondent/appellant herein remained absent unauthorizedly for a period of 4 years 10 months and 20 days w.e.f., 07.02.1989 to 27.12.1993, which period was declared as ‘dies non’ in terms of Article 163 of the Jammu and Kashmir Civil Services Regulations read with SRO 321 of 1995 dated 07.12.1995 vide order dated 03.07.1997. According to the said order, the period of absence was not to be counted for increment, pension and other service benefits. 7. According to the said order, the period of absence was not to be counted for increment, pension and other service benefits. 7. It appears that the appellant herein was promoted as Assistant Professor w.e.f., a date when she was absent unauthorizedly and was not eligible for being so promoted inasmuch as the appellant had not completed three years of service as a Lecturer, which would, by excluding the period of ‘dies non’, be completed on 23.4.1995. The appellant subsequently appears to have been further promoted as Associate Professor w.e.f., 23.4.1999 vide Govt. Order dated 19.2.2002. For promotion from the post of Assistant Professor to Associate Professor, according to the Rules of 1979, minimum five years experience is required against the post of Assistant Professor. 8. According to the petitioner, the appellant herein would become eligible for the post of Associate Professor only after completion of five years of service as Assistant Professor on 23.4.2000 and, therefore, order of promotion of the appellant dated 19.2.2002, granting benefit to the respondent/appellant herein w.e.f., 23.4.1999 was unjustified and illegal. 9. The appellant further appears to have been promoted as Professor notionally w.e.f., 23.4.2002 and substantively w.e.f., 02.03.2005. Even this was questioned on the ground that the date of grant of benefit of promotion to respondent/appellant herein was illegal and unjustified. 10. As per the case set up by the petitioner, the private respondent/appellant herein had manipulated her way with the Govt. from time to time and obtained benefits contrary to the recommendations made by the Public Service Commission. 11. It was stated that whereas, the Pubic Service Commission had made recommendations for grant of promotion in favour of the respondent/appellant herein to the post of Assistant Professor on notional basis w.e.f., 23.4.1995, the Govt. had issued an order, promoting her w.e.f., 23.4.1994 contrary to the said recommendations. Equally so was the case in regard to recommendations of the Public Service Commission for the post of Professor where the benefit was to be given w.e.f., 23.4.2004 on notional basis and w.e.f., 2.3.2005 on regular basis. However, the State Government once again issued the order dated 14.7.2005 by which the respondent/appellant was promoted to the post of Professor w.e.f., 23.4.2002 on notional basis and w.e.f., 2.3.2005 on regular basis. 12. However, the State Government once again issued the order dated 14.7.2005 by which the respondent/appellant was promoted to the post of Professor w.e.f., 23.4.2002 on notional basis and w.e.f., 2.3.2005 on regular basis. 12. During the pendency of the writ proceedings before the writ court, by virtue of order dated 16th of September, 2013, the following order came to be passed: “Perusal of the record produced by Mr. F.A. Natnoo, reveals that Public Service Commission has while registering representation of writ petitioner, examined records and on examination of the record placed the matter before the Commission for decision. From the decision, the Commission has come to its conclusion that there seems some manipulation which has been concealed by the Government in subsequent meetings while considering case of respondent No. 5 for promotion. It is also made clear by Commission that promotion in respect of respondent -5 has been cleared only from 23.4.1995 and the Government has given benefit to her from 23.4.1994 in violation of the mandate of the recommendations. Let the Government file response to the decision of the Commission on affidavit and explain as to under which provision of rule promotion of respondent no. 5 has been ante-dated from a date not cleared by the Commission. Before proceeding further it has become necessary for the Secretary to Government Health Department to file response to the Commissioner’s decision as also to the observations of this Court. Secretary to Health Department is at liberty to proceed in the matter and have a preliminary enquiry conducted regarding observations of the Commission as also of the Court so as to furnish report on the next date of hearing. Respondent-Secretary shall also make available the record pertaining to the promotion of respondent No. 5 as Assistant Professor. Registrar Judicial shall keep the record in his custody and submit on the next date of hearing along with file. Record of the Commission is re-sealed and retained by the Court. The decision taken by the Commission stands recorded on the departmental file on 21.06.2013 and the Government asked to take further action in the matter. Let the Secretary to Government Health Department furnish a details about the steps taken by the Government on receipt of the decision of the Commission dated 21.6.2013. List on 26.09.2013.” 13. The decision taken by the Commission stands recorded on the departmental file on 21.06.2013 and the Government asked to take further action in the matter. Let the Secretary to Government Health Department furnish a details about the steps taken by the Government on receipt of the decision of the Commission dated 21.6.2013. List on 26.09.2013.” 13. The Public Service Commission in response to the said order appears to have filed an affidavit in which a stand was taken that the Public Service Commission was not responsible if there was any change in the date of promotion made in favour of the private respondent in the writ petition contrary to the recommendations made by the Public Service Commission. The Public Service Commission also appears to have informed the court that it had communicated to the Health and Medical Education Department to take action against the person, who might have manipulated the record. However, the Health and Medical Education Department appears to have taken a stand that it was not possible as the relevant record was missing. Finally, the writ court after considering the objection of the official respondents in the writ petition especially with regard to the issue of delay and laches, issued the following directions: (a) The Commissioner/Secretary to Government, Health and Medical Education Department shall treat the promotion of respondent No. 5 on the post of Assistant Professor w.e.f., 23.4.1995 i.e., the date recommended by the Public Service Commission. The aforesaid authority shall also examine whether promotion to the post of Professor has been given to respondent No. 5 in contravention of recommendations of Public Service Commission. Thereafter, the Commissioner/Secretary to Government, Health and Medical Education Department shall determine the inter se seniority of the petitioner and the respondent No. 5. The aforesaid exercise shall be carried out within six weeks after affording opportunity of hearing to petitioner, respondent No. 5 and all necessary parties. (b) The Commissioner/Secretary to Government, Health and Medical Education Department shall also take into account the fact that merely by treating the period as dies non, the aforesaid period can neither be counted towards seniority nor towards experience as has been held by a Bench of this Court in the case of M.A. Wani and Zahoor Hussain Zargar (supra). (b) The Commissioner/Secretary to Government, Health and Medical Education Department shall also take into account the fact that merely by treating the period as dies non, the aforesaid period can neither be counted towards seniority nor towards experience as has been held by a Bench of this Court in the case of M.A. Wani and Zahoor Hussain Zargar (supra). (c) It is made clear that findings recorded by this Court in the instant writ petition is for purposes of deciding the instant petition only and shall have no bearing either on the writ petition filed by respondent No. 5 and the FIR registered against respondent No. 5 and other officers.” 14. Hence the present Letters Patent Appeal. 15. Although a number of grounds have been taken by the counsel for the appellant in the memo of appeal, yet what was urged at the time of hearing were only the following: (i) That the writ petition filed by the petitioner/respondent No. 1 herein was barred by delay and laches and, therefore, the same ought to have been dismissed at the very outset, much less, could the directions be issued as they actually were in the instant case. (ii) The second ground urged was that even if the period w.e.f., 07.02.1989 to 27.12.1993 was treated as ‘dies non’ and were not to be considered for purposes of seniority or experience, yet the appellant would still be senior to the private respondent herein. 16. It was also urged that in the garb of fixation of seniority, the Govt. was likely to pass fresh orders in favour of the private respondent herein so as to confer on her the benefit of promotion as Assistant Professor, Associate Professor and Professor w.e.f., the dates earlier in point of time than the dates from which she had earlier been given the benefit of such promotions. 17. It was stated that in case the Govt. was permitted to do so, the appellant, who is otherwise retiring in the next four months, would have hardly any time to question and successfully challenge those orders and would suffer irreparable prejudice in the process. On Delay and laches 18. The issue of delay and laches was, in fact, raised by the appellant herein before the writ court. was permitted to do so, the appellant, who is otherwise retiring in the next four months, would have hardly any time to question and successfully challenge those orders and would suffer irreparable prejudice in the process. On Delay and laches 18. The issue of delay and laches was, in fact, raised by the appellant herein before the writ court. The learned Single Judge, however, considered the said objection and rejected the same on the ground that since the writ petition already stood admitted for hearing, the same could not be dismissed on grounds of delay and laches. It also felt satisfied that the petitioner had offered a cogent explanation and had sufficiently explained the delay. As to whether the objection of delay and laches can survive post-admission of a writ petition is no longer res integra. In Mohammad Baqir vs. State of J&K & ors, 2005 (II) SLJ 495, a Single Bench of this Court while dealing with the similar issue held as under:” “8. This petition stands admitted, as discussed above, and at the time of admission, the respondents have not taken the plea that petition is caught by delay and latches. It was for the respondents to take the plea and reserve the right. They are precluded from raising such plea at this stage. My this view is fortified by the judgment of Division Bench of this Court delivered in LPA No. 138 and 168 of 1999 titled Bashir Ahmad Bhat vs. State of J&K, decided on 03.08.2004. It is profitable to reproduce relevant portion of para-3 of the said judgment herein:- “……It is also the proposition of law the delay and latches should be considered before admission of the writ petition. The petition has not been admitted subject to delay and latches, which were not pressed at the time of its admission. Therefore, the writ petition under such circumstances cannot be dismissed on account of delay and latches.” 19. The judgment insofar as it records satisfaction with regard to the manner in which delay was explained also does not appear to be one, which would warrant any interference. On this issue, therefore, we cannot persuade ourselves to take a view different from the one taken by the learned Single Judge. 20. The judgment insofar as it records satisfaction with regard to the manner in which delay was explained also does not appear to be one, which would warrant any interference. On this issue, therefore, we cannot persuade ourselves to take a view different from the one taken by the learned Single Judge. 20. In regard to the second issue, the appellant firmly believes that even if the period of ‘dies non’ were to be excluded, she would still figure senior to the private respondent herein. If that is so, even if the inter se seniority is re-determined between the appellant and the private respondent herein, the same would not, in the ordinary course, be a direction, which would affect the interest of the appellant and, therefore, even if such a direction is passed, the appellant should have no grievance. In any case, it would be appropriate that the official respondents do the requisite exercise, which becomes necessary especially in view of the directions to the respondents to determine as to whether the promotion to the post of Professor granted in favour of the appellant was in contravention of the recommendations of Public Service Commission. Any finding in the affirmative would also bring the appellant lower in seniority although she claims that she would still figure senior to the private respondent. In any case, the direction to re-determine the seniority inter se between the appellant and the private respondent, suffers from no illegality and cannot be interfered with. 21. Last of all, an apprehension was expressed by the appellant that in the garb of re-determining the seniority, inter se, between the appellant and the private respondent, the Govt. was likely to promote the private respondent from dates earlier in point of time from which she stood promoted. This, according to the learned counsel for the appellant, would cause prejudice to her interest. However, the apprehension expressed is totally pre- mature. For all, we know the Govt. may not do any such thing and if at all, any such orders are passed, it would be open to the appellant to avail her remedies in law. 22. Having considered the entire matter and after having heard the counsel for the parties, we find no merit in the present Letters Patent Appeal, which is accordingly dismissed along with connected MP.