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2010 Supreme(J&K) 474
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sunil Hali, J.
Rajni Gupta -Appellant
Versus
State & Ors. -Resopndent
SWP No. 907-2005
Decided On : 26-08-2010
Abhinav Sharma, Shaishta Hakim, Rahul Pant.
The court emphasized the importance of compliance with court directions and the impact of pending appeals on the implementation of court orders.
Headnote:
Restoration of seniority - Ophthalmic Assistant - SWP no. 1078/1992, SWP no. 441/1990, SWP no. 3/2000, SWP no. 345/2000, LPA no. 479/2002 - The court discussed the restoration of seniority of respondent no.4 as Ophthalmic Assistant with effect from 26.04.1988 and his promotion as Senior Refractionist with effect from 07.09.1994. The judgment and subsequent orders were issued in compliance with the directions of the court in SWP no. 1078/1992, which directed the restoration of seniority of the private respondent as Ophthalmic Assistant. The court also considered the impact of the pending Letters Patent Appeal on the restoration of seniority and promotion of the respondent.
Fact of the Case:
The case involved the restoration of seniority and promotion of respondent no.4 as Senior Refractionist, challenged by the petitioner who was appointed as a Refractionist in the Government Medical College Jammu.
Finding of the Court:
The court found that the orders restoring the seniority and promoting respondent no.4 were passed in compliance with the directions of the court in SWP no. 1078/1992 and did not violate the vested rights of the petitioner. The court also held that the pending Letters Patent Appeal did not bar the issuance of the impugned orders.
Issues: 1. Whether the restoration of seniority and promotion of respondent no.4 violated the vested rights of the petitioner. 2. Whether the change of cadre of respondent no.4 entitled him to the benefit of his services rendered in the Health Department for determining his seniority in the Medical Education Department. 3. Whether the pending Letters Patent Appeal debars the official respondents from restoring the seniority of the private respondent.
Ratio Decidendi: The court held that the orders restoring the seniority and promoting respondent no.4 were passed in compliance with the directions of the court in SWP no. 1078/1992 and did not violate the vested rights of the petitioner. The court also ruled that the pending Letters Patent Appeal did not bar the issuance of the impugned orders.
Final Decision: The writ petition was found to be without merit and was dismissed.
2. The petitioner and respondent no.4 are locked in a litigative process for more than one and a half decade. One trying to unsettle the position of the other. In order to understand the controversy involved in this petition, certain facts are required to be noted:-
3. Petitioner came to be appointed as a Refractionist in Government Medical College Jammu on adhoc basis in the year 1989. Said appointment was regularized with effect from 11.09.1989. Respondent no.4 was appointed as Ophthalmic Assistant in the year 1988 in the Health Department. The appointment of the petitioner was challenged by respondent no.4 in SWP no. 441/1990 on the ground that she was not eligible to be appointed as a Refractionist. It seems that respondent no.4 withdrew the said writ petition on the assurance of the State that he would be considered for appointment in the Medical Education Department. The services of respondent no.4 came to be transferred from the Health Department to Medical Education Department in the year 1989. It seems that this order was subsequently canceled by the administrative department, resulting in filing of another writ petition by respondent no.4. It is contended that on the pain of contempt, the order issued by the Court was implemented and vide order dated 11.08.1991 respondent no.4 was ordered to be transferred to Medical Education Department as an Ophthalmic Assistant.
4. Petitioner was confirmed as a Refractionist in the year 1993 and was promoted as Senior Refractionist vide order dated 30.11.1994 with effect from 07.09.1994 for a period of two years. Her appointment was confirmed in the year 1999.
5. After his transfer from the Health Department to Medical Education Department, respondent no.4 filed a writ petition in this Court for restoration of his seniority with effect from the date he was appointed in the Health Department i.e. from 26.04.1988. Said writ petition, bearing SWP no. 1078/1992 was allowed by this Court on 16.08.2000 with directions to the State to consider the claim of the petitioner in the light of observations made therein within a period of three months. On the pain of contempt petition, official respondents vide government order No. 257-HME of 2005 dated 01.04.2005 restored the seniority of the respondent no.4 as Ophthalmic Assistant in Medical Education Department with effect from 26.04.1988.. After restoration of his seniority, respondent no.4 was adjusted as Senior Refractionist with effect from 07.09.1994.
6. It is important to mention here that the order appointing the petitioner as Senior Refractionist substantively from the year 1999 was questioned by one Bihari Lal Sharma in SWP no. 3/2000 and by respondent no.4 through SWP no. 345/2000. The grievance of the respondent no.4 in the said writ petition was that he was substantively appointed as Ophthalmic Assistant on 26.04.1988 and at the time of promotion of petitioner as Senior Refractionist, he was working in the Medical Education Department and was, therefore, required to be promoted as Senior Refractionist under rules. The learned Single Judge allowed his writ petition and held that respondent no.4 was senior to the petitioner and directed the official respondents to consider his claim. In the alternative it was directed that in case no order is passed than the respondent no.4 would be entitled to receive the same benefits as had been given to the petitioner herein.
7. A Letters Patent Appeal stands filed against the judgment of learned Single Judge. The grounds taken in the appeal are that; both the petitioner and respondent no.4 belong to different streams i.e. Refractionist and Ophthalmic Assistant, as such, declaring the respondent no.4 as senior to the petitioner, without directing the State government , who a
