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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Dhiraj Singh Thakur, Tashi Rabstan, JJ.
Dr. Shashi Gupta - Appellant
Vs.
Dr. Indu Kaul & ors. - Respondents
LPASW No. 62 of 2018 & MP No. 1 of 2018, Caveat No. 2299 of 2018
Decided On : 11-05-2018
Promotion - Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules of 1979 - Rules of 1979 - [Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules of 1979] - [Article 163 of the Jammu and Kashmir Civil Services Regulations read with SRO 321 of 1995] - [M.A. Wani and Zahoor Hussain Zargar]
Fact of the Case:
The petitioner sought to quash promotions made in favor of the private respondent, claiming violation of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules of 1979. The petitioner also sought to re-draw the seniority of the private respondent, considering a period of unauthorized absence treated as 'dies non'.
Finding of the Court:
The court rejected the objection of delay and laches, and upheld the directions to re-determine the seniority between the parties. The court also dismissed the appellant's apprehension of potential prejudice, stating that any adverse orders by the government could be challenged through legal remedies.
Issues: Delay and laches, re-determination of seniority, potential prejudice from government actions
Ratio Decidendi: The court held that objections of delay and laches cannot be raised post-admission of a writ petition. The court also found no illegality in the direction to re-determine seniority and dismissed the appellant's premature apprehension of potential prejudice.
Final Decision: The Letters Patent Appeal was dismissed along with connected MP.
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. 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
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