Himachal Pradesh High Court
Kamla Tanwar vs State Of Himachal Pradesh And Others on 28 April, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No. 5255 of 2019 Reserved on: 21.04.2023 Decided on: 28.04.2023 __________________________________________________________ .
Kamla Tanwar ...Petitioner
Versus
State of Himachal Pradesh and others .... Respondents __________________________________________________________ Coram The Hon'ble Mr. Justice Satyen Vaidya, Judge 1 Whether approved for reporting? Yes ______________________________________________________ For the petitioner : Mr. B.C. Negi, Senior Advocate with Mr. Rajat r Awasthy, Advocate.
For the respondents: Mr. B.N.Sharma, Additional
Advocate General, for
respondent No.1.
Mr. Vikrant Thakur, Advocate,
for respondent No.2.
Mr. Surender Verma, Advocate,
for respondent No.3.
Ms. Rashmi Parmar, Advocate,
for respondent No.4.
Satyen Vaidya, Judge
By way of instant petition, petitioner has prayed for following substantive reliefs:
"(i) That respondent No.3 may be directed to place on record the provisions relating to declaration of confidential/provisional result of the candidates before formal declaration of result of such examination.1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 28/04/2023 20:47:32 :::CIS 2(ii) That the recommendations of DPC held on 7.4.2015, Annexure A-9, to the extent applicant has been declared ineligible for promotion in the DPC held on 3.1.2013 may kindly be quashed and set aside and consequently promotion of applicant to the .
post of Lecturer, Sister Nivedita Government College of Nursing, IGMC Complex, Shimla vide order dated 10.1.2013, Annexure A-4, may be upheld with all consequential benefits, if necessary, even by review DPC dated 7.4.2015.
(iii) That if during the pendency of OA, on the basis of recommendations of DPC at Annexure A-9, respondent No.4 is promoted as Lecturer (Nursing) by excluding the applicant, in such an eventuality the promotion of respondent No.4 on the basis of DPC at Annexure A-9 may also be quashed and set aside.
(iv) That if during the pendency of OA, any r interruption is caused in the service of applicant pursuant to recommendations of DPC at Annexure A-9 and if any adverse order is passed on the basis of such recommendations, such order may also be quashed and set aside and applicant may be directed to be reinstated as Lecturer Nursing with continuity in service and all consequential benefits.
(v) That in the alternative, the promotion of respondents No. 5 and 6 or any of them vide notification dated 12.12.2014, Annexure A-7, if necessary, may be quashed and set aside with a direction to the respondent department to hold review DPC and consider the applicant for promotion as Principal Nursing Officer from the date respondents No. 5 and 6 were so promoted, with all consequential benefits."
2. The petitioner was working as Sister Tutor in Government Nursing School, IGMC Complex, Shimla, which was upgraded as Sister Nivedita Government College of Nursing (for short, 'Nursing ::: Downloaded on - 28/04/2023 20:47:32 :::CIS 3 College') in the year, 2010. Petitioner had been promoted as Sister Tutor from the post of Staff Nurse on 19.3.2001. In 2009, petitioner sought permission of .
her employer to improve her qualification and sought admission in M.Sc. Nursing in Jiwaji University, Gwalior in 2009.
3. As per the R & P Rules for the post of Lecturer in Nursing College "Sister Tutor" was feeder category for promotion to the post of Lecturer.
However, possession of degree in M.Sc. Nursing with three years regular or regular combined with continuous ad-hoc service in the grade was an essential condition for being considered for promotion to the post of Lecturer.
4. On 3.1.2013, the meeting of DPC for the post of Lecturer in Nursing College was convened.
Besides others, the name of petitioner was also considered. Consequently, the petitioner was promoted as Lecturer in Nursing College vide office order dated 10.1.2013.
::: Downloaded on - 28/04/2023 20:47:32 :::CIS 45. Respondent No.4 assailed the promotion of petitioner as Lecturer by filing CWP No.1305 of 2013 before this Court on the ground that petitioner was not .
eligible to be promoted as Lecturer on the date of holding of DPC as the result of M.Sc. Nursing was declared by Jiwaji University, Gwalior on 26.2.2013 and, therefore, the petitioner was not having the essential qualification of M.Sc. Nursing either at the date of her consideration for promotion to the post of Lecturer or on the date when she was promoted to the said post. On the other hand, the petitioner had contested CWP No. 1305 of 2013 on the ground that Jiwaji University, Gwalior, at the request of petitioner, had issued letter dated 1.1.2013, whereby the provisional result of the petitioner was communicated to the Director of Health Services & Family Welfare, Himachal Pradesh and it was revealed that the applicant had passed M.Sc. Nursing (final examinations) held in June, 2012 and the marks sheet would be issued after formal declaration of result.
::: Downloaded on - 28/04/2023 20:47:32 :::CIS 56. A co-ordinate Bench of this Court vide judgment dated 2.1.2014 dismissed the petition of respondent No.4 by holding as under:
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"2. The case of the petitioner, in a nutshell, is that respondent No.4 was not eligible as per the Recruitment and Promotion Rules. According to the petitioner, certificate Annexure P-6 is not authentic.
3. Petitioner has not led any tangible evidence to establish on record that certificate Ext. P-6 is not authentic. The DPC has taken into consideration the qualification possessed by respondent No.4. Scope of judicial review to interfere with recommendations of DPC is very limited. The Court can only interfere if there is specific mala fide alleged against any member of the Selection Committee or there is infraction of any Act or Rules. In the present case, neither the petitioner has made any mala fide against any member of the DPC nor has he brought to the notice of the Court violation of any Act or Rule.
4. In view of discussion and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stand dismissed."
7. Another DPC was held by respondent No.1 for considering promotion of Sister Tutor to the post of Lecturer in Nursing College on 3.5.2013 and as a result, two incumbents namely Ms. Sunita Devi and Ms. Sangeeta were ordered to be promoted as Lecturer in December, 2013. The promotion orders of Ms. Sunita Devi and Ms. Sangeeta were challenged by respondent No.6 by way of CWP No. 8829 of 2013.
::: Downloaded on - 28/04/2023 20:47:32 :::CIS 6During the pendency of said writ petition, respondent No.1 withdrew the promotion orders of Ms. Sunita Devi and Ms. Sangeeta. Both these incumbents then .
assailed such order of withdrawal by way of CWP No.1450 of 2014. Both the matters i.e. CWP No. 8829 of 2013 and CWP No. 1450 of 2014 were disposed of by a Division Bench of this Court vide order dated 7.8.2014 in following terms:
"2. During the pendency of the writ petition, the promotion order, so far it relates to respondents No.5 and 6, was withdrawn and that is why respondents No.5 and 6 came to be deleted from the array of respondents in terms of order, dated 15th May, 2014. Thus, the writ petition (CWP No.8829 of 2013) survives so far it relates to respondent No.4 only.
3. Further, during the pendency of the writ petition (CWP No.8829 of 2013), respondents No.5 and 6, whose promotion orders were withdrawn, have questioned the withdrawal order by the medium of CWP No.1450 of 2014 and sought its quashment.
4. Without entering into the controversy whether the promotion order made in favour of respondents No.5 and 6 in CWP No. 8829 of 2013 and the promotion order made in favour of respondent No.4 in CWP No. 8829 of 2013 were legal one or otherwise or whether the order of withdrawal, which is subject matter of CWP No.1450 of 2014, is legally correct or otherwise, we deem it proper to direct the competent authority to constitute a Departmental Promotion Committee and examine the case of the writ petitioners as well as of the writ respondents within six weeks and pass appropriate orders. Till then, interim directions granted in CWP No. 1450 of 2014 shall remain in force.::: Downloaded on - 28/04/2023 20:47:32 :::CIS 7
5. It is made clear that we have not expressed any opinion on the merits of the cases.
6. In view of the above, the writ petitions are disposed of alongwith all pending applications."
8. In pursuance to order dated 7.8.2014 .
passed by a Division Bench of this Court in CWP No. 8829 of 2013 and CWP No. 1450 of 2014, the review DPC was convened on 7.4.2015. While considering the incumbency of respondent No.6, Ms. Sunita Devi and Ms. Sangeeta in terms of order dated 7.8.2014, the promotion of petitioner as Lecturer ordered on 10.1.2013 in pursuance to the recommendation of DPC dated 3.1.2013, was also reviewed on the ground that there was a direction to that effect issued by this Court vide order dated 5.3.2015 in CWP No. 4686 of 2013 titled as Brij Lal vs. State of Himachal Pradesh and others. Accordingly, the proceedings of DPC on 3.1.2013 were also reviewed and modified to the extent that petitioner was held ineligible for promotion on 3.1.2013 on the ground that her marks-sheet for the final examination result of M.Sc. Nursing was issued on 26.2.2013.
::: Downloaded on - 28/04/2023 20:47:32 :::CIS 89. The petitioner has approached this Court by way of instant petition with the grievance that the review in respect of the promotion of the petitioner as .
Lecturer by the review DPC held on 7.4.2015 was un- sustainable for the reasons, firstly that there was no direction from any Court for such review, secondly, this Court vide judgment dated 2.1.2014 passed in CWP No. 1305 of 2013 had already upheld the promotion of petitioner to the post of Lecturer and lastly, petitioner had been divested from consideration for promotion to the post of Principal Nursing, which was another promotional channel available from the feeder category of Sister Tutor.
10. On the other hand, learned State Counsel as also the learned counsel for private respondents have supported the recommendations made by the review DPC held on 7.4.2015. They have unequivocally taken a stand that the petitioner was not having essential qualification on the date of consideration for promotion or on the date of promotion as lecturer, therefore, the order whereby the petitioner was promoted was dehors ::: Downloaded on - 28/04/2023 20:47:32 :::CIS 9 the R & P Rules and the review DPC was justified in modifying the recommendation of DPC held on 3.1.2013.
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11. The respondent No.3 in its short reply has submitted that the provision for supply of confidential results is available in its rules.
12. I have heard learned counsel for the parties and have also gone through the records of the case carefully. r
13. The limited question that arises for consideration of this Court is whether the review DPC was justified in reviewing the recommendation of the DPC held on 3.1.2013 in respect of the promotion of petitioner to the post of Lecturer?
14. The proceedings of review DPC dated 7.4.2015 reveal that the review in respect of the DPC dated 3.1.2013 qua petitioner was conducted on the basis of order dated 5.3.2015 passed by this Court in CWP No. 4686 of 2013. I have gone through the records more particularly the orders passed in CWP No. 4686 of 2013 titled as Brij Lal vs. State of ::: Downloaded on - 28/04/2023 20:47:32 :::CIS 10 Himachal Pradesh and others and have not found any direction by this Court to conduct review DPC in respect of the recommendation made by the DPC held .
on 3.1.2013 qua the petitioner. Thus, the entire premise for reviewing the promotion of petitioner has been found to be incorrect.
15. Admittedly, the promotion of Ms. Sunita Devi and Ms. Sangeeta as Lecturers was in pursuance to the recommendation of DPC held on 3.5.2013. Ms. Sunita Devi and Ms. Sangeeta were promoted on 31.10.2013. Respondent No.6 had assailed their promotion orders only in CWP No.8829 of 2013.
During the pendency of CWP No. 8829 of 2013, the respondents had withdrawn the promotion orders of Ms. Sunita Devi and Ms. Sangeeta. Both these incumbents then assailed such withdrawal order by way of CWP No.1450 of 2014. While disposing of both these petitions i.e. CWP No. 8829 of 2013 and CWP No.1450 of 2014, a Division Bench of this Court had issued directions for review DPC. In such background, it cannot be said that there was any direction for ::: Downloaded on - 28/04/2023 20:47:32 :::CIS 11 reviewing the recommendation of DPC dated 3.1.2013 in respect of the petitioner.
16. Further, the decision of review DPC dated .
7.4.2015 in respect of the petitioner was again unwarranted as the recommendations of DPC dated 3.1.2013 in respect of the petitioner had already been upheld by this Court vide judgment dated 2.1.2014 passed in CWP No. 1305 of 2013. The authenticity of certificate r dated 1.1.2013 issued by the Jiwaji University, Gwalior in respect of the petitioner had duly been considered by this Court and thereafter its authenticity was upheld. That being so, the review DPC had no jurisdiction to sit over the judgment of this Court.
17. In light of above discussion, petition is allowed. The recommendation made by DPC on 7.4.2015 modifying the recommendation of DPC dated 3.1.2013 in respect of petitioner are quashed and set-
aside. The promotion of petitioner to the post of Lecturer in Nursing College vide order dated 10.1.2013 is upheld. The respondents are directed to treat the ::: Downloaded on - 28/04/2023 20:47:32 :::CIS 12 petitioner in the cadre of Lecturer w.e.f. 10.1.2013 and to allow her all consequential benefits.
The petition stands disposed of in the .
aforesaid terms, so also the pending application(s), if any.
28th April, 2023 (Satyen Vaidya)
(GR) Judge
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