Jammu & Kashmir High Court
Madhu Gupta vs State And Ors. on 24 November, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
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SWP No.1251 of 2003 Date of decision: 24 .11.2017 Madhu Gupta Vs. State and Ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge Appearing counsel:
For Petitioner(s) : Mr. M.P Sharma, Advocate
For respondent(s) : Mr. Sanjeev Padha, GA for respondent Nos.1 & 2.
None for respondent No.3.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. Petitioner has filed this petition under Section 103 of the Constitution of Jammu and Kashmir seeking enforcement of fundamental as well as legal rights praying for the issuance of a writ in the nature of Certiorari quashing Order No: 188/AHJ of 2003 dated: 25.04.2003 promoting respondent No. 3 to the post of Assistant Bacteriologist and issuance of a writ in the nature of Mandamus directing and commanding Respondent No. 1 and 2 to consider the case of the petitioner for promotion to the post of Assistant Bacteriologist w.e.f. 25.04.2003 when respondent No. 3 came to be promoted with all consequential benefits of pay and seniority.
2. The case of the petitioner is that :-
Vide impugned order No. 188/AHJ of 2003 dated: 25.04.2003, Principal, Govt. Medical College, Jammu on the recommendation of DPC promoted private Respondent No. 3, who hold a lower position in the category of Lab. Assistant (4000-6000) as compared to that of the petitioner who is holding a higher category post (5000-8000) as Assistant Bacteriologist (6700-10700) by giving double jump promotion. While Petitioner is a SWP No. 1251 of 2003 Page 1 of 4 Graduate with Medical Sciences and had obtained Diploma in Medical Laboratory Technology from the Board of Technical Education, Delhi and came to be appointed in the year 1983 as Lab. Assistant and was further promoted as Junior Lab. Technician in the year 1997. On the other hand Respondent No. 3 came to be appointed as Lab. Assistant in the year 1996 and the Petitioner besides being senior, holding a higher post in the higher category as well as in the higher pay scale than that of Respondent No. 3.
That there were no rules for non-gazetted employees of the Medical Education Department and there was no prescribed qualification nor any mode or criteria had been laid down for the appointment to the post of Assistant Bacteriologist. The respondent No. 3 who came into service on 09.04.1996 as Lab Assistant was far junior to the petitioner and had been given the double promotion to the post of Assistant Bacteriologist. So the petitioner's right of promotion was violated and she did not consider at all by D.P.C. That the petitioner had reiterated in her writ petition that no rules governing the conditions of service of the subordinate employees of the Medical Education Department had been framed so in the absence of the rules it cannot be said with clarity that what is the qualification and criteria for promotion to the post of Junior Bacteriologist. As the competent authority has not framed any such criteria, therefore, D.P.C. has no power or authority to prescribe any such criteria on its own. Therefore the recommendations of D.P.C. for promotion of respondent No. 3 are void ab initio, bad and unconstitutional.
3. Objections have been filed by the official Respondents No. 1 & 2, wherein it is stated that after going through the record, it was found that the respondent No. 3 has wrongly been promoted by giving him a double jump of promotion to the post of Assistant Bacteriologist. The order of promotion of respondent No. 3 has already been rescinded immediately SWP No. 1251 of 2003 Page 2 of 4 vide Order No. 126/AHJ of 2004 dated: 27.04.2004. Relevant paras of Order No.126/AHJ of 2004 dated: 27.04.2004 are :-
"Whereas after going through the record, it appeared that personal record of Smt. Madhu Gupta may not have been available with the Office, which has led to the wrong promotion of Sh. Rajesh Raina who infact got a jump of two grades. Now, as per service record of Smt. Madhu Gupta she has superior claim over Sh. Rajesh Raina, who is junior in scale also, for the promotion to the post of Asstt. Bacteriologist in the pay scale of 6700-10700 (Revised). Hence order No. 149/AHJ of 2003 dated:
5-04-2003 and No. 188/AHJ of 2003 dated: 25-04-2003 is hereby deemed to have been rescinded."
4. It is further stated in the objections that after rescinding the order of promotion, Respondent No. 3 has approached before the Hon'ble Court by way of filing a Service Writ Petition No. 830 of 2004 titled 'Rajesh Raina v. State' and in an interim direction, Hon'ble Court has been pleased to stay the operation of the said rescinding order. In view of the case being sub judice before the court, the petitioner cannot be promoted at this stage.
5. During the arguments, learned Counsel for the petitioner pleaded that there is no stay on rescinded Order No. 126/AHJ of 2004 dated: 27.04.2004 as SWP No. 830/2014 has already been dismissed for want of prosecution vide Hon'ble Court Order dated: 16.02.2016 and in view of uncontroverted stand taken by the official respondents in their objections, there is no legal impediment in directing and commanding the official Respondents to consider the case of the petitioner for promotion to the post of Assistant Bacteriologist w.e.f. 25.04.2003 when respondent No. 3 came to be promoted with all consequential benefits of pay and seniority.
6. On the other hand, Mr. Sanjeev Padha, Government Advocate submits that the case of the petitioner shall be considered in accordance with the rules.
SWP No. 1251 of 2003 Page 3 of 47. In view of the admitted factual position indicating that the respondent No. 3 had been erroneously promoted ignoring the superior claim of petitioner, this petition is allowed. The official respondents are directed to consider the case of the petitioner for promotion to the post of Assistant Bacteriologist from the date when Respondent No. 3 came to be promoted i.e. 25.04.2003 alongwith all consequential benefits. Let appropriate orders in this regard be passed within a period of two months from the date, a copy of this order is made available to the official respondents by the petitioner.
8. Viewed thus, petition is disposed of as above along with connected MPs.
(Sanjay Kumar Gupta) Judge Jammu 24.11.2017 Pankaj/* SWP No. 1251 of 2003 Page 4 of 4