Jammu & Kashmir High Court - Srinagar Bench
Dr. Mohan Lal Bhat vs State Of Jk & Ors on 24 December, 2019
Author: Chief Justice
Bench: Chief Justice
Serial No.08
Advance List.
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
*******
SWP No. 1579/2006
IA N o. 01/2006 [2815/2006]
Dr. Mohan Lal Bhat
...Petitioner(s)
Through: None.
Vs
State of JK & Ors.
...Respondent(s)
Through: Ms. Sharaf Wani, Assisting Counsel vice
Mr. Shah Aamir, AAG for R- 1 and 2
Ms. Siyab, Assisting Counsel vice
Mr. Azhar ul Amin, Advocate for R-3
CORAM:
HON'BLE THE CHIEF JUSTICE.
ORDER
01. By way of this writ petition filed in the year 2006, the petitioner sought quashing of the order dated 14th July, 2005, in so far it promoted him to the post of Associate Professor Pathology notionally w.e.f., 3rd May, 2004 and regular w.e.f., 21st July, 2004 instead of giving him the said promotion w.e.f., 21st July, 2002.
2. By an interim order dated 5th December, 2006, the respondents were directed to consider the petitioner's representations purporting to have been filed on 14th October, 2005, 10th December, 2005 and 25th March, 2006 and pass effective orders thereupon.
03. Objections stands filed by the respondent No. 1 on 28.05.2003 (page No. 37) wherein it is stated as follows: SWP No. 1579/2006 IA No. 01/2006 [2815/2006] Page 1 of 4
"10 a+b Ground a and b of the writ petition is misconceived and misdirected therefore, denied. It is submitted that case of the petitioner was submitted before DPC/PSC for clearance and on consideration of the matter, the DPC/PSC decided that petitioner be given promotion notionally w.e.f 21.7.2002 and on regular basis w.e.f. 21.07.2004 subject to the condition that teaching experience gained by him at Saudia Arabia Hospital during his stay at Saudia Arabia is MIC recognized. The matter was taken with the MIC in terms of Letter No. ME/GM-120-92 dated 17.03.2005 seeking their clearance as to whether the period of stay by petitioner at Assir Central Hospital, Saudia Arabia which is affiliated to King Khalid University College of Medicine and Medical Sciences Abhu be taken as teaching experience. Copy of the same is filed as Annexure R-1. That in response to the aforesaid letter the MCI in terms of Letter No. MIC-12 (1)2004-Med/Misc-442 dated 06.04.2005 informed that teaching experience gained by the petitioner at Assir Central Hospital, Saudia Arabia can not be counted towards teaching experience. In this view of the matter, the petitioner was not given teaching experience for this period and as such was found eligible on regular promotion w.e.f. 21.7.2004, therefore the grounds are denied.
04. In the objections filed by respondent No.3 on 11.05.2010 (page 44 and
45), the following stand has been taken:-
"The petitioner has been promoted as Associate Professor w.e.f. 21.07.2002 (notionally) and w.e.f 21.07.2004 (regularly) in Health and Medical Education Department subject to the condition that the teaching experience gained by him at Saudia Hospital during his stay at Saudia Arabia has MCI recognition. The health and Medical Education Department vide their letter No. ME-GM-120-92 dated 13.03.2005 took up the matter with Medical Counsel of India who vide their communication No. MIC-12(1)/200-Med-Misc/442 dated 06.04.2005 initiated the above mentioned department that the teaching experience gained by Dr. M.L. Bhat at Assir Central Hospital, Saudia Arabia cannot SWP No. 1579/2006 IA No. 01/2006 [2815/2006] Page 2 of 4 be counted towards teaching experience. Since Dr. M.L. Bhat had worked in Saudia Arabia for a period of one year 9 months and 12 days which was not recognized by Medical Counsel of India as teaching experience, accordingly he was promoted as Associate professor w.e.f. 03.05.2004 instead of 21.07.2002 as proposed by the Department (i.e. less by one year 9 months and 12 days).
The writ petition is absolutely misconceived in that the promotioin cannot be an automatic process. One does not get the r4ight to promotion with Art. 16 of the Constitution as soon as he become eligible under statute. An employee cannot claim promotion as a matter of right but only has right of consideration. The petitioner has been considered by his employer and also promoted from an appropriate date after obtaining the views of the Medical Council of India vide above quoted communication as it was a condition laid down by the DPC while considering his promotion as Associate Professor.
The writ petition is also liable for dismissal on the sole ground of latches that petitioner has enjoyed his promotion without any objection and is now seeking effect, retrospectively, to these promotions and that too after a gap of one year. The Hon'ble Supreme Court in 1975 (1) SCC 152 has held that in such situations as obtained in the instant writ petition the challenge should be registered with the court of law within 6 months.
The petitioner has also claimed similarity of treatment with others without pleading facts of similarity.
The writ petition is therefore liable for dismissal on this view of the matter as well".
05. There was no appearance on behalf of the petitioner when the case was listed on 3rd of September, 2019.
SWP No. 1579/2006 IA No. 01/2006 [2815/2006] Page 3 of 4
06. None appears on behalf of the petitioner when the matter is called out today.
07. In the interest of justice, adverse orders are deferred.
08. List on 30.03.2020.
(GITA MITTAL) CHIEF JUSTICE SRINAGAR 24.12.2019 Showkat SWP No. 1579/2006 IA No. 01/2006 [2815/2006] SHOWKAT HASSAN KHAN 2019.12.28 11:49 Page 4 of 4 I attest to the accuracy and integrity of this document