Anita Kumari @APPELLANT@Hash High Court of J&K and others

The petitioner is aggrieved of non-consideration for promotion to the post of Court Officer/Section Officer, as against her juniors, who are private

respondents herein.

The case of the petitioner is that the she was senior to the private respondents in the cadre of Head Assistants. It was urged that the only reason

why the petitioner was not considered for promotion at the time when her juniors were promoted was the fact that the High Court had issued a

“warningâ€​ vide Order No. 400 dated 13.06.2017 and ordered the petitioner to remain careful in future.

The factum of seniority of the petitioner qua the private respondents is not denied by Mr. H. A. Siddiqui, learned        Sr. AAG

appearing on behalf of the High court. Reliance has been placed upon the resolution of the Hon’ble Committee for High Court Staff, dated

24.11.2017, wherein it was resolved thus:-

“Smt. Anita Kumari has been warned to remain careful in future in the regular enquiry initiated against her as gets revealed from the Order No.

400 dated 13.06.2017 of the High Court. Therefore, she cannot be considered for promotion at least for some time, minimum of which is

recommended to be one year from the date of the aforesaid order.â€​

It was urged that the petitioner has a right to be considered for promotion even retrospectively and that the effect of the High Court resolution was

only to defer the petitioner’s case for such a promotion.

Heard learned counsel for the parties.

Admittedly, the enquiry that was initiated against the petitioner was for an incident that has occurred while she was working as a Junior Assistant.

The petitioner continued to be promoted upto the post of Head Assistant during this entire period.

Finally the inquiry culminated into the issuance of warning to the petitioner to remain careful in future.

Learned counsel for the parties agree that according to Rule 30 of the Jammu & Kashmir Civil Serices (Classification, Control and Appeal) Rules,

1956, a warning is neither a major nor a minor punishment, but it is in the nature of an advisory. The mere fact that the petitioner had been issued with

a warning would not have justified either the deferment of the petitioner’s case for promotion to the post of Court Officer/ Section Officer, nor

could it have the effect of depriving the petitioner for future promotion.

Learned counsel for the petitioner is right, when he urged that assuming the warning was to be treated as an adverse entry, yet the same was to

be incorporated in the APRs and an opportunity ought to have been given to the petitioner after appropriate communication to represent and address

the same. We are not opining at this stage, whether a warning is to be treated as an adverse entry at all for purposes of considering whether the

petitioner is fit for promotion on that basis or not, yet we also agree with the learned counsel for the petitioner that the recording of warning in the

service record would not per se deprive the petitioner for consideration for promotion.

Right of consideration as enshrined under Article 14 of the Constitution is a fundamental right of the petitioner and could not have been denied at a

time when the juniors were being so considered. Since the case of the petitioner by a resolution of the High Court dated 24.11.2017 had only

amounted to deferring the consideration of the petitioner, her right of consideration restrospectively with effect from the date when her juniors

promoted, therefore, was neither envisaged by the High Court Resolution, nor it can be denied to the petitioner in law.

For the reasons mentioned above, this petition is allowed. The respondent â€" High Court is directed to consider the case of the petitioner for

promotion retrospectively with effect from the date, private respondents were so promoted to the post of Court Officer/ Section Officer. In case, the

petitioner is so promoted, she would be entitled to all consequential benefits of seniority etc without any monetary benefits.

Disposed of accordingly, along with connected IA.Â