Dr. Indu Kaul vs State & others

In this petition, the petitioner, inter alia, seeks a writ of certiorari for quashment of promotions made in favour of respondent No.5 as well as a

writ of mandamus directing the official respondents to remove respondent No.5 from the post of Head of the Department of Gynecology and

Obstetrics. The petitioner has also prayed for a direction to the official respondents to redraw the seniority list of petitioner and respondent No.5

and to place the petitioner above respondent No.5 in the seniority list. In order to appreciate petitioner''s grievance, few facts need mention which

are stated infra:

The petitioner was appointed as a Lecturer on the recommendation of the Public Service Commission vide order dated 27.01.1992 in the

Department of Gynecology and Obstetrics. The petitioner was promoted as Assistant Professor by an order dated 13.12.1996 with effect from

25.06.1996. The petitioner was further promoted as an Associate Professor with effect from 01.10.2004 vide order dated 14.07.2005. The

petitioner was thereafter promoted as Professor with effect from 01.10.2009 vide order dated 20.03.2010. The respondent No.5 is posted as a

Professor in the same department. It is the case of the petitioner that respondent No.5 after joining on the post of Lecturer applied for four days''

leave from 07.02.1989 and left the headquarter without obtaining permission from the competent authority and remained unauthorizedly absent for

a period from 07.02.1989 to 27.12.1993 i.e. for a period of 04 years 10 months and 20 days. The respondent No.5 was permitted to join after

the aforesaid period. She was promoted as an Assistant Professor with effect from 23.04.1994 and was further promoted as an Associate

Professor with effect from 23.04.1999. The respondent No.5 was thereafter promoted as Professor with effect from 23.04.2002. The period of

absence of the respondent No.5 from 07.02.1989 to 27.12.1993 was treated as dies-non in terms of Article 163 of Jammu and Kashmir Civil

Services Regulations read with SRO 321 of 1995 dated 07.12.1995 by an order dated 03.07.1997. The aforesaid order mentions that the period

of absence shall not be counted for increment, pension and other service benefits.

It is the case of the petitioner that she was not aware about the order dated 03.07.1997 by which the period of unauthorized absence of

respondent No.5 was treated as dies-non till respondent No.5 filed writ petition, namely, SWP No.2786/2012 before this Court claiming her

seniority and experience for consideration for the post of Principal Government Medical College, Jammu. It is averred in the writ petition that

during the pendency of the aforesaid writ petition, the petitioner learnt that the period of unauthorized absence of respondent No.5 was treated as

dies-non by order dated 03.07.1997. It is also stated in the writ petition that even though respondent No.5 was recommended by the Public

Service Commission for grant of promotion to the post of Assistant Professor on notional basis from 23.04.1995, however, the State Government

issued an order promoting respondent No.5 as Assistant Professor with effect 23.04.1994, contrary to the recommendation made by the Public

Service Commission. It is the case of the petitioner that similarly the promotion to the post of Associate Professor and further promotions were

given to respondent No.5 in violation of recruitment rules. The petitioner submitted the representations to the respondent No.1 on 02.04.2013 and

05.04.2013 by which she sought review of seniority of respondent No.5 and herself. However, the representations failed to evoke any response.

The petitioner thereafter submitted another representation to the respondent No.1 on 06.05.2013, however, this representation also failed to

evoke any response from the State Government. In the aforesaid factual background the petitioner has approached this Court.

Learned senior counsel for the petitioner submitted that Public Service Commission had recommended promiotion of respondent No.5 on the

post of Assistant Professor with effect from 23.04.1995 that is from the period when she completed three years of service as Lecturer. However,

State Government issued an order promoting respondent No.5 as an Assistant Professor with effect from 23.04.1994. It is also submitted that

since the aforesaid Government order was issued by playing fraud, First Information Report has been lodged against respondent No.5 and officials

of Medical Education Department for offences under Sections 420, 467, 468, 471, 120-B and 201 of the RPC read with Section 5 (2) of

Prevention of Corruption Act, namely, FIR No.55/2015. It is further submitted that the petitioner had completed three years as Lecturer on

27.01.1995 and therefore, was eligible to be promoted as Assistant Professor with effect from 27.01.1995. It is also argued that petitioner was

not aware about the order dated 03.07.1997 by which the period of unauthorized absence of respondent No.5 was treated as dies-non. It is

urged that respondent No.5 has been promoted to the post of Associate Professor without possessing the requisite experience of five years as

Assistant Professor and again the benefit of promotion was granted to her with effect from 23.04.1999, i.e., prior to one year from the date of her

eligibility.

It is also submitted that the Public Service Commission had recommended the case of the respondent No.5 for promotion on the post of

Professor with effect from 23.04.2004 on notional basis and with effect from 02.03.2005 on regular basis. However, the State Government once

again issued an order dated 14.07.2005 by which respondent No.5 was promoted to the post of Professor with effect from 23.04.2002 on

notional basis and with effect from 02.03.2005 on regular basis. It is argued that orders of promotion of respondent No.5 have been issued in

violation of the rules. It is also submitted that Public Service Commission vide communication dated 22.04.2013 has given opinion regarding

manipulation of the record by the Officers of Health and Medical Education Department and in respect of changing the date of promotion as

Assistant Professor in respect of respondent No.5 from 23.04.1995 to 23.04.1994 in violation of the recommendation made by the Public Service

Commission and has recommended that suitable action be taken. Lastly, it is urged that since the petitioner has procured the promotion by playing

fraud she cannot be allowed to take advantage of the same as an order obtained by playing fraud is a nullity in the eye of law. In support of his

submissions, learned senior counsel for the petitioner has relied upon the decisions in cases of Bank of India & Anr. vs. Avinash D. Mandivikar &

others, (2005) 7 Supreme Court Cases 690; A. V. Papayya Sastry & Ors. vs. Government of A. P. & Ors., AIR 2007 SC 1546; Mir Zaffar

Aman vs. State of J&K & Ors., 2017 (2) JKJ 105; Professor M. A. Wani vs. SKIMS, 2005 (II) SLJ 660; Dr. Ashiq Hussain vs. State of J&K

& others, 2004 (I) SLJ 143; M. A. Wani, Professor vs. SKIMS, 2010 (3) JKJ 924; Zahoor Hussain Zarger vs. State and Ors., 2011 (2) JKJ

967;

Learned Government Advocate for respondent Nos.1 to 3 submitted that writ petition suffers from delay and laches inasmuch the petitioner has

challenged the Government order dated 26.07.1996 in the year 2013 after a lapse of 13 years. It is also submitted that period of absence of the

petitioner from 07.02.1989 to 27.12.1993 has not been counted towards experience required for further promotion at any stage. It is also

submitted that once the seniority is fixed and remains in existence for a considerable period of time, any challenge to the same should not be

entertained. It is also submitted that the petitioner has not chosen to challenge the seniority list issued vide Government orders dated 02.12.1994,

02.09.1998, 27.05.1999 and 27.11.2007 wherein respondent No.5 has been shown senior to the petitioner and therefore, at this stage, the

petitioner cannot be permitted to assail the seniority of respondent No.5. It is also submitted that reasonable period for challenging the seniority list

is three to four years. In support of aforesaid submissions, learned Government Advocate has relied on the decision of Supreme Court in Shiba

Shankar Mohapatra & others vs. State of Orissa & others, (2010) 12 Supreme Court Cases 471.

Learned senior counsel for respondent No.4 submitted that the Committee comprising Officers of Health and Medical Education Department as

well as Public Service Commission in its meeting held on 18.04.1996 and 25.06.1996 cleared the promotion of respondent No.5 as Assistant

Professor Gynecology notionally from 23.04.1995 and on regular basis with effect from 25.06.1996. However, Health and Medical Education

Department in the order dated 26.07.1996 mentioned the date of regularization of respondent No.5 notionally from 23.04.1994 and on regular

basis from 25.06.1996. Learned senior counsel has invited the attention of this Court to counter affidavit filed on behalf of Public Service

Commission and has stated that Public Service Commission is not responsible for any change in the date of promotion of respondent No.5 and

communicated to the department and if someone in the department has manipulated the record and dates of promotion of respondent No.5

suitable action should be taken against them. Learned senior counsel has also referred to Regulation 59 of the Business and Procedure Rules,

Examination Rules, 2005 of the Jammu and Kashmir Public Service Commission.

Learned counsel for respondent No.5 has submitted that the writ petition suffers from inordinate delay and laches. It is submitted that

respondent No.5 was promoted to the post of Assistant Professor and was granted notional benefit with effect from 23.04.1994 and on regular

basis with effect from 25.06.1996. Thereafter the respondent No.5 was promoted from time to time and no objection at any point of time was

raised by the petitioner. The petitioner is, therefore, estopped by conduct from questioning the seniority of respondent No.5. It is further submitted

that the respondent No.5 had left the headquarter with the permission of the State Government which is evident from communication dated

07.07.1989 and thereafter her period of absence from 07.02.1989 to 27.12.1993 was treated as dies-non vide order dated 03.07.1997. It is

further submitted that at the relevant time SRO 321 dated 07.12.1995 was in force which did not provide that the period of dies-non shall not be

treated for counting seniority. However, the aforesaid SRO was subsequently amended in the year 1999 vide SRO 514 of 1999 which has no

retrospective application. It is also submitted that the petitioner was fully aware about the orders of promotion passed in favour of respondent

No.5 and in the seniority list published from time to time respondent No.5 was shown senior to the petitioner. Therefore, no relief to the petitioner

can be granted at this point of time.

I have considered the submissions made on both sides and have perused the record. A Bench of this Court by order dated 29.08.2013 had

admitted the writ petition for hearing. Thereafter on 16.09.2013 following order was passed:

Perusal of the record produced by Mr. F. A. Natnoo, reveals that Public Service Commission has while registering representation of writ

petitioner, examined records and on examination of the record placed the matter before the Commission for decision. From the decision, the

Commission has come to its conclusion that there seems some manipulation which has been concealed by the Government in subsequent meetings

while considering case of respondent no.5 for promotion. It is also made clear by Commission that promotion in respect of respondent-5 has been

cleared only from 23.04.1995 and the Government has given benefit to her from 23.04.1994 in violation of the mandate of the recommendations.

Let the Government file response to the decision of the Commission on affidavit and explain as to under which provision of rule promotion of

respondent no.5 has been ante-dated from a date not cleared by the Commission. Before proceeding further it has become necessary for the

Secretary to Government Health Department to file response to the Commission''s decision as also to the observations of this Court. Secretary to

Health Department is at liberty to proceed in the matter and have a preliminary enquiry conducted regarding observations of the Commission as

also of the Court so as to furnish report on the next date of hearing. Respondent-Secretary shall also make available the record pertaining to the

promotion of respondent no.5 as Assistant Professor. Registrar Judicial shall keep the record in his custody and submit on the next date of hearing

along with file.

Record of the Commission is re-sealed and retained by the Court.

The decision taken by the Commission stands recorded on the departmental file on 21.06.2013 and the Government asked to take further action

in the matter. Let the Secretary to Government Health Department SWP No.1283/2013 Page 8 of 11 furnish a details about the steps taken by

the Government on receipt of the decision of the Commission dated 21.06.2013.

List on 26.09.2013.

In response to the aforesaid order, an affidavit has been filed by Mr. Gazzanfer Hussain, Secretary to the Government, Health and Medical

Education Department, in which no explanation has been offered with regard to manipulation in the order of promotion of respondent No.5. It has

further been stated that no preliminary enquiry is possible as records pertaining to meeting of Departmental Promotion Committee held in the year

1994 are not traceable. It is also pertinent to note that Public Service Commission has taken a categorical stand that it had recommended the

promotion of respondent No.5 on the post of Assistant Professor notionally with effect from 23.04.1995 and on regular basis with effect

25.06.1996 and is not responsible for any change in the date of promotion of respondent No.5. In Para-viii of the counter affidavit filed on behalf

of the Public Service Commission it has averred that the Public Service Commission had communicated to the Health and Medical Education

Department to take action against the person who may have manipulated the record. However, instead of taking any action in the matter and

offering any explanation, the Secretary to the Government, Health and Medical Education Department has filed an affidavit stating that no

preliminary enquiry is possible as the relevant record is missing. It is note worthy that no explanation has been offered by respondent No.5 also as

to how contrary to recommendation of Public Service Commission, he should have been given promotion from an anterior date. Therefore, an

adverse inference with regard to manipulation in the date of promotion of respondent No.5 is required to be drawn, in the fact situation of the case

against respondents 1 to 3 and 5. It is pertinent to note that a criminal case SWP No.1283/2013 Page 9 of 11 has been filed against respondent

No.5 as well as officials of the Health and Medical Education Department and the State Government has granted sanction for their prosecution. I

am conscious of the fact that the proceeding against respondent No.5 has been stayed in the aforesaid First Information Report as she has

challenged the validity of the sanction in writ petition. However, the fact remains that no explanation has been put forth by the respondents as to

how the benefit of promotion to the respondent No.5 on the post of Assistant Professor has been given with effect from 23.04.1994 in violation of

the recommendation of the Public Service Commission.

It is also worth mentioning that the period of absence of the respondent No.5 from 07.02.1989 to 27.12.1993 was treated as dies-non vide

order dated 03.07.1997. However, it is interesting to note that prior to 03.07.1997, the respondent No.5 was given the benefit of promotion to

the post of Assistant Professor with effect from 23.04.1994 which is legally impermissible. A Bench of this Court in the case of M. A. Wani

(supra) has held that even prior to issuance of SRO 514 of 1999, in view of note-1 to Article 14-B(b) of the Jammu and Kashmir Civil Service

Regulations, which provides that no leave of any kind can be treated for duty for the purposes of any rule unless contrary is expressly stated

therein, it has been held that in view of the aforesaid provision, period of absence treated as dies-non cannot confer benefit of seniority or

experience. Similar view has been taken in the case of Zahoor Hussain Zargar (supra). However, the Departmental Promotion Committee has

failed to take note of the aforesaid aspect of the matter and has wrongly awarded the benefit of seniority to respondent No.5.

A Bench of this Court by an order dated 29.08.2013 had admitted the writ petition. Thereafter the writ petition was heard from time to time

and a SWP No.1283/2013 Page 10 of 11 detailed interim order was passed on 16.09.2013, with respect to which no explanation has been

offered on behalf of the respondent Nos. 1 to 3 and respondent No.5. This Court has no iota of doubt that order of promotion of respondent

No.5 has been ante-dated contrary to the recommendations of the Public Service Commission, by manipulation. An order obtained by playing

fraud is nullity and can be challenged at any time before the Court of law and this Court would not permit any person to take advantage of an order

obtained by playing fraud. Since the writ petition has already been admitted for hearing and has been entertained and heard on merit the same

cannot be thrown on the ground of delay and laches. Even otherwise, the petitioner has offered an explanation that she came to know about the

order dated 03.07.1997 in the year 2012 when respondent No.5 filed a writ petition claiming promotion to the post of Principal Government

Medical College, Jammu. This Court would not permit any person to take advantage of an order obtained by playing fraud. In this connection,

reference may be made to the decision of A. V. Papayya Sastry & Ors. (supra). The decision relied upon by respondents in the case of Shiba

Shankar Mohapatra & Ors. (supra) has no application in the fact situation of the case as it was not a case of obtaining an order by playing fraud.

In view of preceding analysis, I deem it appropriate to issue following directions:

i) The Commissioner/Secretary to Government, Health and Medical Education Department shall treat the promotion of respondent No.5 on the

post of Asssistant Professor w.e.f. 23.04.1995, i.e., the date recommended by the Public Service Commission. The aforesaid authority shall also

examine whether poromotion to the post of Professor has been given to respondent No.,5 in contravention of recommendations of Public Service

Commission. Thereafter, the SWP No.1283/2013 Page 11 of 11 Commissioner/Secretary to Government, Health and Medical Education

Department shall determine the inter se seniority of the petitioner and the respondent No.5. The aforesaid exercise shall be carried out within six

weeks after affording opportunity of hearing to petitioner, respondent No.5 and all necessary parties.

ii) The Commissioner/Secretary to Government, Health and Medical Education Department shall also take into account the fact that merely by

treating the period as dies-non, the aforesaid period can neither be counted towards seniority nor towards experience as has been held by a Bench

of this Court in the case of M. A. Wani and Zahoor Hussain Zargar (supra).

iii) It is made clear that findings recorded by this Court in the instant writ petition is for purposes of deciding the instant petition only and shall have

no bearing either on the writ petition filed by respondent No.5 and the F.I.R. registered against respondent No.5 and other officers.

With the aforesaid directions, the writ petition is disposed of along with connected MPs.