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Judgment
Hasnain Massodi, J.—On consideration, the petition is admitted to hearing and at the request of learned Counsel for the parties, taken up
for final disposal.
Before going to the controversy involved, an overview of background facts.
The Petitioner claims to have been appointed as Assistant Professor, Ophthalmology, Government Medical College, Srinagar (in short ""GMC"")
on 23rd of May 1998 and thereafter vide Government Order No. 77-HME of 2004 dated 29th January 2004, promoted to the post of Associate
Professor in his own pay and grade against the available post of Professor in the Department of Microbiology, GMC, Srinagar. The Petitioner, it is
pleaded, continued to discharge his duties, as such, and was vide Government Order No. 44-HME of 2009 dated 22.01.2009, substantively
promoted as Associate Professor with effect from 30.03.2007. The Petitioner, insisting that he deserved to be promoted to the post of Associate
Professor Ophthalmology with effect from 30th January 2004 i.e., the date when he was promoted vide Government Order No. 77-HME of 2004
dated 29.01.2004, in his own pay and grade, laid a claim for settlement of his seniority with effect from said dale. The representation made is said
to be still under consideration of Respondents.
The Petitioner's case is that the Petitioner, having rendered more than five years service as Associate Professor, is eligible for promotion to the
post of Professor in terms of J & K Medical Education (Gazetted) Service Recruitment Rules 1979 (for short ""Recruitment Rules of 1979""). The
Petitioner's grievance is that the Petitioner, despite having attained eligibility in terms of the aforesaid Rules way back on 30.01.2009, is not being
considered for promotion to the post of Professor that fell vacant on 31st August 2009 on retirement of Dr. Tejit Singh, the then Professor
Ophthalmology, GMC, Srinagar. The Petitioner, on the strength of averments made, seeks a writ of mandamus directing Respondents to consider
Petitioner for promotion to the post of Professor Ophthalmology.
The writ petition is opposed on the grounds that the Petitioner having been promoted substantively to the post of Associate Professor with effect
from 30th March 2007, is not eligible for promotion to the post of Professor in terms of J & K Medical Education (Gazetted) Service Recruitment
Rules 1979 and that the Petitioner shall attain eligibility for promotion to the post of Professor on 30th March 2012 when Petitioner completes five
years as Associate Professor.
The other grounds taken up in the reply relate to promotion of Dr. Sabiya Rashid, who earlier joined Petitioner in throwing challenge to the
extension in service of Dr. Tejit Singh, ex-Professor, Department of Ophthalmology beyond the date of retirement, as also her promotion to the
post of Assistant Professor. Dr. Tejit Singh, having not availed benefit under extension orders, impugned in the petition, made in his favour and Dr.
Sabiya Rashid having been promoted as Associate Professor vide Government Order No. 380-HME of 2010 dated 14th January 2010, the
controversy as regards extension in service of Dr. Tejit Singh and promotion of Dr. Sabiya Rashid to the post of Assistant Registrar, no more
survives. It is pertinent to point out that Dr. Tejit Singh arrayed as Respondent No. 2 stands deleted from the array of Respondents.
I have heard learned Counsel for the parties and have gone through the pleadings as also record available on the file.
There is a very little controversy between the parties as regards factual aspects of the case. It is admitted case of the parties that the Petitioner
was appointed as Assistant Professor Ophthalmology in GMC Srinagar on 23rd May 1998 and promoted in his own pay and grade as Associate
Professor vide Government Order No. 44-HME of 2004 dated 29th January 2004 and that the Petitioner was later vide Government Order No.
44-HME of 2009 dated 22nd January 2009, substantively promoted as Associate Professor with effect from 30.03.2007. It is also admitted that
the Petitioner's service conditions including promotion are governed by J & K Medical Education (Gazetted) Service Recruitment Rules 1979.
Schedule II to the Recruitment Rules 1979 tabulates the eligibility criteria for recruitment/promotion to a post in J & K Medical Education
(Gazetted) Service. Serial No. 23 relates to recruitment/appointment of Professor/Associate Professor and other cadres of Department of
Ophthalmology and deserves to be noticed. It reads:
S. Subject Designation Min. Minimum
No. of the post Qualificationteaching/research
experience
1 2 3 4 5
2 Ophthalmo(a)ProfessorM.S. logy As. Associate Professor
logy (USA) of Ophthalmology for
five years in a Medical
College or a recognized
teaching medical
institution such as
AIIMS New Delhi. PGI
Chandigarh, JIMER
Pondicherry or such
other institutions, as are
recognized by the
Medical Council of
India.
3 (b)Associate-do- As Assistant Professor
Professor of Ophthalmology for
five years in a Medical
College or a recognized
teaching medical
institution such as
AIIMS New Delhi. PGI
Chandigarh, JIMER
Pondicherry and such
other institutions as are
recognized by the
Medical Council of
India.
It is pertinent to point out that Government Order No. 77-HME of 2004 dated 29th January 2004, whereby the Petitioner and a number of
staff members of GMC Srinagar were promoted hi their own pay and grade against the vacancies indicated in the Government order, did not
direct promotions on stop gap against quota or ad hoc basis nor were promotion de hors Rules. The Petitioner continued to discharge his duties as
Associate Professor with effect from 30.01.2004 without interruption and without his having been at any point of time reverted to the post of
Assistant Professor till he was substantively promoted vide Government Order No. 44-HME of 2009 dated 22nd January 2009, to the post of
Associate Professor. It is nobody's case that the Petitioner did not possess necessary qualification and experience, for his promotion to the post of
Associate Professor, Ophthalmology, On 30th January 2004, when his promotion to the said post was ordered in his own pay and grade.
Needless to mention that the Petitioner, having been appointed as Assistant Professor on 23rd of May 1998, completed his five years as Assistant
Professor, Ophthalmology, GMC, Srinagar, on 31st May 2003 and thus in terms of Recruitment Rules of 1979, satisfied the eligibility criteria laid
down, for promotion to the post of Associate Professor, Ophthalmology. The Petitioner, eligible for promotion to the post of Associate Professor,
Ophthalmology on 30th January 2004 and post against which the Petitioner could have been promoted being available, the Petitioner cannot be
deprived of his seniority as Associate Professor with effect from 30th January 2004, only because the Respondents, for one or other reason, slept
over the matter and delayed consideration to the promotion of Petitioner on substantive basis to the post of Associate Professor. Pertinent to point
out that the promotion, as is evident from Government Order No. 44-HME of 2009 dated 29.01.2009, and practice in vogue as also Recruitment
Rules of 1979, could be considered against the post available in GMC irrespective of discipline. The Petitioner, in the circumstances, irrespective
of the nomenclature used, worked and gained experience as Associate Professor, Ophthalmology, GMC, Srinagar, with effect from 31st January
2004 and' acquired eligibility for promotion to the post of Professor, Ophthalmology, with effect horn 31st January 2009.
The case set up by the Respondents in opposition the Petitioner's claim for promotion to the post of Professor, Ophthalmology, to the effect
that the Petitioner's experience as Associate Professor is to be reckoned from 30th March 2007 i.e., the date wherefrom the Petitioner was
substantively promoted as Associate Professor and that the Petitioner would acquire requisite eligibility on 30th March 2012, is bereft of any merit.
In A. Janardhana Vs. Union of India (UOI) and Others, , Supreme Court, though in a different context, held that after a promotee is
promoted, continuously renders service and is neither found wanting nor inefficient and discharges his duty to the satisfaction of all, his service so
rendered cannot be ignored while reckoning his seniority.
In Narender Chadha and Others Vs. Union of India and Others, , the Court in the context of inter se seniority between promotees and direct
recruits held that when an officer has worked for a long period, in a post, and had never been reverted, it cannot be held that the officer's
continuous officiation was a mere temporary or local or stop gap arrangement, even though the order of appointment made states so. In such
circumstances, the entire period of officiation has to be counted for seniority and that any other view would be arbitrary and violative of Articles 14
and 16 of the Constitution.
In the present case, as already pointed out, the Petitioner continuously discharged his duties as Associate Professor, Ophthalmology, with
effect from 30th January 2004, without any interruption and without his having been reverted back to the position of Assistant Professor. The fact
that the Petitioner was thereafter vide order No. 44-HME of 2009 dated 22.01.2009, promoted on substantive basis to the post of Associate
Professor with effect from 30th March 2007, is itself indicative of the fact that the Petitioner was eligible for promotion, discharged his duties as
Associate Professor efficiently and to the full {satisfaction of his superiors. The Petitioner's service as Associate Professor, Ophthalmology, with
effect from 30th January 2004, is thus to be counted while computing/working out, his experience as Associate Professor, Ophthalmology in terms
of J & K Medical Education (Gazetted) Service Recruitment Rules, 1979.
From the above discussion, it emerges that the Petitioner, though having a right to be considered for promotion to the post of Professor
Ophthalmology immediately after such a post became available on retirement of Dr. Tejit Singh on 31st August 2009, was denied consideration
without any lawful justification.
It is a sad state of affairs that the Respondents' inaction and indifference has compelled a senior Faculty member of a prestigious institution to
resort to litigation to secure his Constitutional rights and divert his valuable time resource, in prosecuting such litigation, that otherwise, undoubtedly
would have been spent on promoting academic excellence. Lackadaisical attitude on part of State functionaries in matters of promotion, leads to
misallocation of time resources, kills initiative, dampens spirit and results in demoralisation in ranks. The State as an ideal employer would be well
advised to accord consideration to promotion of an employee otherwise eligible, within a reasonable time and in no case later than three months
from the date the post becomes available. This shall be not only in tune with its Constitutional obligation but enhance overall efficiency in an
organisation/department and have a positive spill over for the public good - the ultimate aim of good governance.
It would be appropriate for the Respondent No. 1 to set up a Grievance Redressal Cell in its General Administration Department, which can
be approached by an employee, denied promotion despite eligibility and availability of the post, within aforesaid timeframe so that the aggrieved
employee can voice his grievance before such Cell instead of rushing to the Court. Such a mechanism shall not only help the aggrieved employee
not to be burdened with litigation charges but also rule out any additions to the mounting case pendency.
It needs no emphasis that right to be considered for promotion is an integral part of fundamental right, guaranteed under Article 16,
Constitution of India.
The Apex Court in Union of India (UOI) and Another Vs. Hemraj Singh Chauhan and Others, , while dealing with the failure of State
Government to accord consideration to the promotion, observed:
It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right
guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from
guarantee of equality under Article 14 of the Constitution.
For the reasons discussed above, the writ petition is allowed and the Respondents are directed to consider the Petitioner for promotion to the
post of Professor, Ophthalmology with effect from the date the post of Professor, Ophthalmology, became available. The Respondents, to rule out
any further violation of Petitioner's fundamental rights, shall accord consideration to the Petitioner's promotion to the post of Professor,
Ophthalmology, and take all consequential steps within four weeks from the date, copy of the order is served on the Respondents.
Disposed of with connected CMP(s).