INDU KAUL Vs. STATE

JUDGEMENT

(1.) 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:

(2.) 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.

(3.) 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.