MUKTA KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Aggrieved by order dated 27.07.2011 in W.P.(S) No. 1971 of 2009 in and by which the prayer for quashing Notification dated 12.07.2008 in so far as, it relates to the Department of Pathology in RIMS and the prayer for quashing the part of Notification dated 14.10.2006 whereby the appellant's name figured below respondent nos.4 to 6 were rejected, the present Letters Patent Appeal has been filed.

(2.) The brief facts of the case are that, the appellant joined the health department in the year, 1979 and the respondent no.4 in the year, 1981. The appellant joined RMCH as a Tutor in the Department of Pathology on 07.11.1985 whereas, the respondent no.4 joined as a Tutor on 31.03.1984. The appellant was designated as Assistant Professor of Pathology on 29.10.1988 and in the final seniority list dated 06.11.1988 her name figured at Sl. No. 29. Vide order dated 08.04.2004 regular promotion as Assistant Professor was given to the appellant w.e.f. 15.09.1992. The respondent no.4 whose name appeared in the final seniority list dated 06.11.1998 at Sl. No. 42 and who was designated as Assistant Professor of Pathology on 31.05.1990, was given regular promotion as Assistant Professor vide order dated 31.05.2004 w.e.f. 31.03.1993 however, by Notification dated 14.10.2006 the date of promotion of the appellant as Assistant Professor has been altered to 01.01.2003 and her name in the seniority list has been brought down to Sl. No. 36 and thus, she has been made junior to respondent no.4 as the name of respondent no.4 appears at Sl. No.30 in the seniority list.

(3.) Mr. Vijoy Pratap Singh, the learned senior counsel appearing for the appellant has submitted that the appellant who joined the service much prior to respondent no.4 and who acquired MD degree in the year, 1981 itself which is an essential qualification for promotion on the post of Assistant Professor, was designated as Assistant Professor of Pathology on 29.10.1988 whereas, the respondent no.4 was designated as Assistant Professor of Pathology on 31.05.1990, and thus, she is senior to the respondent no.4 in all respect and while so, she is entitled for promotion as Associate Professor ahead of respondent no.4. Referring to order dated 31.12.1990 vide Annexure 3 it is submitted that since in the year, 1988 there was no statutory rule which provided denial of promotion in the event of non-joining on the transferred post, the stipulation contained in order dated 31.12.1990 debarring the appellant for promotion for a further period of 3 years cannot be taken against the appellant. It is further submitted that order dated 19.12.1997 is an order of transfer simplicitor and therefore, the Rule 11 of the 1997 Rules under which promotion is denied for the period of 5 years in the event of non-joining of the transferred post cannot be made applicable in the case of appellant. The said Rule provides that only in the event of promotion and consequent transfer, if an employee refuses to join the transferred post the employee would be denied promotion for next 5 years. It is further submitted that the qualification of MD Degree is an essential qualification for being promoted on the post of Assistant Professor and since the appellant acquired MD Degree in the year, 1981 itself, she became entitled for promotion in the rank of Assistant Professor w.e.f. 07.11.1988. Whereas, the respondent no.4 acquired MD Degree in the year, 1990 and therefore, she could not have been promoted in the rank of Assistant Professor prior to 1990. The appellant being senior to the respondent no.4 in the rank of Assistant Professor is entitled for promotion in the rank of Associate Professor ahead of respondent no.4 and the Notification dated 14.10.2006 whereby the appellant has been made junior to respondent no.4 is liable to be quashed.