Excelsior Correspondent
JAMMU, Feb 6: In a landmark judgment, High Court has directed the Commissioner Secretary, Health and Medical Education Department to treat the promotion of Dr Shashi Gupta on the post of Assistant Professor with effect from 23.04.1995, the date recommended by Public Service Commission and not to confer any benefit of seniority or experience for the period of dies non.
In a petition filed by Dr Indu Kaul, Professor, Department of Obstetrics and Gynaecology against the State, Commissioner Secretary, Health and Medical Education Department, Dr Shashi Gupta, Professor, Department of Obstetrics and Gynaecology and others, Justice Alok Aradhe observed, “this court has no iota of doubt that order of promotion of Dr Shashi Gupta has been ante-dated to 23-4-1994 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”, Justice Aradhe said.
“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 latches”, Justice Aradhe said.
The High Court has further mentioned that the period of absence of Dr Shashi Gupta from 07.02.1989 to 27.12.1993 was treated as dies-non vide order 03.07.1997 and that in case M A Wani Versus SKIMS it has been held that period of absence treated as dies-non cannot confer benefit of seniority or experience.
Similar view was taken in case titled Zahoor Hussain Zargar Versus State and Ors. However, the Departmental Promotional Committee has failed to take note of the aspect of the matter and has wrongly awarded benefit of seniority to Dr Shashi Gupta.
The High Court has directed the Commissioner Secretary Health and Medical Education Department to examine whether the promotion to the post of Professor has been given to Dr Shashi Gupta in contravention of recommendations of Public Service Commission.
The Government has been given six weeks time to fix inter se seniority of Dr Indu Kaul and Dr Shashi Gupta keeping in view the directions of the court and also taking into account the fact that merely by treating the period as dies-non, the period of her absence from 7.2.1989 to 27.12.1993, can neither be counted towards seniority nor towards experience.
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