Dies-non cannot confer seniority or experience

STATE TIMES NEWS
JAMMU: In a landmark judgement, Jammu and Kashmir 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 w.e.f. 23rd April 1995, the date recommended by Public Service Commission and not to confer any benefit of seniority or experience for the period of dies non.

Dr. Indu Kaul

In a petition SWP No. 1283 of 2013, 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 has observed that this court has no iota of doubt that order of promotion of Dr Shashi Gupta has been ante-dated to 23rd April 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”, the court observed, adding that the writ petition has already been admitted for hearing, entertained and heard on merit. “The same cannot be thrown on the ground for delay and latches”, it added.

The High Court has further mentioned that the period of absence of Dr. Shashi Gupta from 7th February 1989 to 27th December 1993 was treated as dies-non, vide Order dated 3rd July 1997 and that in case SLJ 143; M.A. Wani vs SKIMS, 2010(3) JKJ 924; it has been held that period of absence treated as dies-non cannot confer benefit of seniority or experience. Similar view was taken in the case, Zahoor Hussain Zargar vs State and Ors., 2011(2) JKJ 967. However, the Departmental Promotional Committee has failed to take note of the aforesaid aspect of the matter and has wrongly awarded benefit of seniority to Dr. Shashi Gupta.

The High Court has further 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 aforesaid period of her absence from 7th February 1989 to 27th December 1993, 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).