HC orders reversal of promotion order obtained by ‘playing fraud’ ‘Dies-non cannot confer seniority or experience’


Srinagar, Feb 7: The 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. 23-04-1995, the date recommended by Public Service Commission.
It also directed the government not to confer any benefit of seniority or experience for the period of dies non.
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 observed that the 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. 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,” the court observed.
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 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 as has been held by bench of this court in the of M A Wani, Zahoor Hussain Zargar (Supra).
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 order further set six weeks time to the government to fix inter se seniority of Dr. Indu Kaul and Dr. Shashi Gupta. (KNS)