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2013 DIGILAW 245 (JK)

Nagina Bano v. State and others

2013-04-25

TASHI RABSTAN

body2013
Petitioner by medium of petition in hand seeks the following reliefs :- (A) Certiorari:- (i) Quashing corrigendum No. DHS- J/DDPC/182/2135 dated 13.06.2011 whereby the respondent No. 2 without assigning any reason and without any authority inserted the. name of respondent No.5 in order No.343/NG of 2009 dated 31.05.erial no.4 in place of the petitioner thereby rescinding the petitioner's promotion as Lady Health Visitor (LHV) which had been made pursuant to the recommendation of Division all Departmental Promotion Committee. (B) Mandamus: (i) Commanding the respondents not to disturb the petitioner from her present position i.e. Lady Health Visitor (LHV) at SDH Bhaderwah, where the petitioner joined her duties on 07.06.2011 pursuant to her promotion vide order NO.343/NG of 2009 dated 31.05.2.011. Commanding the respondents not to revert the petitioner as FHPHW as her promotion was made pursuant to the recommendations of Divisional Departmental Promotion Committee. It is contended that the petitioner was initially appointed as ANN (Female Multipurpose Health Worker) (for short, FMPHW) in the Health Department vide order elated 08.12.1988. On the recommendation of Divisional Departmental Promotion Committee, the petitioner was promoted to the post of Lady Health visitor (LHV) along with other FMPHWs Vide order No.3432/NG of 2009 dated 31.05.2011. Accordingly, the petitioner joined the promotional post. It is contended that while, the petitioner was performing her duties against the promotional post, respondent No.2 issued a corrigendum vide No. DHS-J/DDPC/182/2/35 dated 13.06.2011, wherein it is provided that instead of petitioner name of respondent No.5 be read. The petitioner being aggrieved of the aforesaid corrigendum, filed the present petition on the grounds taken in it. Respondents have filed objections denying the averments made in the petition. Ic would be relevant to reproduce paras 2 and 3 of the reply as under :- (2), That is necessary to bring into the kind notice of this Hon'ble Court that consequent upon issuing of promotion order dated 31.05.2011 one Smt. Mansa Devi (Private respondent Mo.5) approached the respondent No.2 claiming that she is senior to the petitioner having been appointed in the department as ANM/FMPHW much earlier to the petitioner and despite of being senior she has been ignored for promotion to the post of LHV and conversely her junior has been promoted as LHV which is again the rule position and prejudice to her superior claims. (3) That consequently, the record was examined and found that as per service book of the petitioner, ,the petitioner has been appointed as ANM/FMPHE vide order dated 08.12.1938 while as the private respondent has been appointed as ANM/FMPHW vide order dated 03.06.1987 which manifestly makes the private respondent Mo.5 senior to the petitioner. However, due to wrong fixation of seniority by the respondents, the petitioner was placed over and above the private respondent No.5 and accordingly considered by the ODPC and on the basis of wrong seniority position, the petitioner was promoted as LHV. Therefore, after coming to know this bonafide error, the respondent No.2 issued 5 corrigendum vide dated 13.06.2011 whereby this bonsfide error has been rectified by giving promotion to the private respondent No.5 in place of the petitioner. Undoubtedly, the petitioner is junior of the private respondent Mo.5 and to substantiate this fact relevant pages of service book depicting the date of appointment of the petitioner as well as private respondent No.5 are annexed herewith as Annexure R-l for the perusal of the Hon'ble Court. Heard learned counsel for the parties and perused the records. The facts are not in dispute that the petitioner was appointed as ANM/FMPHE vide order dated 08.12.1988, whereas the private respondent was appointed as ANM/FMPHW vide order dated 03.06.1987, which clearly shows that the private respondent No.5 is senior to the petitioner. Respondent No.2 circulated a tentative seniority list of Female Multipurpose Health Worker of Jammu Division vide Notification No.ES-4/FMPHW/Tent/6610-20 dated 26.02.2009 and called objections to the said tentative seniority list, to which the petitioner did not respond. Thereafter, respondent No.2 issued final seniority list vide Notification No. ES-4FMPHW/Final-S1/1741-97 dated 31.05.2010, wherein respondent Mo.5 has been shown at S.No.44 and petitioner at 5.No. 162. Since the petitioner did not file her objection to the tentative seniority list, thus, she cannot claim to be senior to respondent No.5 at this stage. The meeting of Divisional Departmental Promotion Committee was held and among other categories, the category of FMPHWs for promotion to the post of LHV was also considered. And on the basis of seniority maintained by the department, the petitioner was also considered and, accordingly, recommended by the Divisional Departmental Promotion Committee under RBA category for further promotion. The meeting of Divisional Departmental Promotion Committee was held and among other categories, the category of FMPHWs for promotion to the post of LHV was also considered. And on the basis of seniority maintained by the department, the petitioner was also considered and, accordingly, recommended by the Divisional Departmental Promotion Committee under RBA category for further promotion. Accordingly, order to that effect was also issued vide order dated 31.05.2011, Consequent: upon issuing of promotion order dated 31.05.2011, one Smt. Mansa Devi (Private respondent No.5) approached respondent No.2 claiming therein that she being senior to the petitioner has been ignored for promotion to the post of LHV, Consequently, the record was examined and it was found that as per service book of the petitioner, the petitioner was appointed as ANM/FMPHE vide order dated 08.12.1988, whereas the private respondent was appointed as ANM/FMPHW vide order dated 03.06.1987. After coming to know this bonafide error, respondent No.2 issued a corrigendum dated 13.06.2011 whereby the bonafide error was rectified by giving promotion to the private respondent No.5 in place of the petitioner. It is a settled proposition of law that if power has been exercised in non-consideration or non-application of mind to a relevant, factor, the exercise of power will be regarded as manifestly erroneous. If the powers exercised on the basis of facts, which are patently erroneous, such exercise of power will stand vitiated and exercise of power whether legislative or administrative will be set aside. In the instant case, the petitioner was erroneously promoted on the basis of wrong fixation of seniority, which was detrimental to the right of her senior, as such, it had become necessary for the official respondents to rectify the bonafide error by issuing corrigendum dated 13.06.2011, whereby respondent No.5 being senior to the petitioner has been given promotion instead of petitioner. In the given circumstances, I am of the considered -view that petitioner has wrongly been promoted and the respondents have lateron rectified the error by issuing corrigendum dated 13.06.2011. Viewed thus, there is no merit in this petition, which is, accordingly, dismissed along with connected CMA(s). However, respondents to consider the case of the petitioner and promote her to the next higher post as and when her turn comes strictly keeping in view the seniority position.