Dr.Aruna Bharti vs State Of Up Thru. Chief.Secy. And ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 

 
Case :- WRIT - A No. - 15170 of 2018
 

 
Petitioner :- Dr.Aruna Bharti
 
Respondent :- State Of Up Thru. Chief.Secy. And Ors.
 
Counsel for Petitioner :- In Person
 
Counsel for Respondent :- C.S.C.,I.P.Singh
 

 
Hon'ble Rajan Roy,J.

Heard petitioner has appeared and argued the matter in person, Shri Sharad Dwivedi, learned Standing Counsel for State and Shri I.P. Singh, learned counsel for opposite parties no. 2 to 4.

The petitioner, who is working as Additional Professor in the Department of Anesthesiology in the Sanjai Gandhi Post Graduate Institute of Medical Sciences, Lucknow, has filed this writ petition seeking a writ of mandamus commanding the opposite parties to immediately consider the case of petitioner for promotion to the next higher post i.e. Professor in Department of Anesthesiology in the Sanjai Gandhi Post Graduate Institute of Medical Sciences, Lucknow from the date when her next promotion was due with all consequential service benefits on the said post, keeping in mind the judgment dated 17.07.2014 rendered by this Court in Writ Petition No. 708(S/B) of 2013; Dr. Aruna Bharti Vs. State of U.P. and Ors.. Relief no. 2 is for not linking the criminal case/ trial pending against her with the said promotion.

The petitioner had earlier approached this Court by means of Writ Petition No. 708 (S/B) of 2013 challenging an order dated 05.03.2013 by which her claim to promotion to the post of Associate Professor had been denied on the ground of pendency of criminal case. It is not out of place to mention that against the petitioner a criminal case bearing Case Crime No. 615 of 2009, under Sections 323, 325, 343 and 504 I.P.C.; State of U.P. Vs. Dr. Aruna Bharti was pending. The said order dated 05.03.2013 was quashed by a Division Bench of this Court on 17.07.20214. Relevant extract of the said judgment is quoted herein below:-

"We have considered the law propounded by the apex court as well as by this Court and we find that the criminal case instituted against the petitioner is not of serious nature and neither connected with the discharge of official duty. It appears that the petitioner has been made a victim of circumstances and on account of that, she is facing the criminal trial since 2009. If the trial is proceeding since 2009 and the same has not been decided, then in these circumstances, it would be appropriate to promote the petitioner either considering the provisions of Government Order dated 28.5.1997 or promote her on the post of Associate Professor subject to outcome of the criminal trial and open the sealed cover of the petitioner.

Accordingly, the writ petition is allowed and a writ in the nature of certiorari is issued quashing the impugned order dated 5.3.2013. The opposite parties are directed to consider and promote the petitioner on the post of Associate Professor in accordance with the Government Order dated 28.5.1997 or promote her on the post of Associate Professor subject to outcome of the trial. This exercise shall be undertaken by the opposite parties within a period of two months from the date of receipt of a certified copy of this order."

After passing of the said judgment the petitioner was promoted to the post of Associate Professor vide order dated 12.09.2014 w.e.f. 01.07.2010 i.e. the date from which her promotion was due. Thereafter, the petitioner was promoted to the post of Additional Professor under the new career progression scheme at the S.G.P.G.I.M.S., Lucknow vide order dated 19.05.2015 in pursuance to the decision taken by the Selection Committee in its meeting dated 31.03.2015. Thereafter, she became eligible for being considered and promoted as Professor in the Department of Anesthesiology in the Sanjai Gandhi Post Graduate Institute of Medical Sciences, Lucknow w.e.f. 01.05.2017 as claimed by her, but, she was not considered. Hence, this writ petition was filed.

In this writ petition an order was passed on 23.07.2019 which reads as under:-

"Heard Ms. Aruna Bharti, the petitioner, who appears in person, Sri I.P. Singh, learned counsel for the S.G.P.G.I. and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents.

By means of this petition the petitioner has prayed that the opposite parties be directed to consider the case of the petitioner for promotion on the next higher post i.e. Professor in the Department of Anesthesia in the S.G.P.G.I.M.S., Lucknow from the date when her next promotion was due with all consequential benefits.

The petitioner has drawn attention of this Court towards the order dated 24.2.2012 passed by this Court under section 482/378/407 bearing no. 4216/2011 whereby this Court has partly allowed the said petition holding that no offence under section 307 I.P.C. viz. a viz. offence under the Bonded Labour System (Abolition) Act, 1976 is made out. However, for remaining sections i.e. section 323, 343 and 504 I.P.C., P.S. Mohanlalaganj, district Lucknow the trial is pending before the trial court bearing Case Crime No. 615 of 2009. The petitioner has further drawn attention of this Court towards the order dated 12.1.2016 passed by this Court in petition under section 482/378/407 I.P.C. bearing No. 2213 of 2016 staying the trial proceedings until further order. The petitioner has challenged the trial proceedings pending against the petitioner bearing Crime Case no. 615/2009 and this Court was pleased to admit the said petition and stay the criminal proceedings bearing Criminal Case No. 1208 of 2014: State of U.P. vs. Dr. Aruna Bharti which is pending before the Judicial Magistrate-II, Lucknow until further orders vide aforesaid order dated 12.1.2016..

The petitioner has also drawn attention of this Court towards the judgment and order dated 17.7.2014 passed by this Court in Service Bench No. 708 of 2013 (Annexure no. 8) which was filed by the petitioner challenging the order dated 5.3.2013 whereby the promotion of the petitioner on the post of Associate Professor has been denied on the ground of pendency of criminal case. By means of judgment and order dated 17.7.2014 this Court was pleased to allow the writ petition of the petitioner quashing the order dated 5.3.2013 directing the opposite parties to consider and promote the petitioner on the post of Associate professor in accordance with the Government Order dated 28.5.2017 or promote her on the post of Associate Professor subject to outcome of the trial. As per learned counsel for the petitioner vide order dated 12.9.2014 (Annexure no. 9) the petitioner has been promoted on the post of Associate Professor w.e.f. 1.7.2010 subject to the final outcome of the trial in criminal case no. 615 of 2009. The petitioner has also drawn attention of this Court towards the order dated 15.5.2016 passed by the Director, S.G.P.G.I.M.S., Lucknow providing the ad-hoc promotion to the petitioner on the post of Additional Professor w.e.f. 1.7.2013 but the financial benefits thereof was not provided. Thereafter the petitioner preferred a representation to the Hon'ble Governor under section 36 of the S.G.P.G.I.M.S. Act, 1983, since the Hon'ble Governor is visitor of S.G.P.G.I.M.S. and vide order dated 15.6.2016 the petitioner was provided the financial benefit admissible for the post of Additional Professor.

Now the grievance of the petitioner is that her one batch juniors have already been promoted on the post of Professor in the year 2018 and now the next batch is also going to be promoted on the post of Professor in the year 2019 for which the D.P.C. can met at any date and if the candidature of the petitioner is not considered for promotion on the post of Professor she shall suffer irreparable loss.

Learned counsel for the opposite parties has submitted that since the petitioner has been promoted on the post of Associate Professor and then on the post of Additional Professor on ad-hoc basis subject to final outcome Criminal Case no. 615 of 2009, therefore, she cannot be promoted on the post of Professor unless she holds the post of Associate Professor / Additional Professor on substantive basis.

Learned counsel for the petitioner has apprised the Court that her petition under section 482 Cr.P.C. i.e. Petition No. 2213 of 2016 (Annexure no. 16) is listed before the appropriate Court on 25.7.2019 and she shall be making request for its final disposal on that date.

List this petition on 30.7.2019 in the Additional Cause List as first case and on the said dated the petitioner shall intimate this Court about the status of case bearing no. 2213 of 2016 (petition under section 482 Cr.P.C.). On the said date the petitioner shall address the Court on legal issue as to how she can be promoted on the next higher post when she is not holding the post in the feeding cadre on the substantive capacity.

Since the juniors to the petitioners have already been promoted on the post of Professor in the year 2018 and again the candidature of next batch who are two batch junior to the petitioner may likely to be considered in the D.P.C. which may likely to commence within short span of time as informed by the learned counsel for the parties, therefore, the candidature of the petitioner may be considered provisionally but the same shall be kept under sealed-cover in the D.P.C."

After passing of this order, criminal trial against the petitioner has concluded and vide judgement dated 16.02.2022 passed in Case Crime No. 615 of 2009, under Sections 323, 325, 343 and 504 I.P.C she has been acquitted. The judgment is on record as Annexure No. 1 to the affidavit filed by the petitioner along with an application for disposal of writ petition. The said judgment by the Magisterial Court has not been challenged as yet in Appeal by the State.

At this stage the petitioner informs the Court that in fact her candidature was considered for promotion to the Professor in the DPC held on 27.07.2019 when her juniors were considered and in fact her batchmets have been considered much earlier. However, the recommendation of the selection Committee with regard to the petitioner has been kept in sealed cover, a fact which is admitted to the counsel for S.G.P.G.I.M.S., Lucknow.

In view of above, let the recommendation of the Selection Committee with regard to promotion of the petitioner to the post of Professor aforesaid, be opened and a decision be taken with regard to her promotion keeping in mind the judgment of the trial Court dated 16.02.2022 referred hereinabove.

For the aforesaid purpose the meeting of the Selection Committee shall be convened within one month and it shall accordingly make recommendation to the Appointing Authority and thereafter the Appointing Authority shall pass appropriate orders in this regard as per Rules, at the earliest, say, within a period of one month of receipt of recommendation of the Selection Committee. All this of course is subject to any Appeal being filed against the judgment of acquittal passed by the trial Court and its bearing, if any, in the matter.

With the aforesaid observations/directions, the writ petition is disposed of.

.

(Rajan Roy,J.)

Order Date :- 1.4.2022

R.K.P.