SMT JAYALAKSHMAMMA G M v. THE STATE OF KARNATAKA

(BY SRI. N.K.RAMESH, ADV., FOR R2 & 3; SMT. MANJULA R KAMMADALLI, HCGP FOR R4) ...RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENDORSEMENT DATED 8.6.2012 VIDE ANNEXURE-Q PASSED BY THE 3RD RESPONDENT AS THE SAME IS ILLEGAL AND CONTRARY TO THE CADRE & RECRUITMENT RULES. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER In this writ petition, the petitioner has sought for quashing of an endorsement dated 08.06.2012 issued by respondent No.3, produced at Annexure-Q wherein the request of the petitioner for promotion to the Senior Staff Nurse from the cadre of Staff Nurse was not considered along with nine other candidates, who were promoted as on

31.05.2002, 03.06.2002, 06.06.2002. 3

The case of the petitioner is that, there were ten clear vacancies in the cadre of Senior Staff Nurse, however, the respondents, by adopting dubious method, with an intention to keep the petitioner out from getting the promotion to the post of Senior Staff Nurse, promoted only nine other Staff Nurses during May and June 2002, when the petitioner was short on three months to complete fives years which was requisite experience for promotion to the post of Senior Staff Nurse.

Learned counsel for the petitioner submits that, deliberately the promotions were effected in May and June, 2002 to keep away the petitioner from the zone of consideration. He also submitted that, though one clear vacancy was in existence in the year 2002-2003 and the petitioner was eligible, no promotions were effected, instead the petitioner was promoted on 26.02.2009. Thereby, she lost her seniority in the cadre of Senior Staff Nurse for about more than six years. The next promotional post being the Senior Superintend grade-II, wherein the requisite qualification is five years of experience in the cadre of Senior Staff Nurse. 4

On the other hand, learned counsel appearing for respondent-Institution submitted that, as on the date, on which nine other nurses were promoted to the post of Senior Staff Nurse, the petitioner was not qualified. The post of Senior Staff Nurse is promotional post on seniority cum merit, that, those who have completed five years of experience in the cadre of Staff Nurse. Thereafter, when the promotions were effected to the post of Senior Staff Nurse, the petitioner was considered and is promoted. It is also submitted that, in the meanwhile, the petitioner had gone to abroad for further studies. Hence, there is no ill-will or motive in not promoting the petitioner as and when the promotions have taken place, based on seniority i.e., entry into the service in the respective cadre and qualification as prescribed, promotions are effected.

It is not in dispute that, when other nine Staff Nurses were promoted in May and June, 2002, the requisite qualification apart from seniority was five years of experience in the cadre of Staff Nurse and the petitioner had not completed five years of experience as Staff Nurse. On that day, the petitioner did not fall within the zone of 5 consideration. The Staff Nurses who were within the zone of consideration, who had qualified post of Staff Nurse with experience, were all promoted. Subsequently, when the promotions were effected, no junior to the petitioner is promoted but the petitioner only has been promoted. No doubt, there was delay in second promotion to the post of Senior Staff Nurse but that cannot give any right to the petitioner to seek promotion as and when the post becomes vacant. It is not the case of the petitioner that, any of the juniors have been promoted before the petitioner. Based on the seniority, the petitioner has been promoted.

In my opinion, merely because there is delay in consideration of the case of the petitioner, the petitioner does not have any right to be considered. Admittedly, there was no promotion effected after 2002 till 2009 to the post of Senior Staff Nurse. Hence, I find no error in promotion made in 2009.

Learned counsel for the petitioner referred to the decision of the Apex Court reported in (2008) 5 SCC 416 in the matter of A.Satyanarayana and others vs. S.Purushotham and others to submit that power of 6 judicial review, must determine the issue having regard to the effect of subordinate legislation in question. There must exist a rational nexus between impugned legislation and object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst employees. No doubt, in legislation which totally does not provide and does not create any promotional, judicial review is permissible to look into the subordinate legislation as to whether it create stagnation and frustration that is only limited purpose judicial review is provided. It is not fundamental right to seek promotion, it is matter of incidence to the service. The Apex Court in the judgment reported in (2008) 5 SCC 100 in the matter of Food Corporation of India and others vs. Parashotam Das Bansal and others, held that, employee of State has no fundamental right of promotion but has a right to be considered therefore the promotion is a normal incidence of service. Admittedly, it is not a case of the petitioner that any of the junior’s case is considered before the case of the petitioner. If that is so, I do not find any justification to interfere with the endorsement nor there is any justification to issue direction to the respondents to promote the petitioner retrospectively from 2002-2003. 7 Hence, the petition fails and same stands dismissed. Sd/- JUDGE PMR*