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Judgment
D.V. Shylendra Kumar, J.—This writ petition by the applicant before the Karnataka Administrative Tribunal being aggrieved by the order dated 9.10. passed in her application No. 1193/2008 granting limited relief to the applicant and not full relief etc. Writ petitioner working as Assistant Professor in the Department of Ophthalmology in Bangalore Medical College and Research Institute, Bangalore, had aspired to the post of Professor by way of promotion. It appears she had given a representation to the Director of Medical Education, Bangalore, claiming that she had attained eligibility to hold the post of Assistant Professor with effect from 11.11.2002 and if so she will become eligible for consideration to the post of Professor within further five years there from i.e., from 11.11.2007 and therefore she should be considered for retrospective promotion to the two posts, namely, to the post of Assistant Professor from 11.11.2002 and to the post of Professor from 11.11.2007. This representation found favour with the Director of Medical Education and the Director of Medical Education acting on the recommendation and directions of the Minister for Medical Education in turn passed the order dated 24.09.2007 and sent the order to the first respondent-Secretary to the Government, Department of Health and Family Welfare, Bangalore, observing that the petitioner should be given retrospective promotion to the post of Assistant Professor from 11.11.2002 and to the post of Professor from 11.11.2007 and if vacancies were not available in her department, she may be considered for promotion for the vacancies available in other departments.
Based on this order dated 24.09.2007 produced as Annexure-A11 before the Tribunal, the petitioner approached the Tribunal seeking for the relief of writ of mandamus to be issued to the respondents, namely, State and Director of Medical Education, Bangalore, to give her promotion as indicated in the order/communication dated 24.09.2007 from the Directorate of Medical Education.
Application was opposed. It was pointed out that the petitioner was promoted to the post of Assistant Professor only on 20.10.2005 and a minimum experience of five years is required in this cadre for promotion to the post of Professor and even that period had not been completed and therefore giving promotion to the petitioner to the post of Professor did not arise.
It was also contended on behalf of the State that promotion shall be given only in terms of Rule - 2 of the Karnataka State Civil Services [Regulation of Pay, Promotion and Pension] Rules and there is no question of considering giving promotion with retrospective effect to the post of Professor.
The Tribunal noticed that no Junior of the petitioner-applicant had been promoted to the cadre of Professor in Ophthalmology and therefore opined that granting retrospective promotion did not arise. Noticing that the petitioner had completed five years of service in the post of Assistant Professor only in October 2010, the Tribunal disposed of the application with liberty to the petitioner to give fresh representation within fifteen days and respondents to consider that for according promotion prospectively to the petitioner if otherwise eligible etc.
It is aggrieved by this order, the present writ petition.
Appearing on behalf of the petitioner, Sri. S.B. Mukkannappa, learned counsel submits that the Tribunal could not have restricted the consideration for promotion prospectively; that the recommendation was to give promotion retrospectively.
It is also urged that though vacancies to the promotional post were not available in the very department, the persons who have become eligible have been considered to the post of Professor in other Departments and that is the reason why recommendation was made in favour of the petitioner also and therefore that could have been done and not considering the case of the petitioner alone for filling up vacancies to the post of Professor in other Department is virtually discriminating the petitioner vis-�-vis other departments.
Sri. E.S. Indiresh, learned Government Pleader supports the order passed by the Tribunal and submits question of granting retrospective promotion does not arise at all, more so, even when the petitioner did not have eligibility of five years experience in the feeder cadre.
Insofar as promotion is concerned, though it is an incidence of service, is not a matter of right and when the vacancy is available, the person eligible should be considered is the principle. The question of according retrospective promotion does not arise unless illegal or irregular promotion had been given to a Junior and that is not the situation in the present case.
We do not find any scope for interference in this writ petition with the order passed by the Tribunal However, it is open to the petitioner to give such representation as she deems fit and seek for whatever relief she can get from the employer. Writ petition is dismissed.