Jammu & Kashmir High Court
Dr Showkat Hussain Yatoo vs State Of J&K; Ando Thers on 5 April, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
SWP No.945/2017
C/W
SWP No.1237/2017 Date of decision:27-07-2017
Dr. Showakt Hussain Yatoo
Vs.
State of J&K & ors.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir
Appearing counsel:
For the Petitioner(s): Mr. B. A. Bashir, Sr. Adv. with Ms.
Farha.
For the Respondent(s): Mr. M. I. Dar, AAG-for R1 to R3 &.
Mr. Syed Faisal Qadiri-for R4.
i) Whether to be reported
in Digest/Journal: YES
ii) Whether to be reported
in Press/Media: YES/NO/OPTIONAL
YES
1) Vide order No.36-DISM of 2017 dated 08.05.2017,
petitioner, B-Grade Specialist, has been transferred and post at ISM Dispensary, Fateh Kadal, Srinagar. He was also asked to work as I/C Officer, Govt. Unani Hospital, Shaltengh, Srinagar.
2) Vide order No.38-DISM of 2017 dated 08.05.2017, order No.36-DISM of 2017 has been kept in abeyance pending enquiry. Aggrieved by the said order No.38-DISM of 2017, petitioner filed writ petition(SWP) No.945/2017. While considering MP No.01/2017 on 24.05.2017, it was ordered as under:
2
"Objections by or before next date.
Meanwhile, operation of the order No.38- DISM of 2017dated 08.05.2017 shall remain stayed till next date of hearing. However, it is made clear that the Incharge position of the petitioner in terms of order No.36-DISM of 2017 dated 08.05.2017 shall be open to be altered provided on regular basis a doctor is appointed in the Government Unani Hospital, Shalteng, Srinagar".
3) Vide order No.120-DISM of 2017 dated 30.06.2017, Dr. Javed Ahmad Mir has been ordered to work as In- charge officer, Government Unani Hospital, Shalteng Srinagar on full time basis relieving petitioner Dr. Showkat Hussain Yatoo from the additional charge. Operative part of the said order reads as under:
"It is ordered that he shall work as In-
charge Officer Government Unani Hospital Shalteng Srinagar on full time basis, relieving Dr. Showkat Hussain Yatoo from the additional charge who shall continue to work at UD Fateh Kadal Srinagar as Physician Specialist pending outcome of SWP No.945/2017".
4) Aggrieved by order dated 30 th June, 2017, petitioner filed another petition bearing SWP No.1237/2017 seeking quashment of the said order on the ground that 3 the adjustment of respondent Dr. Javed Ahmad is in contravention of Court order dated 24.05.2017 passed in SWP No.945/2017.
5) The respondent No.2-Director, Indian System of Medicine, in the reply has projected that the order of adjustment vis-à-vis petitioner has been issued without his approval, that is why said order has been kept in abeyance in terms of order No.38-DISM of 2017. It is also stated that the order was not revoked, simply was kept in abeyance pending enquiry.
6) Records would suggest that basically petitioner was approved to be transferred in the month of December, 2016. The proposed order was prepared in the month of April, 2017 itself, copy of which is available on the records. In short, it is stated that the order was issued on the approval of respondent Director, that is why later on order has been issued by Assistant Director wherein he has recorded that the same is issued "by order". The allegations and counter allegations as levelled in the petition so as to project bias or non-bias, in view of clear picture, are not required to be looked into.
7) The petitioner had worked as B-Grade Specialist in ISM, Dispensary, Wanpora Pulwama for a period of over 4 13 years, therefore, his transfer to ISM Dispensary, Fateh Kadal Srinagar cannot be said to have been approved in derogation of any rules or regulations. The position has now undergone change, therefore, his transfer could not be questioned. As a result whereof, order No.38-DISM of 2017, viewed from any angle, is unsustainable, therefore, same is set aside. As a necessary corollary thereto, circular bearing endorsement No.DISM/2017/282-90 dated 12.05.2017 shall be ignored.
8) Now the question is as to whether order impugned in SWP No.1237/2017 providing for adjustment of respondent No.4 as I/C Officer, Government Unani Hospital, Shalteng Srinagar, on full time basis reliving the petitioner, has been issued in contravention to order dated 24.05.2017 passed in SWP No.945/2017. The answer has to be in negative. Petitioner pursuant to order No.36-DISM of 2017 dated 08.05.2017 has been transferred and posted at ISM Dispensary, Fateh Kadal, Srinagar, which position has not been disturbed in terms of order dated 30.06.2017 but so far as adjustment of respondent Dr. Javed as I/C Officer, Government Unani Hospital, Shalteng Srinagar, on full time basis is concerned, same is logical and does not offend order dated 24.05.2017. True it is that in terms of order dated 5 24.05.2017, position of the petitioner was protected but it was made clear that incharge position of the petitioner shall be open to be altered provided on regular basis a doctor is appointed in Government Unani Hospital, Shalteng. It is made clear by the official respondents that the respondent No.4 who was under suspension has been reinstated and posted in Government Unani Hospital, Shalteng on full time basis, means on regular basis. When it is so, simply writing word "I/C officer" does not have connotation of any additional charge. In effect, he is posted there on regular basis.
9) Petitioner while posted at Fateh Kadal has not a vested right to hold additional charge of another hospital. Such arrangement is only by way of exigency otherwise such arrangement is detrimental and disadvantageous to the patients. He has been relieved of the additional charge so as to enable him to work smoothly at Unani Dispensary, Fateh Kadal, Srinagar as Physician Specialist. Un-necessarily petitioner has filed the second petition which has no merit at all.
10) In the totality of circumstances, as concluded hereinabove, SWP No.945/2017 is allowed. Order No.38- DISM of 2017 dated 08.05.2017 is quashed. As a 6 necessary corollary thereto, circular bearing endorsement No.DISM/2017/282-90 dated 12.05.2017, providing that the Medical Officers/Para-Medical Staff working in the Unani Hospital, Shalteng, in the interests of public are directed not to entertain any instruction/orders from anybody who presents as self- styled I/C officers, shall be ignored in view of later developments i.e. in view of order No.120-DISM of 2017 dated 30.06.2017.
11) SWP No.1237/2017, where-under order No.120- DISM of 2017 dated 30.06.2017 has been challenged, is without any merit, as such, dismissed.
12) Petitioner in pursuance to order No.36-DISM of 2017 dated 08.05.2017 shall remain posted at ISM Dispensary, Fateh Kadal, Srinagar, against the post of Physician Specialist. Said position of the petitioner shall remain undisturbed except for any departmental exigency or in the interests of administration subject to adherence to rules.
13) Disposed of as above.
(Mohammad Yaqoob Mir) Judge Srinagar 27.07.2017, "Bhat Al taf"