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2002 DIGILAW 132 (JK)

Sangeeta Chaudhary (Dr. ) v. State Of J. &K.

2002-05-02

S.K.GUPTA, T.S.DOABIA

body2002
1. The Story of a merchant who had collected lot of gold and was sailing abroad in a ship which started sinking and the predicament faced by him has been noticed in John Ruskins Classic "Unto this last." The fate of this rich merchant was compared to a young girl who had a letter of appointment in her favour, but was posted in Kashmir Valley where she apprehended danger to her life and liberty. The case is reported as Kanta Devi Vs. State 2001 (4) SCT page 47. paragraphs 1, 2 and 3 of the judgment are relevant for the purposes of disposal of this appeal. These are being noticed: 1. In John Ruskins Classic Unto this last, there is and ananecdote. A merchant had collected a lot of gold while he was sailing abroad a ship to another country. The ship started sinking. He had therefore, to dive into the sea with all his gold. But the burden of the gold took him straight to the bottom of the sea. Ruskin asks at this point in the narrative a self answering question, "did the man have the gold, or the gold have the man? ". 2. The petitioner in this case is in possession of gold, but she does not want to sink with it. 3. The constitution guarantees several fundamental rights. Right to live appears to be the most valuable of them. In some judicial pronouncement right to livelihood has also been treated as part and parcel of Article 21. Then, there is a right to be treated equally in the matter of opportunities which are provided by the state in seeking public employment. Once a person gets into public employment, then what is more expectation become a hard reality and it asquires the protection of Article 16 also. The Petitioner in this case is seeking protection of Article 16 as also Article 21 of the Constitution of India. " Before proceeding to notice the facts of this case, the situation which prevailed in Kashmir Valley in the early nineties and the steps which were taken by the State Government to rehabilitate those employees whose life and liberty was in danger be taken note of. " Before proceeding to notice the facts of this case, the situation which prevailed in Kashmir Valley in the early nineties and the steps which were taken by the State Government to rehabilitate those employees whose life and liberty was in danger be taken note of. Various orders issued in this behalf and the subject which they dealt with are, as under: Order No. Dated Subject I. 304-GRof1999 14.3.1990 drawal of pay at Jammu in favour of officers/officials who have migrated from Srinagar to Jammu. II. 324-GRof1990 19.3.90 drawal of pay at Jammu in favour of officers/officials who have migrated from Srinagar to Jammu. iii. 425-GR of 11.4.1990 drawal of pay at Jammu in favour of officer/officials who have migrated from Srinagar to Jammu. iv. 506-GR1990 19.4.1990 drawal of pay at Jammu in favour of officers/officials who have migrated from Kashmir to Jammu. v. 105-R/ER/RE of 1990 11.5.1990 package of relief to migrant families from Kashmir valley. vi. 107/CR/EF rev of 1990 15.5.1990 package of relief to migrant families from Kashmir valley. vii. 588-GRof 1990 18.5.1990 drawal of pay at Delhi in favour of employees who have migrated from Kashmir valley. viii. R/M/1293-1342 30.5.1990 payment of cash assistance. ix. 637-GR of 1990 5.6.1990 drawal of pay at Jammu in favour of officers/officials who have migrated from Kashmir to Jammu. x. GAD (Adm) 43/90-IV 27.7.1990 drawal of pay in favour of migrant employees of pubic Enterprises and Autonomous Bodies. xi. Rev/(ER) CR- 138 of 1990 26.9.1990 package of relief to migrant families from Kashmir valley. xii. GR/(REV)/ ER/ 238 of 1990 18.12.1990 package of relief for the Kashmir families living in Jammu region. xiii. OM No. A/97/ (90)- 94 2.1.1991 facility to migrant state government employees to draw advance out of their G.P. Fund Account and settlement of their final G.P. Fund and state insurance claims. xiv. A/34 (9u). 239. 19.2.1991 drawal of pension by migrant pensioners. xv. 15-GADof 1991 15.4.1991 selection of migrants for government employees. xvi. Mis/Jmu/F 4/1991 facility to migrant state government employees. xvii. Om No: A/34 (90)-445 19.4.1991 speedy disposal of pension cases of mi-grant government servants. xviii. 605-GAD of 1991 26.6.1991 sanction of leave in favour of migrant employees. xix. 629-GAD of 1991 4.7.1991 sanction of leave in favour of migrant employees. xx. 1010-Gad of 1991 14.10.1991 sanction of leave in favour of migrant employees. xxi. xvii. Om No: A/34 (90)-445 19.4.1991 speedy disposal of pension cases of mi-grant government servants. xviii. 605-GAD of 1991 26.6.1991 sanction of leave in favour of migrant employees. xix. 629-GAD of 1991 4.7.1991 sanction of leave in favour of migrant employees. xx. 1010-Gad of 1991 14.10.1991 sanction of leave in favour of migrant employees. xxi. A/9797 (90) -1039 21.2.1992 facility to migrant state government employees to draw advances out of their G.P. Fund Account and settlement of their final G.P. Fund and State Insurance Claim. xxii. 69-GAD of 1992 21.2.1992 drawal of salary in favour of employees who have migrated from the valley. xxiii. 362-GAD of 1992 29.4.1992 promotion of employees who have migrated from valley-policy decision for. xxiv. 27.5.1992 placement of migrant employees of Kashmir valley. xxv. 581-GAD of 1992 29.7.1992 fixation of pay of migrant government employees and payment of arrears, pay revision 1992. 2. The above Government orders have been indicated with a view to bring out that the Government of Jammu and Kashmir formed an opinion that the atmosphere in the Valley is not conducive and congenial to the welfare of the employees. Not only relief was given by afore: mentioned Circulars/orders which were followed lateron also, but even the period of absence of the employees was sought to be regularised by issuance of Order No: 114-GR of 1990 dated: 30.11. 1990. These circulars have been mentioned with a view to demonstrate that in the welfare State of Jammu and Kashmir has adopted a policy to see that those employees who are working in Kashmir Valley are to be rehabilitated in Jammu, then would it be apt to post a person in Valley and bring into existence a new category of migrants who would be suffering from the same problem, the same fear psychosis, the same difficulty as was faced by those persons who migrated in early nineties. It is this plight which is projected by the appellant. She calls in question Government Order No: 556-HME of 1997 issued on 15.6.1997. Appointment of six Doctors including the appellant stands cancelled. Facts in brief are, as under: 3. The appellant was working as a Demonstrator in Jammu Medical College. She was selected as Lecturer in the Discipline of Pharmacology. Appointment letter was issued in her favour vide Government Order No: 614-HME of 1994. This is dated: 10.10.1994. Appointment of six Doctors including the appellant stands cancelled. Facts in brief are, as under: 3. The appellant was working as a Demonstrator in Jammu Medical College. She was selected as Lecturer in the Discipline of Pharmacology. Appointment letter was issued in her favour vide Government Order No: 614-HME of 1994. This is dated: 10.10.1994. The posts against which the appointments were made, were stated to be available in Government Medical College, Srinagar. There was a condition imposed in the letter dated: 10.10.1994. This was to the effect that in case the appellant did not join at Srinagar within a period of 21 days, then the offer of appointment would stand withdrawn. The appellant alongwith others did not join. A writ petition bearing No: SWP 1228/1994 was filed. It was held that the condition incorporated in the appointment order of the Petitioner, requiring her to join at Srinagar was valid. After this view was expressed by this Court on 20.12.1994, another writ petition was filed. Challenge was made to the Government order dated" 5.6.1997. The three grounds of challenge made by the appellant are noticed in the judgment under appeal. It would be apt to notice the three grounds, as summed up by the learned single Judge: "1) That no opportunity of being heard was given to the petitioner before passing the impugned order; 2) That the petitioner was working in Medical College Jammu prior to the passing of the judgment dated 20.12.1996, as is evidence by a communication addressed by respondent No.2 to some Accounts Officer. Independent of the order impugned she had a right of continuing at Jammu; 3) That the order is violative of Article 14 of the Constitution because three doctors namely Dr. S.K. Gupta, H. L. Karlopia and S.C. Gupta, were similarly situated with the petitioner but they have been adjusted in Medical College Jammu." 4. These three arguments were considered. It was concluded that the appellant was supposed to join at the place of her posting and having not done so, the State Government was well within its rights to cancel the order. It was found that there was no necessity to afford opportunity of hearing. The fact that some other Doctors were accommodated, whereas the appellant was called upon to join at Srinagar was also found to be of no consequence. It was found that there was no necessity to afford opportunity of hearing. The fact that some other Doctors were accommodated, whereas the appellant was called upon to join at Srinagar was also found to be of no consequence. It is this opinion expressed by the learned Single Judge of this Court, which is subject matter of challenge in this appeal. This aspect of the matter has been considered by a Division Bench of this Court in LPA (SW) No;127/1997 titled: Dr. Baldev Raj Sharma V/s State of Jammu and Kashmir and others decided on 17.11.1999. What was said by the Division Bench of this Court is being reproduced below: "It be seen that under similar circumstances, the respondent-state has been permitting the selectees to join at Jammu. This was because of threat perception which was there at the time when appointment letters were issued. As a matter of fact, some of the candidates came to this court. They preferred writ petition, in the writ petition agreed orders were passed. In this regard it would be apt to refer to a writ petition preferred by one Dr. Ranbir Singh and some other similarly situated persons were asked to assume duties at Srinagar. They were naturally reluctant. They approached this Court and ultimately the State Government agreed to post the employees at places other than the Valley. See Dr. Ranbir Singh V. State, decided on 16.7.1999. If the State gives concession to one set of candidates and denies it to another, would it not be justifiable for a person who is denied the benefit to come forward with a plea that there is breach of Articles 14 and 16 of the Constitution. 5. Therefore, we are of the opinion, that the appellants when they approached this Court with a petition, they were seeking to enforce not only their right which is conferred on them in terms of Article 16, but also they were enforcing their right in terms of Article 21. Once one set of employees were allowed to migrate from Kashmir Valley and they are being paid emoluments in terms of various Government orders noticed above, then would it be apt to force the appellants to join in Kashmir Valley. The situation there has never been static. Normalcy followed by violence are events which have taken place in a cycle. Once one set of employees were allowed to migrate from Kashmir Valley and they are being paid emoluments in terms of various Government orders noticed above, then would it be apt to force the appellants to join in Kashmir Valley. The situation there has never been static. Normalcy followed by violence are events which have taken place in a cycle. No decision has been taken by the State Government so far for sending back the migrant employees. This is itself suggestive of the fact that the situation in the valley is not conducive and there is no guarantee that the life and liberty of appellants would be safe there. They have, therefore, through the medium of writ petition sought enforcement of not only the rights which vested in them in terms of Articles 16 but also in terms of Articles 21 of the Constitution also. 6. When the State Government of its own realising the difficulties faced by the person who were similarly situated as appellants allowed them to join at Jammu and created a category of migrant employees who are getting full salary at Jammu and in some cases even the salary which they become entitled to on promotion, then it cannot be said that the appellants were not well within their rights contend that similar treatment be afforded to then. The fact that the situation in the valley was noticed not only by the Administrative Authorities but this was also noticed by the Legislature when it enacted Jammu and Kashmir Migrants Act of 1997. By this Act, the State gave certain benefits to the migrants. This legislative recognition of the fact that the things in the valley were not under control is a factor which cannot be ignored. Therefore, the appellant are well within their right to contend that by forcing them to work at Srinagar, their life and liberty would be put to jeopardy and, therefore, would be a consequent breach of Articles 16 and 21 of the Constitution. 7. The aforementioned observations made by the Division Bench squarely covers the point of view projected by the appellant. Independently of the above, a citizen of this country who is a State Subject of this State, has a right of consideration before he or she joins the service. After a letter of appointment is issued, this right acquires a different status. The aforementioned observations made by the Division Bench squarely covers the point of view projected by the appellant. Independently of the above, a citizen of this country who is a State Subject of this State, has a right of consideration before he or she joins the service. After a letter of appointment is issued, this right acquires a different status. The equality clause has to be looked from a different angle. As to why three of the Doctors, namely, Dr. S.C. Gupta, H.L. Karlopia and S.K. Gupta were adjusted at Jammu and why the appellant was called upon to join at Srinagar, is not understandable. It is here, where the State had adopted a policy of pick and choose. As to what is the criteria adopted for sending the appellant to Srinagar and retaining other three persons at Jammu, is not apparent. Even the right conferred on her under Article 21 of the Constitution is at stake. Not only the right conferred on the appellant under Articles 14 and 16 but the very right to life and liberty conferred under Article 21 of the Constitution is at staked. Not only the right conferred on the appellant under Articles 14 and 16 but the very right to life and liberty conferred under Article 21 of the Constitution of India, is also at stake. When a person is deprived of work, it affects livelihood also. In Lord Dinnings book the Discipline of law, reference is made to a decision Edward V. SOGT, 1971 chancery 354. The constitution in service depended upon the constituance in service depended upon the continuance of membership of the workers union One of the conditions was that if the member failed to pay his contribution, then the "temporary membership was to be terminated. This put his employment in jeopardy. It affected his right to work. He was to be deprived of his livelihood. The aggrieved employee applied for re-admission. The question arose whether such a man had any right which could be enforced, Lord Denning said: "...I do not think this trade union, or any other trade Union, can give itself by its rules an unfettered discretion to expel a man or to withdraw his membership. The reason lies in the mans right to work. This is now fully recognized by law. It is a right which is of special importance. The reason lies in the mans right to work. This is now fully recognized by law. It is a right which is of special importance. It was further said, if Union card is withdrawn he has to leave the employment. He is deprived of his livelihood. The courts of this country will not allow so great a power to be exercised arbitrarily or capriciously of with unfair discrimination, neither in the making of rules, nor in the enforcement of them. The law has means at its disposal. A trade union exists to protect the right for each one of its members to earn his living and to take advantage of all that goes with it. It is very purpose of its being. If the union should assume to take a rule which destroys that right or puts it in jeopardy or is a gratuitous and oppressive interference with it then the union exceeds its power. The rule is ultravires and invalid..." Independently of the legal position noticed above the case of the appellant was that she did report at Srinagar after her first petition was decided but was not allowed to join there. What is said by the learned Single Judge in this regard is reproduced below: "...It is worthwhile to note here that after this petition was filed a Bench of this court passed an interlocutory direction on 21-7-1997 where under the implementation of the order impugned was stayed, provided the petitioner reported at Medical College Srinagar within two weeks from the date of order. However, it was made clear that if she did not join within two weeks the order impugned should be implemented against her. I am told that she joined before the Principal but the Principal showed her inability to allow the petitioner to work because the order had not been routed though the administrative department. Be that as it may, this was an interlocutory direction and will have to submerge in this order." If above be the position, then this aspect of the matter cannot be ignored. This un-rebutted stand of the appellant does show that she wanted to join but was not allowed. Therefore, this single factor is good enough to sustain her claim. Otherwise if the situation in the valley is not congenial the appellant could not be sent there. This un-rebutted stand of the appellant does show that she wanted to join but was not allowed. Therefore, this single factor is good enough to sustain her claim. Otherwise if the situation in the valley is not congenial the appellant could not be sent there. We are, accordingly, of the view: i) That the appellant was right in her submission that she should have been adjusted at Jammu. This is because the situation in the valley at that point of time was not congenial and the appellants apprehension that there is danger to her life, is well founded. ii) That the apprehension and the plea taken by the appellant that there is threat to her life discloses a situation which would attract Article 21 of the Constitution. What the appellant has been given by one hand, is being taken away by the other; ii) That as to what parameters are adopted to push the appellant to Srinagar and allow others to continue at Jammu, remained un-explained. This policy of pick and choose has worked to the detriment of the appellant; iv) That the condition contained in the letter of appointment providing for automatic cancellation of the letter of appointment is un-reasonable, in as much as, the right of the appellant regarding livelihood which is protected by Article 21, is also affected. v) The appellant wanted to join at Srinagar. She was not permitted to do so. This aspect of the matter has been noticed at internal page 11 of the judgment. Therefore, to say that the appellant had forfeited the right to join at Srinagar would not be correct. 8. Independently of the above, as indicated above, would it be apt for the State to create another category of migrants. The appellant if forced upon to join at Srinagar, in terms of the policy decisions can seek to move to Jammu as has been done by other migrants. In that situation, the appellant may have to be paid full salary even if she does not work. It is definitely not the intention of the State to bring into existence another category of migrants. 9. Taking into consideration all the above factors, we are of the opinion that this appeal deserves to be allowed. The respondent/State is directed to consider appellants case for posting her at Jammu. The appellant would be entitled to all consequential benefits minus monetary benefits. 9. Taking into consideration all the above factors, we are of the opinion that this appeal deserves to be allowed. The respondent/State is directed to consider appellants case for posting her at Jammu. The appellant would be entitled to all consequential benefits minus monetary benefits. Disposed of as such.