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2007 DIGILAW 77 (JK)

Bilqees (Dr. ) v. State Of J. &K.

2007-05-16

HAKIM IMTIYAZ HUSSAIN

body2007
Heard. 1. Petitioner Dr. Bilqees w/o Firdous Ahniad Mir R/o Bandipora Tehsil & District Bandipora, is a doctor by profession. She was posted as lady Assistant Surgeon in Sub District Hospital, Bandipora. Besides doing Government job she was also running a private Nursing Home namely Al Firdous Nursing Home at Bandipora, Vide order No. DDCB/12989-92 dated 08.01.2007. District Development Commissioner, Baramulla has placed the petitioner under suspension with immediate effect and has attached her with the Directorate of Health Services, Kashmir, Srinagar on the ground that a patient had died in her Nursing Home allegedly as a lack of medical facilities and proper care. The petitioner is aggrieved of the same and has through, the medium of the present petition challenged the order of suspension on various ground inter-alia that the order of suspension has been passed without jurisdiction as the District Development Commissioner has under the provisions of law no power and competence to place a doctor under suspension. 2. Learned Counsel for the petitioner vehemently argued that the order impugned by means of which the petitioner has been placed under suspension by the District Development Commissioner, Baramulla is non-est in the eye of law as the same has been passed by an authority who had no jurisdiction to do so. According to the learned counsel under Rule 31 of the Jammu & Kashmir Civil Service Classification, Control and Appeal) Rules, 1956 only the appointing authority has got the jurisdiction to place an employee under suspension and since the appointing authority of the petitioner is the Government and not the District Development Commissioner, the order of suspension is bad in law. 3. On consideration of the matter I find no ground, are made out for the admission of the present petition. The order impugned as well as the reply submitted of the State would show that the petitioner was posted as lady Assistant Surgeon in Sub District Hospital Bandipora. She was also running a private Nursing Home at Bandipora. On 06-01-2007 one Shafiqa W/o Ab. Majid Mir R/o Malangam Bandipora was admitted in the NursingHome but the said lady died allegedly due to lack of medical facilities and proper care. This resulted into an agitation as the public of the area demanded action against the proprietor of the Nursing Home. On 06-01-2007 one Shafiqa W/o Ab. Majid Mir R/o Malangam Bandipora was admitted in the NursingHome but the said lady died allegedly due to lack of medical facilities and proper care. This resulted into an agitation as the public of the area demanded action against the proprietor of the Nursing Home. When the matter came to the notice of the District Development Commissioner, Baramulla, on an enquiry it was found by him that the Nursing Home of the petitioner had been sealed consequent upon the direction passed by this Court in OWP P1L No. 60/06 titled G.N. Khan v. State & Ors. The District Development Commissioner, Baramulla further found that the petitioner had started practice in the Nursing Home which was not even registered as such an FIR was lodged by Health Department with the concerned Police Station. In view of this fact the District Development Commissioner placed the petitioner under suspension vide order No. DDCB/12989-92 dated 08.01.2007 impugned in the present petition which reads as under:- "Whereas on 06.01.2007 one Shafiqa W/o Abdul Majid Mir R/o Malangam, Bandipora reportedly died at Al-Firdous Nursing Home belonging to one Dr. Bilquees Lady Asstt. Surgeon posted at SDH Bandipora. Whereas the public of the area resorted to strong agitation and demanded action against the proprietor of the said Nursing Home as they alleged that the death has resulted due to lack of medical facilities and proper care. Whereas the said Nursing Home as communicated by CMO Baramulla vide his No. 7799-7801 dated 01.01.2007 is run by Dr. Bilquees Lady Assistant Surgeon posted at SDH Bandipora which has already been sealed consequent upon the directions passed by the Honble High Court under OWP NO. (Pil) No. 60/06 tilled G.N. Khan v. State & Ors., as the same was not registered. Whereas it has further been intimated that the said doctor (Proprietor of Nursing Home) has unsealed the Nursing Home and started the practice for which FIR stands lodged by the Health Deptt., in the concerned police Station. Now therefore, in view of the above circumstances Dr. Bilquees Lady .Assistant Surgeon posted SDH Bandipora is hereby placed under suspension with immediate effect and attached with Directorate of Health Services Kashmir-Srinagar. The concerned BMO will immediately relieve the said Lady Doctor." 4. Now therefore, in view of the above circumstances Dr. Bilquees Lady .Assistant Surgeon posted SDH Bandipora is hereby placed under suspension with immediate effect and attached with Directorate of Health Services Kashmir-Srinagar. The concerned BMO will immediately relieve the said Lady Doctor." 4. The plea raised by the petitioner regarding the jurisdiction and powers of the District Development Commissioner to place her under suspension appears to be without any subsistence. 5. Rule 31 of the Jammu & Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 provides as under:- "The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf, may place a Government servant under suspension where:- (a) an inquiry into his conduct is contemplated or is pending or (b) a complaint against him of any criminal offence is under investigation or trial. (2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty eight hours shall be deemed to have been suspended by the appointing authority under his rule. (3) An order of suspension under Sub-rule (1) may be revoked at any time by the authority making order or by any authority to which it is subordinate. (4) Where a penalty of dismissal or removal from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further orders. (5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the competent authority a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders." 6. Under this rule where an enquiry into the conduct of an employee is contemplated or is pending or where a complaint against him of any criminal offence is under investigation or trial, the appointing authority, a higher authority or any authority empowered by the Government in this behalf may place the Government servant under suspension. Thus under the said rule an employee can be placed under suspension by_ a. the appointing authority; b. any authority to which it is subordinate. c. any authority empowered by the Government in this behalf. 7. By virtue of Government Orders No. 2380-GD of 1976 dated 14.10.1976 and 2973-GD of 1976 dated 28.12.1976 the scheme of Single Line Administration was implemented in the State with that started the process of decentralization of planning process. In order to invest more powers with the District Development Commissioners the Government vide order No. 741-GAD of 1993 dated 3.9.1993 introduced qualitative changes by wav of some modifications in the existing order. Relevant portions of the order are as under:- "Organizational Structure. 18. District Development Commissioners will be incharge of the overall development of the District and shall exercise the powers, of a major Head of Departments in the District will continue to function under the administrative and operational control of the District Development Commissioner concerned. 23. In regard to the Annual Confidential Rolls, the following procedure shall be followed:- i. the initiating Officer in case of District Superintending Engineer shall be the Chief Engineer concerned. The Divisional Commissioner concerned all then record his assessment about the District Superintending Engineer but before doing so he shall take into account the assessment of the District Development Commissioner concerned. The State Government in the administrative Department shall be the Accepting Authority in this case. ii. The District Development Commissioner shall be the Initiating Officer for purposes of writing the ACRs of all other District level officers. The State Head of Department shall also record his assessment (after obtaining the assessment of the Provincial level officer wherever applicable). The Administrative Department shall be the accepting Authority, iii. For other officers, the District Level officer of the Department concerned shall be the Initiating Officer, the District Development Commissioner shall be the Reviewing Officer and the State level Head of department shall be the Accepting Authority ( in consultation with the Provincial level officer wherever applicable)." 8. The Administrative Department shall be the accepting Authority, iii. For other officers, the District Level officer of the Department concerned shall be the Initiating Officer, the District Development Commissioner shall be the Reviewing Officer and the State level Head of department shall be the Accepting Authority ( in consultation with the Provincial level officer wherever applicable)." 8. Under the said order the District Development Commissioners have been given powers of control over the various departments in the District. It sets up a organizational structure for a District and provide the District Development Commissioner will be the In-charge of over all developments of the District and shall exercise the powers of a major head of the department for all development departments functioning in the District. The order further directs that all the department in the District shall continue to function under the Administrative and operational control of the District Development Commissioner concerned. Under these orders, therefore, the officers/officials of all the departments in the District came under direct Administrative control of the District Development Commissioner. These officers, therefore, became subordinate to the District Development Commissioner. District Development Commissioner has been given the status of a Head of the Department as such he would get all such powers which vest in the Head of the Department. The powers include administrative control over the subordinate officers and officials. Under the said Government Order the District Development Commissioner has, therefore, got powers to place an employee under suspension on the grounds mentioned in the Rule 31. 9. In view of this position of rules, I find the District Development Commissioner, Baramulla was competent and had the powers to place the petitioner who was under his administrative control, under suspension. In the circumstances this petition is dismissed. Order accordingly.