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2012 DIGILAW 621 (JK)

Bansi Lal Raina & Ors. v. State of J&K & Ors.

2012-09-29

HASNAIN MASSODI

body2012
1. The migration of a community from Kashmir valley in wake of turmoil in early 90's has given rise to a host of problems for the migrants as well as the administration. One of such problem relates to dislocation of Government employees from the community, their promotion avenues and their adjustment against the promotional posts. The State Government has made an attempt to utilize their service by attaching such employees with the offices of their parent departments in Jammu Division. Of late there has been an attempt to post such employees in the event of their promotion against the promotional posts, in Kashmir valley. Needless to mention that the migration has not changed the status of the migrant employees and they continue to be borne on the cadre to which they belonged before migration. 2. The petitioners are working as Pharmacists in the Health Department and are borne on Kashmir Division, apart from the grievance of the petitioners as regards the adjustment orders impugned in the petition, the controversy also involves inter-se dispute between the similarly circumstances two groups of migrant employees. In other words the petitioners in one of the petitions apart from the official respondents are pitted against their colleagues who have also migrated from the valley and are exposed to same inconvenience to which the petitioners in the petition are a victim, because of their dislocation. 3. Director Health Services, Kashmir vide order Nos. 235/NG of 2007 dated 01.12.2007, 83/NG of 2008 dated 20.05.2008 and 118/NG of 2008 dated 06.06.2008, ordered promotion of the petitioners in the three writ petitions, before the Court as Head/Supervisory/Senior pharmacists and directed their posting against the promotional posts in Kashmir valley shown in annexures to the three orders. Director Health Services, Jammu vide order dated 11th December, 2008, directed the petitioners/promottee pharmacists to join at their respective place of postings in Kashmir valley. However, the order of Director Health Services, dated 11.12.2008 appears not to have been acted upon and the migrant pharmacists shown in annexures A, B and C to the order, not to have been relieved to join at their respective places in Kashmir valley indicated in annexures to the three promotion orders made in their favour and their colleagues by the Director Health Services, Kashmir. The petitioners and their other colleagues were not relieved possibly for the reason that a proposal was submitted for transfer of their promotional posts from Kashmir Division to Jammu Division. 4. Be that as it may, the Director Health Services, Jammu to fruitfully utilize the service of petitioners in three petitions, issued orders whereby petitioners were directed to be relieved from the Hospitals, Dispensaries with which they were attached and posted in different Hospitals Dispensaries in Jammu Division. 5. The petitioners in SWP No. 1068/2009 question the order Nos. ACT/MIG/254-XII/249-56 dated 06.06.2009, ACT/MIG/254-XII/257-68 dated 06.06.2009, ACT/MIG/254-XII/234-42 dated 03.06.2009, ACT/MIG/254-XII/229-233 dated 03.06.2009, ACT/MIG/254-XII/203-213 dated 01.06.2009, ACT/MIG/254-XII/158-72 dated 27.05.2009, and ACT/MIG/254-XII/150-55 dated 25.05.2009 and seek their quashment on the grounds set out in the petition. The petitioners in SWP No. 2018/2009 are aggrieved with the order of Director Health Services, Jammu dated 23rd October, 2009, whereby they and another group of migrant pharmacists have been asked to serve at Government Hospital, Gandhi Nagar/Sarwal, Jammu, migrant camps and Evening clinics on rotational basis for a period of six months. The petitioners in SWP No. 2018/2009 after acting upon the order and joining at Government Hospital Gandhi Nagar and Sarwal, Jammu are not ready to move to Evening clinics, migrant camps set at Muthi and Purkhoo and allow the other group of pharmacists with whom they are to exchange place of posting rotationally for six months to join at Government Hospitals Gandhi Nagar and Sarwal, Jammu. 6. The petitioners in SWP No. 1875/2010 are Pharmacists who after serving in Evening clinics and migrant camps for six months are to move Government Hospital, Gandhi Nagar and Sarwal, Jammu after six months and replace the petitioners in SWP No. 2018/2009. They as already pointed out are not being allowed to join at Government Hospitals Gandhi Nagar and Sarwal, Jammu. The petitioners seek implementation of order of Director Health Services Jammu No. ACT/Sig/254-XII/671-83 dated 23.10.2009, so that they are in a position to join at aforesaid Government Hospitals. 7. I have gone through the file and have heard learned counsel for the parties. 8. It is pertinent to point out that petitioners in SWP No. 1068/2009 and for that matter in other two petitions also do not question the order Nos. 7. I have gone through the file and have heard learned counsel for the parties. 8. It is pertinent to point out that petitioners in SWP No. 1068/2009 and for that matter in other two petitions also do not question the order Nos. 235/NG of 2007 dated 01.12.2007,83/NG of 2008 dated 20.05.2008 and 118/NG of 2008 dated 06.06.2008 of Director Health Services, Kashmir, whereby they have been promoted as Head/Supervisory/Senior pharmacists and posted in different Hospitals of Kashmir Division. They seek implementation of the order of Director Health Services, Jammu No. ACT/MIG/588/549-576 dated 11.12.2008, which makes a reference to the Director Health Services, Kashmir order Nos. 235/NG of 2007 dated 01.12.2007, 83/NG of 2008 dated 20.05.2008 and 118/NG of 2008 dated 06.06.2009, directing the concerned to relieve the petitioners so as to enable them to join at their respective place of posting shown in the Director Health Services, Kashmir's orders mentioned above. 9. The petitioners also do not question the administrative department's letter No. Health/123/NG/2008 dated 04.09.2008, whereby Director Health Services, Jammu has been asked to relieve the petitioners so as to enable them to join at their respective places of posting in wake of promotion in Kashmir Division. 10. It appears that though a proposal was initiated for transfer of said posts from Kashmir Division to Jammu Division, yet it did not find approval of the competent authority as conveyed to the Director Health Services, Kashmir/Jammu vide No. Health/89/NG/2009 dated 01.09.2009. 11. Challenge in SWP No. 1068/2009 is to the order Nos. ACT/MIG/254-XII/249-56 dated 06.06.2009, ACT/MIG/254-XII/257-68 dated 06.06.2009, ACT/MIG/254-XH/234-42 dated 03.06.2009, ACT/MIG/254-XII/229-233 dated 03.06.2009, ACT/MIG/254-XII/203-213 dated 01.06.2009, ACT/MIG/254-XII/158-72 dated 27.05.2009, and ACT/MIG/254-XII/150-55 dated 25.05.2009, whereby petitioners have been deployed within the Jammu Division. The deployment, it may be pointed out, does not involve reduction in rank or change in the emoluments. The petitioners, therefore, cannot insist on a right to serve at one place for all times to come and after enjoying all the service benefits, refuse to serve the people even in the Hospitals/Health Centers in Jammu Division. The deployment, it may be pointed out, does not involve reduction in rank or change in the emoluments. The petitioners, therefore, cannot insist on a right to serve at one place for all times to come and after enjoying all the service benefits, refuse to serve the people even in the Hospitals/Health Centers in Jammu Division. In case the petitioners for one or the other reason are not ready to serve in Kashmir Division and appear to have been accommodated by the State Government to the said extent till date, though in violation of policy enshrined in Government order No. 362-GAD of 1992 dated 29th April, 1992, they cannot go a step further and avoid serving the people in different parts of Jammu Division. The petitioners are under a legal as well as moral duty to utilize the talent bestowed on them by their creator and expertise gained by them because of the training imparted to them by the State Government at the expense of the public exchequer and the tax payers money, for serving sick and indisposed who visit the Government Hospitals for treatment and do not get the adequate health care because of non availability of trained manpower. So viewed, the writ petition No. 2018/2009 is without any merit and is, accordingly, dismissed. 12. The petitioners after taking benefit under the order impugned in the petition and joining at Government Hospital Gandhi Nagar and Sarwal are not ready to move to the Migrant camps and Evening clinics. Resultantly their colleagues who had to join at Government Hospital, Gandhi Nagar and Sarwal after serving at migrant camps and Evening clinics for six months are not in a position to join at Gandhi Nagar/Sarwal Hospital. It needs to be pointed out that the arrangement worked by Director Health Services, Jammu as reflected in order No. ACT/Sig/254-XII/671-83 dated 23.10.2009, is just and proper exposing neither of the rival Migrant groups to inconvenience at the cost of the other group. In case the posting at Government Hospital Gandhi Nagar/Sarwal is a comfortable posting and the posting in migrant camps/evening clinics is inconvenient, neither the petitioners in SWP No. 2018/2009 nor the petitioners in SWP No. 1875/2010 have to face any extra hardship as both the groups equally share the convenient and inconvenient posting. The case set up by the petitioners in SWP No. 2018/2009, therefore, is devoid of any substance. The case set up by the petitioners in SWP No. 2018/2009, therefore, is devoid of any substance. Challenge to Director Health Services order, Jammu ACT/Sig/254-XII/671-83 dated 23.10.2009 is bound to fail. The writ petition is, therefore, deserves to be dismissed. 13. The case set up by the petitioners in SWP No. 1875/2010, implementation of Government order No. ACT/Sig/254-XII/671-83 dated 23.10.2009, in letter and spirit does has merit and is to succeed in view of the outcome of SWP No. 2018/2009. The petition is, therefore, allowed. 14. For the reasons discussed above, the petitions SWP No. 2018/2009 and SWP No. 1068/2009 are dismissed and the petition SWP No. 1875/2010 is allowed. All interim orders are vacated/recalled. This clears decks for implementation of the order Nos. ACT/MIG/254-XH/249-56 dated 06.06.2009, ACT/MIG/254-XU/257-68 dated 06.06.2009, ACT/MIG/254-XII/234-42 dated 03.06.2009, ACT/MIG/254-XII/229-233 dated 03.06.2009, ACT/MIG/254-XII/203-213 dated 01.06.2009, ACT/MIG/254-XII/158-72 dated 27.05.2009, ACT/MIG/254-XII/150-55 dated 25.05.2009 and ACT/MIG/254-XII-671-83 dated 23.10.2009 and ACT/MIG/254/XII/661-70 dated 23.10.2009 impugned in SWP Nos. 1608/2009 and 2018/2009 and relieving of the petitioners from the present place of posting so as to enable them to join at their respective places in compliance of aforementioned orders.