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2016 DIGILAW 383 (JK)

Mohan Lal Wangoo and others v. State and Others

2016-07-21

RAMALINGAM SUDHAKAR

body2016
JUDGMENT Admit. Issue post admission notice. Mr. P.S.Chandel, Dy.AG takes notice on behalf of respondents. Operation of the impugned order was deferred in order dated 29.12.2009. Thereafter, the matter has been adjourned from time to time and has not been admitted to hearing. However, today it is admitted so as to pass final orders. The writ petition is of the year 2009. Petitioners challenge the orders of transfer bearing Nos. Act/Mig./588-I/825-53 dated 11.12.2009, Act/Mig/620/807-25 dated 11.12.2009 and Act/Mig/105-08 dated 22.10.2009. The prayer made in the writ petition reads as follows: “(ii) Mandamus commanding the respondents to allow the petitioners to perform the duties in Jammu Division against the post held by the petitioners on the same analogy as the petitioners were performing for last 19 years uninfluenced by orders dated 11.12.2009 passed by the respondent No. 3. (iii) Prohibition restraining the respondents from posting the petitioners back in Kashmir Division till proper security arrangements made and normalcy restored in the valley and same is duly authenticated by the Home Ministry of State and Centre respectively.” On 02.01.2015, an order was passed by this Court which reads as follows: “According to learned counsel for the petitioners, some of the petitioners have lost interest in the matter, so some time may be granted for having instructions. Adjourned. List in the month of Feb., 2015 in the regular cause list. Meanwhile, interim direction to continue.” On 27.02.2015 and 13.03.2015, none appeared on behalf of petitioners and the matter was also adjourned on 12.02.2016 as nobody was appeared on behalf of petitioners. Today also, nobody appears on behalf of petitioners. However, Mr. Chandel, learned Dy.AG for respondents submits that objections have been filed. Paras 2, 3 and 4 of the objections reads as follows: “2. That in this context, it is respectfully submitted that all the petitioners in the writ petition are borne on the cadre strength of Health Department, Division Kashmir and due to turmoil in the valley the petitioners migrated to Jammu and are drawing migrant salary under the control of their Head of the Department. It is further submitted that in order to provide health care facilities to the migrants of the valley, the services of the migrant employees including the petitioners were utilized as per the requirement by their deployment on duty in various institutions of health in Jammu as well as in the migrant camp dispensaries. 3. It is further submitted that in order to provide health care facilities to the migrants of the valley, the services of the migrant employees including the petitioners were utilized as per the requirement by their deployment on duty in various institutions of health in Jammu as well as in the migrant camp dispensaries. 3. That since the petitioners are borne on the establishment of Directorate of Health Services, Division Kashmir therefore their seniority and promotional benefits is protected in their parent cadre, therefore, after reorganization of Pharmacists category of posts, Director Health Services, Kashmir issued various orders of promotion of pharmacist category of posts whereunder Pharmacists on the cadre strength of Health Department, Kashmir Division were promoted to the posts of Head Supervisor/Senior Pharmacists which also included the migrant Pharmacists/Petitioner working in different migrant camps/institution of health department at Jammu and Posted them at different places in the valley. 4. That, Consequent upon the posting of these Promotee migrant Pharmacists/Petitioners in the valley by the respondent No. 4 i.e. Director Health Services, Kashmir they were relieved from the migrant camps/institution at Jammu to report to their new places of posting in the valley.” In Para-5 of the objections, it is stated that the Promotee migrant Pharmacists/Petitioners instead of joining at their new places of posting in the valley submitted joint representation to HEG Health and Medical Education at Jammu. Para 8 and Para 9 of the objections read as follows: “8. That, subsequently the respondent No. 2 i.e. the Administrative Department vide letter No. Health/89/NG/2009, dated 1-9-2009 communicated that the matter was taken up with the General Administration Department and the GAD has returned the case with the following observations and has requested to take further appropriate action- (a) The proposal of the department with regard to the promotional benefits to the 62 promotee migrant officials without joining their duties in the valley in relaxation of the policy enumerated in Govt. Order No. 362-GAD of 1992, dated 29-4-1992 was examined earlier in this department and was not agreed to. Same stands communicated. (b) The department proposal was again examined and placed before the Hon’ble Chief Minister. It has not been agreed to as the policy of the Government enumerated in Government Order referred above is being followed in letter and spirit in all the government departments without any diviation. Same stands communicated. (b) The department proposal was again examined and placed before the Hon’ble Chief Minister. It has not been agreed to as the policy of the Government enumerated in Government Order referred above is being followed in letter and spirit in all the government departments without any diviation. The policy further does not require any relaxation now when the condition have improved and Government is making all out efforts for return and rehabilitation of Kashmir migrants. 9. That, in view of the policy decision of the Government the promotee migrant Pharmacists and Para Medical staff/Petitioners were relieved to report to the respondent No. 4 i.e. Director Health Services, Kashmir for posting them against their promotional posts n the Kashmir Division. Copy of communication dated 1-9-2009 and Govt. order No. 362-GAD of 1992, dated 29-4-1992 are enclosed herewith and collectively marked as Annexure R-1 for the perusal of the Hon’ble Court.” In effect, by virtue of the interim order, the petitioners are continuing in present posting from 2009. It is almost seven years. However, taking note of the present situation namely curfew that is prevailing in the Valley, the petitioners will be entitled to make a representation, if they choose to, for continuation in the present position and the same shall be considered by the authority concerned on its own merits. It is desirable that the authority shall take a pragmatic view of the matter in view of the current situation prevailing in the valley and thereafter take a final decision for postings of these petitioners. The writ petition along with connected MP(s) stands disposed of in the above terms.