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2018 DIGILAW 140 (JK)

Mushtaq Ahmed Bhat v. State

2018-03-08

RAMALINGAM SUDHAKAR

body2018
JUDGMENT : 1. Going by the nature of relief sought for and with the consent of learned counsel for the parties, the present writ petition is admitted to hearing and same is taken up for final disposal. 2. Through the instant writ petition, the petitioner seeks the following reliefs in the nature of:- “(a) Certiorari by quashing/setting aside the order impugned No.645-HME of 2016 dated 23.12.2016 passed by the respondent No.1 qua the petitioner only in terms of Section 36 of the Persons with Disability (Equal Opportunity and Protection of Rights) Act, 1998, directives issues by the Hon’ble Supreme Court, Government Order No.655 of 2006 dated 15.12.2006 passed by the Government and judgment passed by this Hon’ble Court earlier; (b) Mandamus commanding the respondents to extend the protection of Section 36 of the Persons with Disability (Equal Opportunity and Protection of Rights) Act, 1998; and (c) Mandamus commanding by directing the respondents to consider the case of petitioner for his adjustment in Government Medical College or Government Sarwal Hospital or Associated Hospital Jammu, so he may take his medical treatment at Psychiatric Hospital Ambphalla Jammu in order to survive with further prayer to direct the respondents to extend other service benefits in his favour including pay and allowances etc. for survival.” 3. Mr. Gupta, learned counsel for the petitioner, states that the petitioner is working as Causality Medical Officer in Government Hospital Sarwal, Jammu. He thereafter suffered acute psychiatric disease and is under treatment by the Doctors of Psychiatric Diseases Hospital, Jammu. The petitioner has enclosed the copies of medical certificates alongwith the petition. 4. The present grievance of the petitioner is that an order of transfer, which is impugned in the writ petition, was passed on 23.12.2016 (Annexure-J) transferring the petitioner from Government Hospital Sarwal, Jammu to District Hospital, Ramban. He, therefore, pleads to quash the order of transfer, primarily contending that he is entitled to protection in terms of Section 36 of the Persons with Disability (Equal Opportunity and Protection of Rights) Act, 1998 as also the direction issued by the Supreme Court and Government Order No.655 of 2006 dated 15.12.2006. The order of the Supreme Court has not been enclosed. As a consequence, he seeks mandamus to retain him at Government Hospital Sarwal, Jammu so that he can take medical aid. 5. The order of the Supreme Court has not been enclosed. As a consequence, he seeks mandamus to retain him at Government Hospital Sarwal, Jammu so that he can take medical aid. 5. Learned counsel for the petitioner states that the petitioner has not made any specific representation pursuant to the impugned transfer order but relies upon the earlier transfer orders and his representations of the year 2013 (Annexures-D & F), which, according to the petitioner, were favourably considered and he was allowed to be retained on account of his medical ailment. In view of the above, on a similar plea, the writ petition has been filed and the following order has been passed on 18.01.2017, which reads as follows:- “Heard. Notice in the main petition as well as in the MP to respondents for their response. “Dasti” service is also permitted. List on 3rd February, 2017. As ad interim and till next date of hearing respondents shall allow the petitioner to continue at his present place of posting. Petitioner shall produce a copy of this order each in the office of respondents-1 and 2. At request of learned counsel for the petitioner, a copy of this order be furnished to him under the seal and signature of the Bench Secretary of this court.” 6. Today when the matter is taken up for consideration, Mr. Padha, learned GA appears for the respondents and states that the case of the petitioner, if accepted as projected in the writ petition, should be considered by the Medical Board on the basis of his illness and the petitioner through the competent authority can forward his application for evaluation by the Medical Board and based on his medical condition and other relevant record that he may produce, the Medical Board will take a decision and on the basis of that, the department will take a call on the request of the petitioner for retention. 7. In this view of the matter, the writ petition is disposed of directing the petitioner to submit a detailed representation enclosing all medical records forthwith to respondent No.2, namely, Director Health Services, Directorate of Health Services, Jammu Division, who shall forward the same to the competent authority for referring the case to the Medical Board and on receipt of the report of Medical Board, the case of the petitioner for retention shall be considered and disposed of on its own merits. Till a final decision is taken, the interim order dated 18.01.2017 shall continue. Time for submitting representation is till 16.03.2018 and the respondent concerned shall dispose of the representation as indicated above on or before 07.04.2018. 8. At the time of disposal of the writ petition, Mr. Padha, learned GA, pointed out that an MP has been filed to implement the interim order of this Court. It is possible that the petitioner was already relieved. However, since a direction is issued for considering the request based on Medical Board evaluation, if the petitioner has already been relieved, his claim can be considered for re-posting or appropriate posting after the receipt of the Medical Board’s opinion. 9. The writ petition alongwith connected MPs stands disposed of in the above terms.