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2018 DIGILAW 413 (JK)

Prof A. G. Ahanger v. G. R. Mir

2018-06-07

M.K.HANJURA

body2018
JUDGMENT : 1. Petitioner is aggrieved of and impugns the Government order no.45-GAD of 2018 dated 6th January 2018, whereby he has been relieved of the duties of the post of the Director, SKIMS and Ex-Officio Secretary to Government, with immediate effect and directed to report to the General Administration Department. 2. The petitioner claims that he substantively holds the post of Professor in the department of Cardiovascular and Thoracic Surgery, SKIMS (Sher-e-Kashmir Institute of Medical Sciences, Srinagar). He claims to have been, prior to his appointment as Director, SKIMS, appointed as Director, North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences, Shillong, Meghalaya. His appointment as Director, SKIMS, has been made after a full-dressed selection process was put into motion by the Governing Body of SKIMS. In terms of the Government Order no.13-HME of 2017 dated 12th January 2017, the petitioner was confirmed as Director SKIMS and Ex-Officio Secretary to Government of Jammu and Kashmir, for a period of five years or till he reaches the age of sixty-five years, whichever is earlier. It is maintained by the petitioner that on 5th January 2018, one of the Private National Television Channels exhibited sting operation conducted by one of their correspondents showing that three doctors, being faculty members in SKIMS, were found indulging in private practice, which was not within the knowledge of the petitioner. The petitioner claims that immediately after sting operation was telecasted, he addressed a communication to the Chief Secretary of the State, reporting disclosure so made and for further advice and appropriate action. On the basis of the report the Chairperson, Governing Body of SKIMS, accorded approval to the placement of the three doctors under suspension and also holding of enquiry against them. However, vide impugned order bearing Government order no.45-GAD of 2018 dated 6th January 2018, he has been relieved of the post of Director SKIMS. This according to the petitioner compelled him to move a representation to the Chairperson of the Governing Body on 8th January 2018. It is next pleaded that the petitioner had taken action against the three faculty members of the Institute, against whom sting operation had been carried out by a private television channel and the petitioner could not have, at his own level, taken any action against these doctors, who hold senior faculty positions. It is next pleaded that the petitioner had taken action against the three faculty members of the Institute, against whom sting operation had been carried out by a private television channel and the petitioner could not have, at his own level, taken any action against these doctors, who hold senior faculty positions. The power to suspend any faculty member, it is insisted, does not vest in the petitioner and when the petitioner came to know about the sting operation, he immediately informed the Government and based on the approval granted by the Chairperson, the three faculty members were placed under suspension pending enquiry against them. The petitioner also maintains that he suspects that his removal from the post of Director is for the benefit of some doctor, who is likely to be made the Director SKIMS on in-charge basis, leaving the petitioner in the state, in which he is at present. The petitioner also suspects that there is a well thought of plan/scheme to engage somebody else in his position and this could only be realized after removal of the petitioner when there was no justification to pass the impugned order as the petitioner had nothing to do with the misconduct of three doctors, whom the petitioner had placed under suspension after the accord of approval by the Chairperson. It is submitted that the petitioner had sought appointment with the competent authority but it did not materialise and he even made enquiry from other senior government servants but they all were tight lipped and said nothing. Even the petitioner made a representation, on which no action was taken. This, according to petitioner, has forced him to knock at the portals of this Court with the writ petition, bearing SWP no.19/2018, seeking quashment of the impugned order bearing Government order no.45-GAD of 2018 dated 6th January 2018, with a further direction to the respondents to allow him to resume the duties of the post of Director SKIMS. 3. This Court by order dated 11th January 2018, stayed the impugned order bearing no.45-GAD of 2018 dated 6th January 2018. 4. The learned senior counsel appearing for the petitioner states that in terms of the Government order no.45-GAD of 2018 dated 6th January 2018, two directions had been passed by the Government. 3. This Court by order dated 11th January 2018, stayed the impugned order bearing no.45-GAD of 2018 dated 6th January 2018. 4. The learned senior counsel appearing for the petitioner states that in terms of the Government order no.45-GAD of 2018 dated 6th January 2018, two directions had been passed by the Government. Under the first direction, the petitioner was relieved of the duties of the post of the Director, SKIMS and Ex-Officio Secretary to the Government. The second direction was, which is consequent to the first direction, that Dr. Pawan Kotwal was directed to discharge the functions of the post of Director, SKIMS in addition to his own duties. In terms of the Government Order no.84-GAD of 2018 dated 11th January 2018, only second part of the direction was modified. 5. The learned senior counsel also avers that this Court by order dated 11th January 2018 had stayed the whole of the impugned order and in law it would mean that the part of the order directing that the petitioner is relieved of the duties of the post of Director SKIMS and Ex-Officio Secretary to the Government, was also stayed and authorising Dr. Pawan Kotwal to discharge the functions of the post of Director SKIMS was also stayed. The Government, however, in terms of the order no.84-GAD of 2018 dated 11th January 2018, modified the second part of the impugned order. In view of the order dated 11th January 2018 passed by this Court, the petitioner cannot be said to have been relieved of the duties of the post in terms of the impugned order dated 11th January 2018, consequently the post of Director, SKIMS, had not fallen vacant so as to make alternate arrangement. It is contended that the petitioner on the same day i.e. 11th January 2018, resumed the duties as Director, SKIMS and Ex-Officio Secretary to Government and conveyed the same to all concerned. On 12th January 2018, a meeting of the Governing Body of the SKIMS was convened at Jammu, which ratified the decision taken previously by the Chairperson vide Government order no.45-GAD of 2018 dated 6th January 2018. The Governing Body also authorised the Chairperson to order appropriate enquiry into the issues relating to “lack of supervision and control by the petitioner over the recent months”. The Governing Body also authorised the Chairperson to order appropriate enquiry into the issues relating to “lack of supervision and control by the petitioner over the recent months”. The Governing Body also ratified the decision relating to the entrustment of the charge of the post of the Director, to Dr. Prof. Omar Javed Shah, previously ordered vide Government Order no.84-GAD of 2018 dated 11th January 2018, till further orders and till a regular arrangement was made by the competent authority. 6. It is also contended that after, this Court passed the orders and after the petitioner resumed the duties as Director, SKIMS, he learnt that a meeting of the Governing Body was being held at Jammu. He flew to Jammu, being Member Secretary of the Governing Body. The petitioner met the Chief Secretary, J&K State, as well as Private Secretary of the Chairperson of the Governing Body, to allow him to participate in the deliberations of the Governing Body as Member Secretary. But both expressed their helplessness. The petitioner was not allowed to participate in the deliberations of the Governing Body as Member Secretary. Instead Prof. Omar Javed Shah was allowed to act as Member Secretary of the Governing Body, where ultimately various decisions were taken. 7. The learned senior counsel representing the petitioner also contends that so far as the communication of the order dated 11th January 2018 is concerned, since the Advocate General represented all the respondents in the case, his knowledge shall be deemed to be the knowledge of all the persons. Apart from this, the interim order passed by this Court on 11th January 2018, was extensively reported by all Newspapers. He, therefore, states that the contemnors as well as all the persons, who participated in the decision making of the Governing Body were aware of the interim order passed by this Court. The petitioner even made the mention of the said order in his Joining Report. He also sent his Joining Report by e-mail as also by fax. The petitioner also personally delivered in the office of the Chief Secretary, J&K State, a copy of his Joining Report before 2.00 PM on 12th January 2018. Similarly, the petitioner submitted a copy of his Joining Report in the office of the Chairperson (Private Secretary to the Chairperson). He also sent his Joining Report by e-mail as also by fax. The petitioner also personally delivered in the office of the Chief Secretary, J&K State, a copy of his Joining Report before 2.00 PM on 12th January 2018. Similarly, the petitioner submitted a copy of his Joining Report in the office of the Chairperson (Private Secretary to the Chairperson). According to the learned senior counsel, the contemnors as well as all those persons who participated in the decision making, were aware of the order passed by this Court and therefore, there is no escape for the contemnors and those as may be found guilty by this Court, after the records are summoned for the contempt of this Court. 8. In light of what has been averred in the petition coupled with submissions made by the learned senior counsel appearing for the petitioner, the Chief Secretary, J&K State, shall file an affidavit to the effect whether the order of this Court was or was not conveyed to him and whether the petitioner requested him that he should be allowed to participate in the deliberations of the Governing Body as Member Secretary. Let such affidavit be filed on or before next date of hearing. 9. List on 12th July 2018. 10. Registry to transmit/provide copy of this order to all the parties.