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2014 Supreme(J&K) 357
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohammad Yaqoob Mir, J.
Pinky Raina -Appellant
Versus
State & Ors. -Resopndent
SWP No. 2448-2012, CMP No. 3895-2012 & CMP No. 933-2014
Decided On : 28-10-2014
The need for disciplinary proceedings in cases of alleged misbehavior and the unsustainable nature of administrative orders without proper consideration.
Headnote:
Compassion - Transfer of Employee - [Govt. Order No.1039-HME of 1988, Govt. Order No.1293-GAD of 1989, Govt. Order No.1047-GAD of 1996, Govt. Order No.609-GAD of 2001, Govt. Order No.443-GAD of 2001, Govt. Order No.771-GAD of 2001, Govt. Order No.1249-GAD of 2001, Govt. Order No.1258-GAD of 2001, Govt. Order No.1144-GAD of 2003, Govt. Order No.1169-GAD of 2003, Govt. Order No.482-GAD of 2005, Govt. Order No.HD/Adm/RF-D.Asstt/05, Govt. Order No.1489-GAD of 2005, Govt. Order No.884-GAD of 2006, Govt. Order No.1251-GAD of 2011, Govt. Order No.931-GAD of 2012, Govt. Order No.1197-GAD of 2012] - The court discussed the petitioner's history of transfers and postings, the alleged misbehavior, and the compassionate grounds for her transfers. The court highlighted the lack of disciplinary proceedings despite alleged misbehavior and the unsustainable nature of the final order, directing the authorities to pass a fresh consideration order.
Fact of the Case:
The petitioner, an employee, had a history of transfers and postings based on compassionate grounds. Allegations of misbehavior and lack of disciplinary proceedings led to a legal battle.
Finding of the Court:
The court found the petitioner's history of transfers and postings, lack of disciplinary action, and unsustainable nature of the final order. The court directed the authorities to pass a fresh consideration order.
Issues: Compassionate transfers, alleged misbehavior, lack of disciplinary proceedings, and the sustainability of the final order.
Ratio Decidendi: The court emphasized the need for disciplinary proceedings in cases of alleged misbehavior and highlighted the unsustainable nature of the final order.
Final Decision: The court set aside the final order and directed the authorities to pass a fresh consideration order within six weeks.
2. Alleged misbehaviour of the petitioner has put the discipline in jeopardy forcing the respondent authorities to issue various orders at various stages without having recourse to disciplinary proceedings. Sidelining the course available to initiate disciplinary proceedings, what the respondents have opted is to order transfers/attachments of the petitioner.
3. On perusal of the records what emerges is that the petitioner on appointment has remained posted in Sher-i-Kashmir Institute of Medical Sciences (for brevity SKIMS) Soura. On 28th September, 1988, when petitioner was working as Nursing Aid, she had moved a representation before the Secretary to Govt. General Administration Department, J&K, Srinagar, projecting therein that her husband being an employee moves with Darbar Move, is required to be looked after at Jammu in view of his deteriorating health condition. In support whereof, she had submitted the medical certificate so as to justify her transfer to Jammu. She had sought transfer to Jammu on humanitarian grounds with a further caution that in case it is not done, she shall have to bid farewell to the job which would create a situation of starvation for her two budding children. In the same background has projected to be saved from the wrath of misery. Respondent authorities appear to have considered her case on humanitarian grounds so vide Govt. Order No.1039-HME of 1988 dated 05.12.1988, sanction has been accorded to the transfer of the petitioner from SKIMS to Health Services Department, Jammu so as to work in the Civil Secretariat dispensary.
4. Vide Govt. Order No.1293-GAD of 1989 dated 28.09.1989, in continuation to the aforesaid order dated 05.12.1988, sanction has been accorded to the transfer of the petitioner along with her post to the Directorate of Employment with a condition that she shall retain the lien in her parent department.
5. Vide Govt. Order No.1047-GAD of 1996 dated 01.10.1996, petitioner has been transferred to the Planning and Development Department, again with a condition that she shall retain lien in her parent department Viz. SKIMS.
6. Junior Selection Committee of the SKIMS while considering her case for promotion to the post of Dressing Assistant in the year 1999 in the pay scale of Rs.5000-8000 with effect from 14.10.1988 subject to the condition that she shall be given an option to revert to SKIMS and avail the promotion with a further condition that in case she is not relieved by the Government, orders for her promotion on proforma basis shall be issued. She was given option, which was to reach to the office of Joint Director (Admn) within 30 days.
7. Under-Secretary to Govt. General Administration Department has communicated to the petitioner on 03.04.2000 that in case she wants to avail the benefit of promotion, she has to revert to her parent organization Viz. SKIMS. However, in case she chooses to continue in the Secretariat for sometime more in the existing arrangement and opt for proforma promotion, the General Administration Department will not be in a position to provide her a post carrying higher pay scale. On considering her response, vide Govt. order No.609-GAD of 2001 dated 04.06.2001, she had been reverted to her parent organization (SKIMS) so as to avail the benefit of promotion.
8. Again vide Govt. order No.443-GAD of 2001 dated 05.07.2001, Govt. order dated 04.06.2001, so far it relates to the reversion of the petitioner, has been directed
