HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

LPA No.82/2023

CM No.2745/2023

CM No.2746/2023

Reserved on: 15.05.2023

Pronounced on: 18.05.2023

Mohammad Ashraf Malla (Age: 43 years)

S/o Late Mohammad Jamal Malla,

R/o Hatlangoo, Sopore, District Baramulla.

…Appellant.

Through: Mr. B. A. Bashir, Sr. Advocate, with

Ms. Falak Bashir, Advocate.

Vs.

Union Territory of Jammu & Kashmir through

Administrative Secretary to Government Health and

Medial Education Department, Civil Secretariat, Srinagar/

Jammu and others.

….Respondents

Through: Mr. Sajad Ashraf, GA.

CORAM:

HON’BLE THE CHIEF JUSTICE

HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

J U D G M E N T

(N. Kotiswar Singh, CJ)

1.

The present appeal is filed against the order dated 04.04.2023

passed by the learned Single Judge in WP(C) No.48/2023 by virtue of

which the learned Single Judge declined to pass any interim stay order in

the interim stay application seeking stay of the transfer/ relocation of the

appellant as Block Accounts Manager, Tanghdar, Kupwara, vide order

dated 15.12.2022, primarily on the ground that the post of Accounts

Manager in District Hospital, Baramulla, against which the appellant was

initially appointed in the year 2014 on contractual basis under National

Health Mission Scheme, is a non-transferable post, apart from other

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submissions made in challenging the said transfer/ relocation order before

the Writ Court.

2.

In order to appreciate the submission of learned senior counsel for

the appellant that the rejection of the interim stay of the impugned

transfer/relocation order by the learned Single Judge vide impugned order

dated 04.04.2023 is not sustainable, brief facts of the case as may be

relevant, are stated as follows.

3.

From the pleadings, it appears that the appellant-petitioner was

appointed as Accounts Manager on contractual basis in District Hospital,

Baramulla, vide order dated 25.10.2014 against the vacant post available.

It has been submitted that in the said appointment order dated 25.10.2014,

it has been inter alia provided that hiring shall be governed by other terms

and conditions as are not specifically mentioned but are made applicable

in case of such appointment at any time by the contracting authority. It is

also the case of the appellant, as ascertained from the authorities in terms

of application made under Right to Information Act, 2005 the criteria for

engagement of manpower including ISM Doctor under NRHM Scheme

prescribed by the State Health Society, are as follows:

S.

No.

Particulars

of

the

information

Reply

1

Criteria for Selection

of Doctors (ISM)

under NRHM Scheme

prescribed by the

State Health Society

The criteria for engagement of manpower

including ISM Doctor under NRHM is as

follows:

1. All Posts under NRHM are hired on

contractual basis for the Plan Period.

2. All such engagements are for a particular

facility and non transferable in nature.

3. The required qualification for ISM Doctors is

degree

in

the

concerned

subject

i.e.

BAMS/BUMS and BHMS.

4. The local criteria is being followed to engage

the manpower to ensure round the clock

availability in particular health institution.

5. In case local candidates are not available, the

power to engage non local candidates rests with

State Health Society as decided in the High

Level Meeting chaired by Hon’ble Chief

Minister (Chairman State Rural Health Mission)

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Further, as to what is the “local criteria”, as provided in the

National Health Mission Scheme, has been clarified by the Ministry of

Health and Family Welfare, Government of India, in the clarificatory

letter dated 14^th May, 2010 by stating that “local criteria” as defined in the

Framework of Implementation of NHRM implies local residence within

district/ tehsil/ block/ village based on the availability.

4.

The learned senior counsel