Mohmmad Aslam Kakru vs State and Others

Bashir A. Kirmani, J.—The petitioner who is a Pharmacist in respondent/health department was transferred from his position by concerned

CMO and attached to District Hospital, Baramulla by respondent CMO. He challenged the same through SWP No. 1694/2006 on the ground

that it was not in interest of administration which was disposed of by this Court on 2912.2006 by referring the mater to respondent Director for

hearing the petitioner and passing appropriate orders who thereafter appears to have passed order No. 405-DHSK of 2007 dated: 7.2.2007

where under he confirmed the CMO's order as being in the interest of administration where after respondent No. 5, Block Medical Officer, Uri

where from petitioner had been transferred relieved him under order No. Estt/SDH/741-43 dated: 17.2.2007.

Feeling aggrieved the petitioner has reagitated the matter through this writ petition to challenge the above said orders of Director and CMO, Uri

further seeking a direction for his continuation at Uri Hospital. Grounds pleaded inter alia are that the CMO being a Class II officer was not

competent to pass the impugned order of transfer which has wrongly been confirmed by Director even while petitioner's transfer is in no way in the

internets of administration. It has further been pleaded that all orders aforesaid have been passed under influence of the PRO of a Minister on

political considerations and as such attract the vice of malafides particularly because petitioner's attachment is not justified under service law. In

reply respondents 1 to 3 and 5 have stated that respondent/Director's order was passed in compliance to previous court direction and as such the

writ petition was bad particularly because the competence of respondent/CMO to transfer the employees of petitioner's class within District could

not be questioned. Denying the allegation of malafides it has also been pleaded that in effect the petitioner has not been attached but posted in

District Hospital of Baramulla, when he is required to work as Pharmacist. During course of submissions appearing counsel have reiterated the

contents of their respective pleadings. In addition respondents counsel has also informed that petitioner has been transferred out of Uri after around

11 years of stay there, in response where to petitioner's counsel has alleged that some other Pharmacists in Uri who too are locals have a longer

stay but they have not been touched whereas the petitioner has been singled out by what the learned Counsel has termed discriminatory treatment.

I have heard learned Counsel and considered the matter. In essence the present writ petition appears to be a continuation of petitioner's

previous Litigation which along with two other similar writ petitions was disposed of by this Court on 29.12.2006 with an observation that

Director, Health Services, Kashmir would look into the matter and pass appropriate orders in view of the allegations of malafides etc. It would be

appropriate to notice that while other two writ petitioners with whose matter the previous writ petition was clubbed have not chosen to challenge

the Director's impugned consideration order, even while they too had challenged their transfers on the ground of malafide etc. like petitioner who

does not appear to be satisfied with the Director's order as well reagitating the matter in the second round of litigation.

On consideration I find that essentially petitioner's whole grievance is against his transfer from his native town of Uri where he has admittedly

enjoyed his posting for around 11 years. On its face ordinarily the transfer should not have become the subject of such a prolonged litigation in

view of the settled position government employees whatever their status are expected to obey administrative orders including those of their

transfer, unless manifestly unlawful or harsh mindlessly litigating over such routine matters does not show the concerned employee in good light.

Same appears to be the case instantly particularly because when on reference of the court the Head of department found the CMO's order of

transfer to have been passed in the interest of administration, the apprehension of its having been passed for malaflde considerations should have

vanished away from petitioner's mind which incidentally does not appear to have happened. The simple question that noses itself is that when

Director of Health Services confirms the CMO's order as being well founded and proper, the petitioner cannot be heard to challenge it again

employing the very same grounds which were considered in his previous writ petition resulting reference of the matter to respondent/Director.

Similarly I feel the allegation of malafides even though very loudly made in the memo of petition does not exfacie appear to be well found enough to

attract consideration for the simple reason that low it has been stretched by petitioner to enfold the respondent/Director also. In other words at

whatever level an order comes to be passed against petitioner he extends the allegations of malaflde which ordinarily cannot be the case because

all officers in the row right from BMO through CMO to Director cannot be said to be acting malaflde against the petitioner who is a mere

Pharmacist in the respondent/department, particularly because no personal grudge has been urged against the officers. Instead the allegations of

malafides are directed against PRO of the local Minister who is not administratively involved at any level. At this stage it may be appropriate to

observe that while passing the confirmatory order, the respondent/Director has very clearly opined that the impugned transfer order along with

other two previously agitated was in the best interest of administration/patient care in accordance with the standing rules for which CMO is

administratively-competent as he was within his powers to order transfers of para-medical staff within his district. Thus the opinion of

respondent/Director so expressed confirms the petitioner's order of transfer.

At this stage it would be apt to notice petitioner's challenge to competence of CMO for passing the impugned order. Without unnecessary

hairsplitting in that behalf it would be enough to observe that in view of respondent/Director's above quoted order the challenge looses much of its

relevance because ordinarily after positive confirmation at the Director's level addressing the question of CMO's competence would be

unnecessary academic exercise because even if some fault is found with CMO's order, that should be deemed to have been cured by Directors

confirmatory order aforesaid. The maximum that may be asked for is that instead of showing the petitioner as having been attached to District

Hospital he may be deemed to have been posted there and accordingly assigned specific duties. That would take care of petitioner's grievance that

attachment operates as a stigma against him.

Accordingly for what has been stated above, the petition does not appear to be well founded enough to merit the relief prayed for and is

accordingly dismissed at the threshold.

Petition stands disposed of along with connected CMPs.