Pinky Raina vs State and Others

Mohammad Yaqoob Mir, J.â€"This case has its chequered history owing its origin to the compassion shown by the respondent authorities from

time to time in accommodating the petitioner, which of late allegedly developed a sense in the petitioner to have a vested right to remain posted at

her will and at the cost of the discipline. It is the actions and the orders, sometimes consistent and sometimes inconsistent with the interests of the

petitioner, which also gave rise to a hectic litigative process, as a result whereof, petitions over petitions have been filed. 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.

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.

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 hen in her

parent department.

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.

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.

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.

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 to remain in abeyance and she has been deemed to have continued in Planning and Development Department in the

existing arrangement Based on the said order No. 443-GAD of 2001, SKIMS vide office order No. SIMS-89(P) of 2001 dated July 10, 2001,

has accorded sanction to the promotion of the petitioner as Dressing Assistant in the pay scale of Rs. 5000-8000 with effect from 14.10.1998 with

a condition that she will continue to retain lien in the SKIMS.

Vide Govt. order No. 771-GAD of 2001 dated 16.07.2001, consequent upon proforma promotion as sanctioned by the SKIMS in favour of

the petitioner, the Planning & Development Department has been directed to draw the salary of the petitioner in the pay scale of Rs. 5000-8000

with effect from 14.10.1938.

Vide Govt. order No. 1249-GAD of 2001 dated 23.10.2001, petitioner has been transferred and posted in Industries & Commerce

Department along with post with a condition that she will continue to retain hen in her parent department Viz. SKIMS.

Vide Govt. order No. 1258-GAD of 2001 dated 23.10.2001, petitioner has been reverted to her parent department but again vide Govt.

order No. 125-GAD of 2002 dated 22.01.2002 she has been attached with Winter Secretariat, Srinagar along with post with a condition that she

will continue to retain lien in her parent department.

Vide Govt. order No. 1144-GAD of 2003 dated 04.09.2003, petitioner has been transferred and posted in Roads & Buildings Department

along with post with immediate effect. The order further provided that her pay shall be drawn against the training reserve post of Senior Assistant

with a condition that she shall retain lien in her parent organization.

Again vide Govt. order No. 1169-GAD of 2003 dated 09.09.2003, in partial modification of Govt. order No. 1144-GAD of 2003 dated

04.09.2003, petitioner has been transferred and appointed in Technical Education Department along with post still with a condition that she shall

retain lien in her parent organization SKIMS.

Vide Govt. order No. 482-GAD of 2005 dated 26.04.2005, petitioner has been transferred and posted in Health & Medical Education

Department.

The Additional Secretary to Govt. Health and Medical Education Department vide his letter dated 04.07.2005, addressed to the Principal

Secretary to Govt. General Administration Department has conveyed that the petitioner is relieved with a direction to report General

Administration Department for being repatriated to her parent department Viz. SKIMS. This communication has been responded to by the Under

Secretary to Govt. General Administration Department on 15.07.2005 wherein it has been observed that no reason has been given for relieving the

petitioner and for joining in General Administration Department with a further observation that the department should take disciplinary action as

warranted under rules if the petitioner does not behave properly.

Vide order No. HD/Adm/RF-D.Asstt/05 dated 26.08.2005, Special Secretary to Govt. Health and Medical Education Department has

ordered that the petitioner is repatriated to her parent department with immediate effect as her services are not required in the department. As

against this order dated 26.08.2005, petitioner filed writ petition (SWP) No. 914/2005. The order was stayed by the Court on 14.09.2005.

During the pendency of the said writ petition, vide Govt. Order No. 1489-GAD of 2005 dated 02.12.2005, petitioner had been posted in the

Animal and Sheep Husbandry Department.

Under-Secretary to Govt. Animal/Sheep Husbandry Department vide letter dated 09.03.2006, has conveyed that the services of the petitioner

are not useful to the department, as such, she was relieved with a direction to report to General Administration Department for further duties but

Under-Secretary to Govt. General Administration Department vide order dated 10.03.2005 has conveyed to the Commissioner/Secretary to

Govt. Animal/Sheep Husbandry Department that the transfer of the petitioner to Animal/Sheep Husbandry Department was as per the orders of

Chief Secretary, therefore, she will continue to be posted in the said department (Animal/Sheep Husbandry Department) till such time as may be

deemed fit by the General Administration Department being competent to transfer the employees.

Again Deputy Secretary to Govt. Animal/Sheep Husbandry Department vide order No. ASH/N/Adm/70/2005 dated 26.06.2006, has

observed that the Dressing Assistant posted in the department not conversant with the functions of clerical job is not required by the department,

accordingly petitioner was relieved on 26.06.2006 with a direction to report back to General Administration Department for further posting.

Vide Govt. Order No. 884-GAD of 2006 dated 18.07.2006, petitioner has been posted in the Directorate of Health Services, Kashmir along

with post but to retain lien and promotion prospects in SKIMS, Soura (parent department). As against this order dated 18.07.2006, petitioner

filed SWP No. 1302/2006 which has been disposed of vide judgment dated 07.10.2006 with a direction that the order dated 18.07.2006 shall

stay for two months. In the meantime, Chief Secretary will look into the matter and after due regard to the humanitarian element shall try to find an

adequate solution to the problem by exploring possibility of posting the petitioner in the Civil Secretariat. Until then petitioner was directed to

continue to work in General Administration Department. In compliance whereof, Govt. Order No. 1439-GAD of 2006 dated 27.11.2006 has

been issued where-under order No. 884-GAD of 2006 dated 18.07.2006 to the extent it pertained to the petitioner was kept in abeyance.

Petitioner was directed to work in the Civil Secretariat Library.

Again vide order No. 1251-GAD of 2011 dated 21.10.2011, petitioner has been repatriated to her parent department Viz. SKIMS with

immediate effect. This order again was challenged by medium of SWP No. 2370/2011. Operation of the order was stayed on 02.11.2011.

Again vide Govt. Order No. 931-GAD of 2012 dated 04.09.2012, petitioner was transferred and posted in Government Lal Ded Hospital,

Srinagar along with post with immediate effect. Meanwhile, pending SWP Nos. 1971/2012 and 2370/2011 were disposed of vide judgment dated

28.09.2012 with a direction to the respondents to examine and consider the case of the petitioner within one month.

Finally, Govt. Order No. 1197-GAD of 2012 dated 25.10.2012 has been issued where-under position of the petitioner and her posting from

time to time has been taken note of and finally it has been concluded:

Whereas, the case of the petitioner has been examined and considered in the light of aforementioned order dated 28.09.2012 having been

appointed as a Nursing Service Attendant/Dressing Assistant, her primary duty is to provide health related services to the patients and sick people

which she has been avoiding. She has developed vested interest in working in the Civil Secretariat where her services are not required. On the one

hand she has deprived the patients/sick people of the nursing care and on the other hand she has been misbehaving with one and all in the Civil

Secretariat. Viewed thus there is no justifiable or plausible ground to modify the Government Order No. 931-GAD of 2012 dated: 04.09.2012,

Now, therefore, in view of the above, the request of the petitioner for allowing her to continue in General Administration Department (Library

section) by modifying the Govt. Order dated 04.09.2012 is found without any merit and rejected accordingly.

Dissatisfied with Govt. Order No. 931-GAD of 2012 dated 04.09.2012 where-under petitioner was posted in Govt. Lal Ded Hospital,

Srinagar and Govt. Order No. 1197-GAD of 2012 dated 25.10.2012, where-under, on consideration it was found that there is no justifiable and

plausible ground to modify order dated 04.09.2012, petitioner has filed the instant petition. This Court vide order dated 22.11.2012, has directed

that the operation of these orders shall remain in abeyance.

The position of all the developments, postings, transfers and filing of writ petitions amply reveal that the petitioner has been accommodated

from time to time, may be on humanitarian grounds. In the process allegedly she appear to have taken undue advantage of the same as her

transfers from one department to another, then allegation against her indiscipline and her non-requirement in particular departments appear to have

been the outcome of compassion extended to her. In the process she appears to have taken everything far granted and to choose posting of her

choice. Otherwise, various departments, as referred to above in the Govt. Orders, on many counts had made it clear that her services are not

required in their departments but despite that she has been accommodated from time to time.

Respondent-General Administration Department has not tendered any plausible cause in the reply which had persuaded the department to

accommodate the petitioner from time to time. No doubt in the initial application filed by the petitioner in the year 1988, she had sought transfer on

humanitarian grounds which dates back to the year 1988 and on humanitarian grounds she had been adjusted in the Civil Secretariat. It was to be

ascertained as to whether that humanitarian aspect continued, as to whether she had any cause to remain posted away from her parent department.

She has been accommodated from the year 1988 till 2012, means for over 24 years which gives rise to a situation i.e.

(1) Either the petitioner has some humanitarian problem which has persisted and persists; or

(2) The petitioner has been yielding influence so as to manager her postings in the Secretariat even to the disliking of the certain departments where

she was posted as mentioned in the Govt. Orders as referred to hereinabove; or

(3) The petitioner has been exploiting the situation so as to continue to remain posted in the Civil Secretariat; or

(4) When petitioner thrice has been ordered to be repatriated to her parent department what made the respondent General Administration

Department to revoke those orders.

From the reply as filed, documents available on record and the position of the orders as have been issued from time to time, it is not discernible

except in the first order in the year 1988, as to under what circumstances petitioner has been continuing and getting adjusted in the Civil Secretariat

in one department or the other with a strange situation that as a Dressing Assistant she has been posted against Clerical post.

It appears that in the aforesaid background while disposing of writ petition (SWP) Nos. 1971/2012 and 2370/2011 vide judgment dated

28.09.2012, respondents were directed to examine and consider case of the petitioner and then to take a final decision. In compliance whereof,

case of the petitioner is shown to have been considered, as a result whereof Govt. Order No. 1197-GAD of 2012 dated 25.10.2012 has been

issued. The consideration accorded is inconsistent and appears to be lacking application of mind. In the order after referring to various

circumstances which include alleged unbecoming conduct of the petitioner, misbehaviour, non-satisfactory work, threatening extended by her,

unsatisfactory performance, then the conclusion that she has deprived the patients and sick people of nursing care and on the other hand she has

been misbehaving with one and all in the Civil Secretariat, therefore, her transfer and posting in Govt. Lal Ded Hospital vide order No. 931-GAD

of 2012 dated 04.09.2012, was found un-interferable.

It is really astonishing if the petitioner had misbehaved, had not been performing satisfactorily, extending threatening abusing officials and her

services were not required in various departments, then why she has been allowed to continue with this practice for 24 years. Why disciplinary

proceedings have not been initiated against her. Why the authorities concerned have not initiated any enquiry, why she has not been sternly dealt

with in accordance with service rules. Transfer is not a substitute for disciplinary action. If transfer is made as a substitute to disciplinary action,

such transfer can be termed to be as a measure of punishment.

In the aforesaid backdrop, Govt. Order No. 1197-GAD of 2012 dated 25.10.2012 is unsustainable, as such, is set aside. The respondent

authorities shall pass fresh consideration order after keeping in view the observations made hereinabove preferably within a period of six weeks

from today Until then, Govt. Order No. 931-GAD of 2012 dated 04.09.2012, which till date has not been given effect, shall not been given effect.

Disposed of as above along with connected CMPs.