Jammu, Feb 16: O.A./123/2025 titled DR SHIKHA SHARMA Vs HEALTH AND MEDICAL EDUCATION DEPARTMENT after hearing CAT ordered as under:-
1. Heard
2. Mr. Abhinav Sharma, learned Sr. counsel for the applicant submitted that vide order dated 20.04.2018, applicant came to be appointed as a Consultant Gynaecologist in the Health Department and the Respondent No. 1 is the appointing authority of the applicant and the services of the applicant are governed by Jammu and Kashmir Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013 and as per these rules, the applicant is holding the post of Consultant which is Class-III Category-E post and is presently working as Consultant Gynaecologist in District Hospital Poonch.
3. Learned Sr. counsel further stated that the applicant is aggrieved of order No. 51 G of 2025 dated 05.02.2025, passed by Respondent No. 2, whereby the applicant has been transferred from District Hospital Poonch to SDH Surankote as well as Order No. DHP/3722-25 dated 06.02.2025 passed by Respondent No. 3, by virtue of which the applicant has been relieved from the District Hospital Poonch and is directed to report to BMO, Surankote.
4. Mr. Abhinav Sharma, learned Sr. counsel further averred that the impugned transfer order has been passed by an authority not competent to pass such order, in as much as from the perusal of the appointment order of the applicant, it is clear that the Respondent No. 1 is the appointing authority of the applicant and as per Rule 27 of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, all transfers and postings shall be made by an authority prescribed by the Government and the prescribed authority for making such transfer is provided under the Govt. Order No. 861-GAD of 2010 dated 28.07.2010, wherein the power to make such tranfer and posting lies before the Minister Incharge or the Administrative Secretary.
5. It is further submitted by learned Sr. counsel that in the present case, the appointing authority of the applicant is the Respondent No. 1, as such the Respondent No. 1 being the competent authority has the power to make transfers, therefore, the transfer order which has been passed by the Respondent No. 2 is illegal, arbitrary and unconstitutional.
6. Mr. Sharma further urged that the impugned transfer order is violative of Government Order No. 948-JK (GAD) of 2020 dated 15.10.2020, wherein it has been stated that any transfer which is required to be effected on administrative grounds beyond the notified calendar (Ist month of Financial Year i.e. in April every year in the present case) shall be effected only with the approval of the Lieutenant Governor and in the present case, the Respondent no. 2 has not sought any such approval in as much as in the order itself the Respondent No. 2 is seeking confirmation of his action of transferring the applicant from District Hospital Poonch to SDH Surankote from the Respondent No. 1, which implies that unless and until there is confirmation from the Respondent No. 1, the Respondent No. 3 had no power to relieve the applicant from his present place of posting, as such the relieving order dated 06.02.2025 is arbitrary and unconstitutional and deserves quashment.
7. Learned Sr. counsel has also placed on record copy of the judgment of the Hon'ble Supreme Court dated 11.02.1994 in case titled 'Dr. Ramesh Chandra Vs. Union of India' and while concluding his arguments he stated that the applicant is still working at her present place of posting i.e. District Hospital Poonch and prayed that both the impuged orders may kindly be stayed.
8. Issue notices to Respondents. Mr. Sudesh Magotra, learned A.A.G. appears and accepts notices on behalf of the Respondents No. 1 to 3.
9. Registry shall issue notice to private Respondent No. 4 returnable by the next date of hearing.
10. Having heard learned counsels for both the parties, there is ground for indulgence in the matter.
11. Considering the fact that the applicant is still working at District Hospital Poonch and the impugned order dated 05.02.2025 has been passed by an authority not competent to do so, accordingly, as an interim measure, till the next date of hearing, the operation of the Order No. 51 G of 2025 dated 05.02.2025 passed by Respondent No. 2 and Order No. DHP/3722-25 dated 06.02.2025 passed by Respondent No. 3 shall remain stayed and the applicant shall be allowed to discharge her duties at her present place of posting i.e. District Hospital Poonch.
12. List on 25.03.2025.
13. Let reply be filed by the Respondent by the next date of hearing with an advance copy to learned counsel for the applicant.
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