MOHD ASHRAF BHAT Vs. STATE OF J&K
LAWS(J&K)-1999-8-14
HIGH COURT OF JAMMU AND KASHMIR
Decided on August 20,1999

Mohd Ashraf Bhat Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) THE petitioner while posted as Block Medical Officer Soibugh got vide the Director Health Services order communicated under No. Est -3/1 -133/2855 -64 dated 3.11.1998 transferred and attached with Chief Medical Officer, Baramulla. Respondent, Doctor Bashir Ahmed Ahangar came vide the said order posted as Block Medical Officer, Soibugh.
(2.) THIS transfer order having the effect of attaching the petitioner to the office of CMO, Baramulla is labelled as unreasoned and without jurisdiction. Further more the competence/ jurisdiction of the Director Health Services to order the petitioners transfer is challenged on the ground that the petitioner being a gazetted officer had no jurisdiction or authority to order his transfer and the order is thus illegal on account of want of jurisdiction.
(3.) THE impugned order is assailed on yet another ground namely that is unconstitutional and violative of the petitioners legal rights as the order has the effect of attaching the petitioner, without intimating the post against which he is to be adjusted. The attachment is said to be the outcome of the malice as in the background in which the petitioner was divested of drawing and disbursing powers and had been dubbed as a mis -appropriator. The Directors order is thus said to call for judicial intervention. Without much ado one can safely say that the order cannot be given the label of being motivated by malice or extraneous considerations. Annexure A issued prior in time to the impugned order, indicates that the drawing and disbursing powers of the petitioner were withdrawn by the Director on account of the petitioner having resorted to alleged intentional or unintentional financial irregularities. It is in this alleged background that the Director attached the petitioner. It is not open herein to judge the sufficiency or otherwise of the -reasons which prompted the Director to shift the petitioner from Soibugh and attached him with the CMO, Baramulla. The thrust of the petitioners case is that the Director though being a Major Head of Department lacked jurisdiction/ competence to order the petitioners transfer who is a gazetted officer of the rank and Assistant Surgeon holding the charge of BMO. It is in this context that attention is invited to entry no. 98 Schedule 1 -C of the J&K Civil Service Regulations wherein the Government has delegated the powers of transfer and posting to the Major HODs. This power is exercisable under the schedule by HOD in respect of all officers in the scale of pay the maximum of which did not exceed Rs. 10007 -. This delegation took effect in terms of notification no. 62 dated 25th of June, 1966. It is contended that notwithstanding that the Director Health Services is a major HOD, he could not have ordered the transfer and attachment of the petitioner because the petitioner is on the date of the passing of the impugned order working in the pay scale of Rs. 8000 -13500. The counsel for the petitioner lays stress on the point that the reprint of the CSR issued in 1991 has not been changed qua the extent of delegation of powers to major HODs in entry 98, Schedule 1 -C, so the Director Health Services could not have ordered the petitioners transfer as his power to order transfer was limited in respect of officers in the pay scale of maximum of which does not exceed Rs. 1000/ -.;


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