Ghulam Mohammad Pandith vs Sheri Kashmir Institute Of ...
2021 Latest Caselaw 451 j&K/2

                                                                      Serial No. 181
                                                                 Supplementary 1 Causelist
                                                                  (Through Virtual Mode)



              HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR

                                                              CM No. 2136/2021
                                                          In WP(C) No. 728/2021
                                                              CM No. 2137/2021
Ghulam Mohammad Pandith.

                                                                ..... Petitioner(s)
                                 Through: -
                      Mr Imtiyaz Ahmad Sofi, Advocate.

                                       V/s

Sheri Kashmir Institute of Medical Sciences, Soura, Srinagar.

                                                              ..... Respondent(s)
                                 Through: -
                            Mr Shah Aamir, AAG.
CORAM:

             Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
                                     ORDER

19.04.2021

CM No. 2136/2021;

On the set of facts and the ground urged coupled with submissions

made at Bar, the instant application is allowed and requirement of affixing the

court fee in the shape of stamps etc. is dispensed with for the time being.

However, the deficiency shall be made good by the applicant as and when the

Court starts functioning in the normal manner. CM disposed of accordingly.

WP(C) No. 728/2021; CM No. 2137/2021;

Mr Imtiyaz Ahmad Sofi, learned appearing counsel for the petitioner

while reiterating the grounds taken in the petition for the reliefs claimed in the

instant writ petition, has made reference to the judgment of Hon'ble the

Supreme Court reported in AIR 1971 SC 998 titled K. H. Phadnis vs State of

Maharashtra, wherein Hon'ble the Supreme Court has held that the transfer/repatriation made on the ground of misconduct amounts to

punishment. Mr Sofi, learned counsel further submits that the respondent-

institute has by adopting pick and choose policy on the strength of malice

against the petitioner, implemented the Government order No. 752-JK (GAD)

of 2020 dated 10th of August, 2020, by repatriating the petitioner to PW

(R&B) Department, without further sanction form the Department of

PW(R&B), for such merger. He further submits that mere sanction of merger

does not amount to change of cadre and formation to separate service without

adherence to procedure as established under law.

Mr Shah Aamir, learned AAG available in the Court projected

grievance qua non listing of his caveat and submits that the order impugned

is in tune with the scheme of law and the rules governing the subject. He

further submits that there is no violation of any right of the petitioner, which

warrants interference by this Court in the petition filed under Article 226 of

the Constitution of India. He further submits that in terms of the policy of the

Government of Jammu and Kashmir notified in terms of order dated 10th of

August, 2020, the repatriation of the petitioner is legal.

When asked, Mr Shah Aamir, learned AAG sought time to ascertain as

to whether all the Engineering wing staff of the SKIMS, Soura, Srinagar, have

been sent to PW (R&B) Department or not.

Prima facie it appears that the order impugned is based on the charges

of misconduct, therefore, action taken amounts to punishment. Instead, the

authorities were required to take action in tune with the scheme of law.

Notice in the main petition as well as in connected CM.

Mr Shah Aamir, learned AAG waives notice on behalf of respondents.

Reply by or before next date of hearing.

List on Monday, the 26th of April, 2021, in the Daily Supplementary

Cause List.

Meanwhile, till next date of hearing before the Bench, the order

impugned bearing No. SIMS-2157 (Per) of 2021 dated 1st of April, 2021, shall

stay.

Noticing the charges made in the order impugned, it shall be open for

the respondents to take action against the petitioner as warranted under law.

(Ali Mohammad Magrey) Judge SRINAGAR:

19.04.2021 "Hamid"

ABDUL HAMID BHAT 2021.04.20 14:19 I attest to the accuracy and integrity of this document