Mohammad Ashraf Malla (Age: 43 years) v. Jammu & Kashmir

Judgment

#1. The present appeal is filed against the order dated 04.04.2023 passed by the learned Single Judge in WP(C) No.48/2023 by virtue of which the learned Single Judge declined to pass any interim stay order in the interim stay application seeking stay of the transfer/ relocation of the appellant as Block Accounts Manager, Tanghdar, Kupwara, vide order dated 15.12.2022, primarily on the ground that the post of Accounts Manager in District Hospital, Baramulla, against which the appellant was initially appointed in the year 2014 on contractual basis under National Health Mission Scheme, is a non-transferable post, apart from other -2- submissions made in challenging the said transfer/ relocation order before the Writ Court.

#2. In order to appreciate the submission of learned senior counsel for the appellant that the rejection of the interim stay of the impugned transfer/relocation order by the learned Single Judge vide impugned order dated 04.04.2023 is not sustainable, brief facts of the case as may be relevant, are stated as follows.

#3. From the pleadings, it appears that the appellant-petitioner was appointed as Accounts Manager on contractual basis in District Hospital, Baramulla, vide order dated 25.10.2014 against the vacant post available. It has been submitted that in the said appointment order dated 25.10.2014, it has been inter alia provided that hiring shall be governed by other terms and conditions as are not specifically mentioned but are made applicable in case of such appointment at any time by the contracting authority. It is also the case of the appellant, as ascertained from the authorities in terms of application made under Right to Information Act, 2005 the criteria for engagement of manpower including ISM Doctor under NRHM Scheme prescribed by the State Health Society, are as follows: S. No. 1 Particulars information Criteria for Selection of Doctors (ISM) under NRHM Scheme prescribed by the State Health Society Reply

The criteria for engagement of manpower including ISM Doctor under NRHM is as follows: 1. All Posts under NRHM are hired on contractual basis for the Plan Period. 2. All such engagements are for a particular facility and non transferable in nature. 3. The required qualification for ISM Doctors is degree i.e. BAMS/BUMS and BHMS. 4. The local criteria is being followed to engage the manpower the clock availability in particular health institution. 5. In case local candidates are not available, the power to engage non local candidates rests with State Health Society as decided in the High Level Meeting chaired by Hon’ble Chief Minister (Chairman State Rural Health Mission) to ensure round concerned subject -3- Further, as to what is the “local criteria”, as provided in the National Health Mission Scheme, has been clarified by the Ministry of Health and Family Welfare, Government of India, in the clarificatory letter dated 14th May, 2010 by stating that “local criteria” as defined in the Framework of Implementation of NHRM implies local residence within district/ tehsil/ block/ village based on the availability.

#4. The learned senior counsel for the appellant while placing reliance on the aforesaid documents, contends that the post held by the appellant- petitioner is not transferable and, therefore, he cannot be transferred to another district.

#5. From perusal of the pleadings, it appears that there was certain complaint of sexual harassment against the appellant-petitioner on

27.08.2021, on the basis of which a Committee comprising of (1) HOD Pathology, Presiding Officer; (2) HOD Surgery, Member; (3) Medical Superintendent, Member; and (4) Incharge Women Grievance Cell, Member, was constituted by the Principal Govt. Medical College, Baramulla, vide order dated 28.08.2021 to conduct an enquiry into the matter. The Committee so constituted conducted the enquiry and submitted its report dated 05.10.2022 along with its conclusions and recommendations.

#6. In view of the provisions of Section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, we refrain from discussing in detail the recommendations made by the Enquiry Committee. However, it will suffice for the purpose of our decision that the Enquiry Committee, considering the evidence including the evidence of two witnesses, was convinced that molestation had been attempted and the victim was distraught. The Enquiry Committee also did not find it credible that the allegation was made at the instance of some third person and considering the fact that such an incident had happened in a workplace in broad daylight where a large number of female workers are employed, the Enquiry Committee felt that appropriate disciplinary action should be taken against the petitioner and made certain recommendations including for putting him under suspension as he was -4- holding a key position in the office dealing with salaries, leaves etc. of employees including a large number of women.

#7. Based on the aforesaid report submitted by the Enquiry Committee constituted by the Principal, GMC, Baramulla, the petitioner was placed under suspension and considering the allegation of sexual harassment made against an employee by another employee in the light of the Sexual Harassment of Women at Workplace Act, 2013, another committee was constituted by the Mission Director, National Health Mission, to enquire into the allegation of sexual harassment against the appellant-petitioner.

#8. The Committee was of the view that though the offence of molestation could not be said to have been established, the complaint could not be said to be baseless or frivolous as it involved touching inappropriately on the forehead which was sexually coloured and was certainly an unwelcome gesture and recommended that in order to ensure conducive and harassment free working atmosphere for the working women, the petitioner may be shifted or allocated permanently to some other place with the warning not to repeat such act of inappropriate behaviour towards the female colleagues in particular and other women in general.

#9. On the basis of the aforesaid recommendations of the Committee, the impugned order dated 15.12.2022 was passed by which the appellant- petitioner was relocated as Block Accounts Manager, Tanghdar, Kupwara, subject to the condition that he will furnish a good behaviour undertaking attested by the 1st Class Judicial Magistrate. It is the aforesaid order dated 15.12.2022, which the petitioner has challenged by filing writ petition, WP(C) No.48/2023 along with an application seeking stay of the said impugned order during the pendency of the writ petition.

#10. The Ld. Single Judge held that the order by which the services of the petitioner were relocated as Block Accounts Officer at another place was not a routine transfer but under compulsion of his sexual behaviour, and he had to be relocated to a different place from that of the complainant, who was working in the same office. The Ld. Single Judge further observed that the petitioner though has raised a legal point that his -5- post was not transferable but was engaged on contractual basis under the National Health Mission Scheme, but in view of the attending circumstances of the case and as both the victim and the petitioner were working at the same place, it was thought prudent by the Committee to recommend his relocation to some other place and the order was issued to avoid any such further misbehaviour by the petitioner at his place of deployment. The Ld. Single Judge was, accordingly, of the view that such an action does not require intervention at the initial stage.

#11. The Ld. Single Judge after hearing the parties accordingly declined to grant interim stay of the impugned order of relocation by virtue of order dated 04.04.2023, which is impugned before us in this Letters Patent Appeal.

#12. Learned senior counsel for the appellant has strenuously argued before this Court that learned Single Judge, after going through the writ petition, observations and recommendations made by the Enquiry Committee as also the submissions advanced that the impugned order was passed by the respondents in violation of the NRHM Scheme as the post held by the appellant-petitioner is a non-transferable post, made an observation in para-8 of the impugned order that the petitioner had been appointed against a non-transferable post of Accounts Manager in Government Medical College, Baramulla, on contractual basis. However, the learned Single Judge was of the view that the said relocation in Kupwara was not a routine transfer but under compulsion of his sexual behaviour and keeping in mind the recommendation of the Enquiry Committee that the said relocation order was issued by the Mission Director, NRHM, to avoid any such further misbehaviour by the petitioner at his place of deployment, as such, it does not require any intervention.

#13. The contention of learned counsel for the appellant is that if the learned Single Judge had accepted the plea taken by the appellant- petitioner that the post is non-transferable in terms of the NRHM Scheme, refusal to stay the impugned order which is apparently passed in violation -6- of the Scheme is patently illegal, as such, requires intervention of this Court by staying the impugned order.

#14. Thus, from the above, it is manifestly clear that foundation of the case of the appellant is that post is non-transferable and if any transfer is made to another district in violation of the Scheme, the same requires our interference.

#15. As can be seen from the information provided under the Right to Information Act vide communication dated 04.05.2011, the criteria for engagement of manpower including ISM Doctor under NRHM Scheme prescribed by the State Health Society can be seen as quoted above in paragraph no.3.

#16. We have also considered the clarificatory letter dated 14th May, 2010 in which it has been mentioned that the “local criteria” as defined in the Framework of Implementation of NHRM implies local residence within district/ tehsil/ block/ village based on the availability. Thus, reading of the aforesaid two documents would indicate that appointment under NHRM Scheme is to be made at a local level from the local candidates to ensure round the clock availability in the particular health institution. As mentioned in the document dated 04.05.2011, in case local candidates are not available, the power to engage non-local candidates vests with the State Health Society as decided in the High Level Meeting chaired by Hon’ble Chief Minister, who is the Chairman of the State Rural Health Mission. Thus, what can be inferred from the above documents is that at the time of recruitment to the posts under the National Health Mission Scheme, preference should be given to local candidates, but it does not necessarily mean that appointment cannot be made at all from outside the District in the event suitable local candidate is not available in the District. As appointment of non-local candidate is also permissible as seen from the document dated 04.05.2011, we are of the view that the said criteria and preference given to local candidate does not necessarily mean that post is non-transferable, as contended by learned Senior Counsel for -7- the appellant. No other document or rule has been brought to our notice to show that the post is non-transferable. Under the circumstances, though the learned Single Judge has taken the view that the post is non- transferable, we find no rule or regulation which provides that the post is non-transferable.

#17. We would like to make a mention of the fact that criteria laid down in document 04.05.2011 is not based on any statutory provision but based on certain guidelines. It is now settled that guidelines issued by the Government from time to time to regulate the functioning of the offices unless backed by statutory provisions cannot be said to be mandatory but merely directory. Thus, unless and until it is shown that the guidelines under the Scheme has the support of any statutory provision, departure from such guidelines cannot be said to be impermissible.

#18. We also have noted that the Ld. Single Judge was conscious of the fact that there was an allegation of sexual harassment against the petitioner by a young lady colleague which was looked into by two Committees. Both the Committees did not exhonerate the petitioner, but gave certain adverse findings. The second Committee on the basis of which the impugned relocation order was issued has given a categoric finding that though the offence of molestation could not be said to have been made out yet, the allegation was neither frivolous nor baseless as it involved unwarranted, unsolicited, inappropriate behaviour with sexual colour on the part of the petitioner. The authorities seem to have proceeded in the matter keeping in mind the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and made the necessary enquiries in this regard. Section 12 of the said Act provides for transfer of the aggrieved woman or the respondent to any other workplace during the pendency of the enquiry by way of an interim measure. In the present case, it appears that when the enquiry was conducted he was placed under suspension and on completion of the enquiry, he was directed to be relocated. Thus, if transfer of a person is permissible during the interregnum period, directing relocation on -8- completion of enquiry returning certain adverse findings does not appear to be impermissible. Under the circumstances, considering the sexual misconduct of the petitioner, the act of the authorities in relocating him to another workplace cannot be said to be ex facie illegal and accordingly, we are in agreement with the learned Single Judge that transferring him to another location/ workplace because of his sexual misconduct does not warrant interference at this stage.

#19. In the circumstances, we are of the view that contention of the learned Senior Counsel for the appellant that the post is non-transferable does not appear to be correct. However, we are refraining from giving a final and conclusive opinion inasmuch as this aspect would be required to be considered by the Writ Court as this contention goes to the very root of the claim of the petitioner.

#20. Thus, our view that the post is non-transferable will be subject to the final decision in the Writ Court. But we are of the prima facie view that it is not a non-transferable post, and considering the recommendation of the Committee to relocate the petitioner to another location to prevent any further such undesirable sexual conduct, we are of the opinion that the impugned order passed by the Ld. Single Judge does not warrant any interference from us.

#21. Accordingly, we dismiss this appeal with the observation that the Writ Court would consider the writ petition finally on merits without being influenced by the observations made by us in this judgment on the merit of the issues raised by the appellant-petitioner before us. (MOKSHA KHAJURIA KAZMI) JUDGE (N. KOTISWAR SINGH) CHIEF JUSTICE Srinagar 18.05.2023 Abdul Qayoom, Secy. Whether the judgment is reportable? Yes/No