HC stays order to remove SKIMS Director

12/01/2018

Srinagar, Jan 11: Justice MK Hanjura today in a petition filed by Dr. A.G. Ahanger, stayed the order of GAD whereby Dr. A.G. Ahanger, Director, SKIMS and Ex-officio Secretary to Government, is relieved of the duties of the post with immediate effect. He shall report to the General Administration Depart ment and Dr. Pawan Kotwal, IAS, Principal Secretary to the Government, Health & Medical Education Department, shall discharge the functions of the post of Director SKIMS, in addition to his own duties, till further orders.
After hearing Sr. Adv ZA Shah for the petitioner whereas Advocate General JI Ganai for the state, Justice MK Hanjura observed that law on the subject is luminous and clear. It provides that the rule of fairness in government action is an essential feature. However, such fairness has to be founded on reasons. The providing of reasons demonstrates the concept of reasonableness. The government could have justified its action by stating that some inquiry was pending against the petitioner or that he involved himself into a conduct unbecoming of a person manning a post and so on and so forth. This could have, at least, given a semblance of fairness to the order. It is not seen to have been done in the action proposed and taken by the Government. Justice is not only law and its administration but it is, in any case, above law and is done to save an individual from whatever he/she seeks protection. Our country is a welfare State where everyone is-as far as possible looked after. Any law, which has to be administered, has to be administered on the basis of principles of justice. Says Voltaire, "The sentiment of justice is so natural, so universally acquired by all mankind, that it seems to me independent of all law, all party, all religion". What requires to be added to this is what Jeremy Tailor said, "No obligation to justice does force a man to be cruel, or to use the sharpest sentence. A just man does justice to every man and to everything and then if he be also wise, he knows there is a debt of mercy and compassion due to the infirmities of man's nature; and that is to be paid". I do not presume to be wiser than these two wise men, to add anything here, but the action of the Government does not appear to be transparent. No reasons for making such an order have been given. The order does not seem to be reasonable or in the public interest. It has not been stated by the learned Advocate General that any inquiry has been initiated against the petitioner and as a sequel thereto, the order impugned has been passed.
Petitioner is aggrieved of and impugns the Government order no.45-GAD of 2018 dated 6th January 2018, whereby he has been relieved of the duties of the post of the Director, SKIMS and Ex-Officio Secretary to Government, with immediate effect and directed to report to the General Administration Department.
Justice MK Hanjura after hearing both the sides in length observed that kooking on the entire gamut of the controversy raised in the petition on hand, the order of attachment of the petitioner prima facie does not appear to have been passed by the appointing authority. The Advertisement Notification, by which the applications were invited from Indian Nationals for the position of Director Sher-e-Kashmir Institute of Medical Sciences, Soura, makes this position beaming, blazing and lucent. Para 5 of the Notification running under the head "Appointing Authority" provides that the Governing Body of SKIMS shall be the Appointing Authority for the post of Director. The order of the attachment does not appear to have been passed by the appointing authority.
With these observations, Justice MK Hanjura stayed the impugned order no.45-GAD of 2018 dated 6th January 2018 till next date of hearing before the Bench. However, this order shall be subject to objections from other side. List on 31st January 2018. JNF

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