MUMTAZ HUSSAIN SHAH Vs. STATE OF J&K

JUDGEMENT

(1.) It is stated that the petitioner No. 1 was serving in the Health Department as a Block Medical Officer, Surankote in Poonch and during his posting at Surankote, he, in order to make Allopathic Dispensaries, Primary Health Centre, Sub Centres functional as well as taking into consideration the plight of the residents/inhabitants of the concerned areas, who were facing lack of health facilities, appointed petitioner Nos. 2 to 6 as Nursing Orderlies and petitioner No. 7 as Safaiwala by virtue of different individual orders issued by him.

(2.) Further that petitioner No. 1 being a Block Medical Officer has the power to make appointments to the post of Class-IV and in exercise of said power, he appointed petitioner Nos. 2 to 7 as Class-IV purely for the smooth functioning of the AD Centres, Public Health Centres, Sub Centres etc. The petitioner No. 1 claims to have endorsed each and every order of appointment of each of the petitioner Nos. 2 to 7 not only to the Director, Health Services, Jammu but also to the Chief Medical Officer, Poonch. The said authorities have never questioned the action of petitioner No. 1 in issuing the appointment orders in favour of the petitioner Nos. 2 to 7. It is further stated that petitioner No. 1 retired after attaining the age of superannuation in year 2004 and further before November, 2014, no one had questioned the appointments of petitioner Nos. 2 to 7. In November 2014, on the basis of a communication issued by the Chief Medical Officer, Poonch, the salaries of petitioner Nos. 2 to 7 were sought to be withheld without any justifiable reason or rationale, as a result of which, petitioner Nos. 2 to 7 approached this Court through the medium of a writ petition and this Court passed the interim directions. The petitioners further claim that without associating them in the preliminary enquiry, FIR bearing No. 15 of 2015 dated 20.03.2015 for the commission of offences under section 5(1)(d), read with section 5(2) of the Jammu and Kashmir Prevention of Corruption Act of Svt. 2006 ( herein after to be referred as "the P.C Act?) and section 120-B RPC, was registered by the respondent on the ground that petitioner No. 1 has illegally appointed petitioner Nos. 2 to 7 as Nursing Orderlies/ Safaiwala as the case may be. The petitioners have impugned the aforesaid FIR on the following grounds:

(3.) The response stands filed by the respondent, in which it is stated that a written complaint was submitted by Shri Amjid Khan S/o Sh. Farman Ali, R/o Buflaiz, Tehsil Surankote and on the basis of said complaint, a preliminary enquiry was conducted by the Additional Deputy Commissioner, Poonch on the allegations leveled in the complaint. Subsequently, after completion of the enquiry, a detailed report was submitted to the Registrar, State Vigilance Commission J&K. After perusal of the enquiry report submitted by the District Vigilance Officer, Poonch, prima facie case for criminal misconduct against the officer (s), who had issued the appointment orders was made out and the Director Vigilance Organization was directed to take cognizance of the matter and as such, the case was registered in the Police Station, Vigilance Organization, Jammu on 20.03.2015 under section 5(1)(d) read with section 5(2) of the P.C Act and section 120-B RPC. It is further stated that number of illegal appointments of Class-IV employees i.e. Nursing Orderlies/Safaiwala were made by the then Block Medical Officer, Surankote, petitioner No. 1 herein, against vacant/clear vacancies from time to time during his tenure as BMO, Surankote, without providing equal opportunity and competition by advertising the said posts and adhering the due selection process and thus, flouting all norms governing such appointments by sheer abuse of his official position. During the course investigation, it transpired that petitioner No. 1 remained as BMO, Surankote with effect from 08/1984 to 02/1986, 11/1988 to 11/1992 and 11/1997 to 05/2002 and during the said period, the petitioner No. 1 had issued six appointment orders, the details of which are as under: