J&K HC stayed order of National Commission of Scheduled Castes
Jammu, Dec 15
In a significant order of wide public importance, a single-Judge Bench of Justice Wasim Sadiq Nargal of High Court of Jammu & Kashmir and Ladakh stayed the operation of Order No. E-Office No. NCSC-SSW2055/5/2022-US-(SSW) in File No. S20/Jammu-1/2021/SSW-II dated 10.11.2022 passed by the National Commission for Scheduled Castes, Government of India, New Delhi directing the Administrative Secretary to the Government of Jammu and Kashmir, Health and Medical Education Department to make Dr. Sanjay Kumar Bhasin as Head of the Department, Department of Surgery, Government Medical College, Jammu. The commission had also directed the personal appearance of the Administrative Secretary, Health and Medical Education Department with a further direction to file up-to-date Action Taken Report (ATR) and all relevant documents including the relevant case files, case-dairies to facilitate the hearing.
The court directions were passed in a writ petition filed by Dr. Ratnakar Sharma, HOD (Incharge), Department of Surgery, GMC, Jammu challenging the validity of the order passed by National Commission for Scheduled Castes and also seeking appropriate directions that the Government of J&K be directed not to disturb him from his present place of posting i.e. HOD (Incharge), Surgery, the charge of which was assigned to him by virtue of order No. GMC/21/ORDER/181 dated 31.05.2022.
After hearing Advocate Sheikh Shakeel Ahmed with Advocates Rahul Raina, Supriya Chouhan and Mohd. Zulkarnain Chowdhary appearing for the petitioner, Justice Wasim Sadiq Nargal observed that the counsel for the petitioner have vehemently argued that the Apex Court of the country is already seized of the matter in SLP (C) No. 33820/2015 arising out of the batch of petitions with Lead Case tilted Ashok Kumar Sharma Vs. State of J&K & Ors connected with SWP No. 1583/2014 titled Dr. Ratnakar Sharma V/s State of J&K & Ors, wherein the Division Bench of the High Court of J&K and Ladakh at Jammu allowed the writ petitions and struck down section 6 of the J&K Reservation Act, 2004 and Rules 9, 10 & 34 of the J&K Reservation Rules, 2005 being ultra vires to the Article 16 of the Constitution of India besides quashing the orders of placement of Dr. Sanjay Kumar Bhasin as Incharge Assistant Professor made vide Order No. 619-HME of 201 dated 25.11.2011 and also the corrigendum issued thereafter.
Advocate S.S. Ahmed during the course of arguments submitted that the National Commission for Scheduled Castes was allegedly mislead by Dr. Sanjay Kumar Bhasin who suppressed the material facts as the service disputes viz-a-viz seniority and other relevant issues between petitioner and Dr. Sanjay Kumar Bhasin were already clinched by the Division Bench of the High Court of Jammu & Kashmir and Ladakh which has assumed finality. The petitioner after having successfully obtained the relief against Dr. Sanjay Kumar Bhasin from the Division Bench of the Court, the private respondent Dr. Sanjay Kumar Bhasin started filing false & frivolous complaints before the National Commission for Scheduled Castes with a view to defeat the rights of the petitioner.
Advocate S.S. Ahmed vociferously argued that National Commission for Scheduled Castes by no stretch of imagination can issue positive direction with respect to the service conditions of the petitioner and Dr. Sanjay Kumar Bhasin as the NCSC is not empowered to issue any such direction either to transfer an employee in a particular post or place or to pass any order relating to service matter, which falls within the realms of administrative action as it (NCSC) is only recommendatory body. The NCSC is not expected to interfere with the routine administrative affairs of the department as the role of the Commission is to issue only suitable recommendations.
Justice Wasim Sadiq Nargal further observed that the counsel for the petitioner has placed reliance on a judgment of the Madras High Court in case titled LIC V/s The National Commission for Scheduled Castes dated 28.10.2022 which was passed on the basis of a Supreme Court Judgment in case tiled All India Indian Overseas Bank, SC & ST Employees Welfare Association and Ors. V/s Union of India & Ors reported as (1996) 6 SCC 606.
After considering the submissions made by Advocate S.S. Ahmed, Justice Wasim Sadiq Nargal observed and directed that prima facie case for indulgence has been made out and issued notices to the National Commission for Scheduled Castes, Government of India, New Delhi as well as Secretary, Health & Medical Education Department, Government of J&K and Principal, GMC, Jammu which were accepted in the open Court by AAG, Amit Gupta. Justice Nargal also issued notices to private respondent Dr. Sanjay Kumar Bhasin. The Court also directed the petitioner to take steps for the service of NCSC within one week. The Court looking into peculiar circumstances of the case, further stayed the operation of the impugned order dated 10.11.2022 passed by the National Commission for Scheduled Castes till next date of hearing i.e. 22.02.2023.