dr nusrat nabi lone vs HEALTH AND MEDICAL EDUCATION DEPARTMENT on 30 October 2026

O R D E R

M.S.LATIF, M (J) oral "HEALTH IS THE GREATEST WEALTH" 01/ Through the medium of this petition, the petitioner has, inter alia, sought the following reliefs : “The Hon'ble Tribunal may be pleased to pass appropriate orders/directions: Declaring the impugned Order No. Est-3/1- 133/2832-40 dated 24.10.2026 passed by Respondent No.3, whereby, in supersession of the roster Order No. Est-3/1-133/2556- 69 dated 30.09.2026 insofar as it relates to the Applicant, illegal, totally arbitrary, mala fide, passed by an incompetent authority, invidiously discriminatory and violative of Articles 14 and 16 of the Constitution, thus void ab initio and non-est in law with further direction to declare the Relieving Order No. BMOC/1913-15 dated 27.10.2026 passed by Respondent No.5 in purported compliance with the Impugned Order, along with the endorsement thereof made by Respondent No.3 vide No. CMOB/GAZ/2026-2027/11221 dated 27.10.2026, being wholly consequential, to be void ab initio and non est in law. Further direction is sought to quash the impugned Order No. Est-3/1-133/2832-40 dated 24.10.2026 passed by Respondent No.3, insofar as it relates to the Applicant herein as also the Relieving Order No. BMOC/1913-15 dated 27.10.2026 passed by Respondent No.5. Respondents be further directed to desist, refrain and forbear from giving effect to the impugned Order No. Est-3/1-133/2832-40 dated 24.10.2026 and the Relieving Order No. BMOC/1913-15 dated 27.10.2026, insofar as it relates to the Applicant, or from posting (transferring) the Applicant for duty at CHC Dawar, Gurez, or at any other far-flung area in derogation of the consistent practice being followed by the Respondents themselves, or from taking any coercive or punitive action against the Applicant in furtherance thereof and allow the applicant to continue to discharge her duties as Medical Officer (Gynae) at SDH Chadoora, District Budgam. Along side the main reliefs, the petitioner has also sought a direction, as an interim measure, that pending disposal of the present Original Application, stay the operation and implementation of the Impugned Order No. Est-3/1-133/2832-40 dated 24.10.2026 insofar as they relate to the Applicant and the Relieving Order No. BMOC/1913-15 dated 27.10.2026 and direct the Respondents to permit the Applicant to continue to discharge

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her duties at SDH Chadoora, District Budgam, and restrain the Respondents from taking any coercive or punitive action against the Applicant in furtherance of the said Orders.” 02/ What can be gathered from an in depth analysis of the pleadings made in this petition is that the petitioner is serving in the Health & Medical Education Department, J&K, and is presently posted as Medical Officer, Obstetrics & Gynecology at Sub Divisional Hospital (SDH), Chadoora. 03/ The petitioner has thrown challenge to an order bearing No. Est- 3/1-133/2832-40 dated 24-10-2026, issued by respondent No.3, whereby, in supersession of previous order regarding attending duties at CHC, Dawar, Gurez, on roster basis, issued vide order No. Est-3/1- 133/2556-69 dated 30-09-2026 and in order to keep Gynecology services available at Block Gurez during the forthcoming winter season, Dr. Nusrat Nabi, Medical Officer (DGO) DH, Bandipora...., who figures at S.No.2 in the said order, is hereby deployed to CHC, Dawar, Gurez, with immediate effect as an interim measure on temporary basis. 04/ The said order is assailed on various grounds as have been urged in the O.A. Learned senior counsel, appearing for the petitioner, submitted that in the past, such arrangements were made in view of the dearth of gynecologists at SDH, Gurez, District Bandipora, and only male doctors were being deployed. As such, it is submitted that the order impugned, as it relates to the petitioner, is a deviation from such

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practice and is violative of constitutional guarantees enshrined under articles 14 & 16 of the Constitution of India and the order, being void ab initio, is non est in the eyes of law and is liable to be set aside and quashed. He further submits that the order is totally arbitrary, discriminatory and bereft of any warrant in law or for fact giving posting of Gynecologist, SDH, Gurez, Bandipora, in the interest of better patient care, is completely otios and uncalled for and, according to the learned counsel, is in vindication of the mandate of constitutional guarantees. 05/ Mr. Musaib - DAG, appearing for the respondents, while rebutting the argument of learned counsel for the petitioner, submitted, at the very outset, that the action taken by the respondent No.3 in passing the impugned order has been approved and confirmed by the competent authority, i.e. Government of J&K. He further submitted that the petitioner herein is actually a resident of Gurez, Khandyal, who belongs to the ST category. To substantiate the argument, he submitted photostat copies of certificates of registration of the petitioner, which depict the permanent address of the petitioner as Khandyal, Gurez. He further submitted that prior to the filing of the instant petition, the petitioner had filed a writ petition (SWP 2194/2011) before the Hon'ble High Court of J&K, Srinagar, wherein, inter alia, following order was passed :

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“…….. this writ petition is, accordingly disposed of reserving liberty with the petitioner to file the representation with the state Government within a week’s time to seek reconsideration of her transfer to Block Gurez. The representation, if so filed, shall be considered by the State Government in the Health and Medical Education Department for passing appropriate orders thereon, within three weeks there from. For the period of four weeks, the respondents are directed to keep the petitioner attached with the Director, Health Services, Kashmir, Srinagar.” 06/ Learned counsel for the respondents further submits that recently, in Gurez block, a woman, in a family way, died enroute to Bandipora hospital. To this effect a News Paper clipping, published in daily Greater Kashmir on 14-10-2026, with the caption 'A pregnant woman dies enroute to Bandipora hospital baby still born amid referral delay'. As such, he submits that the remote area of Gurez cannot be left without any specialist in Gynecology and that the impugned order has been passed in the interest of patient care and for the reason that the petitioner is a permanent resident of Gurez, who can, very well, manage gynecology complications there. 07/ Right to health and medical treatment is a facet of right to life and the same is to be provided by the State and associated medical institutions by keeping the adequate medical care available. In our country, the societal needs of health care are immense, requiring the Government to play a major role in providing health care facilities to its citizens for variety of reasons, be it poverty, lack of health care facilities in rural/tribal areas etc. Thus the issue, with regard to health care, being paramount and which touches the very existence of the human kind,

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deserves all attention. In this regard, I am fortified by the judgements delivered by the apex court in cases titled as Permanand Katara versus Union of India, 1989 vol. 4, SCC 286, Consumer Education Centre versus Union of India, 1995 vol.3, SC 42 and Paschim Bengal Khet Mazdoor Samiti versus State of West Bengal, 1996 vol. 4 SCC, 37, wherein Their Lordships held that article 21 of the Constitution of India imposes an obligation on the State to safeguard the right to life of every person. Their Lordships held further that the Government hospitals, run by the State and the Medical Officers employed there, are duty bound to extend medical assistance for preserving human life and any violation on the part of the Government hospitals to provide timely medical treatment to a person in need results in violation of right to life guaranteed under article 21 of the Constitution of India. In a case titled as State of Punjab versus Mohinder Singh Chawla, 1997, vol. 2, SCC, 83, the apex court reiterated that Government has a constitutional obligation to provide health facilities as right to health is integral to right to life. 08/ As is manifest from the mandate of judgements supra, health is held as an important facet of right to life, as such, it is an obligation of the State to ensure good health to its citizens and this assertion is reiterated in case titled as Indian Council of Legal Aid versus Union of India, 2000, vol.1 SCC 542. As such a duty is cast on the State to

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preserve life and failure on its part, to provide timely treatment to a person in need, would certainly result in violation of right to life. The hospitals, Health Centres, Dispensaries etc., can only run when the State provides a proper infrastructure, well equipped with trained staff, maintenance of hygiene and supply of adequate medicine and more particularly, availability of specialist doctors. 09/ Learned senior counsel, while buttressing his argument laid stress on the ground that the petitioner is a lady doctor and in the past, only male doctors used to be deployed to man such remote postings, however, he did not mention that the petitioner is a resident of Gurez itself, who has been brought up there. In this view of the matter, I am afraid, if that can be a ground to deny proper specialized medical care to the people living in the remote/tribal areas like Gurez and, in my humble estimation, there is no specific landmark judgement that dictates a blanket ban on the postings or deputing a lady doctor to a tough area and while challenging a remote posting, the ground of medical hardship alone does not, automatically, invalidate an order of transfer. It goes without saying that transfer or deployment is an exigency of service and is always a administration decision, falling within the domain of competent authority, besides, transfer or deployment is a part of service condition of an employee, accepted at the time of appointment and a court should not, as such, ordinarily, interfere in exercise of its

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discretionary jurisdiction unless it finds that the order is passed either on mala fide grounds or has been issued by an incompetent authority or is passed in contravention of the Service Rules. To this effect, court is fortified by the following judgements : 1 /Hon’ble Supreme court in Ms. Sarita Singh versus M/S Shree Infosoft Private Limited 2022 Live Law (SC) Page 67 ;. 2/ Hon’ble Supreme Court in the case of S. K. Nausad Rahman & Ors. v. Union of India & Ors., 2022 LiveLaw (SC) 266 ; 3/ Hon’ble Apex Court titled as Sarita Singh versus Shree Infosoft Private Limited arising out of Civil Appeal no. 346 of 2022 ; 4/ State of Punjab versus Inder Singh reported in 1997 Volume 8 SCC 372 ;, 5/ Hon’ble Apex Court titled as State of Haryana and ors. versus Kashmir Singh, 2010 Volume 13 SCC 306. 10/ Be that as it may, it is always left to the domain of competent authority as to who should be transferred and where. From the pleadings made in this petition, it is nowhere averred that the order has been passed by an incompetent authority or it is activated with malice, hatred or issued on mala fide considerations. Needless to say that the Government is to decide as to how to distribute and utilize the services of its employees. However, the power of transfer, devolved in the competent authority, must be exercised honestly, bona fide and reasonably in the interest of public service and while exercising such power, the authority is not to act upon extraneous considerations or for

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achieving an alien purpose or an oblique motive or the same has been issued in a colorable exercise of power. 11/ Admittedly, in the light of law laid down by the apex court in the case titled as S.K.Naushad Rehman versus Union of India and others, 2022, Live Law, wherein the apex court ruled that while an employee cannot claim a transfer as a fundamental right but at the same time, the transfer policies of the State must align with the constitutional values protecting family life and substantive gender equality. It is equally true that the administration must actively consider the physical vulnerability underlying the health conditions and familial responsibility of a lady doctor before enforcing bad station postings. 12/ Mr. Jan - learned senior advocate, submitted that before approaching the court by way of instant O.A, the petitioner has already made a request to the Commissioner Secretary, Health & Medical Education Department, J&K, for reconsideration of her transfer on medical and humanitarian grounds, but same has not, as of now, been decided. 13/ Heard learned counsel for the parties at length. Accordingly, in view of the facts and circumstances of the case and the law cited at the bar, I am of the considered opinion that no interference is warranted in the matter. However, since the representation filed by the petitioner is stated to be pending, respondents are obliged to pass appropriate orders,

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for, filing of representation creates a legal right in favour of the petitioner for its disposal and non consideration of the representation by the concerned authorities can lead to undue hardships and may warrant judicial intervention. In this behalf, I am fortified by the judgements titled as Nagapa Saibanna versus State of Karnataka, 2026 Legal Eagle, KAK, HC, 965, Eklavya Kumar versus State of U.P, 2018 Legal Eagle, ALD, HC 12425 DB, Dr. Suja Ani. G, versus State of Kerala, the Director of Medical Education and the Principal, 2010 Legal Eagle, Ker, HC 2562. In this backdrop, respondents are directed to consider and decide the representation filed by the petitioner within a period of seven days' positively to be reckoned from the date a copy of this judgement is served upon them and for seven days', the petitioner shall not be disturbed from her present place of posting, i.e. Chadoora. It is made clear here that it shall be incumbent upon the respondents to dispose of the representation within the aforesaid period by passing a speaking order. 14/ Before parting, I am reminded of saying of a Greek Scholar, - Francois Rabelias, and I quote, 'Without health, life is not life , it is only a state of languor and sufferings - AN IMAGE OF DEATH.' As such, by sensitizing the people who are at the helm of affairs not only at the level of the Government but also those who are involved in every bit of duty and responsibility towards the sick and needy who are

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compelled to approach the Government hospitals and health centres, I would like to say that there is no duty as solemn as treating the sick and it is on the shoulders of such persons that the health of the nation depends, as, for those, knocking the doors of health institutions for medical treatment, they are angles, as they share the agony of the sick and strive for their recovery, good health and, ultimately good living. 15/ In the backdrop of what has been discussed hereinabove, this petition shall stand disposed of along with connected M.As, if any. Copy of this order shall be send to the Chief Secretary of the U.T of J&K and the Secretary, Health and Medical Education, U.T of J&K. (M. S. LATIF) Member (Judl.) TARIQ MOTA CONSULTANT (PS) 30-10-2026.

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