DR ANAYAT ALI RATHER vs HEALTH AND MEDICAL EDUCATION DEPARTMENT

:: 1 :: O.A. No. 61/671/2025

Reserved on 22.09.2026
Central Administrative Tribunal
Jammu Bench, Jammu

Hearing through video conferencing

O.A. No. 61/671/2025

th
Pronounced on :- This the 07 day of October 2026
Hon’ble Mr. Sanjeev Gupta, Judicial Member
Hon’ble Ms. Pragya Sahay Saksena, Administrative Member

1. Dr. Anayat Ali Rather, Age 55 years, S/o Sh. Ghulam Rasool,
R/o Changa, Tehsil Gundoh, District Doda. At present Kiryani
Talab, Jammu..
...Applicant

(Through Advocate: Mr. Sheikh Najeeb)

Versus

1. UT of J&K through its Commissioner/Secretary to Govt. Health
and Medical Education Department, Civil Secretariat, Jammu.
2. The Commissioner/Secretary to Govt of Jammu & Kashmir,
General Administration Department, Civil Secretariat, Jammu.
3. The Director (Ayush), J&K, Indira Chowk, Jammu.
…Respondents

(Through Advocate: Mr. Sudesh Magotra, A.A.G.)




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O R D E R
Per:- Sanjeev Gupta, Judicial Member

By way of this Original Application (in short O.A), the applicant
has challenged Government Order No. 15-JK (HME) of 2025 dated
09.01.2025, hereinafter called impugned order, whereby minor
penalty of withholding of increment for 01 year (non-cumulative) in
terms of Rule 30 (iii) of J&K Civil Services (Classification, Control and
Appeal) Rules, 1956 (in short Rules of 1956) has been imposed upon
the applicant.
2. The applicant has also sought a direction to the respondents to
nd
grant the benefits of 2 Time Bound Promotion by placing the
applicant to the pay grade of Level XII (88,800 – 2,09,200) Medical
Officer Grade-II in terms of Government Order No. 493-HME of 1999
dated 05.10.1999, as the applicant has completed 05 years service as
Medical Officer Grade-I and 15 years Cumulative Service as Medical
Officer.
3. Briefly, stated the facts of the case are that in connection with
the procurement of Ayurvedic/Unani Medicines and drugs by the ISM
department, which were of spurious and sub-standard quality, a Joint
Surprise Check (JSC) was conducted on 08.09.2016 and, thereafter,
on 10.07.2015, a verification Board for verification of supplies for
Jammu Division pertaining to the year 2015-16 was constituted and
comprised of Mr. Rakesh Kumar Shan, as its Chairman with three
others members namely, Dr. Saroj Sharma, Dr. Zubair Ahmed Shah
and Dr. Rohit Gupta and the said verification Board was to remain in
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force till 31.03.2016. It is averred that owing to the preoccupation of
one of the Members of the Board namely Dr. Zubair Ahmed Shah, the
applicant who was serving as Medical Officer, ISM, Dispensary Tanta
(Doda), was replaced as one of the Members of the Board, in place of
Dr. Zubair Ahmed Shah, at the fag end of the financial year, vide
order dated 11.03.2016, issued by the Director General ISM. It is
further averred that in the Joint Surprise Check, the vigilance
organization Jammu, lifted thirteen random samples on 08.09.2016,
out of which 06 were alleged to be of sub-standard quality, which were
sent for analysis to Government approved laboratory but they were
found to be fit for consumption and for the said reason, the Vigilance
Organization closed the Joint Surprise Check on 27.07.2017 and
recommended regular departmental action against the then Director
General of ISM and members of the verification Board, including the
applicant.
4. That, Regular Departmental Action was initiated pursuant to
Memorandum No. HME/HRM/152/2017 dated 10.08.2018 by serving
the statement of imputation and Articles of Charges to the applicant
and the Enquiry Officer submitted his report on 27.02.2019 arriving
at a conclusion that the allegations of misconduct were not
established against the applicant and Members of the Board.
5. It is the further case of the applicant that Ayush Doctors
Association, Kashmir having some personal grudge with the then
Director General ISM, lodged a complaint before the State Vigilance
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Organization, resulting in registration of FIR No. 15 of 2019 dated
03.07.2019 at Police Station, ACB, Jammu, which was challenged in
the Hon’ble High Court of Jammu & Kashmir and Ladakh by way of
CRM (M) No. 1011 of 2022, wherein by interim order dated
07.12.2022, the operation of said FIR has been stayed.
6. It is the grievance of the applicant that despite having no role in
the purchase of medicine, as he remained Member of the Verification
Board for only 20 days, when the verification process was already
completed by the erstwhile Committee Members, the Respondent No.
1, in an arbitrary manner issued the impugned order in violation of
Rule 35 of Rules of 1956, oblivious to the fact that the applicant has
already been exonerated in the RDA, which is not sustainable under
law. The applicant is also entitled for second time bound promotion
w.e.f. 01.01.2025, but the same has been denied, on account of
figuring of applicant’s name in FIR No. 15 of 2019.
7. Counter affidavit has been filed by the respondents, averring
that all the legal formalities were followed, in passing the impugned
order and the penalty has been imposed in accordance with law. The
O.A. being meritless deserves dismissal.
8. We have heard and considered the arguments of learned
counsel for the applicant and learned A.A.G. for respondents and gone
through the material on record.
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9. At the outset, learned counsel for the applicant has submitted
that vide order dated 03.10.2025 of Respondent No. 3, the applicant
nd
has been granted 2 Time Bound Promotion w.e.f. 01.01.2025 and for
the said reason, he does not intend to press the relief claimed in the
nd
O.A. in respect of non grant of 2 Time Bound Promotion.
10. In so far as the impugned order is concerned, the learned
counsel for the applicant has vehemently urged that the respondent
No. 1 has passed the said order with a total non application of mind,
in as much as, on one hand, the Respondent No. 1 has approved;
recommendations of inquiry officer in respect of applicant and other
delinquent officials, and on the other hand, minor penalty of
withholding of increment for one year (non-cumulative) in terms of
Rule 30 (iii) of J&K Civil Services (Classification, Control and Appeal)
Rules, 1956 has been imposed upon the applicant.
11. Further as per learned counsel, the punishment has been
imposed, upon the applicant without giving an opportunity to make
representation, before issuing the impugned order, which is illegal and
in violation of Rule 35 of Rules of 1956. In support of his submissions,
the learned counsel for the applicant has relied upon the Division
Bench judgements of the Hon’ble High Court of Jammu and Kashmir
in the case of State of J&K Vs. Mohd Amin Makhdoomi decided on
10.06.1980 1980 JKLR 417 and Vinod Kumar Vs. Jammu
Municipal Corporation and another in SWP No. 2900 of 2016.
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12. On the other hand, learned counsel for the respondents
contended that procedural safeguards as per Rules of 1956 were
followed while passing the impugned order.
13. In Mohd Amin Makhdoomi (supra) case, the delinquent officer
was awarded the punishment of withholding his future promotion for
a period of three years. The Hon’ble High Court relying upon Rule 35
of the Jammu and Kashmir Civil Services (Classification, Control and
Appeal) Rules, 1956 remanded the case back to the competent
authority after setting aside the order imposing the penalty upon the
officer.
14. Rule 35 of the Jammu and Kashmir Civil Services
(Classification, Control and Appeal) Rules, 1956 reads as under:-
“Without prejudice to the provisions of rule 33, no order
imposing the penalty (specified in clauses (i), (ii), (iii) and (v) of
rule 30 (other than an order based on facts which have led to
his conviction in a criminal court or by a court martial, or an
order superseding him for promotion to a higher post on the
ground of his unfitness for that post) or any Government
servant to whom these rules are applicable shall be passed
unless he has been given an adequate opportunity of making
any representation that he may desire to make and such
representation, if any, has been taken into consideration before
the order is passed:
Provided that the requirements of this rule may, for sufficient
reason to be recorded in writing, be waived where there is
difficulty in observing them and where they can be waived
without injustice to the officer concerned.”
15. While setting aside the penalty order, the Hon’ble High Court in
case of Makhdhoomi (supra) held as below:-
“The real question to be considered is where a charge-sheet has
been served on a delinquent officer and he has made his
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representation but the disciplinary authority does not think it fit
to act on such representation and orders an enquiry into the
charges, then, whether, the enquiry report should be made
known to such officer and he should be granted an opportunity
to make representation against it. Rule 35 does not provide for
an enquiry into the charges. But there is nothing to prevent the
disciplinary authority from ordering such an enquiry in
appropriate cases. Where such an enquiry is ordered and the
disciplinary authority decides to act on the enquiry report, the
requirement of the rule is that the delinquent officer should be
served with a copy of the report and given an opportunity to
make his representation against it. For, the enquiry report shall
be the only material on which the disciplinary authority would
base its judgement for imposing a penalty on the delinquent
officer and when the rule provides for a representation, such a
representation necessarily be directed against the enquiry
report. The requirements of the rule would not be satisfied
merely because the delinquent officer had been given an
opportunity to make his representation against the charge
sheet. Such a representation loses its meaning and utility after
the enquiry has been ordered into the charges. The only
effective representation that the delinquent officer can make
would be that against the enquiry report. In the present case,
the charge sheet was served on the respondent. He submitted
his representation and the disciplinary authority did not decide
to act on the representation and instead ordered a formal
enquiry. The Enquiry Officer submitted his report but the
enquiry report was not made known to the respondent and he
was not given any opportunity to make any representation
against it, before the impugned order imposing the punishment
on him was passed. On the principle stated above, the
impugned order is bad in law inasmuch as no opportunity was
given to the respondent to make his representation against the
enquiry report. In the case of Shadi Lal (Supra) no formal
enquiry was ordered into the charges and as such that case is
distinguishable from the present case. In this view, we are
inclined to uphold the order of the learned Single Judge though
only for different reasons.
4. The result, therefore, is that this appeal fails and is
dismissed accordingly. The respondent had filed cross
objections but the same were not pressed at the hearing before
us. They are dismissed accordingly. It shall be open to the
appellant state to pass fresh orders in accordance with law
keeping in view the observations made above.”
16. Similarly in Vinod Kumar (supra) case, the Hon’ble High Court
of Jammu & Kashmir, relying on the law laid down by the Hon’ble
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Supreme Court in the case of Union of India and others Vs Mohd
Ramzan Khan 1991 (1) SCC 588 reiterated the legal position by
stating that in terms of Rules of 1956, a Government Servant has to
be given adequate opportunity of making representation before issuing
the order imposing penalty and the said representation has to be
taken into consideration before the order is passed by the competent
authority.
17. The applicant in the case in hand was imposed a penalty, inter
alia, specified in clause (iii) of Rule 30 of Rules 1956, however, he was
not given an opportunity of making a representation, in terms of Rule
35 of Rules of 1956, before the impugned order of punishing the
applicant was passed by the respondent No. 1, thereby violating the
right of applicant to have proper and legal representation against the
order imposing penalty. In other words, a Government employee has
to be given adequate opportunity of making representation before
issuing the order imposing penalty and the said representation has to
be taken into consideration before the order is passed. Moreover,
respondent No. 1 has not furnished any reasons in the impugned
order imposing penalty upon the applicant in the light of report of
Enquiry Officer giving clean chit to the applicant with regard to
allegations of misconduct.
18. In view of the discussion made above and in the facts and
circumstances of the case as well as legal position summarized above,
the impugned Government Order No. 15-JK (HME) of 2025 dated
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09.01.2025 issued by Respondent No. 1, is quashed and set aside.
The record shows that the Enquiry Officer has submitted his report to
the Respondent No. 1 on 27.02.2019 and the impugned order was
passed on 09.01.2025, i.e. more than six years after receiving the
enquiry report. Given such a situation, it would be futile exercise to
again allow the respondents to proceed against the applicant from the
stage of providing him an opportunity to make representation against
the impugned order, when the fact of matter is that, the applicant was
exonerated, as per, enquiry report, in the course of departmental
proceedings.
19. No order as to costs.

(Pragya Sahay Saksena) (Sanjeev Gupta)
Administrative Member Judicial Member
Arun…
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