Rajasthan High Court - Jodhpur
Hira Lal Tabiyar vs The State Of Rajasthan on 27 September, 2022
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 10796/2022
Hira Lal Tabiyar S/o Shri Nanu Ram, aged about 58 Years, R/o
Behind Akashwani, Tripura Colony, Thikariya, District Banswara
(Raj.).
----Petitioner
Versus
1. The State of Rajasthan through its Additional Chief
Secretary, Department of Medical, Health and Family
Welfare, Government of Rajasthan, Secretariat, Jaipur.
2. The Principal Secretary, Rural Development and
Panchayati Raj Department, Government of Rajasthan,
Jaipur, Rajasthan.
3. The Director, Medical and Health Services, Directorate,
Swasthaya Bhawan, Jaipur.
4. The Joint Secretary to the Government, Department of
Medical and Health (Group-2) and Panchayati Raj
(Medical) Department, Secretariat, Jaipur, Rajasthan.
5. The Assistant Secretary to the Government, Department
of Medical and Health (Group-2), Secretariat, Jaipur,
Rajasthan.
----Respondents
For Petitioner(s) : Ms. Shweta Bora.
For Respondent(s) : Mr. Shreyansh Mehta.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 27/09/2022 Heard.
This writ petition has been filed by the petitioner aggrieved of the order dated 22.07.2022 (Annex.2), as amended by order dated 07.09.2022 (Annex.R/1), whereby the petitioner has been (Downloaded on 27/09/2022 at 09:22:08 PM) (2 of 5) [CW-10796/2022] transferred from the post of Chief Medical & Health Officer, Banswara to C.H.C., Kotdi, Bhilwara on a vacant post.
The challenge has been laid by the petitioner inter-alia on the ground that though the petitioner is P.C.M.O., he has been indicated as 'Deputy Director' in the order and the place where the petitioner has been posted, even the post to be held by him has not been indicated. Further, submissions have been made that as the order of transfer was from one district to another, it is in contravention of Rule 8 (iii) of the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 ('Rules of 2011').
A reply to the writ petition has been filed, inter-alia, indicating and relying on the order in State of Rajasthan & Ors. vs. Rekha Kumari : D.B.S.A.W. No.284/2022 decided on 17.08.2022, with regard to alleged non-compliance of the provisions of Rule 8 (iii) of the Rules of 2011. Where after, during pendency of the writ petition, an additional affidavit has been filed alongwith which an order (Annex.R/1) inter-alia amending the original order dated 22.07.2022, which has been placed on record, wherein now it is indicated that the petitioner was holding the post of P.C.M.O. and that he has been posted on the post of Medical Officer at C.H.C., Kotdi, Bhilwara.
Further reliance has been placed on the note attached to the order dated 22.07.2022 regarding the order being approved at the competent level and the fact that if there is no vacancy for granting Dynamic Assurance Career Progress ('DACP') available the post held by the candidate shall be converted into the post on which the candidate is to be promoted till he holds that post. Further submissions have been made that on account of Circular (Downloaded on 27/09/2022 at 09:22:08 PM) (3 of 5) [CW-10796/2022] issued by the respondents, the petitioner could not hold the post of Chief Medical & Health Officer, Banswara.
I have considered the submissions made by the counsel for the parties and have perused the material available on record.
A perusal of order (Annex.2) indicates that the same has been issued in a wholly casual manner, wherein the post of the petitioner, which he was holding i.e. 'P.C.M.O.' has been indicated as 'Deputy Director', and the place where he has been transferred, no post was indicated.
When the same was put in issue before this Court, in a wholly cursory manner, by issuing order dated 07.09.2022 (Annex.R/1) inter-alia, qua nine officers, for all those, whose posts were wrongly indicated and they were transferred without indicating the post on which they were being transferred; qua the petitioner, it has been now been indicated that he has been transferred on the post of 'Medical Officer'. For the purpose of posting the petitioner as Medical Officer, reliance has been placed on the note contained in the Circular dated 08.02.2013, pertaining to Dynamic Assurance Career Progress Rules.
A bare look at the Rajasthan Medical & Health Service (Amendment) Rules, 2012, which were published by notification dated 08.02.2013, reveals that the same pertains to the promotion under the DACP Scheme and inter-alia it is indicated under Rule 24 BB (4) that if there is no vacancy for granting DACP available, the post held by the candidate shall be converted into the post on which the candidate is to be promoted till he/she will hold that post. The said provision, which only deals with grant of DACP and essentially relates to the position held by the person at the time when he is being granted DACP, is apparently being (Downloaded on 27/09/2022 at 09:22:08 PM) (4 of 5) [CW-10796/2022] misused by the respondents for the purpose of transfer of the officer(s), who are holding higher post to lower post, which action on the part of the respondents, based on the provisions of Rule 24 BB (4) cannot be countenanced.
Counsel for the petitioner has produced an order dated 20.08.2007, whereby after regular DPC, the petitioner was promoted on the post of 'Senior Medical Officer'. Even in the amended order dated 07.09.2022 (Annex.R/1), the petitioner has been posted as Medical Officer i.e. on a post lower than the post the petitioner was holding by way of regular promotion (not by way of DACP) and apparently even the post of Senior Medical Officer is not available at C.H.C., Kotdi, Bhilwara.
So far as the submission made by the respondents relying on the order in Rekha Kumar's case is concerned, this Court in Ravindra Kumar Tailor vs. State of Rajasthan & Ors. : S.B. Civil Writ Petition No.8828/2022, decided on 19.09.2022 came to the conclusion that the respondents are under obligation to comply with the provisions of Rule 8 (iii) of the Rules of 2011 and are required to specifically seek approval of the concerned minister, even if the minister is same for both the Departments, which indicating is missing in the order impugned.
Whether the petitioner could hold the post of Chief Medical & Health Officer or not, based on the Circulars relied on by the respondents, does not even arise for consideration in the present matter as the petitioner has been posted on a post lower than what is being held by him.
In view of above discussion, as the respondents by order dated 22.07.2022 (Annex.2) as corrected by order dated 07.09.2022 (Annex.R/1) have posted the petitioner on a post (Downloaded on 27/09/2022 at 09:22:08 PM) (5 of 5) [CW-10796/2022] lower than the post on which the petitioner stand regularly promoted since the year 2007 i.e. instead of Senior Medical Officer to the post of Medical Officer and requisite compliance of provision of Rule 8 (iii) of the Rules of 2011 have not been done by the respondents, the orders impugned cannot be sustained.
Consequently, the writ petition filed by the petitioner is allowed. The orders dated 22.07.2022 (Annex.2) as amended by order dated 07.09.2022 (Annex.R/1) qua the petitioner are quashed and set aside. The respondents will be free to pass fresh order complying with the requisites.
(ARUN BHANSALI),J 206-DJ/-
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