Rajasthan High Court - Jodhpur
Dr. Sukumar Kashyap vs State Of Rajasthan on 16 August, 2021
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7916/2021 Dr. Sukumar Kashyap S/o Shri Shivcharan Kashyap, Aged About 58 Years, Resident Of 2-E-298, Jay Narayan Vyas Colony, Bikaner Posted As Chief Medical And Health Officer, Bikaner (Raj.).
----Petitioner Versus
1. State Of Rajasthan, Through Its Additional Chief Secretary, Department Of Medical And Health, Government Of Rajasthan, Secretariat, Jaipur.
2. The Principal Secertary, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Secretariat, Jaipur.
3. Deputy Secretary To The Government, Depatment Of Medical And Health (Gr.-2), Government Of Rajasthan, Secretariat, Jaipur.
4. Director (Public Health), Medical And Health Services, Health Bhawan, Jaipur.
5. Joint Director, Medical And Health Services, Bikaner Zone, Bikaner.
6. Dr. Omprakash Chahar, Principal Specialist (Pediatrics), Govt. Fort Dispensary, Bikaner Presently Posted On Working Arrangement Basis As Chief Medical And Health Officer, Bikaner.
----Respondents
For Petitioner(s) : Mr. Kuldeep Mathur
Mr. YP Khileree
For Respondent(s) : Mr. KS Rajpurohit, AAG For Applicant(s) : Mr. Vikas Bijarnia (Downloaded on 17/08/2021 at 09:03:08 PM) (2 of 7) [CW-7916/2021] JUSTICE DINESH MEHTA Judgment 16/08/2021 (1) By way of the present writ petition, the petitioner has challenged the orders dated 21.5.2021 and 16.6.2021 whereby he has been posted in RUHS Hospital, Jaipur and at Directorate, Jaipur in Covid-19 Help Desk on working arrangement basis. (2) The petitioner, who was working as CM&HO, Nagaur was transferred to Bikaner vide order dated 30.12.2020, in pursuance whereof, he joined as CM&HO, Bikaner on 1.1.2021. (3) Thereafter, vide order dated 21.5.2021, he was posted in RUHS Hospital on working arrangement basis. (4) Challenging the order dated 21.5.2021 whereby petitioner was posted at RUHS, Jaipur on working arrangement basis, the petitioner had preferred a writ petition (being SBCWP No.7398/2021). The same was disposed of by this Court vide order dated 26.5.2021 with the direction to the respondents to consider petitioner's representation in four weeks. (5) In pursuance of the above order dated 26.5.2021, petitioner moved a representation dated 1.6.2021 raising various grievances, including the legal ground that transfer on working arrangement basis is contrary to law.
(6) In response to petitioner's representation dated 1.6.2021, the order impugned dated 16.6.2021 came to be passed and the petitioner has been asked to work at Covid-19 Help Desk till further orders. Said order also indicated the expression 'working arrangement basis'.
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(3 of 7) [CW-7916/2021] (7) Mr. Mathur, learned counsel appearing for the petitioner challenged the legality of the orders dated 21.5.2021 and 16.6.2021, inter alia, contending that there is no provision for posting on working arrangement basis and thus, the petitioner, who was working as CM&HO, Bikaner could not have been posted/transferred to Jaipur on working arrangement basis. (8) Another argument has also been advanced by learned counsel that the orders impugned have been passed by Mr. Sanjay Kumar under the designation of Dy. Secretary, Medical & Health Department and Panchayati Raj (Medical) Department; which is not even a post as both the departments are separate departments. He added that the post has been devised to portray that there is an inherent consent of Panchayati Raj Department, simply to subvert mandate of rule 8 of the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011. (9) In support of his first contention, Mr. Mathur, learned counsel relied upon judgment dated 14.7.2019 rendered in the case of Dr. Kailash Chandra Gurjar Vs. State of Rajasthan & Ors. (SBCWP No.7341/2017) and various interim/final orders passed by the coordinate Benches as well as by this Court, following the judgment of Dr. Kailash Chandra Gurjar.
(10) Learned counsel submitted that the second issue, i.e., whether an order passed under the seal of Dy. Secretary, Medical & Health Department and Panchayati Raj (Medical) Department can be said to be a valid order incorporating consent of Panchayati Raj Department, is pending consideration before this Court, in various writ petitions in which interim orders have been passed. (11) Mr. Rajpurohit, learned Addl. Advocate General justifying the impugned orders submitted that the orders under challenge are (Downloaded on 17/08/2021 at 09:03:08 PM) (4 of 7) [CW-7916/2021] not transfer orders and they have been issued in order to meet the emergent situation that has arisen on account of spread of pandemic. He argued that petitioner's earlier writ petition, which was preferred against the order dated 21.5.2021 was not entertained by this Court though identical grounds were raised. Hence, on the same reasoning the order dated 16.6.2021 should not be interfered with.
(12) Mr. KS Rajpurohit, learned AAG was however not in a position to show any statutory provision, which permits the State Government to transfer/post a Government Servant on 'working arrangement basis'.
(13) Court's attention was invited towards paras nos. 3 and 4 of the reply to satisfy that petitioner's posting at Help Desk at Jaipur was necessitated on account of the sudden surge of the Covid cases and to oversee various schemes and programme being run by the State Government in order to curb and control spread of Covid-19.
(14) It was also argued that RSR contain a provision relating to officiating appointments/additional charge and hence transfer/posting on working arrangement basis is legally permissible.
(15) Heard.
(16) Instant writ petition was instituted on 21.6.2021, however, having regard to the situation of pandemic Covid-19 and the State's requirement of manpower and more particularly, because the petitioner was asked to head the Covid Help Desk, which was said to be a State Level Help Desk, this Court refrained from interfering. The matter was kept pending in a hope that when the (Downloaded on 17/08/2021 at 09:03:08 PM) (5 of 7) [CW-7916/2021] effect of pandemic would recede, the respondents would pass appropriate order.
(17) The pandemic is now almost over. Hence, petitioner's voice cannot be kept unheard till indefinite period; his grievance and grounds are required to be appropriately addressed. (18) In case of Dr. Kailash Chandra Gurjar Vs. State of Rajasthan, this Court had passed the following order:
"1. Impugned order dated 24.05.2017 does not bring out whether the petitioner is being transferred from the current place of posting to the Primary Health Centre, Koliyari District Udaipur. The order records it to be a case of working arrangement. What does that mean is not clear. Should the respondents in the exigency of service require a person to be posted at a particular hospital or a dispensary, the order must bring out that the order is a transfer order.
2. The reason is that when a government servant is transferred he is entitle to a transfer allowance. He is entitle to avail a period to join at the place of transfer after being relieved from current place.
3. I dispose of the petition quashing the impugned order dated 24.05.2017, operation whereof was stayed by this Court.
4. I clarify. The respondents would be free to pass a proper order should one be passed against the petitioner.
(19) It is also intriguing to note that on 26.5.2021, the petitioner who was working as CM&HO, Bikaner was shunted to Jaipur to discharge his duties (on working arrangement basis) at RUHS Hospital and on the same day, one Dr. Om Prakash Chahar was posted as CM&HO, Bikaner, that too, on working arrangement basis.(Downloaded on 17/08/2021 at 09:03:08 PM)
(6 of 7) [CW-7916/2021] (20) In the opinion of this Court, the concept of officiating appointment and additional charge is entirely different than posting on working arrangement basis. Officiating appointment or additional charge is given to an officer working at particular post so as to enable him to discharge the duties and responsibilities also of the post, which is lying vacant. Additional charge or officiating assignment is given generally in the same district;
whereas posting on working arrangement basis, though not known to law, can be sparingly made to meet out sudden emergent situation/exigency or additional work. (21) Posting on working arrangement basis can be resorted to as an exceptional case, that too, for a very limited period. (22) The same cannot continue till indefinite time. This Court fails to countenance State's action of deploying Senior Doctors, who are presently working as CM&HOs on working arrangement basis for months together.
(23) In view of the aforesaid, the impugned order dated 16.6.2021 (Annex.11) is hereby quashed. (24) Since respondents' action of placing the petitioner on working arrangement basis has been held to be illegal and order dated 16.6.2021 has been quashed; the order dated 21.5.2021 whereby petitioner was directed to be posted at RUHS Hospital, Jaipur on working arrangement basis, which also suffers from the same illegality is declared illegal.
(25) As a necessary fallout, the petitioner will be allowed to work as CM&HO, Bikaner. However, in case the post of CM&HO, Baikaner has been filled by regular transfer/posting, the respondents shall provide appropriate place of posting to the (Downloaded on 17/08/2021 at 09:03:08 PM) (7 of 7) [CW-7916/2021] petitioner in accordance with law as early as possible, preferably within a period of 10 days from today.
(26) The writ petition is allowed accordingly. (27) All the interlocutory applications, including stay application stand disposed of accordingly.
(DINESH MEHTA),J 237-CPGoyal/-
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