Dr. Sukumar Kashyap vs State Of Rajasthan
2021 Latest Caselaw 12793 Raj

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

(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'.

(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

(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

(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.

(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

(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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