Rajasthan High Court - Jodhpur
Dr. Shankr Lal Bamania vs State Of Rajasthan on 9 April, 2025
Author: Manindra Mohan Shrivastava
Bench: Manindra Mohan Shrivastava
[2025:RJ-JD:17186-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 175/2025
Dr. Shankar Lal Bamania S/o Shri Harish Chandra, Aged About
51 Years, resident of 57, Indraprastha Complex A, Hiran Magri,
Sector 14. Udaipur (Raj.), Presently Holding the Post of CMHO,
Udaipur (Raj.)
----Appellant
Versus
1. State of Rajasthan, through its Principal Secretary.
Medical & Health Services. Government Secretariat,
Jaipur.
2. The Principal Secretary, Rural Development and
Panchayati Raj Department, Government of Rajasthan,
Secretariat. Jaipur.
3. Joint Secretary to the Government, Department of
Medical & Health (Gr.-2). Government of Rajasthan,
Secretariat, Jaipur.
4. Director (Public Health), Medical & Health Services,
Health Bhawan, Jaipur
5. Joint Director, Medical and Health Services.
----Respondents
For Appellant(s) : Mr. B.S.Sandhu, Adv.
Mr. S.K.Shreemali, Adv.
Mr. Divik Mathur, Adv.
Mr. Mayank Rajpurohit, Adv.
For Respondent(s) : Mr. N.S.Rajpurohit, AAG with
Ms. Anita Rajpurohit, Adv.
Mr. Sher Singh Rathore, Adv.
HON'BLE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Reportable Judgment
Judgment Reserved on : 26/03/2025
Judgment Pronounced on : 09/04/2025
[2025:RJ-JD:17186-DB] (2 of 12) [SAW-175/2025]
[Per Hon'ble Mr. Justice Munnuri Laxman] :
1) The present Special Appeal has been filed against the
order dated 13.01.2025, passed by the learned Single Judge of
this Court in S.B.Civil Writ Petition No. 697/2025, whereby the
prayer for the quashment of the transfer order dated 07.01.2025
was rejected.
2) Aggrieved by the aforesaid order, the petitioner in the writ
petition has preferred the present Special Appeal.
3) The background of the facts shows that the appellant was
appointed as a Medical Officer on 17.03.2005 and subsequently he
was promoted to the post of Senior Medical Officer on 11.07.2011
and thereafter on 12.07.2018, he was promoted to the post of
Deputy Director, which is equivalent to the post of Chief Medical
and Health Officer (CM&HO). The appellant was posted as CM&HO,
Udaipur on 03.08.2022 and he had been working as CM&HO,
Udaipur till the date of impugned transfer order.
4) The appellant's grievance is that the impugned transfer
order suffers from stigma, and further the transfer was made from
the post of CM&HO/Deputy Director to the post of Deputy
Controller, which is lower in rank. The petitioner was transferred
from the post of CM&HO, Udaipur, to Deputy Controller, District
Hospital Pratapgarh. This transfer was challenged on two main
grounds: (i) there is no administrative exigency, as claimed in the
transfer order, since the complaints had already been adjudicated
and the petitioner was exonerated from such complaints.
Therefore, the said transfer suffers from stigma; and (ii) the
[2025:RJ-JD:17186-DB] (3 of 12) [SAW-175/2025]
transfer of the petitioner from the post of CM&HO to the post of
Deputy Controller, District Hospital Pratapgarh, constitutes a
reduction in cadre, which the petitioner was previously holding.
5) The case set up by the respondents is that the transfer was
made due to various complaints received against the appellant,
and to avoid any influence on the pending inquiries regarding
those complaints, he was transferred to the post of Deputy
Controller, District Hospital, Pratapgarh. According to them, such a
transfer does not suffer from any stigma. The other contention of
the respondents is that the posts of Deputy Director, CM&HO, and
Deputy Controller are equivalent posts. Therefore, the petitioner's
contention that the post of Deputy Controller is lower than the
post he was holding, is incorrect.
6) The learned Single Judge, after considering the affidavit
and rules submitted by the respondents, found that the post of
Deputy Controller is equivalent to the post of Deputy Director/
CM&HO and that there is no reduction in rank as a result of the
transfer order. Consequently, the writ petition was dismissed.
Hence, this special appeal.
7) Heard the learned counsel appearing for both the parties.
8) The primary contention of the learned counsel appearing
for the appellant is that the transfer order suffers from mala fides
and there is no administrative exigency. The reasons assigned for
the transfer were based on the premise that the complaints were
still pending. In fact, the majority of such complaints have already
been closed based on the preliminary inquiries. The complaints
[2025:RJ-JD:17186-DB] (4 of 12) [SAW-175/2025]
were lodged by persons working under him and they are
motivated, as they were made in retaliation for disciplinary actions
taken by the appellant against such individuals for negligence of
their duties. Most of these complaints have also been closed.
Therefore, the transfer order suffers from stigma and is liable to
be interfered with.
9) The further argument of the learned counsel for the
appellant is that the learned Single Judge relied upon the
unamended service rules produced by the respondents, which
indicate that the post of Deputy Controller is equivalent to the
post of Deputy Director/CM&HO. However, after the amendment,
the post of Deputy Controller of Hospital is no longer an equivalent
post and, in fact, such a post is no longer a cadre post governed
by the Rajasthan Medical and Health Service Rules, 1963
(hereinafter referred to as 'the Rules of 1963').
10) The learned counsel for the appellant also submitted that
the transfer of the appellant from a cadre post to a non-cadre post
would amount to deputation, which requires the appellant's
consent, which is not present in the present case. The transfer
was made on the premise that the post of Deputy Controller is
equivalent to the post of Deputy Director/CM&HO and is a cadre
post exists under the provisions of the Rules of 1963. Therefore,
he seeks to set aside the order of the learned Single Judge and to
allow the writ petition.
11) Per contra, the learned Additional Advocate General
appearing for the respondents submitted that there are multiple
[2025:RJ-JD:17186-DB] (5 of 12) [SAW-175/2025]
complaints against the appellant, and inquiries were contemplated
in relation to such complaints. To avoid any influence on such
inquiries, the appellant was transferred from his present post to
the post of Deputy Controller, Hospital at Pratapgarh. It is
submitted that such a transfer is not stigmatic, and the reasons
behind the transfer are based on legitimate administrative
grounds; therefore, no interference with the transfer is warranted.
12) The learned AAG also submitted that the post of Deputy
Controller is equivalent to the post of Deputy Director/CM&HO, as
is clear from the position existing prior to the amended rules, i.e.,
before 03.01.2012. The learned AAG further submitted that the
learned Single Judge has rightly considered the equivalency of
such a post and rightly dismissed the writ petition, which requires
no interference.
13) We have considered the rival submissions of both the
parties and carefully perused the impugned order passed by the
learned Single Judge as well as the material available on record.
14) Dealing with the first contention, the material placed on
record shows that there are multiple complaints against the
appellant, and the majority of the complainants were preliminarily
enquired into and found motivated complaints, and they were not
genuine complaints. Some of the persons whose complaints were
preliminarily enquired into and closed, have also lodged
complaints with the Anti-Corruption Bureau, and such complaints
are still pending. In one case, directions were issued to initiate
disciplinary proceedings against the appellant and one other
[2025:RJ-JD:17186-DB] (6 of 12) [SAW-175/2025]
officer. In view of the facts and circumstances of the case, we are
of the opinion that it cannot be said that no administrative
exigency exist for transfer. In fact, the transfer order only refers to
the reasons that necessitated the transfer. No doubt, the majority
of the complaints were closed, and there are certain complaints
that are still under enquiry. Therefore, the transfer order cannot
be said to be punitive or stigmatic in nature, in the facts and
circumstances of the case.
15) Dealing with the second contention, the service conditions
of the petitioner is governed by the Rules of 1963. These rules
underwent to several amendments. The last amendment was done
on 03.01.2012. The rules, which are in existence as on today
relating to the post of Deputy Director/CM&HO and equivalent
post is referred at Serial No.5 of the Schedule I, which is
hereunder:-
SCHEDULE-I
Designation of Method of Post from Qualification & Qualification Remarks
post Recruitment which Experience for & Experience
with Promotion promotion for Direct
percentage is to be Recruitment
made
5.Dy.Director/ 100% by Senior Must have 6 years'
CM&HO & Promotion Medical service in the grade
equivalent (80% from Officer/Dy. pay Rs.6600/- or in
post SMO & 20% CM&HO the corresponding - -
from Dy. existing pay scale/
CM&HO) post mentioned in
column 3
16) The rule dealing with the similar kind of position existed
prior to the Amendment dated 03.01.2012 is referred at Serial
No.16 with regard to Deputy Director/CM&HO and the other posts,
which reads hereunder:-
[2025:RJ-JD:17186-DB] (7 of 12) [SAW-175/2025]
SCHEDULE-I
Designation of Method of If by promotion Qualification Qualifi- Remarks
post Recruit- a post from & Experience cation &
ment with which will be for promotion Experi-
percentage made ence for
Direct
Recruit-
ment
6.Deputy Director/ 100% by Senior Medical Must have 5 Service rendered
Chief Medical & Promotion Officer/ Deputy years' service as Chief Medical
& Health Officer/
Health Officer/ Chief Medical on the post Assistant Director
Additional Chief & Health mentioned in - Health Services/
Medical & Health Officer column No.3 Assistant Director
Officer/Deputy (Family Welfare Health Services
Controller of /Health/Malaria) (Plan)/Assistant
Director Health
Hospitals Services (medical)
(District/Mobile /Deputy Chief
Surgical Medical & Health
Unit/Employees Officer (Family
State Insurance) Welfare)
Principal,
Regional Family
Planning Training
Center or
equivalent posts.
Civil Assistant
Surgeon
(Selection Grade)
prior to this
amendment will
be treated as
service rendered
on the post
mentioned in
column No.3
17) A comparative reading of the amended and unamended
rules pertaining to the post held by the appellant reveals that prior
to the amendment, there was a cadre post of Deputy Controller of
Hospitals, and the posts of Deputy Director, CM&HO, Additional
CM&HO, Deputy Controller of Hospitals, Deputy Superintendent,
and Principal Health and Family Welfare Training Center were
treated as equivalent posts. After the amendment, the post of
Deputy Controller of Hospitals is no longer found in the cadre list
enumerated in Schedule-I. The posts of Deputy Director/CM&HO
and equivalent posts were mentioned and there is no equivalency
with regard to the posts of Deputy Controller of Hospital/Deputy
[2025:RJ-JD:17186-DB] (8 of 12) [SAW-175/2025]
Superintendent/Principal Health and Family Welfare Training
Center. In addition to such amendment, the post of Joint Director
has been re-designated as Additional Director. It appears that the
respondents filed an affidavit along with the unamended rules,
which led the learned Single Judge to treat the post of Deputy
Controller of Hospitals to which the appellant was transferred from
the post of CM&HO, Udaipur as an equivalent post.
18) The learned AAG appearing for the respondents failed to
bring to the notice of this Court that the post to which the
appellant was transferred is still a cadre post under the Rules of
1963 and such a post is equivalent to the post which the petitioner
was holding. This implies that the transfer of the appellant from
the post of CM&HO to the post of Deputy Controller amounts to a
reduction in rank and also amounts to deputation.
19) The principle governing the 'deputation' is clearly decided
by the Hon'ble Supreme Court in the case of Umapati
Choudhary v. State of Bihar, reported in (1999) 4 SCC 659,
which reads hereunder:
"8. Deputation can be aptly described as an
assignment of an employee (commonly referred to as
the deputationist) of one department or cadre or even
an organisation (commonly referred to as the parent
department or lending authority) to another
department or cadre or organisation (commonly
referred to as the borrowing authority). The necessity
for sending on deputation arises in public interest to
meet the exigencies of public service. The concept of
deputation is consensual and involves a voluntary
decision of the employer to lend the services of his
employee and a corresponding acceptance of such
services by the borrowing employer. It also involves
the consent of the employee to go on deputation or
not. In the case at hand all the three conditions were
fulfilled...."
[2025:RJ-JD:17186-DB] (9 of 12) [SAW-175/2025]
20) The Hon'ble Supreme Court also had occasion to distinguish
between 'transfer' and 'deputation' in the case of Prasar Bharti
v. Amarjeet Singh, reported in (2007) 9 SCC 539, which reads
as hereunder:
"13. There exists a distinction between "transfer" and
"deputation". "Deputation" connotes service outside
the cadre or outside the parent department in which
an employee is serving. "Transfer", however, is limited
to equivalent post in the same cadre and in the same
department. Whereas deputation would be a
temporary phenomenon, transfer being antithesis
must exhibit the opposite indications...."
21) A close scrutiny of the above decisions makes abundantly
clear that 'transfer' is limited to equivalent posts within the same
cadre and the same department, whereas 'deputation' refers to
service outside the cadre or outside the parent department in
which an employee is serving, and it is a temporary phenomenon.
The concept of deputation involves a consensual and voluntary
decision by the employer to lend the services of its employee,
along with a corresponding acceptance of such services by the
borrowing employer. It also requires the consent of the employee
to go on deputation.
22) In the present case, the respondents have failed to establish
that the post of Deputy Controller is a cadre post under the Rules of
1963. It was a cadre post prior to the amendment of the existing rules,
which took place in the year 2012. The rules clearly removed the
existing cadre post of Deputy Controller of Hospitals, and it is no longer
a cadre post governed under the Service Rules of 1963. Thus, the
transfer of the petitioner from the existing post of CM&HO to the
[2025:RJ-JD:17186-DB] (10 of 12) [SAW-175/2025]
post of Deputy Controller of Hospitals clearly amounts to
deputation. For sending an employee on deputation, the consent
of the employee is a sine qua non, which is absent in the present
case. Therefore, the transfer order is liable to be set aside on this
ground alone.
23) The learned AAG appearing for the respondents failed to bring
to our notice that the post of Deputy Controller is still an equivalent
post to that of Deputy Director/CM&HO, so as to hold that the transfer
does not affect the service conditions of the appellant. The scope of
this Court in the transfer matter is clearly laid down by the Hon'ble
Supreme Court in the case of Shilpi Bose (Mrs.) & Ors. v. State
of Bihar & Ors., reported in AIR 1991 SC 532, which reads
hereunder:
"4. In our opinion, the courts should not interfere with
a transfer order which is made in public interest and
for administrative reasons unless the transfer orders
are made in violation of any mandatory statutory rule
or on the ground of mala fide. A government servant
holding a transferable post has no vested right to
remain posted at one place or the other, he is liable to
be transferred from one place to the other. Transfer
orders issued by the competent authority do not
violate any of his legal rights. Even if a transfer order
is passed in violation of executive instructions or
orders, the courts ordinarily should not interfere with
the order instead affected party should approach the
higher authorities in the department. If the courts
continue to interfere with day-to- day transfer orders
issued by the government and its subordinate
authorities, there will be complete chaos in the
administration which would not be conducive to public
interest. The High Court overlooked these aspects in
interfering with the transfer orders."
24) The Hon'ble Supreme Court, in the case of N.K. Singh v.
Union of India and Ors., reported in (1994) 6 SCC 1998, reiterated
that the scope of judicial review in matters of the transfer of a
[2025:RJ-JD:17186-DB] (11 of 12) [SAW-175/2025]
government servant to an equivalent post without adverse
consequences on their career prospects is very limited, being confined
only to grounds of mala fides or violation of any specific provision. In
the present case, the transfer order of the appellant from the post
of CM&HO to the post of Deputy Controller clearly amounts to an
adverse effect on the service conditions or career prospects of the
appellant since such a transfer amounts to transfer from higher
post to lower post.
25) Furthermore, the concept of deputation under the Service
Rules requires the consent of the employee. In the present case,
the transfer of the petitioner from the post of CM&HO to the post
of Deputy Controller, which is a non-cadre post, amounts to
deputation, and such a transfer was made without the petitioner's
consent. Therefore, the appellant has established grounds for
interference with the transfer order. The learned Single Judge was
misled by the respondents by producing unamended rules. Had
the amended rules been brought to the attention of the learned
Single Judge, the present impugned order would not have been
passed. Thus, the appeal and the writ petition are required to be
allowed.
26) In the result, the present appeal is allowed. The impugned
order of the learned Single Judge dated 13.01.2025 passed in
S.B.Civil Writ Petition No.697/2025 is set aside. The writ petition
of the appellant is allowed accordingly. Consequently, the
respondents are directed to take the petitioner to the post of
[2025:RJ-JD:17186-DB] (12 of 12) [SAW-175/2025]
CM&HO, Udaipur and to pay all the pecuniary benefits treating as
if the petitioner was still holding the post of CM&HO, Udaipur.
27) In the circumstances, no order as to costs.
28) Pending interlocutory applications, if any, shall stand
disposed of.
(MUNNURI LAXMAN),J (MANINDRA MOHAN SHRIVASTAVA),CJ
NK/-
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