Rajasthan High Court - Jodhpur
Lokesh Kumar Fageria vs The State Of Rajasthan ... on 17 February, 2025
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15366/2024
Ganraj Bishnoi S/o Kesararam Bishnoi, Aged About 39 Years,
Dholiya, Jaisalmer (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Director, Medical Health And
Family Welfare Department, Jaipur (Raj.).
2. Director, Medical And Health Services Rajasthan, Jaipur.
3. Chief Medical Health Officer, Government District Hospital,
Pokhran, District Jaisalmer.
----Respondents
Along With
Bunch of Petitions as Per [APPENDIX 'A']
For Petitioner(s) :
Mr. Manish Patel, Mr. MukeshRajpurohit with Ms. Aditi Sharma,
Mr. Kailash Jangid, Mr. S.K. Poonia, Mr. Suresh Kumar Bishnoi,
Mr. R.D. Meena, Mr. Harish Purohit, Mr. Rakesh Jakhar, Mr. Ankur
Mathur with Ms. DivyaBapna, Mr. Suniel Purohit, Mr. Manish
Patel, Mr. Sanjay Raj Pandit, Mr. Ravindra Singh Champawat, Mr.
Vikram Singh Rathore, Mr. Lokesh Mathur, Mr. Suresh Khadav,
Mr. Hemant Singh Solanki, Mr. Priyank Kawaliya, Mr. Manoj
Choudhary for Mr. C.S. Kotwani, Mr. Harshit Bhurani with Ms.
Heli Pathak & Mr. Mahipal Rathore, Mr. R.S. Choudhary, Mr.
Yashpal Khileree, Mr. Manjeet, Mr. Himanshu Choudhary, Mr.
Mukesh Vyas, Mr. J.S. Bhaleria, Mr. Ripudaman Singh, Mr.
VikasBijarnia, Mr. Suresh Charan, Mr. N.R. Choudhary, Mr.
Devendra Sanwalot, Mr. Vikram Sharma, Mr. Rahul Vyas, Mr.
KanishakSinghvi, Mr. Govind Lal, Mr. V.S. Bhawla, Mr. Dinesh
Ojha, Mr. Anil BidanHalu, Mr. R.K. Saini, Mr. K.R. Saharan, Mr.
Arjun Singh, Mr. Usman Gani, Mr. Puneet Singhvi, Mr. Pawan
Singh, Mr. Sikander Khan, Mr. SaranjVij, Mr. Devesh A. Purohit,
Mr. Ramesh Kumar.
For Respondent(s):
Mr. Narendra Singh Rajpurohit, AAG with Mr. Yashraj Singh
Kanawat, Mr. Mahaveer Bishnoi, AAG, Mr. Vaibhav Bang for Mr.
N.K. Mehta, Dy.G.C., Mr. Kuldeep Vaishnav, Dy.G.C. with Mr.
Deepak Vaishnav, Ms. Dolly jaiswal for Mr. MahendraVishnoi, Mr.
Samir Shrimali, AGC, Mr. Lalit Pareek, Mr. Lalit Parihar, Mr.
Digvijay Singh Sodha, Mr. J.K. Mishra, Mr. Akhilesh Rajpurohit,
Mr. Surendra Singh Choudhary, Mr. Ritu Raj Singh Bhati, Mr. I.R.
Choudhary, AAG, Mr. S.R. Paliwal, G.C.
(Downloaded on 28/02/2025 at 10:52:30 PM)
(2 of 26)
HON'BLE MR. JUSTICE ARUN MONGA
Judgment
17/02/2025
1. Vide instant common order, the entire bunch of petitions as
detailed in Appendix 'A' is being disposed of as common
controversy is involved therein.
2. Petitioners herein, serving in different departments, are
assailing the respective orders vide which their services have been
put in a category, what is called 'Awaiting Posting Orders' (APO).
The individual facts of the cases are not relevant for adjudication
of the controversy herein, as this Court is to judge upon the
legality, as well as, the alleged administrative impropriety of the
impugned orders (APO) passed by the respondents.
3. Common grievance of the petitioners being, that by virtue of
respective impugned transfer orders of APO, as a bolt from blue,
work has been withdrawn from them without assigning/conveying
any reasons or if/where conveyed, the same are not tenable.
Apart therefrom, under the garb of making them APO, they are
being put to humiliation at their work place.
4. At this point, it would be apposite to note the stand taken by
respondents in their reply filed in the captioned Writ Petition No.
15366/2024 (petitioner is a Nursing Officer), which being
comprehensive one can be broadly treated as defense on law qua
all petitions. The relevant of the same is as under :
"1. It is submitted that the petitioner is against the order dated
03.09.2024 and the order dated 06.09.2024, whereby the
petitioner was kept on an await posting order due to
negligence in performing his duties and as a primary enquiry
is pending against the petitioner.
(3 of 26)
2. The petitioner is not working up to the mark and up to the
satisfaction of the answering responding authorities. So, in the
public interest and due to administrative reasons, the petitioner
is kept on an await posting order. The order passed by the
answering respondents is just, proper, and legal, which was
passed in accordance with the law and the powers vested in the
state government. Hence, the same is liable to be maintained,
and the writ petition filed by the petitioner against the await
posting order is liable to be dismissed.
3. The petitioner has challenged the discretionary order passed
by the state government. The petitioner has relied on Rule 25-A
of the Rajasthan Service Rules, 1958 (hereinafter referred to as
the Rules of 1958). The Rules of 1958 provide in Rule 25-A
about the pay during the period of the await posting order.
There are no governing principles mentioned in Rule 25-A
which provide that await posting orders are made only in
certain situations and circumstances. The petitioner submitted
that the grounds of the Government of Rajasthan's decision
mentioned under Rule 25-A of the Rules of 1958 govern the
field, but the term 'usually' mentioned therein provides that the
mentioned conditions are illustrative and not exhaustive. So,
the reliance placed by the petitioner on Rajasthan Government
decisions is not sustainable, and the state government has the
authority to pass await posting orders as and when the same
are required in the public interest. The illustrative conditions
mentioned in government orders are not exhaustive, and
therefore, they cannot be considered as the only reasons under
which the await posting orders can be issued. The petitioner is
an employee of the state government who has to work as per
the directions and supervision of the state government. The
state government has the authority to place the employees
under an await posting order when the same is required in the
public interest and due to administrative exigency. In this
matter, the public interest required that the petitioner should
not be continued at the present posting and should not be
permitted to continue as a Nursing Officer at Pokran. So, the
order dated 21.06.2024 was passed by the answering
respondents, and the same is in accordance with the domain
and authority of the state government, and the same is liable to
be maintained.
4. The authority to transfer and pass an await posting order
squarely lies within the domain of the state government. The
state government is authorized to utilize the services of the
government employee at a particular place in the larger public
interest, and therefore, in the administrative exigency, the order
dated 06.09.2024 was passed in the present case, and the same
is perfectly justified and in accordance with the law. The
Hon'ble Division Bench, in the case of DB Special Appeal Writ
No. 733/2022, Pushkar Lal Mali, decided on 24.11.2022, held
that where an enquiry was initiated against any person, then
keeping a person on APO is legal. Hence, the same is liable to
(4 of 26)
be maintained, and the writ petition, being devoid of merits, is
liable to be dismissed."
5. In the aforesaid backdrop, learned counsel for the petitioners
argue in unison that the petitioners, despite having commendable
service record, have been unexpectedly placed under awaiting
posting orders. Orders have been issued hastily either due to
political interference or for other malafide reasons and without
proper application of mind.
5.1. It is submitted that the impugned transfer/APO orders are
contrary to the provisions of Rule 25-A of the Rajasthan Service
Rules, 1951(RSR), which stipulates the circumstances under which
a state government servant may be placed under awaiting posting
orders. These circumstances are : (1) returning from leave, (2)
reversion to the parent department from deputation within India,
(3) returning from abroad after completing training or a foreign
assignment, (4) returning from training within India, (5) awaiting
posting after handing over charge of the old post as directed by
the appointing authority, (6) non-acceptance of the officer's
transfer to another post, and (7) to prevent reversion of a
government servant.
6. Learned counsel for the respondents would argue that the
claim that petitioners were placed under Awaiting Posting Orders
(APO) due to arbitrariness or personal bias is unfounded. The APO
orders were issued in the public interest and as per administrative
requirements.
6.1. They would argue that Rule 25-A of the Rajasthan Service
Rules, 1951, does not impose any restriction on the issuance of
APO orders. The conditions mentioned therein are illustrative and
(5 of 26)
not exhaustive, and the state government retains the authority to
issue such orders in the public interest and administrative
exigency.
6.2. They further submit that the transfer and posting are routine
administrative matters, and employees have no vested right to
remain posted at a particular place. Unless there is a violation of
some statutory provision or established malafide, such
administrative decisions are not open to judicial interference.
Accordingly, the writ petitions are devoid of merit and liable to be
dismissed.
7. I have heard the rival contentions and perused the case files.
I shall now proceed to advert to the merits of the contentions by
recording my reasons and discussion thereof in the succeeding
paragraphs.
8. At the very outset, I may like to observe that
transfer/posting, including making an official as APO, being matter
of administrative exigency, this Court generally refrains to
interfere and treads cautiously, unless it is a case of patent
violation of law or extreme hardship. Alleged violation of any
guideline or transfer policy, unless the same is mandatory, does
not warrant any indulgence under extra ordinary writ jurisdiction,
as usually the same are directory in nature, framed more for
administrative convenience of the employer to maximise the
human resource output. Moreover, to transfer or not to transfer an
employee, is the sole discretion of employer and it is not due to
personal convenience of an employee. Such orders are not to be
treated as punishment or a promotion. Rather, transfer/posting is
an integral part of service conditions of a government employee.
(6 of 26)
8.1. In fact, in some of the cases in hand, given the duration of
the interim protection granted by this court, it's utility appears to
have waned over time.
8.2. Also, this Court is not oblivious of the fact that in many of
the cases, petitioners have pleaded their respective individual
hardships and / or the allegations that either they have not been
given the equivalent status posting or under the garb of transfer,
are being meted out with punitive treatment bordering on their
demotion and thus causing humiliation or in certain cases
allegations of political interference and mala fides are also there.
The merits and demerits of those cases are not being gone into
for the reasons stated and the discussions contained in the
succeeding paras qua the applicable provisions of law.
9. Adverting now to the legality of the relevant provisions of
Rule 25A the Rajasthan Services Rules, 1951 enabling the
competent authority to issue APO orders, the position appears to
be clear as day light. The same have withstood the test of time
over the past few decades. The original service Rules were framed
way back in 1951. By way of an amendment in 1981, Rule 25-A
was inserted therein. In fact, upon delving a little deeper into the
matter, it turns that clarifications in past have been carried out not
only by this Court, but also through administrative instructions
issued from time to time. Retesting the legality of Rule 25A ibid
would be nothing but ploughing in the sand and seemingly an
exercise in futility. Let us see how.
10. First and foremost, lets us have a look at the relevant
definitions as to what is meant by 'being on duty' and what
constitutes a 'transfer'. Rule 7, clauses (8) and (38) contained in
(7 of 26)
Chapter-II of Rajasthan Service Rules, 1951, respectively define
both terms 'duty' and 'transfer'. Relevant parts thereof read as
under:-
"Rule 7. Definitions:-
Unless there be something repugnant in the subject or context,
the terms defined in this chapter are used in the rules in the
sense here explained.-
1 to 7 xxxxx xxxxx
(8) Duty
(a) xxxx xxxxx xxxxx
(b) Government may issue orders declaring that in the
following circumstance, or in circumstances similar thereto, a
Government servant may be treated as on duty.
(i) xxxx xxxxx xxxx
(ii) xxxx xxxxx xxxx
(iii) In the case of persons who, on their first appointment to
State Service, do not, before they report themselves at the seat
of Government or other specified station, in accordance with
the orders of the appointing authority, receive orders to take
charge of a specified post, during the interval between the date
of such report and the date on which they take charge of their
duties.
Note:-Period of compulsory waiting by a Government servant
returning from leave or after making over charge of his old post
for orders of Government posting him to a particular post falls
in this clause."
9-37. x-x-x-x
38. Transfer-
means the movement of a Government servant from one
headquarter station in which he is employed to another such
station, either-
(a) to take up the duties of a new post, or
(b) in consequence of a change of his headquarters."
11. What falls for consideration in the lis herein is the
administrative power invoked by the competent authority to place
the services of the aggrieved petitioners herein in the category of
'Awaiting Posting Orders' (hereinafter referred as 'APO'). The
(8 of 26)
provision for category 'Awaiting Posting Order' as such did not
exist in the Rajasthan Services Rules, 1951,till insertion of Rule
25A therein vide notification dated 14.09.1981. Till then, it was a
measure of administrative ingenuity devised through a Circular
dated 07.05.1974, wherein, the term 'APO' was coined. The same
reads as under:-
"Clarification
Attention is invited to Finance Department notification No
F.I(18)FD(Gr.2)/74 dated 07.05.1974 under which
administrative Departments of the Government were delegated
power to issue orders treating a Government servant as on duty
during the period of Awaiting Posting Orders provided the
period of awaiting posting orders does not exceed 30 days.
It has been observed that officers are kept under
awaiting posting orders for long periods and such cases, in
which the period exceeds 30 days and thus require
regularisation from Finance Department are also quite
frequent. It is needless to point out that such cases of
avoidable expenditure on pay and allowances of the officers
for the period of 'awaiting posting orders' are commented
adversely in Audit Reports; and it is necessary that steps
should be taken to avoid such expenditure.
It is, therefore, enjoined on all concerned that it should
be ensured that such cases in which officers have to await
posting orders do not occur and even if such cases, at times,
are altogether unavoidable, the period of awaiting posting
orders is kept at the minimum. It is also hereby made clear that
hence forth this Department would not agree to the
regularisation of such cases unless weighty reasons exist for
non-posting of an officer."
(emphasis supplied)
12. It was in 1981 that vide a notification dated 14.09.1981,
Rule 25-A was inserted in the Rajasthan Service Rules, 1951,
which reads as under:
"25A. Pay during awaiting posting orders :-
A Government servant who is compulsorily kept under
'awaiting posting orders' under note below Rule 7 (8) (b) (iii)
shall be entitled to the pay and allowances at the rate at which
he was drawing immediately before relinquishing charge in the
old post. He shall not be allowed Conveyance Allowance or
(9 of 26)
permanent Travelling Allowance during the period of awaiting
posting order.
Government of Rajasthan's Decision
1. Government servant are kept compulsorily under awaiting
posting orders usually in the following circumstances:--
(1) On return from leave.
(2) On reversion to parent department from deputation within
India.
(3) On return from abroad after completion of training or
foreign assignment.
(4) On return from training within India.
(5) Awaiting posting order after making over charge of the old
post under the directions of Appointing Authority.
(6) Non-acceptance of the officer on transfer to another post.
(7) To save a Government servant from reversion.
2. A Government servant who proceeds on leave cannot
resume duties on return from leave as a matter of course on the
post which he held before proceeding on leave in the absence
of formal order of posting. In cases where leave sanctioning
authority and appointing authority is one and the same,
authority competent to grant leave should invariably indicate
in the order sanctioning leave that the officer is reposted to the
same post on the expiry of leave. Authority competent to grant
leave can also issue orders of reposting to the same post if
during the currency of leave the post was kept unfilled. Where
leave has been sanctioned by an authority other than the
appointing authority and the leave vacancy has been filled up
under the orders of the appointing authority, the latter
authority can only issue reposting orders of the officer
returning from leave. In such cases the appointing authority
should as far as possible issue the posting order of the
Government servant before expiry of the leave so that the
contingency of keeping a Government servant under posting
orders on return from leave does not arise.
3. In the case of Government servants placed in the
circumstances mentioned at items No. 2, 3, and 4 in para 1
above, the competent authority should invariably issue orders
of posting atleast 15 days in advance of the return of
Government servant from deputation/training or foreign
assignment in order to eliminate keeping of a Government
servant under awaiting posting orders. With a view to watch
and effectively control the situation in this regard, the authority
competent to send an officer on deputation, training or foreign
assignment should maintain registers to ensure that proposal
for posting of Government servants due to return from
deputation within India or from deputation abroad on foreign
assignment terms of training are moved well in time for issue
of posting orders.
(10 of 26)
4. Sometimes Government servant are required to make
over charge of the post and await posting orders under the
direction of the appointing authority. Such situation should, as
far as possible be avoided, and if it is absolutely necessary in
some cases, the orders of posting should be 'issued within a
week. In case of promotion of an officer against vacant post,
the posting order should invariably be issued simultaneously.
5. Government servants transferred from one post to
another post should not be prevented from assuming charge of
the post and the practice of non- acceptance of an officer
reporting for duty in consequence of his posting/transfer being
an unhealthy one, should be scrupulously avoided.
6. Government servants are some times placed under
awaiting posting orders in the following circumstances:--
(1) Reversion of a Government servant to a lower post held
by him in officiating capacity pending approval or
regularisation of his appointment by Departmental Promotion
Committee/ Rajasthan Public Service Commission.
(2) Reversion to a lower post as a result of abolition of the
post held by him.
7. It is against the spirit of rules to treat a Government
servant as awaiting posting orders till he can be reappointed to
an identical post in the same time scale of pay on occurrence
of vacancy or otherwise. In such cases a Government servant
shall not be treated as awaiting posting orders, and he shall
not be entitled to pay and allowances under Rule 25A of
Rajasthan Service Rules. The orders issued by the authority
reverting a Government servant should be carried out. A
Government servant shall be treated to have been reverted
from the date of issue of orders or from the date specified in
the order as the case may be and his reversion becomes
effective from that date irrespective of whether he proceeds on
leave immediately after reversion or not. In such cases even if
a Government servant is kept under awaiting posting orders to
save him from reversion of any other junior person to him in
the cadre; the time so passed in such circumstances shall be
regularised by grant of leave as may be due and admissible as
in no-circumstances it will be treated as awaiting posting
orders.
8. Under the existing delegation the Administrative
Department of Government have power to keep a government
servant under posting orders for a period not exceeding 30
days, and cases involving the period exceeding 30 days require
the concurrence of the Finance Department. Keeping a
Government servant under awaiting posting orders for unduly
long period (s) without any justification involves infructuous
expenditure as the Government servant remains idle during
(11 of 26)
awaiting posting orders. It is, therefore, enjoined upon all
concerned authorities to scrupulously follow these instructions
with a view to eliminate the cases of awaiting posting orders
and thereby avoid wasteful expenditure. Every case of awaiting
posting orders in which a Government servant has been kept
under awaiting posting orders for unduly long period without
adequate reasons and justifications should be enquired into by
the administrative department first at their own level and
necessary action may be taken against the delinquent
Government servant who are responsible for delay in issuing
posting orders in infringement of these instructions or any
other instruction issued by the Government from time to time
in this behalf."
(emphasis supplied)
By way of aforesaid statutory addition, a Government
servant to be compulsorily kept under 'awaiting posting orders'
was thus for the first time mandated in 1981 vide Rule 25-A.
12.1. An amendment on 02.07.2024 was subsequently carried
out in Rule 25-A of the Rajasthan Service Rules, 1951, as under:
Xx xx xx
"2. Amendment of Rule 25A.-
The existing Rule 25A of Rajasthan Service Rules, 1951,
excluding the 'Government of Rajasthan's Decision' and
'Government of Rajasthan's instructions appearing thereunder
shall be substituted by the following, namely.-
25A. Pay during Awaiting Posting Orders.-
A Government servant who is compulsorily kept under
awaiting posting orders under note below Rule 7(8)(b)(iii)
shall be entitled to the pay and allowances at the rate at which
he was drawing immediately before relinquishing charge of the
old post.
He shall not be allowed Conveyance Allowance or
Permanent Travelling Allowance during the period of awaiting
posting order.
Provided that where a Government servant is kept under
awaiting posting order at a particular place he will be
entitledto House Rent Allowance and Compensatory (City)
Allowance of that particular place as per terms and conditions
of House Rent Allowance Rules, 1989 and Compensatory
(City) Allowance Rules."
(12 of 26)
12.2. Violation of Rule 13 of Rajasthan Civil Services
(Classification, Control &Appeal Rules, 1958 is since alleged by
many petitioners, same may also be seen at this stage itself
before proceeding further. It reads as under :-
"13. Suspension.-
1. The Appointing Authority or any authority to which it is
subordinate or any other authority empowered by the
Government in that behalf may place a Government servant
under suspension.
(a) Where a disciplinary proceedings against him is
contemplated or is pending, or
(b) Where a case against him in respect of any criminal
offence is under investigation or trial:
Provided that where the order of suspension is made by an
authority lower than the Appointing Authority, such authority
shall forthwith report to the Appointing Authority the
circumstances in which the order was made.
2. A Government Servant who is detained in custody,
whether on a criminal charge or otherwise, for a period
exceeding forty-eight hours shall be deemed to have been
suspended with effect from the date of detention, by an order of
the Authority competent to place a Government Servant under
suspension under sub-rule (1) and shall remain under
suspension until further orders.
3. Where a penalty of dismissal, removal or compulsory
retirement from Service imposed upon a Government Servant
under suspension is set aside in appeal or on review under these
rules and the case is remitted for further inquiry or action or
with any other directions, the order of his suspension shall be
deemed to have continue in force on and from the date of the
original order of dismissal, removal or compulsory retirement
and shall remain in force until further orders.
4. Where a penalty of dismissal, removal or compulsory
retirement from service imposed upon a Government Servant is
set aside or declared or rendered void in consequence or by a
decision of a Court of Law and the disciplinary authority, on a
consideration of the circumstances of the case, decides to hold a
further inquiry against him on allegations in which the penalty
of dismissal, removal or compulsory retirement was originally
imposed, the Government Servant shall be deemed to have been
placed under suspension by the Appointing Authority from the
date of the original order dismissal, removal or compulsory
(13 of 26)
retirement and shall continue to remain under suspension until
further orders.
5. Any order of suspension made or deemed to have been
made under this rule may at any time be revoked by the
authority which made or is deemed to have made the order or
by any authority to which that authority is subordinate."
13. In the light of aforesaid position law, the two relevant
questions that necessarily arise for consideration before this Court
are :
A. Whether, Rules i.e. 7(8)(b)(iii) read with Rule 25-A of the
Rajasthan Service Rules, 1951 can be invoked in cases
where in public interest it is felt that instead of placing an
official under suspension, rather a lenient view be taken by
simply withdrawing work from him by putting him in the
category of 'Awaiting Posting Orders' until further decision
is taken?
B. Whether placing the services of an employee/official under
'Awaiting Posting Orders' category is merely a euphemism
to avoid passing an order of 'transfer' and/or a ruse to
overcome the rigors of Rule-13 of Rajasthan Civil Services
(Classification, Control &Appeal Rules, 1958 and/or to
overreach the ban on the transfer orders, which may be /is
imposed from time to time ?
14. Let us deal with the question 'B' first. In all the cases of
bunch in hand herein, it so transpires that there are either of the
two categories of the officials; viz. :-
(i) where they have not been assigned any duty by putting
them under Awaiting Posting Orders category without
changing their headquarters;
(14 of 26)
and
(ii) where the employees have not only been assigned any
duty, but at the same time their headquarter has been
changed.
15. When an administrative order, as in the latter category (ii) is
tested on the definition of transfer contained in Rule 7(38) of the
1951 Rules, it leaves no room for doubt that the same amounts to
transfer. In such cases, mere use of the word 'Awaiting Posting
Orders' would not exclude the order from the ambit of transfer
of an official under the garb of APO. Accordingly, such actions
cannot be sustained on the legislative parameters envisaged by
the Rule makers. Such a recourse is being noted only to be
rejected.
Moving on to the category where the headquarters have not
been changed, the same appear to fall outside the contours of the
definition of transfer. Therefore, in such cases, no doubt, the
administrative authority will be well justified to pass the orders of
APO until further decision is taken to actually transfer such an
official. Question 'B' is answered accordingly.
16. Adverting now to the question 'A' [Whether, Rules i.e. 7(8)(b)
(iii) read with Rule 25-A of the Rajasthan Service Rules, 1951 can
be invoked in cases where in public interest it is felt that instead
of placing an official under suspension, rather a lenient view be
taken by simply withdrawing work from him by putting him in the
category of 'Awaiting Posting Orders' until further decision is
taken?]. It transpires that same is not res integra. Question 'A' has
since already been answered in the negative by a Coordinate
Bench of this Court in judgment rendered in Sukumar Kashyap
(15 of 26)
Vs. State of Rajasthan1. I may, at this stage, gainfully quote the
observations made therein by my learned brother ArunBhansali, J.
(as His Lordship was then in this Court), which read as under:
"I have considered the submissions made by learned counsel for
the parties and have perused the material available on record.
It is no doubt true that the provisions of Rule 25A of the Rules,
1951 only deal with the 'pay during A.P.O.' and do not indicate
any substantive provision/parameters for which an officer can
be placed A.P.O. However, Government of Rajasthan decisions
under Rule 25A of the Rules, 1951 have elaborately dealt with
the practice of placing government servants under A.P.O., which
inter alia has referred to the previous instructions and has
emphasized that the Administrative Department should avoid
keeping government employees A.P.O. as a routine or as an
option to disciplinary action, besides indicating the
circumstances in which the orders can be passed. The
circumstances indicated essentially deal with the cases where an
employee, who was on leave, deputation, had gone abroad, was
on training etc., when joins back, can be placed A.P.O.
Learned AAG, despite specific query, failed to point out any
substantive provision dealing with placing a government servant
'A.P.O.' The entire emphasis in reply and in the note sheet
produced pertains to various allegations against the petitioner
pertaining to alleged misconduct and the fact that he was being
investigated by the respondent Department and to ensure that
inquiry is fair, he was being placed A.P.O.
As noticed hereinbefore, the instructions under Rule 25A of the
Rules, 1951 have taken note of the practice of placing an officer
A.P.O. as an option to disciplinary action and has deprecated
the said practice. Even otherwise, it is well settled that no
administrative action in the nature of punishment can be taken
against a Government servant in the guise of passing some other
order like transfer and/or placing A.P.O. In view thereof, based
on the specific admission of the respondents regarding the order
having been passed on account of alleged conduct of the
petitioner, the action of the respondents in placing the petitioner
A.P.O. cannot be sustained.
So far as the submissions made that the conduct of the petitioner
is such that he does not deserve to remain posted at the present
place of posting is concerned, if the respondents find the conduct
of the petitioner so objectionable, then they may take
appropriate proceedings as per the provisions of various service
Rules and the practice of placing an officer A.P.O. cannot be
resorted to by way of an alternative, to such action.
1 S.B. Civil Writ Petition No.7010/2020, decided on 14.10.2020
(16 of 26)
The respondents as appointing authority / disciplinary authority
are always free to take action in accordance with law.
Consequently, the writ petition filed by the petitioner is allowed.
The order dated 7/8/2020 (Annex.3) passed by the respondents is
quashed and set aside qua the petitioner. However, the
respondents would be free to take appropriate action against the
petitioner, if deemed necessary, in accordance with law.
No order as to costs."
17. The aforesaid position in fact was further enunciated vide
another Coordinate Bench's judgment rendered in Dr. Mahesh
Kumar Panwar Vs. State of Rajasthan2, wherein speaking for
this Court, my learned brother Vinit Kumar Mathur, J., observed as
under:-
"In the opinion of this Court, the decisions are only
illustrative and the same cannot be exhaustive, therefore, the
inference which can be gathered from Rule 25A & Govt. of
Rajasthan Decisions is that the Awaiting Posting Order should
usually be passed only to meet certain contingencies and not in
a routine matter as a substitute of transfer order. The awaiting
posting order cannot be used as a tool to bypass the orders of
transfer for adjustment/ accommodation of certain persons.
The order of APO cannot be used in place of disciplinary
action for penalizing a person. If a Government Servant has
committed any wrong then the appropriate disciplinary action is
required to be initiated against that person in accordance with
the Rules and, therefore, passing of awaiting posting order in
such cases are not sustainable.
Learned counsel for the State has tried to justify the
awaiting posting order bringing the same within the ambit of
decision No.5 of the Government of Rajasthan's decision under
Rule 25A but in the opinion of this Court, the present case is not
even remotely covered under decision No.5 of the State
Government's Decision under Rule 25A of the Rules of 1951.
This Court, therefore, is firmly of the view that the
awaiting posting order cannot be passed in a casual and
mechanical manner, more particularly when the ban was
imposed by the State Government. The sanctity of the ban is
required to be adhered to by the State Functionaries."
18. I am in respectful agreement with the view taken in these
two judgments.
2 S.B. Civil Writ Petition No.10490/2024, decided on 09.09.2024
(17 of 26)
19. From a conjoint reading of Rules 7 and 25A of Rajasthan
Service Rules, 1951,it is no doubt evident that for passing an
A.P.O. order, the seven contingencies outlined in Rule 25A are
illustrative rather than exhaustive. However, this should not be
interpreted to mean that the Rule 25A may be used to circumvent
the safeguards enshrined in Rule 13, which restricts suspension
only under certain specific conditions. If an A.P.O. order is issued
without disclosing a valid contingency--or if the disclosed reason
contravenes Rule 13--it amounts to violation of the legislative
intent, under the garb of an administrative exigency. Such a
course is clearly not permissible under the law. Accordingly,
whenever power under Rule 7(8)(b)(iii) is invoked in conjunction
with Rule 25A, the administrative authority must explicitly state
the reasons for invoking contingencies beyond the seven specified
in the Rule. Thus, in all cases, the administrative authority must
articulate the rationale behind an awaiting posting order--whether
it falls within the enumerated contingencies or stems from an
administrative exigency.
19.1. While interpreting Rules 7(8)(b)(iii) and 25A, principle
of Ejusdem Generis shall necessarily apply and thus other non-
exhaustive circumstances must have similar cognitive meaning.
Illustratively, if a provision of law refers to "cars, trucks,
motorcycles, and other vehicles," the phrase "other vehicles"
would be interpreted only to include similar modes of transport
(e.g., buses, vans) but not airplanes or boats. When we Apply
Ejusdem Generis to Rule 25A, it is borne out that the rule provides
a list of specific circumstances where it applies viz. Returning from
leave; Repatriation from deputation within India; Completion of
(18 of 26)
training or foreign assignment; Returning from training within
India or Relinquishing charge of a previous post under orders of
the appointing authority and awaiting new posting orders. Rule
7(8)(b) specifically provides that Government may issue orders
declaring that in the circumstances specified therein, or in circumstances
similar thereto, a Government servant may be treated as on duty. It
indicates that the rule applies to "other similar situations" where
an employee is awaiting posting orders. The phrase "other similar
situations" must be interpreted in the same category as the listed
circumstances.
19.2. Resultantly, the Rules 7(8)(b) or 25A, ibid, do not apply to
any contemplated disciplinary actions, suspension, or cases where
posting is deliberately withheld as a punitive measure. Rule 7(8)
(b) and Rule 25A can only apply to employees who are awaiting
posting due to contingencies specified therein (such as transfer,
repatriation, or return from training) or similar other
contingencies. It cannot be expanded to cover situations where
either it is proposed to initiate disciplinary proceedings or an
official is to be suspended pending an inquiry or contemplated
removal from a post under the guise of "awaiting posting orders."
19.3. Disciplinary proceedings must be dealt with under relevant
provisions of Rajasthan Civil Services (Classification, Control
&Appeal Rules, 1958 and not Rule 25A of the Rajasthan Service
Rules, 1951. Thus, Rule 25A must not be invoked as a means to
avoid disciplinary procedures. If an administrative authority
misuses Rule 25A to delay postings for punitive reasons, such an
action would be legally not tenable.
(19 of 26)
19.4. I am, therefore, of the opinion that Rule 25A of the
Rajasthan Service Rules, 1951, cannot be invoked to bypass Rule
13 of the Rajasthan CCA Rules, 1958. Reasons are obvious. Rule
13 (Rajasthan CCA Rules, 1958) governs disciplinary proceedings
and specifies the proper authority and procedure for initiating
actions against government employees. Whereas, Rule 25A
(Rajasthan Service Rules, 1951) deals only with pay and
allowances when an employee is awaiting a new posting after
being relieved from a previous post. Since Rule 25A is not
applicable for disciplinary proceedings, it cannot be used to
circumvent or bypass the procedural safeguards under Rule 13. If
an employee is accused of misconduct, incompetence, or other
delinquency warranting disciplinary proceedings, Rule 13 of
Rajasthan Civil Services (Classification, Control &Appeal Rules,
1958 must be followed to ensure procedural fairness.
19.5. To sum up, Rule 25A of Rajasthan Service Rules, 1951 is
purely an administrative provision for pay continuity--it does not
confer any power for disciplinary proceedings. Rule 13 of
Rajasthan Civil Services (Classification, Control & Appeal) Rules,
1958 is applicable for disciplinary proceedings--bypassing it
through Rule 25A would be illegal. If an employee is being kept on
"awaiting posting orders" for an extended period without formal
disciplinary proceedings under Rajasthan Civil Services
(Classification, Control & Appeal Rules, 1958, it would amount a
malafide exercise of power. Also, to prevent abuse of power, in
cases where either the contingencies under Rule 7(8) and/or Rule
25-A have not been disclosed and/or if disclosed, are other than
(20 of 26)
similar thereto, APO orders would be falling foul of those Rules.
Such an action is clearly not permissible in law.
20. Accordingly, it is held that an order of APO can be passed
only in the contingencies specified in Rule 7(8)(b)(iii) and/or Rule
25-A of Rajasthan Service Rules, 1951 or in other similar
contingencies. Besides, the competent administrative authority
shall be under mandate to record and convey the relevant
applicable contingency to the concerned employee. Failure to
record and convey the relevant applicable contingency to the
concerned employee would amount to violation of intent, letter
and spirit of Rule 7(8)(b)(iii) read with Rule 25-A ibid and smack
of colorable and mala fide exercise of power.
21. Before parting, I may hasten to add there that the reliance
placed by learned counsel for the respondent-State on an obiter of
Division Bench judgment rendered in Pushkar Lal Mali Vs. State
of Rajasthan3, seems to be slightly out of context. Moreover, the
observation that the contingencies provided in Rule 25 are not
exhaustive was made sub silentio on a matter pertaining to
disciplinary proceedings by neither addressing any specific
argument nor the issue being directly discussed, effectively
allowing it to be assumed without formal reasoning thereof. At the
cost of reiteration, an administrative authority should not normally
traverse beyond the contours of contingencies provided under
Rule 25-A. Fortified with the obiter, ibid, to accept the argument
that in all those cases which may be termed as 'unusual' and,
therefore, Rule 13 can be given a short shrift would be a travesty
of justice and also misinterpretation of the entire scheme of
3 D.B. Special Appeal Writ No.733/2022, decided on 24.11.2022
(21 of 26)
service jurisprudence. Rule 13 must get precedence as it stands
on much stronger footing vis-à-vis Rule 25-A. Necessarily,
therefore, as an upshot, where the reasons of awaiting posting
orders are contemplated departmental inquiry, such administrative
orders cannot be sustained.
22. While concluding, in order to avoid needless litigation in
future, it is deemed appropriate to frame following guidelines to
invoke Rule 25-A of Rajasthan Service Rules, 1951:-
Guidelines on Awaiting Posting Orders (APO)
1. Purpose and Justification of APO :
(i). It must be issued based on administrative necessity or
public interest and not as a punitive measure.
(ii). The reason for placing an employee under APO must
be explicitly stated in writing.
(iii). APO should not be used as a substitute or ruse for
disciplinary action.
2. Conditions for Issuing APO :
2.1. Awaiting Posting Order is "usually" to be passed in the
following circumstances under Rule 25-A of Rajasthan Service
Rules, 1951:
(i). Returning from leave.
(ii). Reverting to the parent department after deputation.
(iii). Returning from training (domestic or foreign).
(iv). Awaiting posting after relinquishing a previous post.
(v). Non-acceptance of the officer's transfer to another post.
(vi). Preventing the reversion of a government servant.
(22 of 26)
2.2. Though the conditions mentioned in Rule 25-A are
illustrative, but any other condition proposed to be invoked must
align with similar administrative necessity (principle of ejusdem
generis).
3. Limitations and Restrictions:
(i). APO cannot be used to circumvent Rule 13 of the
Rajasthan Civil Services (Classification, Control & Appeal)
Rules, 1958, which governs suspensions.
(ii). APO should not exceed 30 days unless approved by the
Finance Department with valid justification.
(iii). Prolonged APO status without proper cause is misuse of
authority.
4. Administrative Accountability:
(i). Reason for an APO order to the concerned
employee/official must be conveyed.
(ii). Ensure timely issuance of future posting orders to
prevent unnecessary financial burden on the government.
(iii). APO orders that amount to de facto suspension or serve
as a means to delay the proposed disciplinary action should
be avoided.
23. The State of Rajasthan (respondent in all the petitions) is
directed (through its Chief Secretary) to issue necessary
administrative instructions to all the Head of Departments /
Administrative Secretaries and other competent Administrative
Officers so as to sensitize them about the aforesaid guidelines
framed by this Court along with copy of the instant judgment.
Registry of this Court to convey the instant order to the Chief
(23 of 26)
Secretary of the State through Email for his kind information and
necessary compliance thereof.
24. In the light of the guidelines, as above, since none of the
petitioners were conveyed reasons in writing to place their
services under APO category (though subsequently in the
pleadings-reply they were disclosed in some cases), all the
impugned orders (APO) in the bunch, as per Appendix-'A', are set
aside qua them, with consequences to follow. The impugned
orders where the reasons conveyed is "contemplated or pending
departmental action" or dereliction of duty or receipt of complaint
or wherever, the headquarter was changed amounting to change
of place/transfer, the same are thus liable to be quashed for those
additional reasons. It is accordingly so ordered.
25. However, if administrative exigency so warrants, the
competent authority of the State shall be at liberty to pass fresh
orders of APO under Rule 25-A of the 1951 Rules, by conveying
the reasons in writing, in accordance with law. Instant order shall
also not preclude respondents to pass fresh transfer/posting
orders in general qua the petitioners.
26. All the writ petitions stand disposed of as above.
27. All pending application (s) shall also stand disposed of.
(ARUN MONGA),J
Whether Fit for Reporting:- Yes / No
Jitender Rana - Sumit Sharma
(24 of 26)
Appendix-A
Sr. Case No. Title / Post & Date of Reason Headquarter
No. Department APO changed
1. 10380/2024 Sewaram Vs State 18.06.2024 Administrative No
(VDO) Panchayati Reasons
Raj Department
2. 13421/2024 PramendraKulhar 05.08.2024 Misbehaviour Yes
Vs. State (Lecturer) and
Education Administrative
Department Reasons.
3. 14356/2024 Ashok Kumar 24.07.2024 Reason not Yes
Pareek Vs. State mentioned
(Chief Block
Education Officer)
Dept. Secondary
Education
4. 14375/2024 Ratana Kumari Vs. 23.08.2024 Dereliction of No
State (Female Health Duty
Worker)
Medical Department
5. 14876/2024 Bharat Singh 28.08.2024 Administrative No
Choudhary Vs. State Reasons
(Inspector Land
Revenue)
6. 15007/2024 Om Prakash Vs. 02.09.2024 Reason not No
State (Patwari) mentioned
Dept. Land Record
7. 15029/2024 Bhupendra Kumar 03.09.2024 Dereliction of Yes
Vs. State (Nursing Duty
Officer) Medical
Department
8. 15366/2024 GanrajBishnoi Vs. 03.09.2024 Dereliction of Yes
State (Nursing duty and
Officer) Medical pending
Department inquiry
9. 16368/2024 Ranjeet Singh Vs. 20.09.2024 Reason not No
State (Senior mentioned
Teacher Science)
Dept. Secondary
Education
10. 16549/2024 Bharti Samariya Vs. 21.09.2024 On Complaint No
State (Principal) by students
Education
Department
11. 17068/2024 Vijay Kumar Vs. 09.10.2024 Misbehave and No
State (Lecturer Gr.I) Indiscipline
Dept. Secondary
Education
12. 17227/2024 Saroj Bishnoi Vs. 09.10.2024 Dispute and No
State (Principal) Discrimination
Education with co-
Department workers
13. 17546/2024 Gangaram Vs. State 15.10.2024 Reason not No
(Jr. Assistant) mentioned
Panchayati Raj
(25 of 26)
Department
14. 17923/2024 Gokul Chand Meena 29.08.2024 Administrative Yes
Vs. State (Inspector) Reasons
Department of Food
Supply and
Consumer Affair
15. 18369/2024 Rajesh Kumar 17.09.2024 On posting of No
Ramwat Vs. State another VDO
(VDO) Dept.
Panchayat Samiti
16. 18480/2024 Usha Choudhary Vs. 29.10.2024 Reason not Yes
State (Inspector mentioned
Audit Grade-I)
Cooperative
Department
17. 19721/2024 Lokesh Kumar 06.11.2024 Reason not No
Fageria Vs. State (Jr. mentioned
Assistant)
Panchayati Raj
Department
18. 20479/2024 Poonam Kumari Vs. 04.12.2024 Reason not No
State (VDO) mentioned
Panchayat Samiti
19. 20736/2024 Surendra Kumar 03.12.2024 Reason not Yes
Poonia Vs. State mentioned
(Dy. Director) Social
Justice and
Empowerment
20. 21343/2024 Sumitra Panwar Vs. 13.12.2024 Deputation Yes
State (Dy. DEO) cancelled.
Education
Department
21. 21405/2024 Chitresh Patel Vs. 13.12.2024 Reason not No
State (VDO) mentioned
Dept. Panchayat
Samiti
22. 21725/2024 BhuraRam VS. 14.12.2024 Dereliction of No
State (VDO) Duty
Dept. Panchayat
Samiti
23. 21728/2024 Narender &Ors. 07.12.2024 Administrative No
Vs. State (PTI) Reason
Education
Department
24. 796/2025 Jeewan Ram Vs. 03.01.2025 Reason not Yes
State (ADO) mentioned
Dept. Panchayat
Samiti
25. 2525/2025 Pawan Kumar Vs. 21.01.2025 Reason not Yes
State (Tehsildar) mentioned
Dept. Board of
Revenue
26. 3368/2025 Jay Prakash Pandiya 28.01.2025 Home town No
Vs. State (VDO) Panchayat
Dept. Panchayati Samiti
Samiti
(26 of 26)
27. 4247/2025 Mohammad Salim 07.01.2025 Reason not No
Vs. State (Teacher mentioned
Level-II)
Education
Department
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