Dr Ashok Sharma vs State Of Rajasthan
2026 Latest Caselaw 1668 Raj

Rajasthan High Court - Jodhpur

Dr Ashok Sharma vs State Of Rajasthan on 4 February, 2026

[2025:RJ-JD:55265]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
             S.B. Civil Writ Petition No. 23795/2025

Dr. Ashok Sharma S/o Sh. Bhanwar Lal, Aged About 59 Years,
Resident of 304, Paras Apartment, Saifan, Bedla Road, Badgaon,
Udaipur. (Presently Working as Principal Medical Officer at
Government Satellite Hospital, Badgaon, Udaipur).
                                                                     ----Petitioner
                                     Versus
1.       State of Rajasthan, through its Additional Chief Secretary,
         Medical And Health Services, Secretariat, Jaipur.
2.       Joint Secretary, Medical And Health Services (Group 2)
         Department and Panchayati Raj (Medical Department),
         Government of Rajasthan, Secretariat, Jaipur.
3.       Director, (Public Health), Medical and Health Services,
         Government of Rajasthan, Health Bhawan, Jaipur.
4.       Joint Director, Medical and Health Services, Zone Udaipur,
         Udaipur.
5.       Chief Medical and Health Officer, First (CMHO), Udaipur.
6.       Chief   Medical       and   Health       Officer,       Second   (CMHO),
         Udaipur.
7.       Dr. Ashish Sharma, Senior Medical Officer, Government
         Satellite Hospital, Badgaon, Udaipur.
                                                                  ----Respondents


For Petitioner(s)          :     Mr. Avinash Acharya, Adv.
For Respondent(s)          :     Mr. N.S. Rajpurohit, AAG
                                 Mr. Mukesh Dave, Govt. Counsel with
                                 Mr. Tanuj Jain, Adv.


            HON'BLE MR. JUSTICE MUNNURI LAXMAN

Order

Order Reserved on : 09/12/2025 Order Pronounced on : 04/02/2026

1) The present writ petition has been filed challenging the

impugned orders dated 27.11.2025 and 28.11.2025 passed by the

second and third respondents, respectively.

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2) The facts disclose that prior to the impugned order dated

27.11.2025, the petitioner was working as the Principal Medical

Officer at Government Satellite Hospital, Badgaon, Udaipur. By the

impugned order, the petitioner was directed to report for duty in

the office of the Director (Public Health), Medical & Health

Services, Headquarters, Jaipur. Subsequently, by order dated

28.11.2025, the petitioner was relieved from the post of Principal

Medical Officer, Government Satellite Hospital, Badgaon, Udaipur.

3) The contention of the learned counsel appearing for the

petitioner is that the petitioner was directed to report to the office

of the Director (Public Health), Medical & Health Services,

Headquarters, Jaipur, without being issued any specific posting

order in the said office. Such an order would amount to an order

passed under the note below Rule 7(8)(b)(iii) read with Rule 25A

of the Rajasthan Service Rules, 1951 (hereinafter referred to as

'the Rules of 1951'). Therefore, such an order can be passed only

in circumstances similar to those contemplated under the note

below Rule 7(8)(b)(iii) and Rule 25A of the Rules of 1951. The

impugned order does not disclose the circumstances under which

the petitioner was shifted from one headquarters to another

without any specific posting. Accordingly, the said order is

untenable in light of the note below Rule 7(8)(b)(iii) read with

Rule 25A of the Rules of 1951.

4) It is also his contention that even if such power is vested

in the authority, a change of headquarters without a posting

amounts to placing the employee under 'Awaiting Posting Orders,'

and such order cannot be beyond one week when it is made on

account of change of charge of the employee's old post. In

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support of his contention, the learned counsel has relied upon the

decisions of this Court in the cases of (i) Hemendra Kumar

Trivedi Vs. State of Raj. & Ors. in S.B.Civil Writ Petition

No.6261/2017, decided on 13.03.2018, (ii) Ganraj Bishnoi Vs.

State of Raj. & Ors., in S.B.Civil Writ Petition No.15366/2024,

decided on 17.02.2025, (iii) Dr. Mahesh Kumar Panwar Vs.

State of Raj. & Ors., in S.B.Civil Writ Petition No.10490/2024,

decided on 09.09.2024.

5) The learned Additional Advocate General appearing for the

respondents has tried to defend the impugned order by

contending that such power is vested in the authority which

passed the impugned order. It was contended that a reading of

Rule 7(38) and Rule 20 of the Rules of 1951 show that the power

to transfer includes the power to change headquarters. On this

basis, it was argued that the impugned order, by which the

petitioner's headquarters was changed, amounts to a transfer and

not an order of 'Awaiting Posting Orders.' It was further contended

that such power flows from Rule 13 of the Rules of 1951, which

places a government servant at the disposal of the Government

and permits his employment in any manner required by the proper

authority, without any claim for additional remuneration.

6) It is also his contention that Rule 25A of the Rules of 1951

does not speak of 'Awaiting Posting Orders.' It merely governs the

entitlement to pay and allowances of a government servant who is

compulsorily kept under 'Awaiting Posting Orders' under the note

below Rule 7(8)(b)(iii) of the Rules of 1951. The decisions of the

Government of Rajasthan incorporated under Rule 25A were

added by virtue of the Notification dated 14.09.1981. They are

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clarificatory in nature, and the circumstances enumerated therein

are illustrative and not exhaustive. Such posting orders are usually

made in the circumstances indicated thereunder.

7) It was further contended that 'Awaiting Posting Orders' does

not amount to a punishment but is merely an administrative

arrangement, and since salary is paid during the said period; thus

the petitioner cannot be said to have any grievance. Therefore, it

is argued that interference by this Court in such an order is

unwarranted.

8) In support of his contention, the learned AAG has relied

upon the decision of Apex Court in the cases of (i) Mohd. Sultan

Ganai Vs. State of J&K and Ors., reported in AIR 1998

Supreme Court 2341, (ii) State of Haryana & Ors. Vs. Kashmir

Singh & Anr., reported in 2010(13) SCC 306, (iii) S.K. Naushad

Rahman & Ors. Vs. Union of India, reported in 2022(12) SCC

1, (iv) Mahendra Kumar Khandelwal Vs. State of Raj. & Ors.,

passed in D.B. Special Appeal (Writ) No.714/2025, decided on

28.05.2025 and (v) Pushkar Lal Mali Vs. State of Raj. & Ors,

passed in D.B. Special Appeal (Writ) No.733/2025, decided on

24.11.2022.

9) I have considered the rival contentions of both the parties

and carefully perused the material available on record.

10) In the light of the above contentions, it is appropriate to

refer to Rule 7(8)(b)(iii) and Rule 25A of the Rules of 1951, which

read hereunder:-

"Rule 7(8)(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) .......

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(ii) .......

(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."

xxx xxx xxx

"Rule 25A. Pay daring 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 permanent Travelling Allowance during the period of awaiting posting order."

11) It is also apt to refer to Rule 7(38) and Rules 13, 14 and

20 of the Rules of 1951, which read hereunder:-

"Rule. 7. Definitions.

(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."

xxx xxx xxx

"Rule 13. Fundamental conditions of Service -

Unless in any case it be otherwise distinctly provided the whole time of a Government servant is at the disposal of the Government and he may be employed in any manner required by proper authority, without claim for additional remuneration, whether the services required of him are such as would be remunerated from the consolidated Fund or from a body incorporated or not, which is wholly or substantially owned or controlled by the Government or from a Panchayat Samiti/Zila

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Parishad Fund constituted under the Rajasthan Panchyat Samities and Zila Parishad Act, 1959 (Act NO. 37 of 1959)."

xxx xxx xxx

"Rule 14. Two persons not to be appointed on one permanent post.-

(a) Two or more Government servants cannot be appointed substantively to the same permanent post at the same time.

(b) A Government servant cannot be appointed substantively except as a temporary measure, to two or more permanent posts at the same time.

(c) A Government servant cannot be appointed substantively to a post on which another Government servant holds a lien."

xxx xxx xxx

"Rule 20. Transfer of Government servant.-(a) Government may transfer a Government servant from one post to another; provided that except-

(i) on account of inefficiency or mis-behaviour, or

(ii) on his written request, a Government servant shall not be transferred substantively to, or, except in a case covered by Rule 50 appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds a lien or could hold a lien had his lien not been suspended under Rule 17.

Note:-- Except in cases of acceptance of a lower post on abolition of post, in accordance with clause

(b) in Rule 215, transfer to a post carrying less pay than the pay of the permanent post on which Government servant holds a lien amounts to imposition of the penalty of reduction in rank and such penalty can be imposed only in accordance, with procedure laid down in the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958."

11.1) From a reading of the definition of "transfer," it is clear

that the movement of a government servant from one

headquarters station to another may take place either to enable

him to take up the duties of a new post or as a consequence of a

change in his headquarters. The first contingency in the definition

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of transfer relates to a specific posting, while the second

contingency relates to a change of headquarters. From a reading

of Section 20 of the Rules of 1951, it is clear that the Government

may transfer a government servant from one post to another post.

This indicates that the power to transfer emanates from Rule 20

read with Rule 13 of the Rules of 1951. Undoubtedly, a

government servant is at the disposal of the Government, which is

the employer. Rule 20 specifically empowers the Government to

transfer its employee from one post to another. However, such a

transfer cannot be made on the ground of insufficiency or

misconduct, or merely at the request of the government servant.

Further, a government servant shall not be transferred

substantively to a post carrying a lower pay than that of the

permanent post on which he holds a lien.

12) A reading of the impugned order clearly shows that the

petitioner was directed to move from the post he was holding,

namely, Principal Medical Officer at the Government Satellite

Hospital, Badgaon, Udaipur, to the office of the Director (Public

Health), Medical & Health Services, Headquarters, Jaipur. This

order fulfills the conditions of the definition of "transfer." However,

it does not fulfill the conditions of Rule 20, which only enables the

Government to transfer a government servant from one post to

another post. The petitioner has not been transferred to any

specific post in the office of the Director. Therefore, it cannot be

said that he has been transferred from one post to another

substantive post. If examined in the context of Rule 20, the order

cannot be termed a transfer. However, if examined in the context

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of the definition under Rules 7(8)(b) and 20 of the Rules of 1951,

it does meet the criteria of a transfer.

13) In this regard, it is relevant to refer to Rules 15 and 17 of

the Rules of 1951, which read hereunder:-

"Rule 15. Lien-Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post."

xxx xxx xxx

"Rule 17. Suspension of lien.-(a) Government shall suspend the lien, of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity -

(i) to a tenure post; or

(ii) [omitted.]

(iii) provisionally to a post on which another Government servant would hold a lien, had his lien not been suspended under this rule.

(b) Government may, at their option, suspend the lien of a Government servant on a post which he holds substantively if he is deputed out of India or transferred to foreign service, or, in circumstances not covered by (a) of this rule, is transferred in an officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.

(c) Notwithstanding anything contained in clause (a) or (b) of this rule, a Government servant's lien on tenure post may in no circumstances be suspended.

If he is appointed substantively to another permanent post his lien on the tenure post must be terminated,

(d) If a Government servant's lien on a post is suspended under clause (a) or (b) of this rule, the post may be filled substantively and the Government servant appointed to hold it substantively shall acquire a lien on it, provided that the arrangement shall be reversed as soon as the suspended lien revives.

NOTE : When a post is filled substantively under this clause, the appointment will be termed a provisional

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appointment, the Government servant concerned will hold a provisional lien on the post; and that lien be liable to suspension under clause (a) or (b) of this rule.

(e) Revival of Suspended lien.-A Government servant's lien which has been suspended under clause (a) of this Rule shall revive as soon as he ceases to hold a lien on a post of the nature specified in sub-clauses (i), (ii) or

(iii) of that clause.

(f) A Government servant's lien which has been suspended under clause (b) of this rule shall revive as soon as he ceases to be on deputation out of India or on foreign service or to hold a post in another cadre, provided that a suspended lien shall not revive because the Government servant takes leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India or on foreign service or to hold a post in another cadre and the total period of absent on duty will not fall short of three years or that he will hold substantively a post of the nature specified in sub- clause (i), (ii) or (iii) of Clause (a).

NOTE When it is known that a Government servant on transfer to a post outside his cadre is due to retire on superannuation pension within three years of his transfer, his lien on the permanent post cannot be suspended."

13.1) From a reading of Rule 15, it is clear that a government

servant, on substantive appointment to any permanent post,

acquires a lien on that post unless such lien is suspended in

accordance with Rule 17 of the Rules of 1951. There exists an

exception to Rule 20. This exception is provided under the note

below Rule 7(8)(b)(iii) and under Rule 25A of the Rules of 1951.

13.2) From a reading of Rule 7(8)(b), it is clear that certain

enumerated circumstances exist on which a government servant

may be treated as being on duty. The facts of the present case fall

under the note appended to Rule 7(8)(b)(iii), which circumstances

are also treated as duty. Two situations are discernible from the

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said note. The first is a period of compulsory waiting by a

government servant on returning from leave. The second is

waiting for posting after handing over charge of the post last held.

Rule 25A of the Rules of 1951, if read in its entirety, makes it clear

that the Rule deals with pay and allowances during the period in

which a government servant is compulsorily kept waiting for

posting orders, as contemplated under the note below Rule 7(8)

(b)(iii). It further clarifies that during the said period, the

government servant is not entitled to conveyance allowance or

permanent travelling allowance.

14) From the pleadings of both the petitioner and the

respondents, it is not clear whether the enumerated circumstances

referred to under the heading "Government of Rajasthan's

Decisions" form part of Rule 25A itself or were independently

introduced by way of clarification vide Notification dated

14.09.1981. The learned Additional Advocate General appearing

for the respondents in his written notes pleaded that the

Government Decisions were introduced by way of Notification

dated 14.09.1981. Rule 25A of the Rules of 1951 was also

introduced through the same notification, as can be seen from

various texts published by different publishers relating to the

Rules of 1951. The enumerated circumstances are illustrative of

the situations specifically mentioned under the note below Rule

7(8)(b)(iii) of the Rules of 1951.

15) This Court has doubted the question of the competence to

make decisions which are of interpretative nature. The notification

appears to have been issued by the Finance Department.

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However, the said notifications are not before this Court, and it is

not known under which provisions they were issued.

16) The learned Additional Advocate General sought to defend

such decisions by contending that such power lies within the

executive authority of the State. In this regard, it is relevant to

refer to the genesis of the Rules of 1951. These rules were framed

by the Rajpramukh of the Government while exercising powers

under Article 309 of the Constitution, and they were brought into

effect from 23.03.1951. The Rules 5 & 6 are relevant in this

regard, which read as under:-

"5. Power to delegate:- Government may delegate, to any of its officers subject to any conditions which it may think fit to impose, any power conferred upon or taken under these rules with the following exceptions :--

(a) all powers to make rules,

(b) the other powers conferred by Rules 5, 42, 56(a) 81, 148, 151 and 157 (c)."

xxx xxx xxx

"6. Interpretation:-The powers of interpreting these rules is reserved to the Governor."

16.1) From a reading of the aforesaid Rule 5, it is clear that the

government may delegate the powers conferred upon it or taken

under these rules to any of its officers, with the exception of

powers under Rules 5, 42, 56(a), 81, 148, 151, and 157(c). Rule 6

of the Rules of 1951 empowers the Governor to interpret the

rules, and this power is not vested in the executive. The learned

Additional Advocate General has been unable to identify under

which provisions of law the impugned notification has been issued.

Even a reading of Rule 25A indicates that it deals with allowances,

which are otherwise governed by Rule 42. Since Rule 42 falls

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under the exception for delegation, even on a prima facie reading

of Rule 42 read with Rule 5, it appears that the notification is not

in accordance with the Rules of 1951. However, this Court cannot

exercise its power to quash such a rule, as the rule itself is not

under challenge and must be treated as valid unless it is struck

down as ultra vires the statute. The impugned order must

therefore be examined as if they are on the Statute book.

17) The impugned order does not mention the reasons for

changing the headquarters without assigning any substantive

post. This order clearly amounts to an Awaiting Posting Order in

the circumstances of relieving an officer from a post. A careful

reading of the relevant note enumerates two circumstances: the

waiting period on return from leave, and the change of charge

over the old post. The change in handing over the charge of the

old post must precede the issuance of an Awaiting Posting Order;

it cannot follow it. In the present case, the order does not mention

the handing over of the charge of the old post; it only indicates

that the officer has been shifted from one station to another

without being assigned any substantive post. However, the

subsequent relieving order reflects a change in the handing over

of the charge. This is not in accordance with the requirements of

the Rules. The petitioner's case does not fall under the illustrative

conditions provided in the Government of Rajasthan's Decisions,

except for Serial No. 15. Serial No. 4 of the Government Decisions

states that whenever an Awaiting Posting Order is issued,

following the making over of the charge of the old post, a posting

must be provided within one week.

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18) This Court, in the case of Hemendra Kumar Trivedi

(cited supra), has deprecated the practice of placing a government

servant under Awaiting Posting Orders without providing any

reasons. Similarly, in Ganraj Bishnoil's case (cited supra), the

Court also disapproved the use of the power of APO as a

supplement to a suspension order, which can be exercised only

under the Rajasthan Civil Services (Classification, Control &

Appeal) Rules, 1958.

19) This Court, in the case of Dr. Mahesh Kumar Panwar

(cited supra), has set aside the APO order treating such an order

as unsustainable in the light of ban on transfer.

20) The reliance placed by the learned counsel for the

petitioner on the Apex Court judgments is misconceived, as those

judgments dealt with the powers of transfer, which are distinct

from posting orders. As held by this Court hereinbefore while

interpreting Rule 20, a transfer can only involve the movement

from one substantive post to another substantive post. If the

transfer entails merely a change of headquarters without a specific

transfer posting, although it may satisfy the definition of

"transfer," the power to effect such a transfer is not vested in the

government under Rule 20. Such transfers can only be effected

under the provisions of the note below Rule 7(8)(b)(iii) read with

Rule 25A of the Rules of 1951. The conditions enumerated under

Rule 7(8)(b)(iii) of the Rules of 1951 are required to be strictly

complied with. An employee can be kept under APO without a

change of headquarters after handing over charge of the old post.

He can also be kept under Awaiting Posting Order with a change of

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headquarters, which would tantamount to fulfilling all the

parameters of a Transfer as well as Awaiting Posting Order.

Normally, whenever there is a shifting from one headquarters to

another in the event of transfer of an employee from one

substantive post to another substantive post, he is entitled to

disturbance allowance and travelling allowance. The note below

Rule 7(8)(b)(iii) and Rule 25 of the Rules of 1951 do not speak

about shifting of headquarters. They only provide for placing an

employee under Awaiting Posting Order and the payment of salary

during such period. However, Rule 25A specifically disallows

conveyance allowance as well as travelling allowance during the

period of Awaiting Posting Order. Although such denial, prima

facie, appears to be arbitrary whenever shifting of headquarter is

involved, in the absence of any challenge to Rule 25A of the Rules

of 1951, this Court cannot go into such a dispute.

21) In Mahendra Kumar Khandelwal (cited supra), it was

held that Rule 25A of the Rules of 1951 provides only an

illustrative, and not an exhaustive, list of circumstances under

which an APO order may be passed. In that context, this Court

declined to interfere.

22) A Division Bench of this Court, in the case of Mahendra

Kumar Khandelwal (cited supra), while affirming the view of the

Single Bench and placing reliance on Pushkar Lal Mali's case

(cited supra), held that the circumstances enumerated under Rule

25A of the Rajasthan Government's Decisions are only illustrative

and not exhaustive. In the present case, the requirements of the

Rule has not been complied with. Although no reasons are

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ordinarily required to be given, in cases involving the shifting of

headquarters, it necessarily implies the handing over of charge of

the old post. Such a change of charge of old post is one of the

enumerated conditions in the original provision contained under

the note below Rule 7(8)(b)(iii) and in the Government's Decisions

forming part of Rule 25A, Serial No. 15. In the present case, the

impugned order does not mention the handing over of charge of

the old post. However, the relieving order indicates that the

charge was handed over subsequently. Another ground is that the

Government's Decision referred to at Serial No. 4 clearly provides

that whenever an order for "Awaiting Posting Order" is issued as a

consequence of the handing over of charge of old post, a

government servant can be kept in that status for only one week;

thereafter, he is required to be posted. In the present case, no

posting has been made for the petitioner. Therefore, the impugned

order is required to be set aside.

23) In the result, the writ petition is allowed. The impugned

orders dated 27.11.2025 and 28.11.2025 passed by the second

and third respondents respectively, are hereby quashed.

24) In the circumstances, no order as to costs.

25) Pending interlocutory applications, if any, shall stand

disposed of.

(MUNNURI LAXMAN),J NK/-

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