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2020 Supreme(Raj) 668
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Ashok Kumar Gaur, J.
Ashok Gupta - Appellants
Vs.
State of Rajasthan and Ors. - Respondent
S.B. Civil Writ Petition No. 10135/2020
Decided On : 21-10-2020
For the Appellant : Rajendra Prasad, Sr. Adv. and Saransh Ghiya
For the Respondents: Ashok Mishra and Harshal Tholia for V.B. Sharma, AAG
An administrative order cannot compete with a statutory rule and if there be contrary provisions in the rule, the administrative instructions must give way and the rule shall prevail.
Headnote:
MEDICAL SUPERINTENDENT - APPOINTMENT - AGE OF SUPERANNUATION - EXTENSION - RAJASTHAN SERVICE RULES, 1951 - RULE 56 - AMENDMENT - NOTIFICATION DATED 30TH MARCH, 2018 - OFFICE MEMORANDUM DATED 17TH APRIL, 2018 - OFFICE ORDER DATED 26TH JUNE, 2020 - CIRCULAR DATED 14TH JUNE, 2010 - CIRCULAR DATED 2ND MARCH, 2020 - REPLACEMENT OF PETITIONER BY ANOTHER TEMPORARY EMPLOYEE - ARBITRARINESS - WRIT PETITION - DISMISSAL WITH DIRECTIONS.
Fact of the Case:
Petitioner, a Senior Doctor and Pediatrician, was appointed as Medical Superintendent of JK Lon Hospital, Jaipur in 2015. In 2018, Rule 56 of the Rajasthan Service Rules, 1951 was amended to increase the age of superannuation for MBBS degree holders, Medical Teachers of the Rajasthan Medical Service (Collegiate and Branch) to 65 years. However, the services of such Medical Teachers were to be placed on Non-administrative positions only after attaining the age of 62 years. In view of the COVID-19 Pandemic, the Government issued an Office Order on 26th June, 2020 extending the appointment of all Medical Teachers holding administrative posts, attaining the age of 62 years for a period of one year i.e. till 30th June, 2021. However, the petitioner was asked to handover the charge of the Medical Superintendent to the respondent No. 3 on 4th September, 2020. The petitioner challenged the order dated 4th September, 2020, seeking a direction to allow him to work as Superintendent, JK Lon Hospital, Jaipur up to 30th June, 2021, as permitted by the Government Order dated 26th June, 2020.
Finding of the Court:
1. The petitioner was only given charge of Superintendent as a temporary arrangement due to the retirement of the then incumbent. 2. The petitioner was never appointed as per the Circulars issued by the State Government from time to time. 3. The Office Order dated 26th June, 2020 extending the tenure of all administrative personnel for one year is directory and the State has the prerogative to deny the relaxation in genuine cases. 4. The petitioner's claim to continue on the post of Superintendent for an indefinite period on the strength of the order dated 31st March, 2015 is not tenable. 5. The respondent No. 3, being the senior most Professor, is entitled to hold the post of Superintendent of JK Lon Hospital.
Issues: 1. Whether the petitioner has a right to continue on the post of Superintendent, as per the order dated 26th June, 2020? 2. Whether the petitioner's right to hold the post of Superintendent, as per his initial appointment made in the year 2015, is sustainable?
Ratio Decidendi: 1. The Office Order dated 26th June, 2020 is not in consonance with the earlier statutory Notification dated 30th March, 2018 and the Office Memorandum dated 17th April, 2018. 2. The petitioner does not have any vested right to continue to hold the post of Superintendent, without there being any element of selection. 3. The petitioner was only asked to take the charge in view of retirement of the then incumbent and since, there was no element of selection at any point of time, no right was created in favour of the petitioner to ask for his continuance. 4. The petitioner's claim that the respondents did not assign any reason for taking over the charge from him and have acted in arbitrary manner is not tenable. 5. The petitioner's appointment was not for a particular tenure, as per the procedure prescribed under the various Circulars and the petitioner, as such having been asked to take over the charge, cannot be allowed to complain that his current assignment is required to be continued.
Final Decision: The writ petition is dismissed with directions to the State Government to undertake necessary exercise for appointment of Superintendent or any other administrative post, as per the Circulars issued by it from time to time culminating in the latest Circular dated 2nd March, 2020. The State Government is granted three months time to initiate and complete the exercise of selection/appointments on the administrative posts, as per the Circular dated 2nd March, 2020.
ORDER :
Ashok Kumar Gaur, J.
1. This writ petition has been filed by the petitioner challenging the order dated 4th September, 2020, whereby he has been asked to handover the charge of the Medical Superintendent of JK Lon Hospital, Jaipur in favour of the respondent No. 3 - Dr. Arvind Shukla. The petitioner has further sought a direction from this Court to allow him to work as Superintendent, JK Lon Hospital, Jaipur up to 30th June, 2021, as permitted by the Government Order dated 26th June, 2020.
2. The facts, pleaded in nutshell, are that the petitioner is a Senior Doctor and Pediatrician, who completed his MBBS in the year 1982 and MD in the year 1986 respectively. The petitioner claims to be appointed as Lecturer in the Department of Pediatric Medicine, SMS Medical College in the year 1987 and finally, the petitioner claims to be promoted to the post of Senior Professor in the year 2014 vide order dated 30th May, 2014.
3. The petitioner claims to be appointed as Medical Superintendent of JK Lon Hospital, Jaipur by an Office Order dated 31st March, 2015, issued by the Principal & Controller, SMS Medical College and Associated Hospitals, Jaipur.
4. The petitioner claims that after his appointment, the official respondents invited applications for appointment on the post of Medical Superintendent and the petitioner, in pursuance of the same, submitted his application dated 6th February, 2017 and appeared in the interview as well. The petitioner claims that he continued to hold the post of Medical Superintendent and discharged his duties to the satisfaction of the authorities.
5. The petitioner claims that Rule 56 of the Rajasthan Service Rules, 1951 (for short "the Rules of 1951") was amended by the Finance Department of the Government on 30th March, 2018. whereby the age of superannuation in respect of MBBS degree holders, Medical Teachers of the Rajasthan Medical Service (Collegiate and Branch) was increased to 65 years and in the same amendment, the services of the Medical Teachers, after attaining the age of 62 years, were restricted to Non-administrative positions only.
6. The petitioner has pleaded that in view of the unprecedented situation on account of COVID-19 Pandemic, the Government, vide its Office Order dated 26th June, 2020 extended the appointment of all Medical Teachers holding administrative post, attaining the age of 62 years for a period of one year i.e. till 30th June, 2021.
7. The petitioner claims that to his utter dismay and in utmost disregard and negation of the order dated 26th June, 2020 extending the tenure, the petitioner was ordered to be replaced by the respondent No. 3 vide order dated 4th September, 2020 and the respondent No. 3 is a junior person to the petitioner and the order dated 4th September, 2020 has been issued without assigning any cogent administrative reason, thus the same is unreasonable, arbitrary and whimsical.
8. The petitioner has also pleaded that the order dated 4th September, 2020 has been issued on the whims and fancies of the respondents and the petitioner has been singled out for giving charge to the respondent No. 3, while other administrative personal continued to benefit under the Notification dated 26th June, 2020. The petitioner also claims that neither prior notice was issued nor opportunity of hearing was offered to him before issuing the impugned order.
9. The petitioner has raised following grounds to assail the order dated 4th September, 2020:-
(i) The order dated 4th September, 2020 is arbitrary, illegal and perverse order and the same has been issued in whimsical manner and it reeks of malafide intention.
(ii) The Office Order dated 26th June, 2020 extends the tenure of all administrative personnel for one year and the petitioner has legitimate expectation to continue for the extended period and the said order has been issued with no condition that the same can be revoked at any time without prior notice.
(iii) The petitioner has been discriminated, as he has been single
