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IN THE HIGH COURT OF RAJASTHAN
Arun Bhansali, J.
Chaitanya Prakash Panwar - Appellant
Versus
State Of Rajasthan & Ors. - Respondents
S.B. Civil Writ Petition No. 17696/2019
Decided on : 28-09-2021
Jurisdiction - Medical and Health Services - Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 - The court discussed the jurisdiction of the Joint Director, Medical and Health Services, Zone - Udaipur in passing the order making the petitioner APO and subsequent communications requiring the petitioner to follow the orders and issue charge-sheet under Rule 16 of Rules of 1958. The court held that the Joint Director did not have the authority to pass the order making the petitioner APO, and consequently, the said order and subsequent communications were quashed and set aside.
Fact of the Case:
The petitioner was aggrieved against the order making him APO by the Joint Director, Medical and Health Services, Zone - Udaipur and subsequent orders requiring him to follow the orders and issue charge-sheet under Rule 16 of Rules of 1958. The petitioner had been promoted and posted as Assistant Drug Controller at Udaipur, but a dispute arose regarding the availability of the post.
Finding of the Court:
The court found that the order making the petitioner APO by the Joint Director was without jurisdiction, as the Joint Director was not the appointing authority of the petitioner. The subsequent communications requiring the petitioner to follow the orders and issue charge-sheet under Rule 16 of Rules of 1958 were also quashed and set aside.
Issues: The issues involved the jurisdiction of the Joint Director in passing the order making the petitioner APO and subsequent communications, as well as the petitioner's alleged non-compliance and working performance.
Ratio Decidendi: The court held that the Joint Director did not have the authority to pass the order making the petitioner APO, and consequently, the said order and subsequent communications were quashed and set aside. The petitioner's alleged non-compliance and working performance were not relevant to the orders under challenge.
Final Decision: The petition filed by the petitioner was allowed, and the orders making the petitioner APO and subsequent communications were quashed and set aside. The respondents were free to pass any fresh order in accordance with law.
JUDGMENT
1. This writ petition has been filed by the petitioner aggrieved against the order dated 04.09.2019 (Annex.-7), whereby, the petitioner has been made APO by the Joint Director, Medical and Health Services, Zone - Udaipur and subsequent orders passed, whereby, for the non-compliance of the said order dated 04.09.2019, directions have been given for initiating proceedings against petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 ('Rules of 1958').
2. It is inter alia indicated in the writ petition that by order dated 29.06.2019 the petitioner was promoted on the post of Assistant Drug Controller ('ADC') and by the same order was posted as Assistant Drug Controller, Udaipur, pursuant thereto petitioner joined on 01.07.2019 at Udaipur. One Mr. Diwakar Patel, the Assistant Drug Controller working at Udaipur, indicated that there was only one post, based on which, the Joint Director sought clarification from the Deputy Secretary by his communication dated 22.08.2019 (Annex.-6). However, when no communication was received, the order impugned dated 04.09.2019 (Annex.-7) was passed by the Joint Director.
3. Subsequent thereto, on 29.09.2019 (Annex.-9) the said Mr. Diwakar Patel was transferred to Jaipur, however, the Dy. Secretary on 01.11.2019, required the petitioner, to give his joining pursuant to the order of making him APO or else action would be taken against him and simultaneously required the Drug Controller to initiate proceedings against petitioner under Rule 16 of Rules of 1958.
4. By interim order dated 02.12.2019, effect and operation of order dated 04.09.2019 (Annex.-7) and any action pursuant thereto as indicated in communications dated 01.11.2019 (Annexures.-10 & 11) were ordered to remain stayed.
5. Learned counsel for the petitioner made submissions that the order dated 04.09.2019 (Annex.-7) issued by the Joint Director is beyond his jurisdiction, inasmuch as, the order of APO could only be passed by the appointing authority, which admittedly is the Dy. Secretary and as such, the order deserves to be quashed and set aside.
6. Further submissions were made that as the order was passed by incompetent authority, the petitioner cannot be proceeded against for alleged non-compliance of the said direction. It was also indicated that as the post of Assistant Drug Controller on account of transfer of Mr. Diwakar Patel, is in any case available now, there is no reason for disturbing the petitioner and, therefore, the action of the respondents in this regard deserves to be quashed and set aside.
7. Learned counsel appearing for the respondents made submissions that the entire dispute is petitioner's own creation, inasmuch as, pursuant to the order dated 29.06.2019 (Annex.-2) posting the petitioner at Udaipur, he should have joined in the office of Assistant Drug Controller, Udaipur, which would have clarified the status that the post was already filled and then he should have approached the authorities for appropriate posting, the very fact that petitioner choose to join with the Joint Director itself was mala fide.
8. Submissions have also been made that once Mr. Diwakar Patel was transferred, the petitioner himself vide (Annex.-R/10) 30.09.2019 has joined again as Assistant Drug Controller, which clearly shows that his joining with the Joint Director was incorrect and, therefore, the petitioner is not entitled to any relief.
9. Further submissions have been made that the working of the petitioner leaves much to be desired, inasmuch as, he has not been performing his duty as per the requirements and on that count also the petitioner is not entitled to any relief.
10. I have considered the submissions made by learned counsel for the parties and perused the material available on record.
11. Admittedly, by order dated 29.06.2019 (Annex.-2), the petitioner on being promoted was posted at Udaipur as Assistant Drug Controller by indicating that same was a vacant post. The petition
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