'Awaiting Posting Order' Cannot Be Passed In Routine Manner But Only To Meet Contingencies: Rajasthan High Court

Rajasthan High Court recently allowed a petition challenging an 'Awaiting Posting Order' (“APO”) passed by the State Medical and Health Services Department (“the Department”) during the ban period imposed by the Government, in the absence of any urgency or even clearance from the office of the Chief Minister.

APO refers to a status of government officials during which the officials are not allocated any duty or posting for a certain period of time and the officials are wait to be assigned a posting.

During a period of ban imposed by the government on transfers, the concerned government officials cannot be transferred from their designated postings until the culmination of the ban period.

The bench of Justice Vinit Kumar Mathur said,

“The awaiting posting order also does not mention any exigency of service, nor it discloses the fact that the same has been passed after taking permission from the office of the Hon'ble Chief Minister. In the opinion of this Court, the State Government cannot blow hot and cold at the same time by passing the order contrary to the directions issued by imposing the ban vide order dated 04.02.2023”

It also observed that the list of decisions given under Rule 25-A of the Rajasthan Services Rules 1951 (“the Rules”) which enumerates certain situations in which APO is passed, was only illustrative and not exhaustive and it indicated that APO should usually be passed only to meet certain exigencies and not in a routine manner as a substitute for transfer orders. Neither could it be used as a tool to penalizing persons or to bypass the transfer order for adjusting someone else.

The Court was hearing a petition filed by an individual who was posted as the Principal Medical Officer, Nagaur. In 2024 he was kept under APO vide an order (“APO Order”) and his headquarter was changed from Nagaur to Directorate (Public Health) Jaipur and then the petitioner was relieved from the post vide another order. Challenging these orders, the petition was filed.

It was the case of the petitioner that the APO Order was passed in violation of the ban imposed by the State Government vide an order. It was submitted that no transfers or APOs could have been passed during such period of ban without taking permission from the office of the Chief Minister which was not taken by the respondents. The counsel for the petitioner also argued that the APO Order was passed only to accommodate another person at Nagaur in place of the petitioner.

On the contrary, the Additional Advocate General argued that it was well within the domain of the State Government to see that the services of an individual could be best utilized at a particular place and hence, the APO Order was passed in larger public interest. In light of such administrative exigency, the APO Order was justified.

The Court rejected the argument put forth by the Additional Advocate General and ruled that even though the authority to pass APOs were well within the domain of the State Government, the State Government was required to pass such an order taking into account the guidelines as well as the imposed ban. It was observed that the order imposing such a ban was clear that the transfers/APOs passed during the period of ban must be only after considering the exigency of the situation and taking clearance from the Chief Minister's office.

“A bare perusal of the ban order shows that a Government Officer can be transferred during ban period provided the same is of very urgent nature and the permission is taken from the office of the Hon'ble Chief Minister… awaiting posting order passed in the present case is not in Conformity with the provisions of law discussed above as neither it discloses any administrative exigency or emergent nature nor appropriate permission from the office of the Hon'ble Chief Minister was obtained before passing the order impugned.”

Hence, the Court opined that the APO Order was passed in violation of the order of the State that imposed a ban on transfers.

Furthermore, the Court ruled that the inference that could be gathered from Rule 25-A of the Rules and the Govt. of Rajasthan Decisions was that APOs should be passed only to meet certain exigencies and not in a routine manner as a substitute of transfer order, neither to bypass orders of transfers for adjusting someone else, nor as a tool to penalize.

“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.”

Accordingly, the petition was allowed.

Title: Dr. Mahesh Kumar Panwar v State of Rajasthan & Ors.

Citation: 2024 LiveLaw (Raj) 253

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