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2021 DIGILAW 1861 (RAJ)

Chaitanya Prakash Panwar v. State Of Rajasthan

2021-09-28

ARUN BHANSALI

body2021
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. 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 petitioner joined on the said post on 01.07.2019 (Annex.-3) with the Joint Director and the Joint Director apparently permitted him to join and communicated the joining on the same date to the Drug Controller, Jaipur, vide (Annex.-4). 12. When the dispute was raised by Mr. Diwakar Patel regarding only one post being available at Udaipur, on 22.08.2019 (Annex.-6), the Joint Director made a communication to the Dy. 12. When the dispute was raised by Mr. Diwakar Patel regarding only one post being available at Udaipur, on 22.08.2019 (Annex.-6), the Joint Director made a communication to the Dy. Secretary seeking clarification and apparently no action was taken by the authorities to clarify the situation regarding the availability of the post and in case there was only one post available at Udaipur, to correct the order of petitioner's posting. Instead of doing the needful, the Joint Director by his order dated 04.09.2019 (Annex.-7), ordered for placing the petitioner as APO. 13. Admittedly, the Joint Director, Medical and Health Services, Zone - Udaipur was not the appointing authority of the petitioner and could not have passed the order making the petitioner APO and as such, the order passed by him was clearly without jurisdiction. 14. The submission made that as the petitioner had joined with him, he could have passed the order also apparently has no substance as the Joint Director being well aware of the said situation, had already communicated with the Dy. Secretary in this regard and the Dy. Secretary, for the reasons best known to him, choose not to either pass any order and/or rectify the mistake, which apparently was committed while posting the petitioner at Udaipur. 15. In view thereof, as apparently the order dated 04.09.2019 (Annex.-7) was passed by the Joint Director without any authority, the said order cannot be sustained. 16. Consequently, the further communications by the Dy. Secretary dated 01.11.2019 requiring the petitioner to follow the orders of the Joint Director and requiring the Drug Controller to issue charge-sheet under Rule 16 of Rules of 1958 also cannot be sustained. 17. So far as the submissions made by the learned counsel for the respondents seeking to make allegations against the petitioner regarding his working is concerned, the same cannot have any implication insofar as, the orders under challenge are concerned, if the petitioner has done anything wrong, the respondents even otherwise are free to proceed against the petitioner as per law. 18. In the changed circumstances, wherein, said Mr. Diwakar Patel has been transferred from Udaipur to Jaipur by order dated 29.09.2019 (Annex.-9) and the petitioner is the only Assistant Drug Controller at Udaipur presently, no further orders essentially are required to be passed in the present writ petition. 19. In view of above discussion, the petition filed by the petitioner is allowed. Diwakar Patel has been transferred from Udaipur to Jaipur by order dated 29.09.2019 (Annex.-9) and the petitioner is the only Assistant Drug Controller at Udaipur presently, no further orders essentially are required to be passed in the present writ petition. 19. In view of above discussion, the petition filed by the petitioner is allowed. The orders dated 04.09.2019 (Annex.-7) and 01.11.2019 (Annexures.10 & 11) are quashed and set aside. The respondents in the changed circumstances, are free to pass any fresh order in accordance with law.