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2023 DIGILAW 367 (RAJ)

Dinesh Kharadi v. State of Rajasthan

2023-02-01

RAJENDRA PRAKASH SONI, SANDEEP MEHTA

body2023
JUDGMENT 1. The instant intra court appeal has been preferred by the appellant herein for assailing the order dated 10.01.2023 passed by the learned Single Bench whereby, the writ petition No.11570/2022) preferred by the petitioner was dismissed on the ground of concealment of material fact. 2. Briefly stated, facts relevant and essential for disposal of the intra court appeal are noted herein below: The appellant writ petitioner, having been initially appointed on the post of Medical Officer in the Medical and Health Department, Government of Rajasthan vide order dated 25.02.2005, was accorded two promotions and at the relevant point of time, he was working as the Chief Medical and Health Officer, Udaipur. The State Government issued an order dated 03.08.2022 under the signatures of the Joint Secretary, Medical and Health (Group-2) Department and the Panchayati Raj (Health) Department whereby, as many as 46 doctors (including the appellant) working on different positions in the State were transferred/ shifted to other locations. The petitioner, who was working as the CMHO, Udaipur, was transferred to the District Hospital, Dungarpur. Being aggrieved of his transfer, the petitioner approached this Court by filing the captioned writ petition under Article 226 of the Constitution of India on 06.08.2022. During pendency of the writ petition, a preliminary objection was raised by the respondents that the petitioner had already filed an appeal before the Rajasthan Civil Services Appellate Tribunal on 05.08.2022 for questioning the legality and validity of the transfer order dated 03.08.2022. The Court was further informed that the petitioner had withdrawn the appeal and thus, the writ petition should be dismissed as being not maintainable. The learned Single Bench observed in the order dated 29.09.2022 that the only reason which was assigned in the application for withdrawal of the appeal was on account of family circumstances of the petitioner. The fact regarding filing of the writ petition was not disclosed in the withdrawal application filed before the Tribunal. The learned Single Bench, proceeded to dismiss the writ petition by order dated 10.01.2023 on the ground of non-disclosure of material fact in the writ petitioner i.e. the filing of the appeal before the Tribunal. The said order is assailed in this appeal. 3. The learned Single Bench, proceeded to dismiss the writ petition by order dated 10.01.2023 on the ground of non-disclosure of material fact in the writ petitioner i.e. the filing of the appeal before the Tribunal. The said order is assailed in this appeal. 3. Learned counsel Shri Sunil Kumar Singh and Shri Shanker Singh Rajpurohit representing the appellant writ petitioner, referred to Rule 8 of the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 and urged that the transfer order has been passed in utter violation of the aforesaid Rule because approval of the Panchayati Raj Department was not taken before issuance of the impugned transfer order which was passed in violation of Rule 8(iii) of the Rules of 2011. They fervently contended that identical orders whereby, other doctors alike the petitioner were transferred, were challenged in a batch of 68 writ petitions filed before the Jaipur Bench of this Court and the learned Single Bench proceeded to allow the writ petitions by order dated 23.09.2022 and as such, sustaining identical order qua a similarly placed Medical Officer i.e. the appellant herein, would be nothing short of a travesty of justice. On these submissions, learned counsel Shri Singh and Shri Rajpurohit representing the appellant writ petitioner, implored the Court to accept the appeal and set aside the impugned order dated 10.01.2023 passed by the learned Single Bench and so also the impugned transfer order dated 03.08.2022. 4. Learned counsel representing the respondents vehemently and fervently opposed the submissions advanced by the petitioner’s counsel. They contended that the petitioner admittedly made a grave concealment of fact while filing the writ petition inasmuch as the factum of filing of the appeal before the Tribunal was not disclosed in pleadings of writ petition. Likewise, when the appeal was withdrawn from the Tribunal vide application dated 10.08.2022, the factum of the instant writ petition being filed was not disclosed and the appeal was simply withdrawn on the ground of the petitioner’s family circumstances. They thus urged that the writ petition was rightly dismissed by the learned Single Judge on account of non-disclosure of material facts. On these submissions, they sought dismissal of the appeal. 5. We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material placed on record. 6. They thus urged that the writ petition was rightly dismissed by the learned Single Judge on account of non-disclosure of material facts. On these submissions, they sought dismissal of the appeal. 5. We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material placed on record. 6. At the outset, we may note that the learned writ court was perfectly justified in holding the petitioner responsible for concealment of material fact while filing the writ petition. Nonetheless, as identical transfer orders whereby, numerous other doctors working in the Medical and Health Department were transferred, has been set aside by learned Single Bench, we are persuaded to examine the controversy on merits. The relevant extracts of the Rules of 2011 on which, reliance was heavily placed by learned counsel for appellant writ petitioner, are reproduced herein below: "2. Interpretation. - (1) In these rules, unless the subject or the context otherwise requires, - (i) "Act" means the Rajasthan Panchayati Raj Act, (Act No. 13 of 1994); (ii) "Competent Officer" means such officer or authority authorized by the State Government to issue administrative, technical and financial sanctions; (iii) "Transferred Activities" means activities, schemes, programs, missions of the Central or State Government entrusted to Panchayati Raj Institutions time to time; (iv) "Transferred Employees" means employees working on the posts relating to activities transferred to the Panchayati Raj Institutions; and (v) "Transferred Funds" means the funds allotted for implementation of transferred activities including wages of employees and other administrative expenditure. (2) All words and expressions used but not defined in these rules have the same meanings as are respectively assigned to them in the Act. 8. Transfer:- Transfer of such transferred employees shall be made under the policy and direction issued by the State government from time to time, by:- (i.) The Administrative and establishment Committee of the Panchayat Samiti concerned within the same Panchayat Samiti. (ii.) The District Establishment Committee of Zila Parishad Samiti to one Panchayat Samiti to another Panchayat Samiti within the same district. (iii.) The department concerned from one district to another district with the consent of the Panchayat Raj Department.’ On a bare perusal of the aforesaid provisions, it becomes clear that these rules are applicable to activities, schemes, programs and mission of the Central or the State Government entrusted/transferred to the Panchayati Raj Institutions from time to time. (iii.) The department concerned from one district to another district with the consent of the Panchayat Raj Department.’ On a bare perusal of the aforesaid provisions, it becomes clear that these rules are applicable to activities, schemes, programs and mission of the Central or the State Government entrusted/transferred to the Panchayati Raj Institutions from time to time. A Panchayati Raj Institution is defined under Rule 2(xvii) of the Rajasthan Panchayati Act, 1994 which reads as below: ’2(xvii) "Panchayati Raj Institution" means an institution of self-Government established under this Act for rural areas, whether at the level of a village or of a block or district.’ The appellant writ petitioner herein is employed under the Medical and Health Department, Government of Rajasthan was posted as a CMHO, Udaipur and has been transferred to the District Hospital, Dungarpur. Thus, there is a serious question mark on the proposition that such an officer can be treated to be a transferred employee of the Panchayati Raj Institution within the meaning of Rule 2(1)(iv) of the Rules of 2011. It is dubitable that a doctor serving in the urban areas is being considered to be an employee of the Panchayati Raj Institution. The State Government is required to clear this confusion as it creates chaotic situations like the one at hand. Be that as it may. The transfer order dated 03.08.2022, which is signed by the Joint Secretary, Medical and Health (Group-2) Department and the Panchayati Raj (Health) Department, contains a pertinent recital which reads as below: ^^mDRk vkns'k l{ke Lrj ls vuqeksfnr gS^^ Section 114(e) of the Indian Evidence Act provides a presumption of law that judicial and official acts have been regularly performed. In the entire pleading of the writ petition or the appeal, the appellant writ petitioner has not questioned the veracity of the aforesaid recital in the impugned transfer order which clearly indicates that the impugned transfer order has been passed after due approval which would imply approval in terms of Rule 8(iii) of the Rules of 2011. It seems that this pertinent recital in the transfer order seems to have escaped notice of learned Single Bench at Jaipur when the bunch of writ petitioners were allowed by order dated 23.09.2022. Thus, the said order does not come to the aid of the appellant writ petitioner. 7. It seems that this pertinent recital in the transfer order seems to have escaped notice of learned Single Bench at Jaipur when the bunch of writ petitioners were allowed by order dated 23.09.2022. Thus, the said order does not come to the aid of the appellant writ petitioner. 7. As a consequence, we are of the firm view that the learned Single Bench was absolutely justified in rejecting the writ petition filed by the appellant writ petition on the ground of concealment of material fact. In addition thereto, the transfer order in question satisfies the requirements of the Rules of 2011 and hence, the same valid in the eyes of law. 8. Hence, the intra court appeal fails and is dismissed as being devoid of merit. 9. No order as to costs.