Dismissed

Dr. Ashok Gupta, Son of Shri.Krishna Swaroop Gupta, v. State of Rajasthan

Rajasthan HC21 Oct 2020CW/10135/2020

Case brief

AI extract

What is this about?

A medical teacher holding temporary charge as Superintendent sought continuation beyond 62 under a pandemic extension order. The Court dismissed the claim, holding that temporary charge created no vested right and the order could not override Rule 56. It directed completion of selection for administrative posts within three months.

What did the court decide?

State directed to initiate and complete selection/appointments to administrative posts under the Circular dated 2nd March, 2020 within three months.

Dr. Ashok Gupta, Son of Shri.Krishna Swaroop Gupta… — Service and Employment | Rajasthan HC (2020)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 10135/2020

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Dr. Ashok Gupta Son of Shri Krishna Swaroop Gupta, Aged About 62 Years, Resident of 9, Mysore House, Jacob Road, Civil Lines, Jaipur (Rajasthan).

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----Petitioner

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Versus

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State of Rajasthan, Through Its Secretary, Medical Education Department, Government Of Rajasthan, Government Secretariat, Jaipur

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Principal, And Controller, Sawai Man Singh Medical College And Associated Hospitals, Jln Marg, Jaipur

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Dr. Arvind Shukla, G-8, Unique Shardul Apartment, 14, Chetakmarg, Adarsh Nagar, Jaipur

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----Respondents

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For Petitioner(s)	: Mr.Rajendra Prasad, Sr.Adv. with Mr.Saransh Ghiya (through video conferencing)
For Respondent(s)	: Mr.Ashok Mishra (through video conferencing)
	Mr.Harshal Tholia for Dr.VB Sharma, AAG (through video conferencing)

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HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order

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Date of Reserve : 09/10/2020 Date of Pronouncement : 21/10/2020

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REPORTABLE :

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This writ petition has been filed by the petitioner challenging the order dated 4^th 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,

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(2 of 25)

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Jaipur up to 30^th June, 2021, as permitted by the Government Order dated 26^th June, 2020.

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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 30^th May, 2014.

¶19

The petitioner claims to be appointed as Medical Superintendent of JK Lon Hospital, Jaipur by an Office Order dated 31^st March, 2015, issued by the Principal & Controller, SMS Medical College and Associated Hospitals, Jaipur.

¶20

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 6^th 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.

¶21

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 30^th 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 Nonadministrative positions only.

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(3 of 25)

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[CW-10135/2020]

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The petitioner has pleaded that in view of the unprecedented situation on account of COVID-19 Pandemic, the Government, vide its Office Order dated 26^th 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 30^th June, 2021.

¶25

The petitioner claims that to his utter dismay and in utmost disregard and negation of the order dated 26^th June, 2020 extending the tenure, the petitioner was ordered to be replaced by the respondent No. 3 vide order dated 4^th September, 2020 and the respondent No. 3 is a junior person to the petitioner and the order dated 4^th September, 2020 has been issued without assigning any cogent administrative reason, thus the same is unreasonable, arbitrary and whimsical.

¶26

The petitioner has also pleaded that the order dated 4^th 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 26^th 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.

¶27

The petitioner has raised following grounds to assail the order dated 4^th September, 2020 :-

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(i) The order dated 4^th September, 2020 is arbitrary, illegal and perverse order and the same has been issued in whimsical manner and it reeks of malafide intention.

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(ii) The Office Order dated 26^th June, 2020 extends the tenure of all administrative personnel for one year and the petitioner has

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(4 of 25)

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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.

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(iii) The petitioner has been discriminated, as he has been singled out and the other persons have been given benefit under the Notification dated 26^th June, 2020 and as such, there is violation of fundamental right of the petitioner guaranteed under Article 14 of the Constitution of India.

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(iv) There was no material to show that any special circumstances had arisen, which necessitated taking of charge from the petitioner and as such, without any administrative exigency, the order is unsustainable in the eyes of law.

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(v) The replacement of the petitioner by a junior person amounts to reversion and the same is nothing less than a punishment.

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(vi) Stripping the petitioner from his duties as Medical Superintendent brings a stigma on petitioner's service career and the same is defamatory.

¶37

The official respondent Nos.1 & 2 have filed reply to the writ petition. The respondents have raised preliminary objections as under :-

¶38

The petitioner has deliberately, intentionally and calculatedly suppressed and concealed the material facts and made misrepresentations of the facts in the writ petition.

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(5 of 25)

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The petitioner was only given charge of Superintendent, JK Lon Hospital as a temporary arrangement and under the law, he cannot claim the same as a right. There has been no violation of any legal or fundamental right and as such, the writ petition may not be entertained.

¶42

The Circulars dated 14^th June, 2010 and 2^nd March, 2020, issued by the Government provided mechanism of appointment of the Superintendents from eligible persons, whom the Government found to be fit for the post and the petitioner, since having not been appointed, as per the Circular, issued by the State Government, cannot claim any right.

¶43

The petitioner has wrongly placed reliance on the Notification dated 26^th June, 2020, as he was only caretaker Superintendent for more than five years and no right can be claimed by the petitioner on the basis of the Notification dated 26^th June, 2020.

¶44

The petitioner has misled this Court regarding his seniority position and in fact, he was junior to the respondent No.3 and as such, the petitioner cannot claim himself to be senior to the respondent No.3.

¶45

The charge given to the petitioner on the post of Superintendent, JK Lon Hospital was not substantive appointment after following due procedure, as provided under the law and power to appoint Superintendent lies with the State Government and not with the respondent No.2 - Principal & Controller, SMS

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(6 of 25)

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Medical College and Associated Hospitals, who had issued the initial order for giving charge to the petitioner in the year 2015.

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On merits of the matter, the respondents have submitted

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that the petitioner was promoted as Senior Professor in DACP for the year 2015-16 w.e.f. 1^st April, 2015 and he was never promoted to the post of Senior Professor vide order dated 30^th May, 2014, as claimed by him.

¶51

The respondents have pleaded that the petitioner was given charge of Superintendent vide letter/office order dated 31^st March, 2015 and the said temporary arrangement was made due to retirement of the then Superintendent Dr. SD Sharma and the same was not a regular appointment following due procedure by the Appointing Authority and as such, the condition of service relating to extension or age relaxation shall not be applicable to the petitioner.

¶52

The respondents have pleaded that the Notification dated 30^th March, 2018 has amended the proviso of Rule 56 of the Rules of 1951 and by the said Notification, the maximum age of a Medical Teacher, holding administrative post, was fixed as 62 years.

¶53

The respondents have further submitted that the petitioner was not singled out in handing over the charge. In fact, one Dr. DS Meena, the then Superintendent, SMS Hospital, Jaipur was replaced by one Dr.Rajesh Sharma on completion of his tenure of three years.

¶54

The respondent No.3 has also filed reply to the writ petition.

¶55

The respondent No.3 has pleaded that the petitioner was not senior to him, as has been claimed by him and the petitioner was only given regular promotion to the post of Senior Professor

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(7 of 25)

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Paediatric Medicine in the year 2015-16 and not as per the office order dated 30^th May, 2014, as claimed by him.

¶59

The private respondent has pleaded that he is Senior Professor Paediatric Surgery and presently working as Senior Professor Paediatric Surgery in JK Lon Hospital since 1^st April, 2014 and he was promoted earlier to the petitioner on 1^st April, 2014 on being selected by the DAPC in the year 2014-15 and he claims that his service on the post of Senior Professor, is longer than the petitioner. The respondent No.3 has also claimed that he worked on the post of Head of Department in JK Lon Hospital from 19^th April, 2018 to 18^th April, 2020.

¶60

The respondent No.3 has also filed Circulars dated 14^th June, 2010 and 2^nd March, 2020 laying down the criteria of selection/appointment/posting on the post of Superintendent/ Additional Superintendent/Deputy Superintendent in Educational Hospitals attached with the medical colleges in the State.

¶61

The respondent No.3 has pleaded that Senior Most Professor of the concerned specialty shall be appointed on the post of Superintendent and eligibility for appointment in multi state specialty hospitals shall be of five years’ experience of working of Senior Professor or Professor including both. The selection would be made by interview of the candidates. The appointment of the Superintendent shall be of three years and may be appointed for another term of three years or up to superannuation, whichever is earlier on finding service to be satisfactory.

¶62

The respondent No.3 has pleaded that the petitioner had got the order dated 31^st March, 2015, issued in his favour, from the Principal & Controller, SMS Medical College and Attached Hospitals of taking charge of Superintendent from one Dr. SD Sharma. The

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(8 of 25)

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order dated 31^st March, 2015 neither states about appointment or selection of the petitioner on the post of Superintendent nor it states about posting the petitioner for officiating the post of Superintendent and the said order only talks about giving the charge of Superintendent to the petitioner and nothing else. The respondent No.3 also disputes about competence of the Authority, who issued such order and claims that the Medical Education (Group-I) Department, Government of Rajasthan is competent and actual authority to issue appointment/selection on the post of Superintendent.

¶66

The respondent No.3 has further pleaded that the order dated 31^st March, 2015 of taking charge does not create any legal right in favour of the petitioner to allow him to continue, as appointment of the petitioner was stopgap arrangement, made purely on temporary basis of giving charge.

¶67

The respondent No.3 has pleaded that the Notification dated 30^th March, 2018 was issued by making amendment in the proviso to Rule 56 of the Rules of 1951 extending the age of superannuation and further, an Office Memorandum dated 17^th April, 2018 was also issued to the same effect. The respondent also pleaded that since the petitioner completed the age of 62 years on 4^th September, 2020, the Competent Authority, in view of amendment in the Rules of 1951, directed the petitioner to handover the charge to the respondent No.3, who was senior most Professor in Paediatric Surgery. The petitioner, having attained the age of superannuation i.e. 62 years, has lost right to hold the post, thus the order dated 4^th September, 2020 is perfectly legal and in accordance of law.

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(9 of 25)

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The respondent No.3 further pleaded that the petitioner worked on the post of Superintendent for 5 years, 5 months and 5 days without there being any due selection/appointment by the competent Authority and further, no extension order was passed in his favour and as such, the petitioner cannot be continued beyond the age of superannuation.

¶71

The respondent No.3 has also pleaded that the order dated 26^th June, 2020 giving relaxation of one year is directory and it is the prerogative of the State to deny the relaxation in genuine case, which does not warrant any extension and the Government, after considering the entire aspect of the matter with a view to provide smooth and good administration, has passed the order dated 4^th September, 2020.

¶72

The respondent has also pleaded that the petitioner cannot claim any right to hold the post for indefinite period on strength of the order dated 31^st March, 2015 and the respondent No.3, being the senior most Professor, is entitled to hold the post of Superintendent of JK Lon Hospital.

¶73

Learned Senior Counsel Mr.Rajendra Prasad, appearing for the petitioner, has made following submissions in support of the petitioner's case :-

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(1) The Office Order dated 26^th June, 2020 confers a right in favour of the petitioner to continue for one more year i.e up to 30^th June, 2021, as the petitioner was working Medical Teacher (Karyarat Chikitsak Shikshak) and the same was in continuation of the earlier order dated 17^th April, 2018 defining the administrative posts.

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(10 of 25)

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(2) The order dated 26^th June, 2020 has not been made applicable to the petitioner and the other persons have been allowed to continue on the administrative post in the medical department beyond the age of 62 years and it is a case of hostile discrimination resulting into violation of Article 14 of the Constitution of India.

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(3) The petitioner was holding the post after taking charge since 31^st March, 2015 and there was implied continuation of the petitioner without any interruption and as such, the petitioner was allowed to undergo the process of appointment/selection on the post of Superintendent by inviting applications, the same should be taken as continuation of the petitioner, as per the procedure adopted by the respondents.

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(4) The petitioner is being asked to handover the charge to the respondent No.3, as no regular appointment has been made by the respondents on the post of Superintendent and as such, the temporary arrangement cannot be replaced by another temporary arrangement.

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(5) The action of the State Government is arbitrary, as the same is not supported by any reason and suffers from malice.

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(6) The reasons are not reflected from the reply filed by the State Government, as what prompted the Authorities to ask to handover the charge and why the petitioner has been picked up for handing over the charge in spite of working successfully on the post of Superintendent.

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(11 of 25)

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Learned counsel Mr.Harshal Tholia, appearing for the official respondents has made following submissions :-

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(A) The petitioner was handed over the charge only to man the post of Superintendent as a temporary arrangement, as the incumbent, who was occupying the post of Superintendent in the year 2015, had attained the age of superannuation and as such, as a temporary arrangement, the petitioner was asked to take charge and as such, the petitioner does not have any vested right to continue on the post of Superintendent.

¶86

(B) There has been no violation of any right and the protection given to an employee under Article 311(2) of the Constitution of India, is not available to the petitioner.

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(C) The petitioner has asked for writ of certiorari to be issued and no malafides have been alleged against the State and as such, no relief may be granted by this Court in favour of the petitioner.

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(D) The selection on the post of Superintendent was not conducted as per the Circulars issued by the State Government and the petitioner himself had applied but no regular appointment was issued in favour of any person for the post of Superintendent of JK Lon Hospital and since, the petitioner himself is not regularly selected by due process, no right can be claimed by him to continue.

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(E) The order passed by the Government of handing over the charge to the respondent No.3 is neither stigmatic nor punitive order. The petitioner/incumbent does not get any pay or any

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(12 of 25)

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particular pay-scale on appointment as Superintendent and as such, no right of the petitioner is violated.

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Learned counsel Mr.Ashok Mishra, appearing for the respondent No.3, has supported the arguments of learned counsel Mr.Harshal Tholia and in addition, he has submitted that the Notification dated 30^th March, 2018 prescribed the date of superannuation of the Medical Teachers and no person can be continued on the administrative post after completion of 62 years.

¶94

Learned counsel submitted that the Rule, as amended vide Notification dated 30^th March, 2018 does not permit continuation of Medical Teachers on the administrative posts beyond 62 years and as such, an administrative order issued on 26^th June, 2020 should be treated as contrary to the statutory Notification dated 30^th March, 2018.

¶95

Learned counsel submitted that the administrative order dated 26^th June, 2020 will not supersede the statutory rule and as such, in the eyes of law, no benefit should be given to the petitioner on the basis of the administrative order dated 26^th June, 2020.

¶96

Learned counsel argued that appointment of the petitioner to take charge as Superintendent has not resulted into any substantive appointment or appointment, as per the Circulars issued by the State Government dated 14^th June, 2010 and 2^nd March, 2020 and the competent authority was the State Government, who could issue the earlier order in 2015.

¶97

Learned counsel argued that since the very order of giving charge to the petitioner was bad in eyes of law, the petitioner should not be allowed to derive any benefit from such order.

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(13 of 25)

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Learned Senior Counsel Mr.Rajendra Prasad, in the rejoinder, submitted that though the order dated 26^th June, 2020 does not mention any provision of law, however, the same has been issued due to COVID-19 situation and in certain contingencies, the State Government has been conferred power to extend working of Medical Teachers beyond the age prescribed in the Notification.

¶101

Learned counsel submitted that the Disaster Management Act, 2005 has given ample power to the State Government to meet the contingencies in such pandemic situation and as such, the order dated 26^th June, 2020 creates a right in favour of the petitioner to continue up to 30^th June 2021.

¶102

Learned counsel for the petitioner submitted that the example of handing over the charge of Superintendent, SMS Medical Hospital, Jaipur is not relevant, as the said order was passed by the respondents on 5^th May, 2020 and impact of the order dated 26^th June, 2020 is required to be given full effect and the respondents have not pointed out, as how the petitioner has been picked up by taking charge from him on completion of 62 years and other persons have been continued on the administrative posts even after completing 62 years.

¶103

Learned Senior Counsel Mr. Rajendra Prasad placed reliance on the judgments of the Apex Court in the cases of Commissioner of Police, Bombay Vs. Gordhandas Bhanji reported in AIR 1952 SC 16 and State of Haryana & Ors. Vs. Piara Singh & Ors. reported in AIR 1992 SC 2130 .

¶104

Learned counsel Mr.Harshal Tholia has placed reliance on the following judgements :-

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(1) State of Haryana Vs. SM Sharma & Ors. (1993 Supp. (3) SCC 252)

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(14 of 25)

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(2) Sreedam Chandra Ghosh Vs. State of Assam & Ors. ([1996] 10 SC 567).

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(3) Ramakant Shripad Sinai Advalpalkar Vs. Union of India (UOI) & Ors. (1991 Supp.(2) SCC 733).

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(4) Parshotam Lal Dhingra Vs. Union of India (UOI) (AIR 1958 SC 36).

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(5) KD Sharma Vs. Steel Authority of India Ltd. & Ors. ([2008] 12 SCC 481).

¶112

Learned counsel for the respondent No.3 - Mr.Ashok Mishra has also placed reliance on the following judgements :-

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(1) R.Abdulla Rowther Vs. The State Transport Appellate Tribunal, Madras & Ors. (1959 AIR (SC) 896).

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(2) R.S. Sial Vs. The State of UP & Ors. (1974 AIR (SC) 1317).

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(3) Union of India (UOI) & Ors. Vs. KR Tahiliani & Ors. (AIR 1980 SC 953).

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(4) CL Verma Vs. State of Madhya Pradesh & Anr. (1990 AIR (SC) 463).

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(5) Ramakant Shripad Sinai Advalpalkar Vs. Union of India (1991 AIR (SC) 1145).

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(6) Sreedam Chandra Gosh Vs. State of Assam & Ors. (1997 AIR (SC) 251).

¶119

I have considered the submissions made by the learned counsel for the parties and scanned the matter carefully.

¶120

This Court, in order to appreciate the controversy involved in the present writ petition, deems proper to quote the relevant provisions of the Notifications/orders dated 30^th March, 2018, 17^th April, 2018 and 26^th June, 2020 for ready reference : -

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(15 of 25)

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“ Government of Rajasthan Finance Department (Rules Division)

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No.F.1(5) FD/Rules/2016 Jaipur, dated:30.03.2018

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Notification

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In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Rajasthan Service Rules, 1951, namely:-

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Short title and commencement:- (1) These rules may be called the Rajasthan Service (Third Amendment) Rules, 2018.

¶128

(2) They shall come into force with immediate effect. 2. Amendment of rule 56:- In rule 56 of the Rajasthan Service Rules, 1951, the existing further proviso shall be substituted by the following namely:-

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“Provided further that the age of superannuation in respect of MBBS degree holder Medical Teachers of the Rajasthan Medical Service (Collegiate Branch) shall be 65 years. After attaining the age of 62 years, the services of such Medical Teachers shall be placed on Non Administrative Positions only.

¶130

The age of superannuation in respect of MBBS degree holder Officers of the Rajasthan Medical & Health Service shall remain 62 years.”

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(Emphasis supplied.)

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“Government of Rajasthan Department of Medical Education (Gr.-1)

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F.1(2)/ME/Gr.-1/2017 Pt. Date:17.04.2018

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Office Memorandum

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Sub:- Administrative positions in respect to amendment of the Rule 56 of the Rajasthan Service Rules, 1951, regarding age of superannuation in respect of MBBS degree holder Medical teachers of the Rajasthan Medical Services (Collegiate Branch) rules to 65 years vide Government of Rajasthan, Finance Department (Rules Division) order dated 30.03.2018

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(16 of 25)

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With reference to the subject cited above, following is the list of administrative position where Medical Teachers shall not be placed after attaining the age of 62 years.

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1. Dean

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2. Principal and Controller

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3. Director

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4. Additional Principal

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5. Medical Superintendent

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6. Additional Superintendent

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7. Dy. Superintendent

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8. Head of the Department of respect speciality.

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This bears the approval of Competent Authority. (Emphasis supplied.)

¶148

Øekad i- 1 ¼26½ ,ebZ@xzqi&1@2019 t;iqj fnukad 26-06-2020

¶149

dksfoM+&19 egkekjh laØe.k dh orZeku ifjfLFkfr;ksa ds nf"Vxr jktLFkku lsok fu;e 1951 ds fu;e 56 ds ijUrqd esa f’kfFkyu iznku djrs gq, foHkkx ds dk;kZy; Kkiu la[;k i- 1 ¼2½ fpf’kZ@xzqi&1@2017 ikVZ fnukad 17-04-2018 esa vafdr iz’kklfud inksa ij dk;Zjr fpfdRld f’k{kdksa dk dk;Zdky 62 o"kZ i’pkr 1 o"kZ fnukad 30-06-2021 rd c<+k;s tkus gsrq Lohdfr iznku dh tkrh gSA

¶150

;g Lohd`fr for foHkkx dh vkbZ-Mh- la[;k 102002845 fnukad 26-062020 ls izkIr lgefr ds Øe esa tkjh dh xbZ gSA”

¶151

The main issue before this Court is with regard to right of the petitioner to hold the post of Superintendent, as per the order dated 26^th June, 2020 issued by the State Government. This Court is also required to consider right of the petitioner to hold the post of the Superintendent, as per his initial appointment made in the year 2015.

¶152

This Court finds that the initial order dated 31^st March, 2015 was issued, whereby the petitioner was given charge of Superintendent of JK Lon Hospital, Jaipur and the charge was to be handed over by the then incumbent one Dr. SD Sharma, who

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was attaining the age of superannuation on 31^st March, 2015. The order dated 31^st March, 2015 does not provide any tenure or period, for which, the petitioner was appointed and in fact, the order only speaks of taking the charge as Superintendent without referring to any procedure being adopted by the Authorities.

¶156

This Court finds that the State Government has issued the Circular dated 14^th June, 2010, amending the earlier Circular dated 20^th March, 2006, whereby procedure was given for appointment of Superintendent/ Additional Superintendent/ Deputy Superintendent for their selection/appointment/posting in the different medical colleges and attached hospitals in the State Government.

¶157

This Court finds that the petitioner himself had applied by submitting an application for considering his case for appointment and his application is on record, as filed by him in the writ petition. This Court finds that no order of appointment was issued by the State Government in favour of the petitioner for making appointment as per the Circular dated 14th June, 2010.

¶158

This Court finds that the State Government issued another Circular dated 2^nd March, 2020, where again procedure was laid down for selection/appointment/posting of Superintendent/ Additional Superintendent/Deputy Superintendent and as per the said Circular, in the hospitals, having multi-specialty, a Committee consisting four officers is constituted and further, eligibility has also been provided for Senior Professor/Professors having minimum experience of 5 years as Professor and Senior Professor and after considering the case of eligible persons, the appointment can be offered for a term of three years and further, re-

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(18 of 25)

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appointment can also be done, as per the terms of the Circular dated 2^nd March, 2020.

¶162

This Court finds that the Circular dated 2^nd March, 2020 is in place at present as far as appointment of the Superintendent in hospitals is concerned, however, nothing has been brought on record to suggest this Court that any selection has so far taken place on the basis of the Circular dated 2^nd March, 2020.

¶163

This Court finds that the age of superannuation of Medical Teachers, was amended by way of the Notification dated 30^th March, 2018 and it has been clearly provided that the age of superannuation in respect of MBBS degree holders, Medical Teachers of the Rajasthan Medical Service (Collegiate and Branch) shall be 65 years. The said Notification further clearly provides that after attaining the age of 62 years, services of such Medical Teachers, shall be placed on Non-administrative positions only. This Court finds that the Notification clearly prohibits Medical Teachers to be posted on administrative positions beyond the age of 62 years.

¶164

This Court finds that in consonance with the Notification dated 30^th March, 2018, an Office Memorandum dated 17^th April, 2018 was issued and a list of administrative positions was provided, where Medical Teachers were not to be placed after attaining the age of 62 years. The post of Medical Superintendent finds place at serial No.5. The said Office Memorandum is absolutely in terms of the Notification issued by the State Government, wherein the State Government had made it very clear that if the Medical Teachers are occupying the administrative positions, they will not be allowed to continue on such positions after attaining the age of 62 years.

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(19 of 25)

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¶167

This Court finds that the order dated 26^th June, 2020 has been issued making relaxation in Rule 56 of the Rules of 1951 and further, makes a reference of the Office Memorandum dated 17^th April, 2018 relating to the administrative posts being held by the Medical Teachers and as such, by this Office Order, the State Government has extended the period of such Medical Teachers on administrative posts beyond 62 years for a period of one year i.e. 30^th June, 2021.

¶168

This Court finds that once the statutory rule has been amended by way of the Notification dated 30^th March, 2018 exercising the power conferred by proviso to Article 309 of the Constitution of India, then in absence of proper amendment in the Rule by way of procedure prescribed under the law, the Office Order dated 26^th June, 2020 will not supersede the statutory rule.

¶169

This Court finds that issuance of the Office Order dated 26^th June, 2020 is not in consonance with the earlier statutory Notification dated 30^th March, 2018 and the Office Memorandum dated 17^th April, 2018.

¶170

This Court does not find any reason to extend the benefit of continuation of the petitioner beyond 62 years for one year as per the office order dated 26^th June, 2020. The right of the petitioner to continue to hold the post of Superintendent, without there being any element of selection, does not result into any vested right, for which, the petitioner can seek enforcement, in writ jurisdiction.

¶171

This Court finds that the petitioner himself was only asked to take charge on the post of Superintendent and continuation of the petitioner for the period of more than five years up to completion of his age, i.e., 62 years, does not reveal any kind of arbitrary

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(20 of 25)

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action of the State Government by asking the petitioner to handover the charge to new incumbent.

¶175

The submission of learned counsel for the petitioner that the petitioner has been replaced by another set of temporary employee, suffice it to say that 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.

¶176

This Court does not find substance in the submission of learned counsel for the petitioner Mr.Rajendra Prasad that this is a case of replacement of temporary arrangement by another temporary arrangement, resulting into violation of petitioner’s right.

¶177

The submission of learned counsel for the petitioner that the petitioner has been singled out in the matter of asking him to handover the charge and other incumbents have been continued, as per the Office Order dated 26^th June, 2020, this Court finds that in view of the statutory rule, as per the amended Notification dated 30^th March, 2018, the continuation of any other person will not create any right in favour of the petitioner. The concept of claiming equality is not a negative concept but the same is a positive concept. If the State Government has allowed any other Medical Teacher on administrative post beyond 62 years, the same would not result into granting benefit of continuation in favour of the petitioner. Moreover, the petitioner has not given any detail of any other such candidate in his entire petition.

¶178

The submission of learned counsel for the petitioner that the respondents did not assign any reason for taking over the charge

¶179

(21 of 25)

¶180

[CW-10135/2020]

¶181

from the petitioner and have acted in arbitrary manner, suffice it so say that holding of charge by the petitioner for more than five years and completion of his 62 years of age on 4^th September, 2020, necessitated issuance of the order asking the petitioner to handover the charge.

¶182

The submission of learned counsel for the petitioner that services of the petitioner on the post of Superintendent were satisfactory and after submitting the application and interview in the selection process, his continuation was approval of his satisfactory service rendered and as such, without completing the process of making appointment, the direction to handover the charge cannot be sustained, this Court finds that the petitioner was never appointed as per the Circular issued by the State Government from time to time and since, selection of the petitioner was not as per the Circular and it was only a temporary arrangement, the petitioner cannot be conferred with indefeasible right to continue to hold the post.

¶183

As far as reliance placed by learned counsel for the petitioner on the judgment in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji (supra) is concerned, the Apex Court has considered that public orders, publicly made, in exercise of a statutory authority should not be construed in the light or explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. The said judgment further shows that the public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

¶184

(22 of 25)

¶185

[CW-10135/2020]

¶186

This Court finds that the Apex Court in the aforesaid case

¶187

was considering cancellation of cinema-hall license by Commissioner of Police and reasons of cancellation were sought to be supplied subsequently before the Court and as such, the Apex Court found that subsequent explanations by the Authorities, after issuance of the order, will not meet the requirement of law.

¶188

The present controversy, involved in the writ petition in hand, is not with respect to subsequent reasons given by the Authorities for issuance of the order dated 4^th September, 2020 and as such, the said judgment is of no assistance to the petitioner.

¶189

So far as the judgment in the case of State of Haryana & Ors. Vs. Piara Singh & Ors. (supra) is concerned, the Apex Court has considered the issue with regard to temporary employee being regularized and further, practice of replacing one set of temporary employee by another set of temporary employee and the same has not been approved by the Apex Court. The said judgment also lays down in service jurisprudence that temporary employee should be replaced only by regularly selected employee. Accordingly, the judgment in the case of State of Haryana & Ors. Vs. Piara Singh & Ors. (supra) is not applicable to the present facts of the case and is of no assistance to the petitioner.

¶190

This Court finds that since appointment of the petitioner 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. Even the order of selection, as per the Circulars, does not give any special pay to such incumbent and they draw their salary from the original post

¶191

(23 of 25)

¶192

[CW-10135/2020]

¶193

and further, appointment on these administrative posts, are not separately created substantive post.

¶194

The Apex Court in the case of State of Haryana Vs. SM Sharma & Ors. (supra) has held that if the charge is given to an incumbent in addition to his own post, the same does not result into violation of any right of an employee. The person does not has a right to ask for or stick to a current duty charge and if the impugned order does not cause any financial loss or prejudice of any kind, the person does not have any cause of action to invoke the writ jurisdiction of the High Court and if the same is done, it can be a case of patent misuse of process of the Court.

¶195

This Court further finds that it is a trite law that 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. In the case of C.L.Verma Vs. State of Madhya Pradesh & Anr. (supra) , the Apex Court has held as under :-

¶196

“6. The question which arose for consideration in the writ petition before the High Court at the instance of the appellant was whether in the face of the mandate in Rule 29 the administrative order could operate. It is not the stand of the State Government that the order dated 15th of May, 1981, is one under the proviso to Rule 29. In fact, the tenor of the proviso clearly indicates that it is intended to cover specific cases and individual employees. An administrative instruction 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. We are, therefore, of the view that the appellant, in terms of Rule 29, ceased to be a Government employee on his attaining the age of 58 years, two days prior to the order of suspension. In view of the fact that he had already superannuated, Government had no right to deal with him in its disciplinary jurisdiction available in regard to employees. The ratio of the decision in R.T. Rangachari v. Secretary of State for India in Council 64 IA 40 supports the position.”

¶197

(24 of 25)

¶198

[CW-10135/2020]

¶199

Accordingly, this Court finds that as far as right of the petitioner to continue to hold the post of Superintendent is concerned, the same is not sustainable in the eyes of law.

¶200

However, this Court, while not entertaining claim of the petitioner to continue on the said post, finds that the respondent State has also failed to discharge its duty to conduct the selection for appointment on the post of Superintendent, as per the Circulars issued from time to time.

¶201

This Court finds the Circular dated 2^nd March, 2020 has been issued by detailing out the complete procedure by inviting applications from the incumbents and after constituting a Committee, it is required to select/appoint/post the persons. The State Government is required to take necessary exercise, as per the Circulars issued from time to time. The State Government, realizing importance of the administrative positions of the Medical Teachers, has to follow the procedure in letter and spirit. The incumbents, who are eligible for participating in the said process, also expect that proper method should be followed for making such appointments. The tenure of such incumbent is also prescribed under the said Circular and the candidates/incumbents, who participate and finally get selected, can at least man these positions by giving their best performance as per the requirement of job on administrative post.

¶202

This Court further holds that temporary/ad hoc arrangements can be made by the State Government considering urgency in the matter, however, such continuation for a long period, on ad hoc basis results into a situation, where incumbent himself is not certain about his tenure and further functioning of

¶203

(25 of 25)

¶204

[CW-10135/2020]

¶205

the incumbent is also affected due to non-adherence to the procedure prescribed.

¶206

This Court deems it proper to give 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 2^nd March, 2020.

¶207

This Court is conscious of the fact that the State Government is combating COVID-19 Pandemic, however, the administrative posts are required to be manned in a proper manner and as such, this Court grants three months time to the State Government to initiate and complete the exercise of selection/appointments on the administrative posts, as per the Circular dated 2^nd March, 2020.

¶208

Accordingly, writ petition of the petitioner claiming his continuance on the post of Superintendent is dismissed with the aforesaid directions.

¶209

Preeti Asopa

Dr. Ashok Gupta, Son of Shri.Krishna Swaroop Gupta, v. State of Rajasthan

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Dr. Ashok Gupta, Son of Shri.Krishna Swaroop Gupta, v. State of Rajasthan

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