Disposed

Ram Kumar Sihag v. State of Rajasthan

Rajasthan HC28 Jul 2023CW/67/2020

Case brief

AI extract

What is this about?

The Court addressed multiple writ petitions challenging orders keeping government servants under awaiting posting orders (APO) without reasons. Citing a coordinate bench precedent, the Court held that Rule 25A cannot be invoked mechanically to accommodate others or without justification, causing financial harm and inconvenience.

What did the court decide?

All writ petitions disposed of; orders keeping petitioners under awaiting posting orders without reasons quashed to the extent they were stayed; liberty granted for fresh posting if exigency warrants.

Ram Kumar Sihag Vs State of Rajasthan — Service and Employment | Rajasthan HC (2023)

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[2023:RJ-JD:24174]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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(1) S.B. Civil Writ Petition No. 3053/2021

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Ramesh Kumar Parihar S/o Sh. Kanhaiya Lal Ji Parihar, Aged About 58 Years, R/o Nayi Abadi, Gajanand Marg, Near Stadium, District Pratapgarh.

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----Petitioner

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Versus

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1. State Of Rajasthan, Through Secretary, Local Self Department, Government Of Rajasthan, Jaipur.

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Director, Local Self Department, Government Of Rajasthan, Jaipur.

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----Respondents

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Connected with

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(2) S.B. Civil Writ Petition No. 7169/2021

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Pardeep Kumar S/o Shri Gyaniram, Aged About 44 Years, R/o Balmiki Basti, Ward No. 3, Sangaria, Hanumangarh, District Hanumangarh (Raj.)

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----Petitioner

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Versus

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1. State Of Rajasthan, Through Secretary, Department Of Local Self, Secretariat, Rajasthan, Jaipur.

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The Director Cum Special Secretary, Local Self Department, Govt. Of Rajasthan, Jaipur.

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The Executive Officer, Municipal Board, Sangaria, District Hanumangarh (Raj.)

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----Respondents

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(3) S.B. Civil Writ Petition No. 11054/2021

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Gopal Krishan S/o Shri Ishwar Dutt, Aged About 41 Years, R/o Ward No. 06, Gajsinghpur, Tehsil - Padampur, District Sri Ganganagar.

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----Petitioner

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Versus

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1. The State Of Rajasthan, Through Secretary, Department Of Local Self, Secretariat, Astrakhan, Jaipur.

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The Director Cum Special Secretary, Local Self Department, Govt. Of Rajasthan, Jaipur.

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The Executive Officer, Municipal Board Gajsinghpur, District Sri Ganganagar (Raj.).

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----Respondents

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(4) S.B. Civil Writ Petition No. 643/2021

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Kishori Lal S/o Shri Prathvi Raj, Aged About 49 Years, R/o

(2 of 13)

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Ward No. 9, Keshav Colony, Rawala Mandi, District Sri Ganganagar (Raj).

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----Petitioner

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Versus

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The State Of Rajasthan, Through Secretary, Department Of Rural Development And Panchayati Raj, Secretariat, Rajasthan, Jaipur.

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The Chief Executive Officer, Zila Parishad, Bikaner. 3. The Vikas Adhikari, Panchayat Samiti, Khajuwala, District Bikaner.

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----Respondents

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(5) S.B. Civil Writ Petition No. 11948/2021

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Amarjeet Singh S/o Shri Gurcharan Singh, Aged About 38 Years, R/o Ward No. 22, Anupgarh, District Sri Ganganagar (Raj.).

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----Petitioner

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Versus

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The State Of Rajasthan, Through Secretary, Department Of Local Self, Secretariat, Rajasthan, Jaipur.

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The Director Cum Special Secretary, Local Self Department, Govt. Of Rajasthan, Jaipur.

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The Executive Officer, Municipal Board Anupgarh, District Sri Ganganagar (Raj.).

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----Respondents

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(6) S.B. Civil Writ Petition No. 14281/2021

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Baldev Singh S/o Shri Chotha Ram, Aged About 57 Years, 4 Mnwm Dhani, P.o. 3Fdm, Via Sardargarh, Tehsil Suratgarh, District Sri Ganganagar (Raj.).

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----Petitioner

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Versus

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State Of Rajasthan, Through Secretary, Department Of Education, Jaipur, Rajasthan.

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The Director, Secondary Education, Bikaner.

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The Joint Director, Secondary Education, Bikaner Division, Bikaner.

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The Joint Director, School Education, Bikaner Division, Bikaner.

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----Respondents

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(7) S.B. Civil Writ Petition No. 5405/2020

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Manju D/o Shri Shankar Lal, Aged About 30 Years, R/o P.no.

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[CW-3053/2021]

44, Jaimal Nagar, 80 Feet Road, Magra Punjla, Jodhpur, District Jodhpur, Rajasthan.

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----Petitioner

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Versus

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State Of Rajasthan, Through The Secretary, Department Of Education, Secretariat, Jaipur, Rajasthan.

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The Director, Elementary Education Bikaner, District Bikaner, Rajasthan.

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The Joint Director (School Education), Jodhpur Division, District Jodhpur, Rajasthan.

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The District Education Officer (Headquarter), Elementary Education, Jodhpur District Jodhpur, Rajasthan.

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The Peeo/principal, Government Senior Secondary School, Lordi Panditji, Jodhpur, District Jodhpur, Rajasthan.

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----Respondents

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(8) S.B. Civil Writ Petition No. 5412/2020

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Hari Gopal S/o Shri Bhanwar Lal, Aged About 36 Years, Resident Of Village Reengan, Tehsil Ladnun, District Nagaur.

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----Petitioner

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Versus

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State Of Rajasthan, Through The Secretary, Public Works Department, Government Of Rajasthan, Jaipur.

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Chief Engineer, Public Works Department, Jaipur.

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----Respondents

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(9) S.B. Civil Writ Petition No. 9337/2020

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Mahesh Giri Goswami S/o Late Shri Madhav Giri Goswami, Aged About 42 Years, R/o Hansmukh Nagar, Sbbj Marg, Ward No. 4, Rashmi, District Chittorgarh. Presently R/o 3/25 Housing Board Colony, District Pratapgarh.

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----Petitioner

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Versus

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1. State Of Rajasthan, Through The Special Assistant, Office Of Honble Minister, Revenue, Colonization, Agriculture Irrigation Development And Water Utilization Department, Government Of Rajasthan, Secretariat, Jaipur.

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The Collector, District Pratapgarh.

----Respondents

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[CW-3053/2021]

(10) S.B. Civil Writ Petition No. 11722/2020

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Dal Chand Menaria S/o Shri Prithvi Raj, Aged About 56 Years, R/o Village Gawardi, Tehsil Railmagra, District Rajasamand.

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----Petitioner

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Versus

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1. State Of Rajasthan, Through The Principal Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

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The Joint Secretary, Siksha (Group-Ii) Department, Government Of Rajasthan, Secretariat, Jaipur.

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The Director, Secondary Education, Government Of Rajasthan Bikaner.

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Joint Director, School Education, Government Of Rajasthan, Bhupalpura, Udaipur.

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The Chief District Education Officer, Rajsamand.

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----Respondents

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(11) S.B. Civil Writ Petition No. 12997/2020

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Smt. Sunita D/o Shri Shivkaran Choudhary, Aged About 43 Years, Resident Of House No. 35-36A, Akta Nagar, Ramjan Ka Hatha, Jodhpur, Through Her Husband Dinesh Choudhary S/o Shri Danwar Ram Ji, Aged About 43 Years, Resident Of House No. 35-36A, Akta Nagar, Ramjan Ka Hatha, Jodhpur.

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----Petitioner

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Versus

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State Of Rajasthan, Through The Secretary, Department Of School Education, Secretariat, Jaipur.

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Joint Director, Secondary Education, Jodhpur. 3. District Education Officer (Head Quarters), Secondary Education, Jodhpur.

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Principal, Govt. Sr. Secondary School, Riyan Sethon Ki, Pipar City, Jodhpur.

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----Respondents

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(12) S.B. Civil Writ Petition No. 67/2020

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Ram Kumar Sihag S/o Shri Hazari Lal, Aged About 49 Years, Resident Of 2 Spm, Mammer Khera, Sri Ganganagar.

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----Petitioner

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Versus

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1. State Of Rajasthan, Through The Secretary, Medical, Health And Family Welfare Services Department, Government Of Rajasthan, Jaipur.

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The Additional Director (Administration), Medical And Health Services, Rajasthan, Jaipur.

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Chief Medical And Health Officer, C.M.H.O. Office, Sri Ganganagar.

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----Respondents

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(13) S.B. Civil Writ Petition No. 12086/2021

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Smt. Mangi Jain W/o Shri Inder Mal Jain, Aged About 52 Years, Resident Of Sanwaria Ji Mandir Ki Gali, Gopalganj, Pratap Garh, Rajasthan

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----Petitioner

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Versus

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1. State Of Rajasthan, Through The Secretary, Department Of Women And Child Development, Government Of Rajasthan, Jaipur (Rajasthan).

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1. The Director Of Integrated Child Development Services, 2 Jalpath, Gandhi Nagar, Jaipur (Rajasthan).

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Child Development Project Officer, Pratapgarh, Ist, Pratapgarh (Rajasthan).

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----Respondents

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(14) S.B. Civil Writ Petition No. 15113/2021

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Bhanwar Lal Choudhary S/o Shri Andaram, Aged About 52 Years, Choudhary, R/o Behind Bajrang Dharmkanta, Uttarlai Road, Baldev Nagar, District Barmer, Rajathan.

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----Petitioner

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Versus

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State Of Rajasthan, Through Commissioner And Joint Secretary, Rural Development And Panchayat Raj Department, Secretariat, Government Of Rajasthan, Jaipur.

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Chief Executive Officer, Zila Parishad, Barmer. 3. Block Development Officer, Panchayat Samiti, Gida, Barmer.

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----Respondents

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(15) S.B. Civil Writ Petition No. 10626/2020

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Manoj Kumar Trivedi S/o Shri Bhanwar Lal Trivedi, Aged About 52 Years, Resident Of Trivedi Bhawan, Bapu Nagar, Tehsil Devgarh, District Rajsamand (Rajasthan).

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----Petitioner

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Versus

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1. State Of Rajasthan, Through The Secretary To The Government, Department Of Secondary Education, Government Of Rajasthan, Secretariat, Jaipur.

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Director, Secondary Education, Rajasthan, Bikaner.

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District Education Officer (Headquarter), Secondary Education, Rajsamand.

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Chief Block Education Officer, Devgarh, District Rajsamand.

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Principal, Government Senior Secondary School, Kalesariya, Tehsil Devgarh, District Rajsamand.

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----Respondents

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For Petitioner(s)	:	Mr. Dr. Sachin Acharya, Sr. Advocate, assisted by Mr. Chayan Bothra Mr. J.S. Bhaleria Mr. Surendra Singh Choudhary Mr. Kailash Jangid Mr. Vikas Bijarnia Mr. Rakesh Arora Mr. Shailash Kumar Mr. Rahul Bathi Mr. N.S. Rajpurohit Mr. Mukesh Vyas
For Respondent(s)	:	Mr. Anil Kumar Gaur, AAG with Mr. Anupam Gopal Vyas Ms. Vandana Bhansali Mr. Gaurav Ranka Mr. Rajesh Parihar Mr. K.K. Bissa Mr. Manish Tak Mr. Sarwan Kumar for Mr. Hemant Choudhary Mr. Anil Bachhawat Mr. Kunal Upadhyay for Mr. Sunil Beniwal,AAG

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JUSTICE DINESH MEHTA

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Order

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28/07/2023

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The basic grievance, which has been raised by the petitioners in these writ petitions is, that they have been kept awaiting posting order (APO) in exercise of Rule 25A of the Rajasthan Service Rules, 1951 (hereinafter referred to as “the

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(7 of 13) [CW-3053/2021]

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[2023:RJ-JD:24174]

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Rules of 1951”) without assigning any reason or mentioning period in the order(s) impugned.

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It is contended by learned counsel for the petitioners that Rule 25A of the Rules of 1951 cannot be exercised mechanically and arbitrarily in order to accommodate other candidates. 3. It would be apt to reproduce Rule 25A of the Rules of 1951, which reads thus:-

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25A. Pay during awaiting posting orders .— A Government servant who is compulsorily kept under awaiting posting orders under note below Rule 7 (8) (b) (iii) shall bs entitled to the pay and allowances at the rate at which he was drawing immediately before relinquishing charge in the old post. He shall not be allowed Conveyance Allowance or permanent Travelling Allowance during the period of awaiting posting order. Government of Rajasthan's Decision 1. Government servant are kept compulsorily under awaiting posting orders usually in the following circumstances:—

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(1) On return from leave.

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(2) On reversion to parent department from deputation within India.

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(3) On return from abroad after completion of training or foreign assignment.

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(4) On return from training within India.

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(5) Awaiting posting order after making over charge of the old post under the directions of Appointing Authority.

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(6) Non-acceptance of the officer on transfer to another post.

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(7) To save a Government servant from reversion.

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2. A Government servant who proceeds on leave

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cannot resume duties on return from leave as a matter of course on the post which he held before proceeding on leave in the absence of formal order of posting. In cases where leave sanctioning authority and appointing authority is one and the same, authority competent to grant leave should invariably indicate in the order sanctioning leave that the officer is reposted to the same post on the expiry of leave. Authority competent to grant leave can also issue orders of reposting to the same post if during the currency of leave the post was kept unfilled. Where leave has been sanctioned by an authority other than the appointing authority and the leave vacancy has been filled up under the orders of the appointing authority, the latter authority can only issue reposting orders of the officer returning from leave. In such cases the appointing authority should as far as possible issue the posting order of the Government servant before expiry of the leave so that the contingency of keeping a Government servant under posting orders on return from leave does not arise.

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3. In the case of Government servants placed in the circumstances mentioned at items No. 2, 3, and 4 in para 1 above, the competent authority should invariably issue orders of posting atleast 15 days in advance of the return of Government servant from deputation/training or foreign assignment in order to eliminate keeping of a Government servant under awaiting posting orders. With a view to watch and effectively control the situation in this regard, the authority competent to send an officer on deputation, training or foreign assignment should maintain registers to ensure that proposal for posting of Government servants due to return from

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deputation within India or from deputation abroad on foreign assignment terms of training are moved well in time for issue of posting orders.

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4. Sometimes Government servant are required to make over charge of the post and await posting orders under the direction of the appointing authority. Such situation should, as far as possible be avoided, and if it is absolutely necessary in some cases, the orders of posting should be 'issued within a week. In case of promotion of an officer against vacant post, the posting order should invariably be issued simultaneously.

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5. Government servants transferred from one post to another post should not be prevented from assuming charge of the post and the practice of non- acceptance of an officer reporting for duty in consequence of his posting/transfer being an unhealthy one, should be scrupulously avoided.

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6. Government servants are some times placed under awaiting posting orders in the following circumstances:—

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(1) Reversion of a Government servant to a lower post held by him in officiating capacity pending approval or regularisation of his appointment by Departmental Promotion Committee/ Rajasthan Public Service Commission.

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(2) Reversion to a lower post as a result of abolition of the post held by him.

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7. It is against the spirit of rules to treat a Government servant as awaiting posting orders till he can be reappointed to an identical post in the same time scale of pay on occurrence of vacancy or otherwise. In such cases a Government servant shall not be treated as awaiting posting orders, and he shall not be entitled to pay and allowances under

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Rule 25A of Rajasthan Service Rules. The orders issued by the authority reverting a Government servant should be carried out. A Government servant shall be treated to have been reverted from the date of issue of orders or from the date specified in the order as the case may be and his reversion becomes effective from that date irrespective of whether he proceeds on leave immediately after reversion or not. In such cases even if a Government servant is kept under awaiting posting orders to save him from reversion of any other junior person to him in the cadre; the time so passed in such circumstances shall be regularised by grant of leave as may be due and admissible as in no-circumstances it will be treated as awaiting posting orders.

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8. Under the existing delegation the Administrative Department of Government have power to keep a government servant under posting orders for a period not exceeding 30 days, and cases involving the period exceeding 30 days require the concurrence of the Finance Department. Keeping a Government servant under awaiting posting orders for unduly long period (s) without any justification involves infructuous expenditure as the Government servant remains idle during awaiting posting orders. It is, therefore, enjoined upon all concerned authorities to scrupulously follow these instructions with a view to eliminate the cases of awaiting posting orders and thereby avoid wasteful expenditure. Every case of awaiting posting orders in which a Government servant has been kept under awaiting posting orders for unduly long period without adequate reasons and justifications should be enquired into by the administrative department

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[CW-3053/2021]

first at their own level and necessary action may be taken against the delinquent Government servant who are responsible for delay in issuing posting orders in infringement of these instructions or any other instruction issued by the Government from time to time in this behalf.”

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A perusal of aforesaid provision shows that it is neither an enabling provision nor does it clothe the appointing authority/State with the power to keep the employees without any posting or change his/her/their Headquarters at Jaipur or any other place.

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In the opinion of this Court, Rule 25A of the Rules of 1951 cannot be invoked impending the transfer of an employee or to accommodate/transfer other employee in place of already working employee. It not only causes inconvenience to the employee but also poses unwarranted financial burden on the State.

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In the contingencies enumerated in Rule 25A or under exceptional circumstances, a Government servant can be asked to await posting.

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A perusal of the impugned order(s) reveals that no reason has been inscribed and the order(s) have been passed in a mechanical manner.

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That apart, substantial time has since passed after passing of the interim order(s) in favour of the petitioners, whereby the order(s) of keeping the petitioner(s) awaiting posting, has been stayed.

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Though in some of the cases, a liberty was granted to the respondents to provide posting to the petitioners, but in some of the cases such liberty has not been granted.

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Learned counsel for the respondents submitted that in most of the cases, fresh posting has been provided to the petitioners or subsequent transfer order etc. have been passed.

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Learned counsel for the petitioners relied upon the judgment dated 13.03.2018, passed by a Coordinate Bench of this Court in the case of Hemendra Kumar Trivedi Vs. State of Rajasthan & Ors.: S.B. Civil Writ Petition No.6261/2017.

¶196

This Court in Hemendra Kumar Trivedi (supra) has held thus:-

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“A bare look at the order dated 19.5.2017 (Annex.7) indicates that the order is non-speaking, no reason whatsoever has been indicated as to why the petitioner was being placed APO. The repeated orders passed against the petitioner, have been interfered with by this Court on account of their obvious deficiency and again in the present case, the order has been passed in apparent violation of Rule 25-A of the Rajasthan Services Rules, 1951. The submissions made in the reply seeking to justify the order dated 19.5.2017, cannot be countenanced, inasmuch as, the respondents cannot use the provisions of Rule 25-A of RSR for extraneous purposes without indicating reasons for the same in the order. If the order dated 19.5.2017 (Annex.7) was issued for the reasons as indicated in the reply, the same should have been reflected in the order and, therefore, the reasons indicated in the reply cannot be used for sustaining the order impugned.”

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[CW-3053/2021]

[2023:RJ-JD:24174]

In view of the aforesaid, all the writ petitions are disposed of in terms of Hemendra Kumar Trivedi(supra)’s case, wherever petitioners have been transferred/posted subsequent to impugned order(s), those order(s) shall not be affected by the present order. 14. Needless to observe that the respondents shall be free to pass fresh posting order(s) qua the petitioners, if the administrative exigency so warrants.

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Stay petitions also stands disposed of.

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(DINESH MEHTA),J

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300, 301, 304 to 315 & 260-Ramesh/-

Ram Kumar Sihag v. State of Rajasthan

Case brief

What is this about?

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Ram Kumar Sihag v. State of Rajasthan

Case brief

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