Dismissed

Ayub Ali v. the State of Rajasthan

Rajasthan HC23 Aug 2023CW/7133/2020

Case brief

AI extract

What is this about?

A single judge Bench held that Rule 25A of the Rajasthan Service Rules, 1951 cannot be used mechanically to keep an employee in Awaiting Posting Order status without reasons. The court rejected the jurisdiction to accommodate other candidates through such orders and disposed of the petition.

What did the court decide?

The writ petition was disposed of, the respondents are free to pass a fresh posting order if exigency warrants, and the stay petition was disposed of.

Ayub Ali Vs the State of Rajasthan — Pension and Retirement Benefits | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 7133/2020

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Ayub Ali S/o Shri Laldeen Musalman, Aged About 46 Years, R/o V.p.o. Hindalkar, Phalodi, District Jodhpur (Rajasthan).

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----Petitioner

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Versus

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The State Of Rajasthan, Through Director Cum Special Secretary, Department Of Local Bodies, Secretariat, Jaipur (Rajasthan).

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Municipal Council, Jaisalmer, Through Its Commissioner.

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----Respondents

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For Petitioner(s)	: Mr. Mahendra Singh Godara
For Respondent(s)	: Mr. Rajesh Parihar

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JUSTICE DINESH MEHTA

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Order

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23/08/2023

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The basic grievance which has been raised by the petitioner in the present writ petition is, that he has been kept Awaiting Posting Order (APO) in exercise of Rule 25A of the Rajasthan Service Rules, 1951 (hereinafter referred to as ‘the Rules of 1951’) without assigning any reason or mentioning period in the order impugned.

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It is contended by learned counsel for the petitioner that Rule 25A of the Rules of 1951 cannot be exercised mechanically and arbitrarily in order to accommodate other candidate.

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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

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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. 2. A Government servant who proceeds on leave 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

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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 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

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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 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

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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 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 reveals that no reason has been inscribed and the order has been passed in a mechanical manner.

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

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Learned counsel for the petitioner relied upon the judgment dated 13.03.2018, passed by a Co-ordinate Bench of this Court in the case of Hemendra Kumar Trivedi Vs. State of Rajasthan & Ors.: S.B. Civil Writ Petition No.6261/2017. 10. 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.

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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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In view of the aforesaid, the writ petition is disposed of in terms of the judgment in the case of Hemendra Kumar Trivedi (supra).

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Needless to observe that the respondents shall be free to pass fresh posting order qua the petitioner, if the administrative exigency so warrants.

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Stay petition also stands disposed of accordingly.

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(DINESH MEHTA),J

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75-akansha/-

Ayub Ali v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

Ayub Ali v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

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