Civil Services Rules | 'Awaiting Posting Orders' Can't Be Used To Bypass Disciplinary Process For Alleged Misconduct: Rajasthan High Court
The Rajasthan High Court has set aside the Awaiting Posting Order (APO) against the petitioner who was accused of misconduct, opining that the lawful course of the action was to initiate disciplinary action against the petitioner, instead of bypassing the same by invoking APO order under Rule 25A of Rajasthan Service Rules, 1951 (RSR).
The bench of Justice Anand Sharma held that this was a classic case of colourable exercise of power that undermined rule of law and procedural safeguards of a public servant, and was also hit by the doctrine of malice in law since the power was exercised for an extraneous purpose as compared to its object.
“…Rule 25A has been invoked ostensibly for administrative purposes, but in reality, to deal with alleged misconduct of the petitioner. This constitutes a classic case of malice in law, as the power has been exercised for an extraneous purpose…The emphasis, therefore, is not on the state of mind of the authority but on the legality of the purpose for which the power is exercised. If a statutory authority acts without lawful justification or for a purpose alien to the statute, such action is vitiated by malice in law.”
The petitioner was appointed posted as a Chief Medical Officer and was abruptly placed under APO, despite there being a ban on transfers imposed by the State Government. Furthermore, he was relieved on the same day to join duties in the office of Director, Medical and Health Services, Rajasthan Headquarters, Jaipur.
An appeal was preferred by the petitioner, in reply to which the State admitted that the APO was passed based on the allegations and several complaints received against the petitioner, and proposed disciplinary action against him. It was submitted that since multiple departmental inquiries were initiated against him, the order was made to ensure an uninfluenced enquiry.
On the contrary, the petitioner argued that disciplinary proceedings were governed by the Rajasthan Civil Services (Classification, Control and Appeal) Rules 1958, which would not have been bypassed by the State by invoking Rule 25A of the RSR.
After hearing the contentions, the Court aligned with the argument put forth by the petitioner and stated that the action of the State amounted to bypassing the statutory framework which was impermissible in law.
Further, the Court referred to the doctrine of malice in law and held that the doctrine did not necessarily implied personal ill-will but referred to an action taken for an unauthorized purpose or in disregard of the law. When statutory power was exercised for a purpose other than that for what it was conferred, the action was vitiated.
The Court referred to the Supreme Court case of State of A.P. & Others v Goverdhanlal Pitti in which the Supreme Court held that even in absence of personal animosity, an act could be malicious in law if it was based on irrelevant considerations or was taken for an unauthorized purpose.
In this background, it was held that, “…once allegations of misconduct form the basis of action, the only legally permissible course is to proceed in accordance with the CCA Rules, 1958. Resorting to an APO order in such circumstances amounts to bypassing the mandatory statutory procedure, thereby rendering the action arbitrary and legally unsustainable.”
Hence, opining that passing of APO was hit by the doctrine of malic in law, the order was set aside.
Title: Dr. Tejpal Katewa v State of Rajasthan & Ors.
Citation: 2026 LiveLaw (Raj) 124