Transfer From CMO To Hospital's Deputy Controller A Reduction In Rank, Amounts To Deputation For Which Consent Is Needed: Rajasthan HC
The Rajasthan High Court quashed an order where a government employee serving as Chief Medical and Health Officer (CM&HO) Udaipur was transferred as Deputy Controller of District Hospital, Pratapgarh observing that it amounted to deputation for which the employee's consent is mandatory which was missing herein. In doing so the court set aside the single judge's order which had upheld...
The Rajasthan High Court quashed an order where a government employee serving as Chief Medical and Health Officer (CM&HO) Udaipur was transferred as Deputy Controller of District Hospital, Pratapgarh observing that it amounted to deputation for which the employee's consent is mandatory which was missing herein.
In doing so the court set aside the single judge's order which had upheld the transfer order, observing that the single judge had been "misled" by respondent authorities who did not produce the relevant amended Rajasthan Medical and Health Service Rules, wherein Deputy Controller of Hospitals was no longer found in the cadre list.
It further observed that transfer order from the post of CM&HO to the post of Deputy Controller "clearly amounts to an adverse effect on the service conditions or career prospects of the appellant since such a transfer amounts to transfer from higher post to lower post".
The division bench of Chief Justice Manindra Mohan Shrivastava and Justice Munnuri Laxman in its order observed:
"After the amendment, the post of Deputy Controller of Hospitals is no longer found in the cadre list enumerated in Schedule-I. The posts of Deputy Director/CM&HO and equivalent posts were mentioned and there is no equivalency with regard to the posts of Deputy Controller of Hospital/Deputy Superintendent/Principal Health and Family Welfare Training Center. It appears that the respondents filed an affidavit along with the unamended rules, which led the learned Single Judge to treat the post of Deputy Controller of Hospitals to which the appellant was transferred from the post of CM&HO, Udaipur as an equivalent post...In the present case, the respondents have failed to establish that the post of Deputy Controller is a cadre post under the Rules of 1963. It was a cadre post prior to the amendment of the existing rules, which took place in the year 2012. The rules clearly removed the existing cadre post of Deputy Controller of Hospitals, and it is no longer a cadre post governed under the Service Rules of 1963. Thus, the transfer of the petitioner from the existing post of CM&HO to the post of Deputy Controller of Hospitals clearly amounts to deputation. For sending an employee on deputation, the consent of the employee is a sine qua non, which is absent in the present case. Therefore, the transfer order is liable to be set aside on this ground alone".
The appellant was serving as CM&HO, Udaipur when he was transferred to the post of Deputy Controller in light of multiple complaints being filed against him that were pending inquiries. This transfer was challenged before the Court which was rejected. Hence, a special appeal was filed.
One of the arguments raised by the appellant was that as per the amendment brought to the Rules, he was transferred from a cadre-post to a non-cadre post that amounted to deputation and thus required his consent which was not taken. It was submitted that such amendment was not taken into account by the single judge before rejecting appellant's challenge against the transfer.
After hearing the contentions, the Court perused the Rules and agreed with the argument put forth by the appellant. It was observed that prior to the amendment both the posts were treated as equivalent, however, post amendment, the post of Deputy Controller was no longer in the cadre list. Hence, there was no equivalency in the two posts.
"In the present case, the transfer of the petitioner from the post of CM&HO to the post of Deputy Controller, which is a non-cadre post, amounts to deputation, and such a transfer was made without the petitioner's consent. Therefore, the appellant has established grounds for interference with the transfer order. The learned Single Judge was misled by the respondents by producing unamended rules. Had the amended rules been brought to the attention of the learned Single Judge, the present impugned order would not have been passed. Thus, the appeal and the writ petition are required to be allowed," it said.
Accordingly, the special appeal was allowed.
Title: Dr. Shankar Lal Bamania v State of Rajasthan & Ors.
Citation: 2025 LiveLaw (Raj) 141