The Rajasthan High Court has ruled that transferring a Chief Medical and Health Officer (CM&HO) to the post of Deputy Controller of District Hospital amounts to a deputation. Since such deputation requires the consent of the employee, the absence of this consent rendered the transfer order invalid.
The division bench of Chief Justice Manindra Mohan Shrivastava and Justice Munnuri Laxman quashed the transfer order and overruled the decision of a single judge, who had earlier upheld it. The Court found that the single judge had been “misled” by the authorities who submitted outdated rules during the hearing.
“After the amendment, the post of Deputy Controller of Hospitals is no longer found in the cadre list enumerated in Schedule-I,” the Court noted.
The case arose when the appellant, serving as CM&HO in Udaipur, was transferred to the post of Deputy Controller in District Hospital, Pratapgarh. This was done amidst ongoing complaints and inquiries against him. He challenged the transfer, but the single judge dismissed the challenge. As a result, the appellant filed a special appeal.
A key argument raised was that the transfer moved him from a cadre post to a non-cadre post—essentially a deputation—which legally requires the employee's consent. The appellant highlighted that the amended Rajasthan Medical and Health Service Rules had removed the post of Deputy Controller from the cadre list since 2012.
The Court agreed with this submission after examining the rules:
“The transfer clearly amounts to an adverse effect on the service conditions or career prospects of the appellant since such a transfer amounts to a move from a higher post to a lower post.”
It was further held that the respondents failed to prove that the post of Deputy Controller was still part of the service cadre.
“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 as an equivalent post… Had the amended rules been brought to the attention of the learned Single Judge, the impugned order would not have been passed.”
The Court concluded that transferring the appellant without his consent was unlawful and thus the transfer order could not stand.
“For sending an employee on deputation, the consent of the employee is a sine qua non, which is absent in the present case.”
Accordingly, the special appeal was allowed.
Title: Dr. Shankar Lal Bamania v State of Rajasthan & Ors.
