Dr. I J. Gupta vs The State Of Madhya Pradesh
2021 Latest Caselaw 3775 MP

                                    1                                 WP-9686-2021
        The High Court Of Madhya Pradesh
                   WP-9686-2021
             (DR. I J. GUPTA Vs THE STATE OF MADHYA PRADESH AND OTHERS)

3
Jabalpur, Dated : 31-07-2021
      Heard through Video Conferencing.
      Shri K.C. Ghildiyal, learned counsel for the petitioner.
      Shri R.N. Singh, learned Senior Counsel with Shri Brijesh Chandra
Choubey, learned counsel for Caveator.
      Ms. G.K. Patel, learned Government Advocate for the State.

      2. Petitioner has filed this writ petitioner calling in question order dated
21.05.2021 (Annexure-P/7) by which order dated 06.05.2021 (Annexure-P/5)
was cancelled and respondent No.5 namely Dr. S.B. Khare was given charge

of Civil Surgeon cum Chief Hospital Superintendent, District-Sidhi (MP) and Dr. D.K. Dwivedi was relieved of the charge. Earlier, Collector, District-Sidhi vide order dated 06.05.2021 as an emergency measure handed over the charge of Civil Surgeon to Dr. I.J. Gupta the petitioner herein.

3. Impugned order is challenged on the ground that same is passed in violation of circular dated 30.12.2003 (Annexure-P/6) issued by State

Government. As per said circular, post of Civil Surgeon cum Hospital Superintendent is to be given to Senior Most Specialist posted in district hospital. Petitioner is senior to respondent No.5. Order is issued by respondent No.4/Additional Director who is not competent to issue such order. Respondent No.4 has no authority to cancel the order issued by respondent No.3/Collector who is superior in rank. Impugned order in question is malafide in nature. Petitioner was only officiating on post of Civil Surgeon cum Hospital Superintendent, but as impugned order is arbitrary in nature, therefore, petitioner can challenge impugned order dated 21.05.2021.

4. Learned counsel for the petitioner has relied on Constitutional Bench judgment reported in (1974) 4 SCC 3 [E.P. Royappa Vs. State of Tamil Nadu and Another] wherein in paragraph No.86 it has been held as under:-

2 WP-9686-2021 "86. It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Articles 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post. T h a t might have some relevance to Article 311 but not to Articles 14 and 16. We must, therefore, proceed to consider whether the transfer of the petitioner first to the post of Deputy Chairman and then to the post of Officer on Special Duty was arbitrary, hostile and in mala fide exercise of power. What w a s the operative reason for such transfer: was it the exigencies of public administration or extra administrative considerations having no relevance to the question of transfer ? Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irrational or unjust that it could not have been made by any reasonable administration except for collateral reasons? These are the questions which call for our consideration." Relying on said paragraph, petitioner assailed impugned order to be arbitrary and violative of Articles 14 and 16 of the Constitution of India.

5. Learned counsel for petitioner has also relied on judgment reported in (1984) 3 SCC 316 [A.L. Kalra Vs. Project and Equipment corporation of Indian LTD.] He relied on paragraph-26 of said judgment which is reproduced below:-

"26. Now i f w ha t i s alleged a s misconduct d o e s not constitute mis-conduct not b y analysis o r appraisal of evidence, but per se under 1975 Rules the respondent had neither the authority no r the jurisdiction nor the power to impose any penalty for the alleged misconduct. An administrative authority who purports to act by its regulation mus t be held b o und b y the regulation. ''Even if these regulations have no force of law the employment under these corporations i s public employment, and therefore, an employee would get a status which would enable hi m to obtain a declaration for continuance in service, if he was dismissed or discharged contrary to the regulations.'' Relying on said paragraph, it is submitted by counsel for petitioner that 3 WP-9686-2021 an administrative authority who purports to act by its regulation must be held bound by its regulation.

6. Learned counsel for the petitioenr has also relied on judgment reported in 2015 AIR SCW 2230 [Pune Municipal corporation and Another Vs. Kausarbag Co-op. Housing Society Ltd. and Another] paragraph-16, which is quoted as under:-]

"16. Underlying the arguments advanced on behalf of the appellants is a fundamental issue that would require a brief mention. The present case discloses a somewhat disturbing course of action adopted by the State in seeking to disown and challenge its own professed standards laid down in the form of a DCR by tangentially contending the same to be incompetent in law. Such a course of action by the State seeking to depart from its self-professed norms is neither permissible nor would the Court require to consider the same. The DCR governing the grant of TDR though may have gone beyond what is contemplated under the MRTP Act, the State and its authorities cannot be permitted to request the Court to collaterally adjudge the validity of the said norms laid down by the State itself. It is for the State to effect necessary corrections as deemed proper and not search for an escape valve through a judicial verdict. Such a course of action is jurisprudentially impermissible. So long as the DCR holds the field all executive actions must be within the four corners thereof. We can usefully remind ourselves of the observations of Justice Frankfurter in Viteralli v. Viteralli v. seaton approved in R.D. Shetty v. International Airport Authority:

"An executive agency must be rigorously held to the standards by which it professes its action to be judged. ..Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind the agency, that procedure must be scrupulously observed.... This judicially evolved rule of administrative law is no firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."

On basis of aforesaid submission, counsel for the petitioner made a prayer for setting aside of impugned order dated 21.05.2021.

7. Respondents No.1 to 4 have filed its reply and made averments that respondent No.5 is senior to present petitioner as respondent No.5 was promoted in year 2012 as Medical Specialist and present petitioner has been promoted in year 2013 as Eye Specialist. Respondents further relied on 4 WP-9686-2021 judgment reported in 2016 (3) MPLJ 152 [Dr. V.B. Singh Baghel Vs. State of Madhya Pradesh and others]. Relying on said judgment, it was argued that in said order it was held that no legal, vested, statutory and constitutional right of petitioner therein was infringed. Petitioner was only officiating on post of Chief Medical Officer and if he is removed from charge then no mandamus can be issued. Decision was taken by Government in public interest and for public good. High Court in writ jurisdiction cannot enforced executive instruction. In said judgment, learned Single Judge of this court has placed reliance on AIR 1993 SC 2273 [State of Haryana Vs. S.M. Sharma and others]. Apex Court in said case has held that High Court extended its extra-ordinary jurisdiction under Article 226 of Constitution of Indian to a frivolity. It was further held that no one has a right to ask for or stick to a current duty charge. The impugned order did not cause any financial loss or prejudice of any kind to the employee. He had no cause of action whatsoever to invoke writ jurisdiction of the High Court. Apex Court observed that it was patent misuse of the process of the Court by High Court.

8. Learned Single Judge has also relied on Constitutional Bench judgment reported in AIR 1965 SC 1196 [State of Assam and Another Vs. Ajeet Kumar Sharma and Another]. In said case, it was held that executive instructions confer no right of any kind and the same cannot be a reason for High Court to issue mandamus against the State Government. It was averred that order dated 06.05.2021 was nearly a stopgap arrangement made by Collector awaiting regular appointment by Commissioner Health Services. Collector is not appointing authority of petitioner or respondent No.5. Impugned order dated 21.05.2021 issued by Additional Director is not without jurisdiction. Decision for appointment of In-charge Civil Surgeon cum Hospital Superintendent at Government Hospital, Sidhi was undertaken at level of Commissioner Health Services and State Government. Decision was approved by Additional Chief Secretary, Public Health and Family 5 WP-9686-2021 Welfare Department on 18.05.2021 and thereafter, Additional Director has issued impugned order dated 21.05.2021, therefore, same is not without jurisdiction. Relevant note-sheet was placed on record. Commissioner Health Services had put up a note-sheet on 17.05.2021 to give charge of Civil Surgeon to respondent No.5 and send it for approval and it was approved by Additional Chief Secretary and thereafter, order was passed by respondent No.4. In view of same, order is not without jurisdiction. On said basis, prayer was made for dismissal of writ petition.

9. Learned Senior Counsel appearing for respondent No.5 submitted that impugned order dated 21.05.2021 has been passed after due approval from Higher Authority and there is no statutory violation or jurisdictional error in passing of said order. The writ petition filed by petitioner is not maintainable as respondent No.5 is not permanently posted on post of Civil Surgeon cum Hospital Superintendent in Sidhi. Circular dated 30.12.2003 is not enforceable and there is no violation of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 in any manner. Learned senior counsel has also placed reliance on the judgment mentioned above. It was further submitted that petitioner has suppressed the fact that respondent No.5 has taken the charge of Civil Surgeon cum Hospital Superintendent at District-Sidhi on 22.05.2021 and he continues to work on said post. There is no complaint or stigma in service career of respondent No.5 and his service record is unblemished and satisfactory to superior

authority. Order passed by Collector dated 06.05.2021 was not approved by higher authority and order under challenge has been approved by higher authority. In view of aforesaid facts and circumstances of the case, counsel appearing for respondent No.5 prayed for dismissal of writ petition.

10. Heard the counsel for petitioner as well as respondent No.5.

11. Questions before this Court are :-

1. "Whether writ petition filed by petitioner against impugned order dated 21.05.2021 is maintainable in view of judgment passed by this Court in case of Dr. 6 WP-9686-2021 V.B. Singh Baghel (supra)?"

2. "Whether impugned order dated 21.05.2021 is without jurisdiction?"

3. "Whether impugned order dated 21.05.2021 is malafide?"

12. Petitioner has prayed for issuing writ of certiorari for quashing of impugned order dated 21.05.2021. The case of Dr. V.B. Singh Baghel (supra) relied on by respondents was in case where prayer was made for issuance of writ of mandamus. Criteria for exercising power to issue writ of mandamus and power to issue writ of certiorari are entirely different, therefore, case of Dr. V.B. Singh Baghel (supra) is not applicable in this case of petitioner. Administrative instructions are also laws within definition of Article 13 of the Constitution of India and if same are issued to fill in the gap of statutory provisions and rules and same are not in contradiction of any law or rule then same are binding on State Government. As per circular dated 30.12.2003, it was directed that charge of Civil Surgeon cum Chief Hospital Superintendent be given to senior most Specialist and exception to said instruction is also prescribed where rule of seniority can be broken. Departure from seniority rule can be made only in condition if senior most Specialist due to physical disability is not able to work on said post, senior most Specialist is to retire within period of one or two months or there are serious charges against such Specialist in departmental enquiry or in criminal case. No other exception is provided in the administrative instruction/circular. Said instruction is binding on respondents if action is taken arbitrarily in violation of circular then officiating Officer on the said post can maintain writ petition in view of judgment passed by Apex Court in case of E.P. Royappa (supra). Despite there being a clear administrative instruction/circular issued by State Government, respondents/State are not following the said circular. In view of above discussion, writ petition filed by petitioner for quashing of impugned order dated 21.05.2021 is maintainable and question No.1 is answered accordingly.

7 WP-9686-2021

13. Impugned order dated 21.05.2021 is passed by Additional Director only when decision has been taken at level of Additional Chief Secretary, Public Health and Family Welfare Department on 18.05.2021, therefore, order is not without jurisdiction and question No.2 is answered accordingly.

14. Third question which is to be adjudicated whether impugned order dated 21.05.2021 is malafide. Malafide in law means something which is done without lawful excuse. It is a deliberate act in disregard to the right of others. Action which is taken with an oblique or indirect object contrary to law can be said to be act in malafide in law. As impugned order has been passed contrary to administrative instruction issued by State Government which is binding on it, therefore, order is passed without excuse of law and same is malafide. No disciplinary enquiry or any other action is pending against the petitioner and other exceptions mentioned in circular dated 30.12.2003 are also not available to respondents/State, therefore, seniority rule laid down in administrative instruction cannot be breached by respondents. Petitioner is senior to respondent No.5. Impugned order dated 21.05.2021 is malafide in nature and, accordingly, question No.3 is answered.

1 5 . As questions No.1 and 3 are answered in positive, therefore, impugned order dated 21.05.2021 is quashed.

16. Writ petition filed by petitioner is disposed of.

(VISHAL DHAGAT) JUDGE

shabana Digitally signed by SHABANA ANSARI Date: 2021.08.07 14:06:18 +05'30'