Dr. S.K. Saral vs The State Of Madhya Pradesh
2021 Latest Caselaw 2106 MP

1          HIGH COURT OF MADHYA PRADESH :
                      BENCH AT INDORE
                        WA No.493/2021
              Dr. S.K. Saral Vs. State of MP & Ors.

Indore: Dated:- 04/06/2021:-
      Heard through Video Conferencing.
      Shri D.K. Tripathi, learned counsel for the appellant.
      Ms. Archana Kher, learned Dy. Advocate General for the State.
      Heard on admission.
2)    This intra court appeal assails the order passed by the learned
Single Judge in WP No.9446/2021 dtd. 24/05/2021.
3)    Shri Tripathi, learned counsel for the appellant submits that
appellant was given the additional charge by the State Govt. by order
dated 22/02/2021 (Annexure P/5). The said additional charge was
sought to be withdrawn by Collector, Khargone on incorrect grounds
by order dated 28/04/2021. As per this order, the said charge was
withdrawn because appellant was found Covid-19 positive whereas
appellant was never found Covid-19 positive. Thus, Shri Tripathi
raised twin grounds namely, 1) The order is passed by State Govt. and
learned Collector could not have passed the impugned order whereby
additional charge was taken back from him and in lieu thereof it was
given to the private respondent by order dated 04/05/2021. The said

action of Collector runs contrary to the instruction/Circular dated 30/12/2003. 2) The order of Collector since based on incorrect grounds, it is stigmatic in nature and amounts to malice on the part of the authority.

4)    No other point is pressed by him.
5)    In our view, the pivotal question is whether a writ of mandamus

can be issued in favour of petitioner to continue him on a current duty, charge/officiating post. This point is no more res integra. The Apex Court in State of Haryana vs. S.M. Sharma & Others reported in AIR 1993 SC 2273 s opined as under:-

"11. We are constrained to say that the High Court extended its extraordinary jurisdiction under Article 226 of 2 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE WA No.493/2021 Dr. S.K. Saral Vs. State of MP & Ors.

the Constitution of India to a frivolity. 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 Sharma. He had no cause of action whatsoever to invoke the writ jurisdiction of the High Court. It was a patient misuse of the process of the Court."

(Emphasis supplied)

6) Pertinently, the Circular dated 30/12/2003 on which heavy reliance is placed by Shri D.K. Tripathi was considered in the light of similar submissions by this Court in V.B. Singh Baghel v/s The State of M.P. & Others reported in 2016 (3) MPLJ 152. The relevant paras reads as under:-

"8. This is admitted between the parties that the petitioner is senior to respondent No. 3 on the post of specialist. In nutshell, the petitioner is seeking enforcement of instructions dated 30-12-2003. The relevant portion of this letter reads as under:- ^^2- ;g ns[kus esa vk;k gS fd dgha&dgha mijksDr in fjDr gksus ij izHkkj nsus esa ofj"Brk dze dk ikyu ugha fd;k x;k gS ftlls iz'kkldh; O;oLFkk foijhr :i ls izHkkfor gks ldrh gSA jkT; 'kklu us fu.kZ; fy;k gS fd Hkfo"; esa eq[; fpfdRlk ,oa LokLF; vf/kdkjh vFkok flfoy ltZu lg eq[; vLirky v/kh{kd dk in fjDr gksus vkSj foHkkx }kjk fu;fer inLFkkiuk fd;s tkus rd fuEukuqlkj gh izHkkj fn;k tk;s%& 1- eq[; fpfdRlk ,oa LokLF; vf/kdkjh dk izHkkj ftys esa inLFk ofj"Bre fo'ks"[email protected] Mh-,p-vks- dks gh fn;k tk;sA nksuksa laoxksZ ds vf/kdkfj;ksa dh ijLij ofj"Brk r; djrs le;

lgk;d 'kY; fpfdRld laoxZ esa izFke fu;qfDr dks /;ku esa j[kk tk;sA^^

9. The question is whether this executive instructions can be enforced in a writ petition. This aspect is no more res-integra. A five judge bench judgment of Supreme Court in AIR 1965 SC 1196 (State of Assam & Another vs. Ajit Kumar Sarma & Others) held that executive instructions confer no right of any kind and the same cannot be a reason for the High Court to issue mandamus against the State Government. It is relevant to note here 3 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE WA No.493/2021 Dr. S.K. Saral Vs. State of MP & Ors.

that the petitioner has not alleged and argued that the impugned order is malicious in nature. The Government is the best judge to decide the question of posting of an officer at a particular place. Unless such posting runs contrary to any statutory provision or infringes any fundamental or statutory right of an employee, no mandamus can be issued. A Division Bench of this Court in 2007 (4) MPLJ 548 (Bhartiya Kishan Sangh District Bhind vs. Union of India & Others) held that existence of legal right and public duty to be performed by either side coupled with statutory duties are the necessary ingredients for issuance of writ of mandamus or for the purpose of administrative functions. In AIR 1975 SC 2135 (Isha Beevi & Others vs. Tax Recovery Officer & Others), the Apex Court held that 'No occasion for the issue of writ of mandamus can arise unless the applicants show non-compliance with some mandatory provision and seek to get that provision enforced because some obligations towards them is not carried out by the authority alleged to be flouting the law. In AIR 1993 SC 2273 (State of Haryana vs. S.M. Sharma & Others), the Apex Court held that the High Court extended its extraordinary jurisdiction under Article 226 of the Constitution to a frivolity. It was 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 the writ of jurisdiction of the High Court. The Apex Court observed that it was a patent misuse of process of the Court by the High Court.

(Para 11)

10. In the said case also, the petitioner was claiming the charge on officiating/current charge basis. In view of aforesaid, in my view, no legal vested, statutory or constitutional right of the petitioner is infringed by the respondents. The respondents cannot be compelled to implement the circular (Annexure P/3) by issuing a writ of mandamus. The decision taken by the government is in public interest and for public good need not be interfered in discretionary jurisdiction of this Court under Article 226 of the Constitution ......."

(Emphasis supplied) 4 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE WA No.493/2021 Dr. S.K. Saral Vs. State of MP & Ors.

7) In view of these judgments, it is crystal clear that petitioner has no legal vested statutory or fundamental right to continue on an officiating post. No writ of mandamus can be issued for enforcement of Circular dated 30/12/2003. In this view of the matter, we find no reason to interfere in the order of learned Single Judge. The writ appeal is devoid of substance and is hereby dismissed.

     (SUJOY PAUL)                           (SUBODH ABHYANKAR)
       JUDGE                                        JUDGE

soumya


    Digitally signed
    by SOUMYA
    RANJAN DALAI
    Date: 2021.06.04
    16:22:56 +05'30'