Madhya Pradesh High Court
Dr. B.L. Mishra vs The State Of Madhya Pradesh on 6 May, 2022
Author: Atul Sreedharan
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
ON THE 6th OF MAY, 2022
WRIT PETITION No. 7965 of 2022
Between:-
DR. B.L. MISHRA S/O LATE SHRI R.D. MISHRA ,
AGED ABOUT 63 YEARS, OCCUPATION: IN
CHARGE CHIEF MEDICAL AND HEALTH OFFICER
REWA REWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.C.GHILDIYAL, SENIOR ADVOCATE WITH SHRI SHIVAM
MISHRA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH THE
PRINCIPAL SECRETARY DEPARTMENT OF PUBLIC
HEALTH AND FAMILY WELFARE DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. THE COMMISSIONER, HEALTH SERVICES,
MADHYA PRADESH BHOPAL, M.P. (MADHYA
PRADESH)
3. THE ADDITIONAL DIRECTOR (VIGYAPT),
DIRECTORATE OF HEALTH SERVICES,
DEPARTMENT OF PUBLIC HEALTH AND FAMILY
WELFARE, MADHYA PRADESH, BHOPAL, M.P.
(MADHYA PRADESH)
4. DR. NARENDRA NATH MISHRA DISTRICT
HEALTH OFFICER, REWA DISTRICT- REWA, (M.P.)
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NARENDRA CHOURASIYA, GOVT.ADVOCATE FOR THE
STATE AND SHRI AMIT SETH, ADVOCATE FOR RESPONDENT NO.4)
T h is petition coming on for admission this day, the court passed the
following:
ORDER
The present petition has been filed by the petitioner aggrieved by the order
dated 1.4.2022, (Annexure A/6), by which he was removed from the post of
CMHO on officiating charge of District Rewa and was posted there itself as
Medical Specialist in the same hospital. In his place the respondent no.4 was made
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the incharge CMHO of the District Hospital, Rewa. The main grounds for
Digitally signed by RAVIKANT KEWAT
Date: 2022.05.09 11:34:56 IST challenge posed by the petitioner is that arbitrariness and malice in law.
Learned counsel appearing on behalf of the petitioner has drawn the
attention of this Court to Annexure P/9, passed by the same authority that his post
.. order wherein the authority has observed that the post of the Chief Medical and
Health Officer is in the cadre of Joint Director and for promotion to the cadre of
Chief Medical and Health Officer from the specialist cadre 25% are to be
considered and the cadre of DHO 75%. The authority further observes that the
persons from the specialist and DHO cadre must have completed almost 5 years in
their respective cadre to be eligible to be promoted to the post of CMHO.
Learned counsel for the petitioner has also referred to Annexure P/4, which
is a reply filed by the State Government in W.P.No.15126/2020 whereby the
posting of the present petitioner on the post of CMHO Rewa was challenged by
Dr.R.N.Verma. In that case, the State in its reply in paragraph 5 averred that
B.L.Mishra (the petitioner herein) was senior to the Dr.R.L.Verma in the
aforementioned writ petition having Class-I seniority as B.L.Mishra (the petitioner
herein)...... wherein the petitioner R.L.Verma acquired the said seniority only in the
year 2013.
Learned counsel for the petitioner submits that the State having taken such a
stand in W.P.No.15126/2020 could not have passed the impugned order as the
petitioner herein is senior to the respondent no.4 in his cadre of Medical
Specialist. Judgments of the Supreme Court in ....... this case has also been
referred by the learned counsel for the petitioner where a Constitution Bench of the
Supreme Court held that even if a public service is in a officiating post he can ...
under Article 14 and 16 of the Constitution after he has been ....
Learned counsel for the respondent no.4 who appeared on caveat and filed
the reply on behalf of respondent no.4 has drawn the attention of this Court to the
policy relating to an appointment on an incharge basis to the post of CMHO. The
said policy is Annexure R/41 dated 24.1.2021. The Class I directs that officiating
charge to the post of CMHO would be given to a senior most medical
specialist/DHO and where the question arises between the inter se seniority
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Date: 2022.05.09 11:34:56 IST
for appointment on an Incharge basis to the post of CMHO. The date of
initial appointment shall be taken into consideration. Thereafter, learned counsel for
the petitioner has drawn the attention of this court to page no.13 of the reply where
respondent no.4 Dr. N. N. Mishra joined service on 6.6.1981 and he appeared
before the PSC in the year 1987 and was confirmed on 6.10.1989. On page
no.14, is B. L. Mishra, the petitioner herein, whose date of joining service is
6.1.1987 and he cleared PSC in the year 1989. On the basis of the said
chart, learned counsel for respondent no.4 submits that the petitioner is
junior to respondent no.4 by six years from the date of their appointments.
He further states that the petitioner was confirmed by the PSC in the year
1987 i.e. two years before the respondent no.4 was confirmed two years
before the petitioner in the year 1989. Under the circumstances, he submits that
as per Clause 2(ii) the appointment of the petitioner as Incharge, CMHO, Rewa, is
justified as he is senior to the petitioner.
Learned counsel appearing for the petitioner, however, submits that the
policy is merely a guideline and does not have any statutory force and previously
also the State has deviated from the same in view of the discretion that is granted in
the said policy. In this regard, learned counsel for the petitioner has drawn the
attention of this court to page no.2 of the said policy where it appears to the
Collector for such reasons on account of which being senior most doctor ought
not to be given the Incharge of CMHO, then the Collector can place all the
circumstances along with his opinion to the Directorate and after the written
consent of the Directorate can appoint some one as an officiating CMHO who is
junior to the senior most doctor serving there.
Learned counsel for the respondent has also referred to the order passed by
this court on 30.8.2019 in W.P. No.15333/2019 where in a similar situation, this
court after having considered the judgment of............ and several other judgments
both of the Supreme Court and of this Court held that an officiating post generates
no legitimate justiciable right and removal from the same cannot be agitated before
the High Court under Article 226 except on the grounds of malafides and
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incompetence of the authority who passed the impugned order. There has been no
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strident denial by the petitioner that the respondent no.4 is senior to him. The main
Date: 2022.05.09 11:34:56 IST
thrust of his argument is that he was senior in his cadre of medical specialist and
therefore his removal from the post CMHO on officiating charge was arbitrary and
malafide.
This court is bound by its order of 30.8.2019 passed in W.P.
No.15333/2019. Besides, even considering the arguments put forth by the learned
counsel for the petitioner with regard to Annexure P/9 where the paragraph relied
upon by the learned counsel for the petitioner, his qualification required for
promotion to the post of CMHO. To officiate on a particular post, is completely
different from having qualifications to be considered for promotion. Officiating
charge is given in administrative exigencies where a competent person of seniority
is not immediately available to occupy and discharge the functions of a particular
post. As far as arbitrary and malafide is concerned, the policy of 24.2.2021 clearly
provides that the senior of the two shall be considered for appointment on an
Incharge basis to the post of CMHO. Adherence to the said policy in letter and
spirit cannot raise the banner of either arbitrariness or malafides. Deviation from the
policy may raise the suspicion of arbitrariness and malafides. In this case, the
policy has been followed and the respondent no.4 being admittedly senior in point
of time of appointment to the service, vis-a-vis the petitioner herein, the impugned
order cannot be faulted.
Under the circumstances, the petition is dismissed.
(ATUL SREEDHARAN)
JUDGE
ss
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Digitally signed by RAVIKANT KEWAT
Date: 2022.05.09 11:34:56 IST
