Gaphoor Khan vs The State Of Madhya Pradesh
2023 Latest Caselaw 5709 MP

                                                           1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT GWALIOR
                                                   BEFORE
                                 HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                               ON THE 10 th OF APRIL, 2023
                                             WRIT PETITION No. 7680 of 2023

                          BETWEEN:-
                          GAPHOOR KHAN S/O SHRI SANWALIYA KHAN, AGED
                          ABOUT 53 YEARS, OCCUPATION: SERVICE POSTED AS
                          TEACHER IN THE GOVT. PRIMARY SEHOOL MUNGAOLI
                          BLOCK AND DISTRICT MORENA (MADHYA PRADESH)

                                                                                      .....PETITIONER
                          (BY SHRI R.B.S TOMAR - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH ITS
                                PRINCIPAL SECRETARY DEPARTMENT OF
                                SCHOOL EDUCATION      VALLABH BHAWAN,
                                BHOPAL (MADHYA PRADESH)

                          2.    THE DISTRICT EDUCATION OFFICER MORENA
                                (MADHYA PRADESH)

                          3.    THE PRINCIPAL GOVT. HIGH SCHOOL MORENA
                                GAON DISTRICT MORENA (MADHYA PRADESH)

                          4.    RAN BAHADUR SINGH KUSHWAH PRIMARY
                                TEACHER POSTED IN THE GOVT. P.S. MUNGAOLI
                                BLOCK AND DISTRICT MORENA (MADHYA
                                PRADESH)

                                                                                    .....RESPONDENTS
                          (BY SHRI DEEPAK KHOT - GOVT. ADVOCATE)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                            ORDER

The present petition under Article 226 of the Constitution of India has been preferred against the order dated 15.03.2023 passed by respondent no.2, Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 11-Apr-23 2:33:46 PM

whereby directions have been issued to respondent no. 3 to hand over the charge of the Head Master of the Primary School, Mungaoli to the respondent no. 4 stating that he is senior to the petitioner.

Learned counsel for the petitioner vehemently argued that the impugned order has been passed on the pretext that the petitioner is junior to respondent no.4 and on that basis as per the guidelines issued by the State, since the charge is to be handed over to the senior most person, the said charge has been handed over to respondent no. 4, which is per se illegal as the petitioner was initially appointed on the post of Assistant Teacher vide order dated 31.07.1995 and had joined on the said post on 02.08.1995. It was further argued that at the

time of his appointment, the place of posting Tehsil Vijaypur was under District Morena later on after district re-orientation, the said Tehsil went into the boundaries of District Sheopur and as such the petitioner has been treated to be the junior most person at District Sheopur and his seniority should have been counted from the date of his initial appointment in District Morena. Thus, the order which has been passed on the basis that respondent no. 4 is senior to petitioner is not correct as respondent no. 4 has been appointed in the year 1998. Thus, he prayed that the impugned order is per se illegal and deserves to be set aside.

Per contra, learned Govt. Advocate relying upon the judgments passed by the Hon'ble Apex Court in the case of State of Haryana Vs. S.M. Sharma & Ors. reported in AIR 1993 SC 2273 & by the Division Bench of this Court in W.A. No. 493/2021 (Dr. S.K. Sarval Vs. State of M.P. & Ors.) submitted that in the matter of current charge, since they are executive instructions cannot be implemented by way of writ under Article 226 of the Constitution of India. Thus, he submits that since the impugned order is solely Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 11-Apr-23 2:33:46 PM

on the administrative grounds, the same doesn't deserves to be interfered with and the present petition being without any substance dismissed.

After hearing counsel for the parties and perusing the record, this Court deems it appropriate to direct the petitioner to move a detailed representation narrating all the facts with regard to his seniority as well as the other grounds which he has raised in the present petition and submit the same before the respondent no. 2 (District Education Officer) within a period of seven days from today and in turn, the respondent no. 2 is directed to consider the submissions made by the petitioner in the aforesaid representation and decide it keeping in view the current State Policy as well as the decisions of this Court rendered in similar matters as expeditiously as possible preferably within a period of three weeks thereafter.

With the aforesaid, petition stands disposed of.

(MILIND RAMESH PHADKE) JUDGE Chetna

Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 11-Apr-23 2:33:46 PM