Khem Chand Koli vs The State Of Madhya Pradesh
2023 Latest Caselaw 6123 MP

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                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT GWALIOR
                                                    BEFORE
                                  HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                                ON THE 17 th OF APRIL, 2023
                                             WRIT PETITION No. 6636 of 2023

                           BETWEEN:-
                           KHEM CHAND KOLI S/O SARU KOLI, AGED ABOUT 53
                           Y E A R S , OCCUPATION: MADHYAMIK   SHIKSHAK
                           POSTED       IN  MIDDLE  SCHOOL  ODI   BLOCK
                           KHANIYADHANA DISTRICT SHIVPURI (MADHYA
                           PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI RABINDRA KUMAR MISHRA - ADVOCATE)

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

                           2.    BLOCK     EDUCATION       OFFICER BLOCK
                                 KHANIYADHANA DISTRICT SHIVPURI (MADHYA
                                 PRADESH)

                           3.    BLOCK RESOURCE COORDINATOR (BRCC)
                                 JANPAD SHIKSHA KENDRA KHANIYADHANA
                                 DISTRICT SHIVPURI (MADHYA PRADESH)

                           4.    SMT SHALINI RAJA BUNDELA SARPANCH GRAM
                                 PANCHAYAT    OD    BLOCK   KHANIYADHANA
                                 DISTRICT SHIVPURI (MADHYA PRADESH)

                           5.    BABULAL AHIRWAR ASSISTANT TEACHER
                                 POSTED IN GOVERNMENT PRIMARY SCHOOL OD
                                 BLOCK KHANIYADHANA DISTRICT SHIVPURI
                                 (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                           (BY SHRI RAVINDRA DIXIT - GOVERNMENT ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: CHETNA
BEHRANI
Signing time: 17-04-2023
07:38:12 PM
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                           following:
                                                                ORDER

The present petition under Article 226 of the Constitution of India has been preferred against the order dated 25.02.2023 passed by respondent no.2 & 3, whereby the charge of the Head Master of Middle School ODI is taken from the petitioner and given to respondent no. 5.

Learned counsel for the petitioner vehemently argued that the petitioner was initially appointed on the post of Contract Teacher Varg - II. Further, he was extended the benefit of Adhyapak Samvarg Rules, 2008, thereby appointing him as Adhyapak on regular pay scale. Later, the said post was re- designed as Madhyamik Shikshak. The said post is equivalent to UDT of old

setup Education Department which had been declared as dying cadre since 1998 and the post of Headmaster of Middle School is promotional post from UDT and thus the petitioner was rightly discharging the duties as in-charge Headmaster of the school whereas respondent no. 5 is holding the post of Assistant Teacher and as per the instructions issued by the State Government itself the charge on the vacant post should be given to the employee who is holding either the equivalent post or to the senior one and if it is not so then the order of the higher authority should be obtained. However, no such recourse has been adopted and contrary to such instructions of the State Government the charge of institution of middle school has been extended to respondent no. 5. Thus, the order which has been passed on the basis that respondent no. 5 is senior to petitioner is not correct. 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 Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 17-04-2023 07:38:12 PM

& 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 on the administrative grounds, the same doesn't deserve to be interfered with and the present petition being without any substance is liable to be 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 (Block Education Officer) within a period of seven working 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, present petition stands disposed of.

(MILIND RAMESH PHADKE) JUDGE Chetna

Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 17-04-2023 07:38:12 PM