Madhya Pradesh High Court
Smt. Chhaya Parihar vs The State Of Madhya Pradesh on 5 July, 2023
Author: Sujoy Paul
1
WRIT APPEAL No 1393 OF 2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
JUSTICE SUJOY PAUL
&
JUSTICE ACHAL KUMAR PALIWAL
ON THE 05TH OF JULY, 2023
WRIT APPEAL No. 1393 OF 2022
BETWEEN :-
SMT. CHHAYA PARIHAR W/O SHRI
MADHAV SINGH PARIHAR, AGED ABOUT 51
YEARS, OCCUPATION: ASSISTANT
TEACHER GOVERNMENT CIRLS MIDDLE
SCHOOL, BHELSI AND WARDEN
KASTURBA GANDHI GIRLS HOSTAL,
BHELSI SITRICT TIKAMGARH (M.P.)
(MADHYA PRADESH)
....APPELLANT
(BY SHRI SHIVAM MISHRA -ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH THE PRINCIPAL
SECRETARY SCHOOL EDUCATION
DEPARTMENT VALLABH BHAWAN
BHOPAL (M.P.) (MADHYA PRADESH)
2. THE COMMISSIONER, RAJYA
SHIKSHA KENDRA MADHYA
PRADESH BHOPAL (MADHYA
PRADESH)
3. THE COLLECTOR, TIKAMGARH
DISTRICT TIKAMGARH (MADHYA
PRADESH)
4. CHIEF EXECUTIVE OFFICER, ZILA
PANCHAYAT ,TIKAMGARH DISTRICT
TIKAMGARH (MADHYA PRADESH)
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 7/6/2023
2:13:13 PM
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WRIT APPEAL No 1393 OF 2022
5. THE DISTRICT EDUCATION
OFFICER, TIKAMGARH DISTRICT
TIKAMGARH (MADHYA PRADESH)
6. SMT. GANESHI GUPTA W/O SHRI
NARAYAN DAS GUPTA, AGED ABOUT
52 YEARS, OCCUPATION: ADHYAPAK
AND WARDEN, GOVERNMENT GIRLS
HOSTAL AHAR JANPAD PANCHAYAT
AND TEHSIL BALDEOGARH
DISTRICT TIKAMGARH M.P.
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANKIT AGRAWAL - GOVERNMENT ADVOCATE)
-------------------------------------------------------------------------------------------------------
This appeal coming on for admission this day, JUSTICE SUJOY
PAUL passed the following:
JUDGMENT
Heard on admission.
2. This Intra Court appeal assails the order of Writ Court dated 11 th
October, 2022 passed in WP No. 21328 of 2022.
3. The grievance of the appellant / petitioner is that she was holding
the post of In-charge Hostel Warden. By the impugned order dated
06.09.2022, the respondents appointed the respondent No.6 on the said
post.
4. Learned counsel for the appellant submits that infact respondent
No.6 previously filed Writ Petition No. 12883 of 2017 in which by
order dated 28.08.2017 the Court directed to maintain status quo
regarding posting of the petitioner. The said writ petition is still
pending and interim order aforesaid is prevailing. In this backdrop, it
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 7/6/2023
2:13:13 PM
WRIT APPEAL No 1393 OF 2022
was not open to the Government to post the respondent No.6 in place
of the petitioner.
5. Learned counsel for the appellant further submits that learned
Single Judge has declined interference merely on the ground that no
legal right of the petitioner is infringed. Petitioner has no legal or
constitutional right to occupy the post of Hostel Warden in In-charge
capacity. Shri Shivam Mishra, learned counsel for the appellant has
taken pains to rely on the judgment of this Court reported in 2016 (3)
MPLJ 152 ( Dr. V.B. Singh Baghel Vs. State of M.P. & Ors.) and
urged that even as per this judgment, on two counts, judicial review of
an order posting an employee to occupy the post on In-charge basis can
be called in question viz. (i) when order impugned is malafide in nature
and (ii) breach of fundamental rights.
6. Shri Mishra, learned counsel for the appellant submits that in
view of para 5.5 of the writ petition, the petitioner categorically
pleaded about malafide and therefore, the scope of judicial interference
was very much there. He further submits that this is a case where
respondent acted with malice and therefore, the learned Single Judge
was not right in dismissing the writ petition.
7. Shri Ankit Agrawal, learned G.A. for the State supported the
order of writ Court.
8. No other point is pressed by learned counsel for the parties.
9. We have heard the parties at length and perused the record.
10. In the opinion of this Court, the respondent No.6 was enjoying a
status quo order passed in WP No. 12883/2017 since 28.08.2017. This
is trite that when a transfer order or posting order is called in question
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Signed by: NAVEEN KUMAR
SARATHE
Signing time: 7/6/2023
2:13:13 PM
WRIT APPEAL No 1393 OF 2022
in a writ petition and Court directs the parties to maintain status quo or
stays the effect and operation of that order, that does not deprive the
Department to pass a fresh order of posting / transfer. The order of
status quo / stay operates qua the order which is subject matter of
challenge in a particular litigation. For example, if a transfer order
passed in July, 2023 is called in question in a writ petition by an
employee and Court directs to maintain status quo or stays the order of
transfer that does not mean that Government in future cannot transfer
or post the employee elsewhere. Thus, we are unable to persuade
ourselves with the said line of argument of Shri Mishra.
11. As noticed, the learned Single Bench has declined interference
because the petitioner and respondent No.6 were at loggerheads for a
post which is of In-charge capacity. The curtains were finally drawn on
this issue by the Supreme Court in AIR 1993 SC 2273 ( State of
Haryana Vs. S.M. Sharma and Ors.) relevant portion of the said
judgment reads as under:-
"11. We are constrained to say that the High Court
extended its extra-ordinary jurisdiction under Article
226 of 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 patent misuse of the
process of the court."
12. The ratio decidendi of said judgment was followed by this Court
in Dr. V.B. Singh Baghel (supra).
13. So far attack on the ground of malice is concerned, mere bald
averment in the writ petition that order is malafide in nature is not
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Signed by: NAVEEN KUMAR
SARATHE
Signing time: 7/6/2023
2:13:13 PM
WRIT APPEAL No 1393 OF 2022
sufficient. There must be sufficient / adequate pleadings to show why
said order is termed as 'malafide'. There is no such pleading in the writ
petition. Even otherwise, appellant has not impleaded the competent
Officer eo nomine. Hence, in view of law laid down in 2019 (4) MPLJ
242 ( Suverna Bidua Vs. Union of India) and (2004) 12 SCC 390
(Medley Minerals India Ltd. VS. State of Orissa and Ors.) order
cannot be interfered with on the ground of malafide. In Medley
Minerals India Ltd. (supra) the Supreme Court has held as under :-
"It is trite that plea of mala fides has to be specific
and demonstrable. Not only this, but the person
against whom the mala fides are alleged must be
made a party to the proceedings and given
reasonable opportunity of hearing. No such attempt
made in the writ petition before the High Court. The
argument of mala fides must therefore fail."
14. The learned Single Judge, in our opinion, has taken a plausible
view which is in consonance with the judgments of Supreme Court in
Dr. V. B. Singh Baghel and S.M. Sharma (supra). It is noteworthy
that appellant's substantive post is Assistant Teacher and impugned
order before the Writ Court has not caused any financial loss to the
petitioner. Her right to continue on substantive post is not taken away
or infringed in any manner. Hence, we find no reason to interfere in
this writ appeal. The Writ Appeal fails and is hereby dismissed.
(SUJOY PAUL) (ACHAL KUMAR PALIWAL )
JUDGE JUDGE
sarathe
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 7/6/2023
2:13:13 PM
