Dr. Jogendra Singh Thakur vs The State Of Madhya Pradesh
2023 Latest Caselaw 16219 MP

                                                               1
                           IN    THE         HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                            BEFORE
                                                      JUSTICE SUJOY PAUL
                                                ON THE 4 th OF OCTOBER, 2023
                                               WRIT PETITION No. 27876 of 2022

                          BETWEEN:-
                          DR. JOGENDRA SINGH THAKUR S/O SHRI GOVIND
                          SINGH THAKUR, AGED ABOUT 41 YEARS, OCCUPATION:
                          WORKING AS IN CHARGE DISTRICT AYUSH OFFICER
                          SAGAR DISTRICT SAGAR (MADHYA PRADESH)

                                                                                         .....PETITIONER
                          (BY SHRI ADITYA VEER SINGH - ADVOCATE)

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

                          2.    THE COMMISSIONER AYUSH DEPARTMENT
                                MADHYA PRADESH DIRECTORATE OF AYUSH
                                BHOPAL (MADHYA PRADESH)

                          3.    DR. RAJUL SINGHAI HOMEOPATHIC MEDICAL
                                OFFICER GOVERNMENT MEDICAL HOSPITAL
                                SAGAR DISTRICT SAGAR (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                          (SHRI ARNAV TIWARI - PANEL LAWYER FOR THE STATE AND SHRI
                          YUVRAJ VAIDYA - ADVOCATE FOR THE RESPONDENT NO.3)

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

With the consent, finally heard.

2. This petition filed under Article 226 of the Constitution of India takeS exception to the order dated 28.11.2022 (Annexure P/2), whereby

Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/6/2023 3:05:26 PM

officiating charge of District Ayush Officer is withdrawn from the petitioner and given to respondent No.3.

3. The case of the petitioner is that he is holding the post of Ayush Medical Officer, whereas the respondent No.3 is a Homeopathic Medical Officer. As per the statutory recruitment rules namely M.P. Ayush Department (Gazetted) Services Recruitment Rules, 2013 (Recruitment Rules), the petitioner is holding the feeder post for promotion to the post of District Ayush Officer, whereas the post of respondent No.3 is not a feeder post for the promotional post of District Ayush Officer. Although, a person having degree in homeopathy is eligible for consideration as direct recruitee

District Ayush Officer, respondent No.3 cannot claim eligibility for direct recruitment for twin reasons (i) he has crossed the maximum age of 40 years and (ii) he does not have degree in the subject of homeopathy. In view of Indore Bench order passed in W.P. No.14632/2020 (Vijay Kumar Sharma vs. State of M.P.) and other connected matters, the person not holding the post in feeder cadre cannot be appointed on officiating basis on the higher post.

4. Shri Aditya Veer Singh, learned counsel for the petitioner by placing reliance on a Co-ordinate Bench order passed in W.P. No.4999/2023 (Dr. Kailash Narayan Mevafarosh vs. State of M.P. and others) submits that the similar controversy is decided and it was held that the additional charge of District Ayush Officer cannot be given to a person, who cannot be promoted on the said post. The case of present petitioner is better than the case of Dr. Kailash Narayan (supra) because present petitioner is senior to respondent No.3. He placed reliance on the judgment of Supreme Court in E.P. Royappa vs. State of Tamil Nadu and another AIR 1974 SC 555.

5. Learned Panel Lawyer for the State supported the impugned order. Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/6/2023 3:05:26 PM

6. Shri Yuvraj Vaidya submits that petitioner cannot claim benefit of officiating promotion by filing a writ petition. The reliance is placed on the order passed by this Court in Dr. V.B. Singh Baghel v. State of M.P. (2016) 3 MPLJ 152 and in W.P. No.15333 of 2019 (Dr. Murli Manohar Agrawal vs. State of M.P. and two others) decided on 30.08.2019 and in W.P. No.7965 of 2022 (Dr. B.L. Mishra vs. State of M.P. and others) decided on 06.05.2022.

7. No other point is pressed.

8. Parties were heard at length.

9. The first and foremost question needs to be decided is whether this writ petition can be entertained whereby the officiating charge from the petitioner was taken away by order dated 28.11.2022 (Annexure P/2).

10. This Court in Dr. V.B. Singh Baghel (supra) followed the judgment of Apex Court in State of Haryana vs. S.M. Sharma and others AIR 1993 SC 2273. The petitioner therein (S.M. Sharma) was substantively holding the post of Sub Divisional Officer (SDO) and was given the current duty charge of the post of Executive Engineer. The said charge was subsequently withdrawn from S.M. Sharma. The Apex Court after considering the relevant rules came to hold 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 to S.M. Sharma. Thus, he had no cause of action whatsoever to invoke the writ jurisdiction.

11 . The view so taken in S.M. Sharma (supra) and Dr. V.B. Singh Baghel (supra) was followed by Co-ordinate Bench in Dr. Murli Manohar Agrawal (supra) and Dr. B.L. Mishra (supra).

Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/6/2023 3:05:26 PM

1 2 . Shri Adityaveer Singh, learned counsel for the petitioner has taken pains to submit that neither in S.M. Sharma (supra) nor in the aforesaid judgments of this Court, the Constitution Bench judgment of Supreme Court in the case of E.P. Royappa vs. State of Tamil Nadu and another AIR 1974 SC 555 was considered. A passing reference of the judgment of E.P. Royappa (supra) in Dr. Murli Manohar Agrawal (supra) and Dr. B.L. Mishra (supra) cannot be a reason to deviate from the ratio decidendi of the Constitution Bench judgment. In the light of the said judgment, it cannot be said that an order withdrawing officiating post is beyond the scope of judicial review on the touch stone of Article 14 and 16 of the Constitution. The point is ponderable. In E.P. Royappa (supra), the words of wisdom are as under :-

"86. It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is therefore, no answer to the charge of infringement of Articles 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post."

(Emphasis Supplied)

13. In S.M. Sharma a n d Dr. V.B. Singh Baghel (supra), the judgment of Constitution Bench in E.P. Royappa (supra) was not considered. In Dr. Murli Manohar Agrawal and Dr. B.L. Mishra (supra) although reference is made to E.P. Royappa's case, the Co-ordinate Bench has not given any finding as to why the said Constitution Bench judgment should not be followed. Curiously, in para-8 of the order of Dr. Murli Manohar Agrawal (supra), the Co-ordinate Bench opined that "......in paragraph 86 of Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/6/2023 3:05:26 PM

E.P. Royappa's case, the Supreme Court held that denial of officiating charge could be challenged if the same was arbitrary, illegal or malafide".

In view of the Constitution Bench judgment in E.P. Royappa (supra), it cannot be said as a Rule of thumb that in no case deprivation of current duty charge can become subject matter of judicial review. In the Full Bench Judgment (Five Judges) in Jabalpur Bus Operators Association and others vs. State of M.P. and another 2003 (1) MPHT 226 (FB) this Court opined as under :-

"In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the latter decision is binding. Decision of a Larger Bench is binding on smaller Benches."

(Emphasis Supplied)

14. In the light of principles laid down in Jabalpur Bus Operators Association (supra), it can be safely held that in the light of Constitution Bench judgment in E.P. Royappa (supra) action of withdrawal of officiating charge can be subject matter of judicial review on the anvil of Article 14 and 16 of the Constitution. Although, the said action cannot be called in question in the teeth of Article of 311 of Constitution.

15. Indisputably, the private respondent is not holding feeder post of the post of Ayush Medical Officer whereas petitioner is occupying such feeder post on substantive basis. The Indore Bench of this Court in Vijay Kumar Sharma (supra) opined as under :-

"14. ........The matter does not rest here because the impugned order states that the post of petitioners do not fall in the feeder cadre for promotion to the post of Chief Municipal Officer. Hence, this Court is required to Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/6/2023 3:05:26 PM

examine if the petitioner's substantive post is a feeder cadre post for promotion to the post of Chief Municipal Officer."

(Emphasis Supplied)

16. In the case of Dr. Kailash Narayan Mevafarosh (supra), the Co-ordinate Bench held as under :-

"Under these circumstances, this Court is of the considered opinion that when the petitioner cannot be promoted to the post of District AYUSH Officer then even for the purposes of handing over of additional charge of the said post, his seniority cannot be taken into consideration. The question of seniority would arise only when two officers holding the same qualification are being considered. Since the petitioner is already out of fray, therefore, his seniority cannot be considered at all for giving the additional charge to the petitioner on the post of District AYUSH Officer."

(Emphasis Supplied)

17. In Dr. Kailash Narayan Mevafarosh (supra) deals with the post in question i.e. District AYUSH Officer. The Co-ordinate Bench opined that

when petitioner therein cannot be promoted to the post of District AYUSH Officer, he cannot claim additional charge of the said post. The case of present petitioner is on a better footing because he is senior to the private respondent herein.

19. In view of the foregoing discussion, the action of respondents in withdrawing the charge from the petitioner by issuing the order dated 28.11.2022 (Annexure P/2) and handing it over to the private respondent, who is not eligible to occupy that post, is arbitrary, unreasonable and impermissible and hence liable to be interfered with. The impugned order dated 28.11.2022 (Annexure P/2) is accordingly set aside.

20. Petition is allowed.

Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/6/2023 3:05:26 PM

(SUJOY PAUL) JUDGE PK

Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/6/2023 3:05:26 PM