Madhya Pradesh High Court
Josh Singh Kusre vs The State Of Madhya Pradesh on 30 May, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 WP-11254-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 30 th OF MAY, 2024
WRIT PETITION No. 11254 of 2024
BETWEEN:-
1. JOSH SINGH KUSRE S/O SHRI P.S. KUSRE, AGED
ABOUT 61 YEARS, OCCUPATION:
SUPERINTENDING ENGINEER, R/O F 124/13,
SHIVAJI NAGAR, BHOPAL, DISTRICT BHOPAL
(MADHYA PRADESH)
2. VINOD SINGH TEKAM S/O SHRI K.L. TEKAM,
AGED ABOUT 60 YEARS, OCCUPATION:
SUPERINTENDING ENGINEER, R/O KOLAR
MARG, WINDSOR STATE, PHASE-II, R.S. NAGAR.
CHUNA BHATTI. HUZUR, DISTRICT BHOPAL
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI NAMAN NAGRATH - SENIOR ADVOCATE ASSISTED BY SHRI
JUBIN PRASAD - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
CHIEF SECRETARY, GOVERNMENT OF MADHYA
PRADESH, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. ADDITIONAL CHIEF SECRETARY, WATER
RESOURCES DEPARTMENT, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
3. UNDER SECRETARY, WATER RESOURCES
D EPARTM EN T, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
4. SHIRISH MISHRA S/O SHRI DINESH MISHRA,
AGED ABOUT 63 YEARS, OCCUPATION: RETIRED
EMPLOYEE, WORKING AS ENGINEER IN CHIEF,
O/O WATER RESOURCES DEPARTMENT,
NARMADA BHAWAN, TULSI NAGAR, BHOPAL, R/O
N-30, AKASH GANGA COLONY, SHAHPURA,
Signature Not Verified
Signed by: ANIL
CHOUDHARY
Signing time: 6/4/2024
2:01:15 PM
2 WP-11254-2024
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 TO 3/ STATE BY SHRI GIRISH KEKRE -
GOVERNMENT ADVOCATE)
(RESPONDENT NO.4 BY SHRI SHASHANK SHEKHAR - SENIOR
ADVOCATE ASSISTED BY SHRI BHOOPESH TIWARI AND SHRI PRAVEEN
DUBEY - ADVOCATE)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
Since pleadings are complete, therefore, looking to the issue involved in
this case, it is heard finally.
2. By this petition filed under Article 226 of the Constitution of India, the
petitioners are challenging the orders dated 07.02.2024 and 22.02.2024
(Annexures-P/4 and P/7 respectively).
3. Initially, respondent No.4 has been appointed on the post of
Superintending Engineer (Civil) and after his superannuation, by impugned
order dated 22.02.2024 (Annexure-P/7), he has been given contractual
appointment on the said post for a period of one year. Subsequently, he has
been granted the additional charge of the post of Engineer-In-Chief with all
administrative and financial powers.
4. The challenge is founded mainly on the ground that a person who has
already been superannuated from the post of Superintending Engineer (Civil)
and appointed subsequently on the said post that too on contractual basis for a
period of one year, cannot be given the additional charge of the post of
Engineer-in-Chief.
5. Learned senior counsel for the petitioners submits that the petitioners are
working in the Department holding the post of Superintending Engineer
substantively, and therefore, if any additional charge of the higher post is to be
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given, the same could be given to them instead of respondent No.4 who is
already retired, but has been granted appointment on contractual basis.
Petitioner No.1 is holding the post of Superintending Engineer substantively, but
having the additional responsibility of In-Charge Chief Engineer, Chambal
Betwa Kachhar, Bhopal, whereas petitioner No.2 is working as Deputy
Secretary, Water Resources Department and also holding the additional charge
of Chief Engineer, Water Resources Department, Narmadapuram. It is alleged
that appointment of respondent No.4 is contrary to the provisions of Madhya
Pradesh Contractual Appointment to Civil Post Rules, 2017 [hereinafter referred
to as 'Rules, 2017']. As per the petitioners, respondent No.4 even after
retirement, if is given the charge of the post of Engineer-in-Chief, he would be
their boss and also occupy their promotional avenue.
6. Respondents have filed their reply stating therein that there is no violation
of any provision of Rules, 2017. It is also stated that the petitioners have filed
the incomplete Rules and not filed the amended provisions of Rule-4(4). It is
further stated in the reply that as per the departmental set-up in the respondent-
Department, 02 posts of Engineer-In-Chief are sanctioned, for which, no officer
in the feeder cadre i.e. post of Chief Engineer (Civil) is available in the
Department and out of 58 sanctioned posts of Superintending Engineer (Civil),
only 03 officers are working and promotions are not being done, therefore,
there is huge scarcity of experienced senior officers in the Department. The
respondents have also stated in their reply that respondent No.4 will not write
any ACR of the present petitioners because he is a contractual employee
appointed for a temporary term, therefore, nothing illegal has been done by the
respondents and even no prejudice would be caused to the petitioners due to
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appointment of respondent No.4. In the reply, it is also stated that on earlier
occasion, one Shri M.G. Choubey was appointed as Engineer-in-Chief on
contractual basis for almost three terms and his appointment was also
challenged before the High Court, but Division Bench in W.P. No.3026 of 2014
and other connected cases had upheld the contractual appointment of Shri
Choubey on the post of Engineer-in-Chief in Water Resources Department.
7 . Respondent No.4 has also given reference of M.P. Book of Financial
Powers, 2012 and Clause 1.33 of Work Manual very clearly mentions that no
power to write ACRs of the Superintending Engineer, the post on which the
petitioners are working, has been conferred upon respondent No.4.
8. Looking to the administrative exigency, the appointments are being made
on contractual basis as per the provisions of Rules, 2017, with the concurrence
and approval of the officers of Finance Department, General Administration
Department and Water Resources Department. The appointment of respondent
No.4 was also approved by the Cabinet.
9. Considering the judgment passed by the Division Bench in W.P.
No.1942 of 2011 in which appointment of M.G. Choubey was given approval
and also in view of the case of Supreme Court reported in (2006) 11 SCC 731
(I) [Retd. Armed Forces Medical Association and others Vs. Union of India
and others] in which the Supreme Court has observed as under:-
'Held:
When the statute does not lay down the method of appointment
or term of appointment and when the statute specifies that the
appointment is one of sure tenure, the appointing authority
which has the power to appoint has absolute discretion in the
matter and it cannot be said that discretion to appoint does not
include the power to appoint on contract basis.
The Government has the undoubted power to make a
contractual appointment "until further orders". The Government
has absolute right to appoint persons on contract basis. The
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power includes the power to make appointment on substantive
basis, temporary, officiating basis, ad hoc basis, daily wages or
contractual basis. The finding to the contrary is ex facie
erroneous.
The court cannot sit in judgment over the wisdom of the
Government in the choice of the person to be appointed so long
as the person chosen possesses the prescribed qualification and
is otherwise eligible for appointment.'
Thus, in view of the aforesaid, I am also of the opinion that considering
the existing scenario and looking to the administrative exigency, the appointment
of respondent No.4 made on contractual basis and giving him the additional
charge of the post of Engineer-in-Chief is noway illegal because it is the
prerogative of the State to make such appointment.
10. The petition being misconceived, is hereby dismissed.
(SANJAY DWIVEDI)
JUDGE
PKP
