Madhya Pradesh High Court

Smt. Nandani Patel vs The State Of Madhya Pradesh on 8 January, 2025

Author: Vishal Mishra

Bench: Vishal Mishra

          NEUTRAL CITATION NO. 2025:MPHC-JBP:949




                                                                 1                                WP-33147-2024
                              IN     THE       HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                          BEFORE
                                            HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                   ON THE 8 th OF JANUARY, 2025
                                                 WRIT PETITION No. 33147 of 2024
                                                 SMT. NANDANI PATEL
                                                        Versus
                                      THE STATE OF MADHYA PRADESH AND OTHERS
                         Appearance:
                              Smt. Sudha Goutam - Advocate for petitioner.
                              Shri Jubin Prasad - Panel Lawyer for respondents No.1 to 3/State.

                              Shri Yadvendra Dwivedi - Advocate for respondent No.4.

                                                                     ORDER

The present petition has been filed assailing the order dated 03.10.2024 (Annexure P/2) passed by the respondent No.3 whereby the charge of Warden, CWSN (Divyang) Chhatravas, Anuppur has been taken from the petitioner and handed over to the respondent No.4 N.G.O. without cancellation of the order dated 12.07.2023.

2. The case of the petitioner is that she was initially holding the post of Primary Teacher and vide order dated 12.07.2023 issued by the respondent

No.3 the additional charge of Warden of CWSN (Divyang) Chhatravas, Anuppur was given to her in the light of direction issued by the respondent No.2 in its order dated 28.06.2023 for the Session 2023-24. The respondent No.3 by its order dated 03.10.2024 has given the charge of Warden, CWSN (Divyang) Chhatravas, Anuppur to the respondent No.4 N.G.O. It is argued that the guidelines have been issued by the respondent No.2 dated

NEUTRAL CITATION NO. 2025:MPHC-JBP:949

2 WP-33147-2024 18.06.2024 regarding operation of CWSN (Divyang) Chhatravas, Anuppur by the Non Government Organization. In pursuance to the guidelines dated 18.06.2024 permission was granted to the petitioner for operation of CWSN (Divyang) Chhatravas, Anuppur for Session 2024-25 vide order dated 30.07.2024. It is argued that without cancellation of the earlier order of the petitioner by which the charge was granted to the petitioner, no new order could have been passed by the authorities. It is further argued that the guidelines have not followed particularly the Guideline No.7, therefore, the respondent No.4 is not entitled to hold the charge of Warden, CWSN (Divyang) Chhatravas, Anuppur. Hence, the present petition has been filed.

3. On notice being issued, the return has been filed by the authorities pointing out the fact that it is only an additional charge, which was granted to

the petitioner. The petitioner is having no right to hold the post in question. The law with respect to grant of charge is settled by the Hon'ble Supreme Court in large number of cases. Even otherwise, it is for the Government to ensure whether Guideline No.7 of the guidelines issued by the Director, Rajya Shiksha Kendra, Bhopal have been followed by the respondent No.4 or not. The petitioner is having no locus to hold the charge in question. It is pointed out that the charge to the post of Warden was already granted to the respondent No.4 N.G.O., however, the petitioner by misinterpreting the order passed by this Court dated 24.10.2024 whereby this Court has directed to maintain status quo has forcefully taken away the charge from the respondent No.4. He has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of State of Haryana vs. S.M. Sharma and others

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3 WP-33147-2024 reported in AIR 1993 SC 2273 and the orders passed by this Court in the case of Dr. V.B. Baghel vs. State of M.P. and others reported in 2016 (3) MPLJ 152 and the order dated 31.10.2022 passed by this Court in W.P. No.23225 of 2022 (Smt. Dulari Mongare vs. State of M.P. and others) and has prayed for dismissal of the writ petition.

4. Heard the counsels for the parties and perused the record.

5. The record indicates that it was only the additional charge granted to the petitioner to hold the post of Warden, CWSN (Divyang) Chhatravas, Anuppur. The order granting charge clearly reflects that it was for academic Session 2023-24. The guidelines have been issued by the Director, Rajya Shiksha Kendra, Bhopal wherein Guideline No.7 is important and reads as under:-

"7. 50 सीटर छा ावास म एमओयू अनुसार बािधत, वणबािधत, बौ क द यांग एवं बहु द यांग ब च को ह वेिशत कराया जाए। छा ावास या तो पूरे 50 द यांग बालक का हो अथवा 50 बािलकाओं का हो, कसी भी थित म बालक-बािलकाएं एक साथ नह ं रखे जाएं। यह भी यान रखा जाएं क द यांग बािलकाओं के छा ावास म पूरा टाफ म हलाकिमय का ह हो ।"

6. The said guideline is required to be followed by the respondent No.4 in order to have the charge of CWSN (Divyang) Chhatravas, Anuppur. It is the case of the respondent No.4 that they have followed the entire guidelines and there is no flaw committed by them. The staff which was duly appointed is still working in the institution, therefore, it cannot be said that there is any deviation of Guidelines No.7 as far as respondent No.4 is concerned. It is argued that the charge has already been handed over by the petitioner to the respondent No.4, which is clearly reflected from the letter written by her and

is filed as Annexure R/6 along with the return wherein the petitioner herself has prayed for 10-15 days time to hand over the complete charge to

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respondent No.4. The said letter has been suppressed by the petitioner.

7. The law with respect to holding the additional charge is settled by the Hon'ble Supreme Court in S.M. Sharma (supra) and the Hon'ble Supreme Court has held as under:-

"9. It is only a posting order in respect of two officers. With the posting of Ram Niwas as Executive Engineer Sharma was automatically relieved of the current duty charge of the post of Executive Engineer. Sharma was neither appointed/promoted/posted as Executive Engineer nor was he ever reverted from the said post. He was only holding current duty charge of the post of Executive Engineer. The Chief Administrator never promoted Sharma to the post of Executive Engineer and as such the question of his reversion from the said post did not arise. Under the circumstances the controversy whether the powers of the Board to appoint/promote a person to the post of an Executive Engineer were delegated to the Chairman or to the Chief Administrator, is wholly irrelevant.

10. Sharma was given the current duty charge of the post of Executive Engineer under the orders of the Chief Administrator and the said charge was also withdrawn by the same authority. We have already reproduced above Rule 4(2) of the General Rules and Rule 13 of the Service Rules. We are of the view that the Chief Administrator, in the facts and circumstances of this case, was within his powers to issue the two orders dated June 13, 1991 and January 6, 1992.

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."

8. Subsequently, this Court had an occasion to consider the law in the case of Dr. V.B. Baghel vs. State of M.P. and others reported in 2016 (3) MPLJ 152 and the order dated 31.10.2022 passed by this Court in W.P.No.23225 of 2022 (Smt. Dulari Mongare vs. State of M.P. and others).

9. The coordinate Bench of this Court in the case of Smt. Dulari Mongare

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(supra) has considered the issue and held as under:-

"It is clear that the petitioner does not have any legal, statutory, vested or fundamental right to occupy the post of Warden on additional charge basis.''

10. If the aforesaid settled legal proposition is applied to the case of the petitioner then it is clear that the petitioner is having no right to hold the post in question. As far as following Guideline No.7 is concerned, the respondent No.4 is required to follow the guidelines as directed by the Director, Rajya Shiksha Kendra, Bhopal. The respondents/State is directed to ensure that the respondent No.4 is working in terms of the guidelines issued by the Director, Rajya Shiksha Kendra. As far as petitioner is concerned, as there is no legal right available to the petitioner, no relief can be extended to the petitioner in view of the judgment passed by the Supreme Court in the case of S.M. Sharma (supra).