Madhya Pradesh High Court
Smt. Sudha Tiwari vs The State Of Madhya Pradesh on 17 April, 2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
Writ Petition No.14592/2016
Smt. Neelam Bajpai
Vs.
State of M.P. & Others
Shri D.K. Dixit, learned counsel for the petitioner.
Shri N.S. Chouhan, learned Government Advocate for
the respondents/State.
Shri Piyush Bhatnagar, learned counsel for the
intervenor.
Writ Petition No.14799/2016
Smt. Sandhya Nayak
Vs.
State of M.P. & Others
Shri D.K. Dixit, learned counsel for the petitioner.
Shri N.S. Chouhan, learned Government Advocate for
the respondents/State.
Shri Piyush Bhatnagar, learned counsel for the
intervenor.
Writ Petition No.15273/2016
Kamini Rawat
Vs.
State of M.P. & Others
Shri P.C. Paliwal, learned counsel for the petitioner.
Shri N.S. Chouhan, learned Government Advocate for
the respondents/State.
Shri Rajendra Kumar Shrivastava, learned counsel for
the intervenor.
Writ Petition No.15650/2016
Smt. Sudha Tiwari
Vs.
State of M.P. & Others
None for the petitioner.
Shri N.S. Chouhan, learned Government Advocate for
the respondents/State.
Shri Anoop Kumar Saxena, learned counsel for the
intervenor.
Writ Petition No.17126/2016
Smt. Abhilasha Rawa
Vs.
State of M.P. & Others
None for the petitioner.
Shri N.S. Chouhan, learned Government Advocate for
the respondents/State.
Writ Petition No.17176/2016
Rajmati Lakshkar
Vs.
State of M.P. & Others
Shri Manoj Kumar Chansoriya, learned counsel for
the petitioner.
Shri N.S. Chouhan, learned Government Advocate for
the respondents/State.
Writ Petition No.13103/2017
Mrs. Suman Ahirwar
Vs.
State of M.P. & Others
Shri Praveen Kumar Verma, learned counsel for the
petitioner.
Shri N.S. Chouhan, learned Government Advocate for
the respondents/State.
ORDER
(17/04/2018) All these petitions are decided by the common order as common question of law and facts is involved in the matter. For the sake of brevity, the facts in W.P. No.14592/2016 (Smt. Neelam Bajpai Vs. State of M.P. and Others) has been reproduced as under.
2. The petitioners herein challenge the notice dated 24.08.2016 as well as appointment order dated 11.08.2017 thereby inviting an application for appointment on the post of Warden.
3. The petitioner was initially appointed on the post of Adhyapak Grade III in the year 1998 and was posted at Primary School, Harpura, Block Niwari, District Teekamgarh. In the year 2013, she was promoted to the post of Adhyapak Grade II and posted at High School, Asati, Block Niwari, District Teekamgarh. One Girija Rai was posted as Warden at Girls Hostel, Niwari, District Teekamgarh, she filed a writ petition before this Court i.e. W.P. No.7607/2012, this Court has stayed the impugned order dated 23.11.2011. In compliance of the order passed by this Court, a consequential order was issued by respondent no.4 and the petitioner was posted as Warden and was posted at Harpura. Later on, the petitioner was sent on training and the petitioner is continuously working since last four years on the post of Warden at Girls Hostel, Niwari and the post is not vacant, even then a notice was published on 24.08.2016 inviting applications for appointment/posting on the post of Warden showing the post of Warden, Girls Hostel, Niwari as vacant. Being aggrieved by that order, the petitioner has filed the present petition.
4. Learned counsel for the petitioner submits that the State Government has made a policy dated 03.01.2015, as per the said policy, the additional charge of the post of warden is to be given to the Assistant Teacher, Upper Division Teacher Adhyapak with their consent of the female category. If the female Teacher is not available or if the Teacher who is available is refused to work on the post of Warden then the said post will be filled in by inviting the applications from other female candidates. He submits that in the present case, the post of Warden is to be filled in by inviting the application only when the post of Warden is vacant. He submits that in the present case, the post of Warden is not lying vacant and the petitioner is working on the said post and, therefore, the said advertisement is contrary to the policy framed by the State Government.
5. Respondents No. 1 to 5 have filed their reply and in the reply they have stated that the Rajya Shiksha Kendra has framed policy for appointment on the post of Warden (additional Charge). As per said policy, the post of Warden is filled up by the Government Teachers (Assistant Teachers), Sahayak Adhyapak, UDT, Adhyapak. As per the procedure for appointment on the post of Warden is that the Female Teachers (Assistant Teachers, Sahayak Adhyapak, UDT and Adhyapak) will be given additional charge of the post of Warden. In the present case, the petitioner has completed three years after giving additional charge. The Rajya Shiksha Kendra vide its memo dated 13.08.2013 has taken a policy decision that the Teachers, who have been posted in Hostels would not be continued after period of three years and their posting should be changed after every three years. The petitioner herein has suppressed material fact that the posting of Warden was only for a period of three years in a particular Hostel and the said policy decision was taken by the State Government so that Assistant Teacher who has been posted as Warden cannot take disadvantage of their posting in particular Hostel. The said decision of the State Government is totally policy decision, which cannot be interfered with in the instant petition filed under Article 226 of the Constitution of India. The respondents have further stated that the petitioner was given only additional charge. The petitioner has no fundamental or legal right to continue as Warden(additional Charge). The said additional charge was given to the petitioner under the policy decision of the State Government and the State Government has taken a decision that the said Wardens could not be continued after completion of three years of working. The respondents have further submit that the petitioner can participate in the selection process which has been initiated by the impugned advertisement dated 24.08.2016. In light of the aforesaid, learned Government Advocate submits that petition deserves to be dismissed.
6. Heard learned counsel for the parties and perused the record. From perusal of the record it reveals that all the petitioners were given the additional charge of the post of Warden, in the year 2012. They have completed three years of posting as having an additional charge. On 13.08.2013, the State Government has taken a decision that the additional charge of the post of Warden will be given to the Assistant Teachers and the same would be continued for a period of three years. As in the present cases, the petitioners have already completed three years of service, therefore, the State Government has issued notice dated 24.08.2016 thereby inviting applications for appointment for giving additional charge of the post of Warden. Being aggrieved by that order, the petitioner has filed the present petition. Learned counsel for the petitioners submit that in the present case, the post of Warden is not lying vacant and the petitioners are working on the said post. They further submit that the additional charge of the post of Warden is to be given to the Female Teachers and the Female Teachers who were working as UDT and Adhyapak they will be given preference. It has further been submitted that in the said policy, if the Female Teacher is not available in the selected school or if the available teachers refuses to work on the post of Warden, in that case, the post can be filled up by issuing advertisement on the basis of the said policy. He submits that in the present case, neither the petitioner has refused to work on the said post and, therefore, notice impugned is illegal. The point involve in this case has already been decided by this Court in the case of Smt. Sandhya Mishra Vs. State of M.P. and Others passed in W.P. No.8458/2013 on 01.09.2017 and in the said writ petition, this Court has held that the petitioner is holding an additional charge of the post of Warden and, therefore, she cannot claim any right to remain in the said post. The para 4 and 5 of the said judgment is read as under.
" 4. In the opinion of this Court, the point involved in this case is no more res integra. In the matter of Abha Pandey Vs. State of M.P. & Others, W.P. No.11283/2017 decided on 28.09.2017., this Court opined as under:
"Learned counsel for respondent
no.5 has pointed out that Coordinate
Bench in similar matter W.P.
No.11413/2017 (Smt Anita Mishra v.
State of Madhya Pradesh) held that
petitioner's substantive post is
Adhyapaka, and she was given
additional charge on the post of Warden and therefore, petitioner cannot claim any right to remain on the said post. Admittedly, in the present case also the petitioner's substantive post is Assistant Teacher and she was given the additional charge of the post of Warden. The core issue is whether the petitioner has any enforceable right on the post of Warden on which she is working on officiating basis.
Curtains on this aspect are finally drawn by Supreme Court in AIR 1993 SC 2273 (State of Haryana v. S.M. Sharma and Others); the relevant portion 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."
The said judgment of Supreme Court was followed by this Court. In 2016(3) MPLJ 152 (V.B. Singh v. State of M.P.), this Court came to hold that on the basis of alleged violation of administrative instructions, no enforceable right is being created to continue on officiating basis. Accordingly, in my view petitioner has no legal vested or constitutional right to continue on officiating basis. No case is made out for interference under Article 226 of the Constitution."
[Emphasis Supplied]
5. In the light of aforesaid order, I find no reason to interfere in this matter. Petitioner has no enforceable right to remain posted as Warden. No fault can be found in the action of the respondents which is administrative in nature. The decision has been taken in order to ensure that hostel functions properly. Resultantly, petition fails and is hereby dismissed."
The said orders have been passed in pursuance of the policy decision taken by the State Government on 13.08.2013. The said policy is not under challenge in any of the writ petitions. As per the said policy, additional charge of the post of Warden will be given for a period of three years. The policy decision taken by the State Government cannot be interfered by this Court under Article 226 of the Constitution of India unless the same is arbitrary and contrary to any provisions of law.
7. Thus, in light of the aforesaid, I do not find any reason to interfere into the said writ petitions. Accordingly, petitions are dismissed without any order as to costs.
(Ms. Vandana Kasrekar) Judge Tabish Digitally signed by MOHAMMAD TABISH KHAN Date: 2018.04.17 16:45:19 +05'30'