Madhya Pradesh High Court
Dr. Kailash Narayan Mevafarosh vs The State Of Madhya Pradesh on 28 February, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 28 th OF FEBRUARY, 2023
WRIT PETITION No. 4999 of 2023
BETWEEN:-
DR. KAILASH NARAYAN MEVAFAROSH S/O LATE
SHRI KALICHARAN MEVAFAROSH, AGED 60
YEAR S, OCCUPATION: GOVT. DOCTOR POSTED
GOVT. HOMEOPATHIC DOCTOR DARPAN COLONY
SAKUNTLAURI THATIPUR, GWALIOR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI RAJ SHRIVASTAVA - ADVOCATE FOR PETITIONER )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH ITS PRINCIPAL SECRETARY
MINISTRY OF AYUSH VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. AYUKT SANCHALNALAY AYUSH VIBHAG
BHUTAL D WING SATPUDA BHAWAN
BHOPAL (MADHYA PRADESH)
3. DR. MANGAL YADAV , SHASAKIY AYURVED
CHIKITSA ADHIKARI SHASAKIY DISPENSARI
BANDHOLI, DIST. GWALIOR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI S.K. SHARMA - GOVERNMENT ADVOCATE FOR
RESPONDENT/STATE)
SHRI YOGESH CHATURVEDI- ADVOCATE FOR RESPONDENT )
This petition coming on for admission this day, the court passed
the following:
2
ORDER
This petition under Article 226 of the Constitution of India has been filed against the order dated 21.02.2023 passed by Commissioner, Directorate of AYUSH Vibhag, Bhopal in File No. F-95/01/est./2023/892- 899, Bhopal.
It is the case of the petitioner that the petitioner is a Homeopathic Medical Officer. Earlier, Dr. Arun Kumar Pathak who was holding the charge of District AYUSH Officer, Gwalior stood retired w.e.f. 31.01.2023 and accordingly, the charge of the said post was given to the petitioner on the ground that he is the senior most medical officer.
Thereafter, vide order dated 21.02.2023 the charge of the District AYUSH Officer has been withdrawn from the petitioner and has been given to respondent No. 3 who is working as Ayurved medical doctor.
It is submitted by the counsel for the petitioner that the petitioner is the senior most Homeopathy Medical Officer and, therefore, he was entitled to be given the charge of the District AYUSH Officer. The respondent No. 3 is junior to the petitioner, and therefore, by the impugned order the petitioner is being compelled to work under his junior.
Per contra, it was submitted by the counsel for the respondent No. 3 that the petitioner is a diploma holder in Homeopathy and he is a DHMS. As per Public Health (Indian System of Medicine & Homeopathy) Gazetted Service Recruitment Rules, 1987, the post of Ayurved Medical Officer is the feeder post for promotion to the post of District AYUSH Officer. To buttress his contention, the counsel for respondent No. 3 has referred to Schedule IV issued under Rules 13 & 14 of the Rules, 1987. It 3 is further submitted that respondent No. 3 is a degree holder in Ayurveda Medicine, whereas the petitioner is a diploma holder in Homeopathy. Since, the Homeopathy Medical Officer is not the feeder post for promotion to the post of District AYUSH Officer, therefore, it cannot be said that the respondent No. 3 is junior to the petitioner.
In reply, it is submitted by the counsel for the petitioner that as per Schedule -III, issued under Rule 8 of Rules, 1987 graduation degree in Ayurved/Unani/Homeopathy recognized by C.C.I.M./CCH from a university established by law is the minimum qualification for appointment to the post of District AYUSH Officer. However, it is fairly conceded by the counsel for the petitioner that the petitioner is not a degree holder but he is a diploma holder.
It is further submitted by the counsel for the petitioner that since the petitioner had joined the service prior to respondent No. 3, therefore, he is not comfortable to work under his junior. Furthermore, the AYUSH Department, State of Madhya Pradesh by its letter dated 15.12.2014 has also directed that in case of vacancy, the charge should be given to the senior most Medical Officer.
Heard the learned counsel for the parties.
The case of the petitioner is that he is senior to the respondent No. 3, however, as per Schedule IV, the post of District Ayurved officer is the feeder post for promotion to the post of District AYUSH Officer. Thus, it is clear that the petitioner cannot be promoted to the post of District AYUSH Officer. Further, according to Schedule III issued under Rule 8 4 of Rules, 1987, the minimum qualification for appointment to the post of District AYUSH Officer is the graduation Degree in Ayurved/Unani/Homeopathy recognized by CCIM/CCH from a university established by law, whereas, the petitioner is a diploma holder and is not holding a Bachelor Degree in Homeopathy. Thus, it appears that the petitioner also does not hold the minimum qualification for direct recruitment to the post of District AYUSH Officer.
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.
However, the counsel for the petitioner is right in submitting that since the petitioner came in service prior to the respondent No. 3, therefore, it would be slightly difficult for him to work under him.
It is submitted by the counsel for the petitioner that the hometown of petitioner is Gwalior and also submitted that he has spent his entire service career in different districts around Gwalior like Gwalior, Shivpuri, Bhind, Morena and Datia. However, it is further submitted that the petitioner had remained at Dhar for two years. It is really suprising that an Officer after joining the State Services is interested to remain around the place of his hometown. At this stage, it is submitted by Shri Raj 5 Shrivastava that since the petitioner was not posted at different districts of Madhya Pradesh, therefore, he cannot be blamed for remaining around his hometown.
Be that whatever it may be.
The petitioner is right in making a submission that since he had joined the services prior to respondent No. 3 therefore, he may feel some inconvenience in working under him.
Accordingly, the State Government is directed to immediately post the petitioner in a district where he can serve the mankind by properly treating the patients without working under his junior. The State Government must also realize that the entire State of Madhya Pradesh consists of multiple districts and they should not try to post the officers at or around places of their hometown only.
Accordingly, if the petitioner makes an application for his transfer to any other district of the State of Madhya Pradesh where he can serve the mankind and perform his duty without working under any junior, then the same prayer shall be accepted without any further delay.
With aforesaid observations, the petition is dismissed.
(G.S. AHLUWALIA) JUDGE Chetna CHETNA BEHRANI 2023.03.02 18:11:32 +05'30'