Madhya Pradesh High Court
Akhilesh Kumar vs The State Of Madhya Pradesh on 26 September, 2019
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No.19575/2019
(Akhilesh Kumar Vs. State of M.P. and others)
Gwalior, dated: 26.09.2019
Shri Dharmendra Nayak, learned counsel for the petitioner.
Shri Ravi Gupta, learned Government Advocate for the
respondents/State.
Shri Shashank Sharma, learned counsel for respondent No.2.
1. The challenge in this petition under Article 226 of Constitution of India is to Annexure P/1 dated 13.08.2019 issued by CM and HO by which ANM (Auxilary Nurse Midwife) and MPW (Male Health Worker) who were discharging their duties in the primary health centers/sub-centers and health and wellness centers/sub-centers have been asked to be relieved from their duties and instead discharge duties at new health and wellness centers/sub-centers in due deference of the instructions dated 29.07.2019 (Annexure P/5) issued by the Mission Director, National Health Mission.
2. The principal grounds raised by the petitioner in support of the aforesaid challenge are as follows:-
(a). Petitioner who is MPW having been appointed vide P/3 which stipulated that the petitioner 2 would not be posted out of the revenue block within which he is appointed and since the impugned order Annexure P/1 posts the petitioner out of block Mehgaon, the impugned order is vitiated.
(b). The new assignment being entrusted upon the petitioner vide Annexure P/1 would involve operating electronic gadgets i.e. Tablet and since the petitioner has no training for operating the electronic gadget, he may faultier in discharge of the duties exposing himself to disciplinary action.
(c). The Mission Director on whose behest the impugned order has been passed is not the appointing authority and therefore has no jurisdiction to change the service conditions of petitioner.
3. Learned counsel for petitioner has drawn the attention of this court to various documents in support of the aforesaid grounds which are perused and the case is heard on the question of admission and final disposal.
4. The petitioner was appointed vide Annexure P/3 as MPW in the pay scale of 5200-20200+2100 after having been subjected to a recruitment process pursuant to advertisement P/2. The said appointment was made subject to certain conditions mentioned in Annexur P/3 including that petitioner will have to undergo five 3 years of probationary period and increments would be released only after regularization of service and during the probationary period, duties would be discharged exclusively within rural area. The petitioner was thereafter initially posted under the jurisdiction of community health center at Raimja Raun vide order dated 08.11.2010. It is further submitted that petitioner vide order dated 31.12.2018 filed alongwith document No.8879/2019 was confirmed on the said post and his pay was accordingly fixed and increments released on completion of five years' service. Petitioner further relies upon Annexure P/4 which are the instructions issued by the Director of National Health Mission on 07.01.2015 detailing the list of duties of MPW and issuing certain directions including that the posting of particular MPW will not be made in a block other than the block in which he was initially appointed.
5. On the strength of the aforesaid factual matrix, learned counsel for petitioner submits that service conditions of petitioner are being adversely affected by posting outside the block of appointment and therefore quashment of Annexure P/1 is sought. 5.1 The impugned order Annexure P/1 does not disclose that the petitioner has been posted outside the revenue block in which he was initially appointed. There is neither any pleading nor any material to support this contention of petitioner. As such the 4 ground of petitioner having been posted outside the revenue block in which he was initially appointed does not assist the petitioner.
6. The other ground of petitioner not being qualified to operate electronic devise is heard to be rejected at the very outset since the petitioner is merely expected to discharge certain clerical functions of collection of data and making certain entries in that regard with the aid of the said electronic devise which in the considered opinion of this Court do not require any specific training or specialized qualification to be discharged. The said electronic devise i.e. Tablet which is being provided to the petitioner can be operated even by a primary school student and therefore it does not behove of the petitioner who possesses educational qualification of Class 10th pass to raise such a frivolous ground which merely reflects obstinacy and adamancy of petitioner to change with changing times.
7. The third and the last ground regarding competency of the Mission Director of National Health Mission not being competent to issue impugned order further does not help the petitioner. As per the order of appointment Annexure p/3 it appears that the Chief Medical and Health Officer is the appointing authority of the petitioner and the impugned order P/1 has also been issued by the same authority. Merely because the said authority has issued the order in deference of the instruction of National Health 5 Mission is of no avail to the petitioner since the entire exercise of appointing MPW and making them work in the field of primary health is being conducted under the auspices of national health mission which is the nodal agency not only supervising the conduction and effective conclusion of the programms formulated by it but is also ensuring that target set are met by all stakeholders. The petitioner is working as one of the stakeholders to achieve the ultimate goal of a healthy nation which is possible only when modern gadgets are introduced and used by the stakeholders.
8. In view of above merely because the policy of the Mission has been kept in mind while issuing P/1 by the Chief Medical and Health Officer does not render the impugned order susceptible to judicial review on the ground of having been issued by incompetent authority.
9. At this juncture learned counsel for the petitioner has drawn attention of this Court that he has raised the same grievance as raised in this petition vide representation Annexure P/6 to CM and HO which according to the petitioner has not been considered.
10. This Court in view of the adjudication as aforesaid, cannot now direct the CM and HO to re-assess the issue which stands decided by this order but since the issue as to whether the petitioner has been posted in a block other than the one in which he was appointed has not been adjudicated upon by this Court in 6 the absence of any material to support the same, this Court deems it appropriate to leave this ground for CM and HO to decide while considering the aforesaid observation.
11. Accordingly, this petition is dismissed to the extent indicated above with the direction to the Chief medical and Health Officer to consider the representation Anneuxre P/7 only on the aspect as to whether the impugned order posts the petitioner to a block other than the block in which he was appointed and whether that posting amounts to violation of any of the service conditions of petitioner or not and thereafter pass a speaking order in that respect within 30 days from the receipt of certified copy of this order alongwith an additional copy of the representation.
12. No cost.
(Sheel Nagu) Judge SS SATEESH KUMAR SEN 2019.09.30 17:22:25 -07'00'