Madhya Pradesh High Court
Smt. Sandhya Mishra vs Union Of India on 25 September, 2019
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
WP No. 11324/2014 (S) & linked matters
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HIGH COURT OF MADHYA PRADESH: JABALPUR
(SB : Hon'ble Shri Justice Prakash Shrivastava)
Writ Petition No.11324/2014(S)
(Smt. Suman Ahirwar Vs. State of Madhya Pradesh & others)
With
Writ Petition No. 5056/2017(S)
(Smt. Laxmi Ghanghoriya Vs. The State of Madhya Pradesh & others)
Writ Petition No.9400/2017(S)
(Mrs. Summan Ahirwar Vs. The State of Madhya Pradesh & others)
Writ Petition No.9725/2017(S)
(Mamta Pateriya Vs. The State of Madhya Pradesh & others)
Writ Petition No.9726/2017(S)
(Smt. Hariom Dwivedi Vs. State of Madhya Pradesh & others)
Writ Petition No.9836/2017(S)
(Ku. Nafisa Bano Vs. State of Madhya Pradesh & others)
Writ Petition No.9845/2017(S)
(Suman Gupta Vs. State of Madhya Pradesh & others)
Writ Petition No.10546/2017(S)
(Smt. Sudha Patel vs. State of Madhya Pradesh & others)
Writ Petition No.12967/2017(S)
(Smt. Suman Gupta & others Vs. State of Madhya Pradesh & others)
Writ Petition No.14876/2017(S)
(Arti Saxena Vs. State of Madhya Pradesh & others)
Writ Petition No.16468/2017(S)
(Smt. Sandhya Mishra Vs. The State of Madhya Pradesh & others)
WP No. 11324/2014 (S) & linked matters
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Writ Petition No.11540/2018(S)
(Mamta Pateriya Vs. Union of India & others)
Writ Petition No.11544/2018(S)
(Smt. Laxmi Ghanghoriya Vs Union of India & others)
Writ Petition No.12398/2018(S)
(Hari Om Dwivedi Vs. Union of India & others)
Writ Petition No.12416/2018(S)
(Smt. Suman Gupta Vs. Union of India & others)
Writ Petition No.12417/2018 (S)
(Nafeesa Bano Vs. Union of India & others)
Writ Petition No.12419/2018(S)
(Pushpa Mishra Vs. Union of India & others)
Writ Petition No.12420/2018(S)
(Suman Kali Chourasia Vs. Union of India & others)
Writ Petition No.12421/2018(S)
(Smt. Lata Bilthare Vs. Union of India & others)
Writ Petition No.12422/2018(S)
(Nilam Sansiya Vs. Union of India & others)
Writ Petition No.13570/2018(S)
(Smt. Sandhya Mishra Vs. Union of India & others)
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APPEARANCE:
Shri Praveen Verma, learned counsel for the petitioners.
Shri Sitaram Garg, learned for petitioner in W.P.No.14876/2017(S).
Shri Vikalp Soni, learned Government Advocate for the respondents/
State.
Shri Jitendra Kumar Dixit, learned counsel for the respondent No.6 in
W.P.No.5056/2017.
Shri Vikas Mahawar, learned for the Intervener in W.P.No.5056/2017.
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WP No. 11324/2014 (S) & linked matters
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Whether Approved for Reporting:
ORDER
(Passed on 25th September, 2019) This order will govern the disposal of W.P. Nos.11324/2014 (S), 5056/2017(S), 9400/2017(S), 9725/2017(S), 9726/2017(S), 9836/2017(S), 9845/2017(S), 10546/2017(S), 12967/2017(S), 14876/2017(S), 16468/2017(S), 11540/2018(S), 11544/2018(S), 12398/2018(S), 12416/2018(S), 12417/2018(S), 12419/2018(S), 12420/2018(S), 12421/2018(S), 12422/2018(S) and W.P. No.13570/2018(S), as it is jointly submitted by the learned counsel for the parties that all these writ petitions involve the same issue on the identical fact situation.
2. In all these writ petitions, the petitioners, who are working as Girls Hostel Warden, are aggrieved with the circular/order of the State Government in respect of their removal on completing the term of three years.
3. For convenience, the facts are taken from W.P. No.11540/2018(S) (Mamta Pateriya vs. Union of India and others).
4. The petitioner is working as Assistant Adhyapak in Government Primary School Shuklana, Sankul M.L.B. H.S. School, District Chhatarpur. Initially, one Sudha Patel was appointed as Warden in the Girls Hostel, Chhatarpur but she refused to give the consent and thereafter, the petitioner had applied and had given her consent, therefore, vide order dated 02.11.2016 (Annexure P-5), she was given the additional charge of Warden of Government Girls Hostel, Chhatarpur.
WP No. 11324/2014 (S) & linked matters
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5. The State Government had subsequently issued the circular dated 03.05.2018 (Annexure P-8) containing the policy decision to give the additional charge of Warden for a period of three years. The petitioner is also aggrieved with the subsequent circular dated 08.05.2018 (Annexure P-9) for obtaining consent for giving additional charge of Girls Hostel Warden.
6. The stand of the respondents is that it is the policy of the State Government, which is contained in the impugned circular in respect of giving additional charge of Hostel Warden for a period of three years only and the additional charge was given to the petitioner temporarily and similar petitions have already been dismissed.
7. Learned counsel appearing for the petitioners submit that the Kasturba Gandhi Girls School Scheme is funded 50-50% by the Central and State Government, therefore, the State cannot issue circular restricting the tenure of Hostel Warden to three years. He further submits that once the petitioner was appointed as a Hostel Warden, she can only be substituted by a full-fledged Hostel Warden duly appointed after the regular selection process. He has also submitted that the State had answered a question in the Vidhan Sabha by taking the stand that no tenure is provided to the Hostel Warden and therefore, three years restriction is unsustainable.
8. As against this, learned counsel appearing for the respondents have supported the impugned action and have also submitted that the similar writ petitions have already been dismissed.
9. Having heard learned counsel for the parties and on perusal of the record, it is noticed that the substantive post of the petitioner is Sahayak Adhyapak and WP No. 11324/2014 (S) & linked matters
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for the purposes of taking care of the Girls Hostel, the petitioner has been given the additional charge of Warden. By such an additional charge, no legally enforceable right has been created in favour of the petitioner. Such an additional charge is merely a responsibility to work on officiating basis. The petitioner was given additional charge of Warden by the Collector. It is also not in dispute that the schools are run by the State Government and under the control of the School Education Department. Under the Khasturba Gandhi Girls School Scheme, there is no restriction upon the State Government to provide for or alter the tenure of officiating Hostel Warden. The circular dated 25.08.2011 (Annexure P-2) itself has been issued by the Commissioner, Public Instructions - an authority of the State Government. This circular provides for the system of appointment of the Hostel Warden by consent. Hence, it was always open to the State Government to take a policy decision and restrict the tenure of the additional charge of the Hostel Warden to three years.
10. The State Government had issued circular dated 11.08.2017 providing for giving the additional charge of Hostel Warden for three years only. This circular has not been challenged in the present petition. A perusal of the circular reveals that the tenure has been restricted to three years with the object of proper administration and functioning of the Girls Hostel.
11. So far as the Vidhan Sabha question and answer is concerned, the same is dated 05.03.2017 whereas the period of three years has been fixed subsequently on 11.08.2017. Even otherwise, no estoppel applies to such policy decisions.
12. A coordinate Bench of this Court vide order dated 28.08.2017 passed in W.P. No.11283/2017 (Abha Pandey vs. The State of M.P. & others) while rejecting the similar petition, has held as under:-
WP No. 11324/2014 (S) & linked matters
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"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 Madhya Pradesh), 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.
If petitioner is aggrieved by impugned order, she may prefer representation before the Departmental Authorities.
With aforesaid observation, petition stands dismissed."
13. Another coordinate Bench while dismissing the identical W.P. No.11889/2018 in the matter of Smt. Pratibha Shukla vs. The Union of India and others vide order dated 25.06.2018 has held as under:-
"In my opinion, there is no illegality in the letter issued by the Authority restraining wardens who have already completed three years of period for holding the charge of post of Superintendent of the hostels for a further period of three years.
It is the prerogative of the State Government to assign the charge of the post of the Hostel Warden for a specific period. In the present case, the petitioner has annexed the order by which she has been given WP No. 11324/2014 (S) & linked matters
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additional charge of Hostel Warden i.e. Annexure P-4 which clearly reveals that she has been granted the charge of the post of Hostel Warden temporarily, therefore, as a matter of right she cannot claim to be continued on the said post for an indefinite period especially when her substantive post is Adhyapak. Even otherwise, letters which are impugned in this petition, are not addressed to the petitioner and as such no cause of action arises in her favour to challenge the same. It is not a case of the petitioner that she is being removed from the post of Warden before completing the period of three years. In this situation also, there is no occasion for the petitioner to seek the quashment of the impugned letters.
The Coordinate Bench of this Court on earlier occasion almost in a similar situation has dealt with this issue in Writ Petition No.11283/2017 parties being Abha Pandey Vs. The State of Madhya Pradesh decided on 28.08.2017 whereby the order passed by the Authority withdrawing the additional charge of the Warden of Girls Hostel was under challenge. The Court has finally observed that additional charge on the post of Warden cannot be claimed nor it can be claimed to hold the said charge continuously as a matter of right because the substantive post of the petitioner was Assistant Teacher and having no enforceable right on the post of Warden on which she was working on officiating basis. Similarly, in the present case, the post of the petitioner is Adhyapak but she is claiming that the State Government cannot frame a policy depriving her to hold the additional charge of the post of Warden continuously for more than three years.
Thus, in view of the law laid down by this Court in the case of Smt. Abha Pandey (supra), petition deserves to be dismissed as the petitioner has no legal vested or constitutional right to continue on officiating basis on the post of Warden. Likewise, in Writ Petition No.14592/2016 parties being Smt. Neelam Bajpai Vs State of Madhya Pradesh and others; Writ Petition No.14799/2016 parties being Smt. Sandhya Nayak Vs. State of Madhya Pradesh and others; Writ Petition No.15273/2016 parties being Kamini Rawat Vs. State of Madhya Pradesh and others and Writ Petition No.13103/2017 parties being Mrs. Suman Ahirwar Vs. State of Madhya Pradesh and others this Court has also dealt with the same issue and finally observed that the petitioner since holding the additional charge of the post of Warden, has no WP No. 11324/2014 (S) & linked matters
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fundamental or legal right to continue to hold the said charge and further placing reliance in a case of Abha Pandey (supra), dismissed the petition saying that there is nothing illegal on the part of the State to frame a policy for not giving additional charge to the candidates already completed three years on the said post."
14. So far as the allegations of mala fides are concerned, the same have not been substantiated. Hence, they do not form any basis for interfering in the present matter.
15. In one of the petition, the policy decision of the State Government to appoint the Warden from the same school has been questioned, but, since the object of the said policy decision is to facilitate better administration of the hostel and to ensure the welfare of the girls residing in the hostel, therefore, I am of the opinion that such a policy decision of the State does not require any interference.
16. Having regard to the above, I do not find any merit in these writ petitions, which are accordingly dismissed.
17. The signed order be placed in the file of W.P. No.11540/2018 (S) and copy whereof be placed in the file of the connected writ petitions.
(PRAKASH SHRIVASTAVA)
Judge
S/
Digitally signed by SACHIN CHAUDHARY
SACHIN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
JABALPUR, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=e0af17b0c265631809b6ba87607ad2292faaa6 2df0540096e4c72619bbaf6a0f, CHAUDHARY 2.5.4.45=0321009B62B02412F4FE2FD500C9CFB93A12 7AAD25E5DCCD2036A50070FB7C12D30DF4, cn=SACHIN CHAUDHARY Date: 2019.10.04 17:55:57 +05'30'