Madhya Pradesh High Court
Dr. Murli Manohar Agrawal vs The State Of Madhya Pradesh on 30 August, 2019
Author: Atul Sreedharan
Bench: Atul Sreedharan
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HIGH COURT OF MADHYA PRADESH
PRINCIPAL BENCH AT JABALPUR
Writ Petition No.15333 of 2019
Dr. Murli Manohar Agrawal.....................................Petitioner
Versus
State of M.P. and two others..............................Respondents
For the Petitioner : Mr. Sanjay K. Agrawal, Advocate
For the Respondent nos. : Mr. Madhur Shukla,
1 and 2 Government Advocate
For the Respondent : Mr. Shivendra Pandey,
no.3 Advocate
For the objector : Mr. R. N. Dwivedi, Advocate
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Present:
JUSTICE ATUL SREEDHARAN
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ORDER
(30/8/2019) The present petition has been filed by the Petitioner herein aggrieved by the order passed by the Respondent No.1 dated 05/07/19 (Annexure P/4) whereby the Petitioner is posted as Radiologist in the District Hospital, Jabalpur, and the Respondent No.3 has been posted as In charge, Chief Medical & Health Officer (CM & HO), in place of the Petitioner.
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2. The case of the Petitioner is that the Respondent No.3 is junior to the Petitioner in the cadre of specialist and therefore the impugned order would compel the Petitioner to work under his junior. The Petitioner is due to retire on 31/08/19 and the said order has been passed just 36 days before his superannuation. The act of the Respondent No.1 and the impugned order has been challenged on the ground that the same violates the fundamental right of the Petitioner guaranteed under Articles 14 and 16 of the Constitution of India. He further submits that he has been on the post of officiating CM & HO since the year 2015 and that his work has been to the satisfaction of all and there have been any complaints against him and therefore, his reversion to the post of Radiologist in the District Hospital at Jabalpur and the appointment of Respondent No.3 as the officiating CM & HO done 36 days before his superannuation, is violative of his aforementioned rights under the Constitution. It is pertinent to mention here that the Petitioner has not alleged malafides but has alleged arbitrariness and illegality. In support of his contention, the Petitioner has relied upon the judgment of the Constitution Bench of the Supreme Court in E. P. Royappa v. State of Tamilnadu and others (1974) 4 SCC 3 and an order passed by the High Court of Punjab & Haryana in Shingara Chandra and others v. Punjab Water Supply and Sewage Board and others reported in (2004) 4 SLR 164 (P&H) (DB). 3
3. Learned counsel for the Petitioner has drawn the attention of this court specifically to paragraphs 86, 87 and 88 of E.P. Royappa's case. The Petitioner E. P. Royappa was the Chief Secretary of Tamilnadu. He was removed from the said post and transferred, first to the post of Deputy Chairman and then to the post of Officer on Special Duty. In his place, one Sabanayagam, who was admittedly junior to E. P. Royappa, was not only promoted to the post of Chief Secretary of Tamilnadu but also confirmed on the said post. The result of the confirmation of Sabanayagam as Chief Secretary was that the Petitioner E. P. Royappa, though senior and competent, was permanently excluded from the post of Chief Secretary. It was contended by E. P. Royappa that his transfer first to the post of Deputy Chairman and then to the post of Officer on Special Duty was not on account of any administrative reasons but done solely to displace him from the key post of Chief Secretary.
4. In paragraph 86 of the judgment, the Constitution Bench held that the ambit and reach of Articles 14 and 16 were not limited to cases where the public servant has a right to a post. The Supreme Court held "even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to malafide exercise of power by the State machinery." (emphasis added by this Court) 4
5. The learned counsel for the Petitioner has submitted that as he was officiating on the post of CM & HO since the year 2015, the impugned order removing him from that post and appointing his junior as CM & HO just 36 days before his superannuation, if not a malafide exercise of power, would certainly be counted as one which is arbitrary. In buttressing his contention that the impugned order is arbitrary, the learned counsel for the Petitioner has submitted that no reason whatsoever has been given by the State for removing the Petitioner 36 days before his retirement. It is not a case that the Petitioner's performance on the officiating post of CM & HO has ever been questioned on the ground of administrative incompetence or any other ground.
6. Similar, was the situation in E. P. Royappa case, where the Petitioner E. P. Royappa has contended that the reply filed by the State of Tamilnadu itself reflected that the performance of the Petitioner E. P. Royappa from the post of Chief Secretary was good and there was no adverse finding against him. The learned counsel for the Petitioner has also placed before this Court a judgment of the High Court of Punjab and Haryana which has already been referred to hereinabove. In that judgment, the Hon'ble High Court of Punjab & Haryana held that though giving current duty charge to a junior person for a few days or weeks in order to tide over a crises situation is 5 reasonable. But the practice of giving current duty charge of the higher post to juniors for months and years together cannot be legally justified and approved. In opposition to the said contention put forth by the Petitioner, the learned counsel for the Respondent nos.1, 2 and 3 have reliance on the judgment of the Supreme Court in State of Haryana Vs. S.M.Sharma and others, reported in 1993 Supp (3) SCC 252. In paragraph 12 of the said judgment, the Supreme Court held that no one has a right to ask for an stick on to a current duty charge. In that case also, the Respondent had been removed from current duty charge which he challenged before the High Court of Punjab and Haryana, which had granted relief to the Respondent. The Supreme Court held that the order removing the Respondent from the officiating charge did not cause any financial loss or prejudice of any kind of loss to the Respondent. It went to the extent of holding that the Respondent who was removed from current duty charge has no cause of action whatsoever to invoke the writ jurisdiction of the High Court and that it was patent misuse of the process of Court.
7. The Respondents also placed reliance upon the judgment of a Co-ordinate Bench of this Court reported in (2016) 3 MPLJ 152 Dr.V.B.Singh Baghel Vs. State of M.P. and others. In that case also in an identical situation, the issue involved was the posting as incharge CM & HO of 6 Sidhi, the Petitioner and the Respondent No.3 in that case were substantively holding the post of specialist in the Respondent department. The Respondent No.3 in that case was posted as CM & HO on current charge basis after removing the Petitioner in that case from the said post. The Petitioner was admittedly senior to the Respondent No.3 in that case and was appointed as CM & HO and on that basis laid claim to the right to officiate on the said post of CM & HO. This Court while dismissing that petition held that the law relating to adherence to executive instructions requiring the senior most person in the department to be given the officiating charge, was no longer resintegra in view of the Constitution bench judgment of the Supreme Court reported in AIR 1965 SC 1196, State of Assam and another Vs. Ajit Sarma and other, wherein the Supreme Court had held that executive instructions confirm no right of any kind and that the same cannot be a reason for the High Court to issue mandamus against the State Government.
8. As regards, paragraph 86 of E. P. Royappa's case, which is the flagship argument of the Petitioner, it is relevant to mention that though much water has flown down the bridge since then, even otherwise, in paragraph 86 of E. P. Royappa's case, the Supreme Court held that denial of officiating charge could be challenged if the same was arbitrary, illegal or malafide.
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9. The contention of the Petitioner is that the order is illegal as it was passed arbitrarily. However, the learned counsel for the State has argued that the officiating charge was not taken away from the Petitioner arbitrarily or on account of any malafide reason and that the same does not reflect upon his competence, capacity or integrity and that certain administrative exigency prompted the State Government to pass the impugned order. The said exigency was that the Petitioner was on the threshold of superannuation. Upon his superannuation, to ensure that the post of CM & HO is not left unoccupied and instead of starting the process of appointing an in charge CM & HO after the superannuation of the Petitioner, the order was taken out earlier and the Respondent No.3 was handed the officiating charge of CM & HO so that there is continuity even after the superannuation of the Petitioner. The above said submission of the learned counsel for the State is adequate reasonable cause for passing the impugned order. Undoubtedly, there was no malice involved and the submission that the said order was passed to ensure that the post of CM & HO does not remain vacant even for a single day after the superannuation of the Petitioner, is a plausible enough reason for the passing of the impugned order. As held by the Coordinate Bench of this Court in V.B.Singh Baghel's case and S.M.Sarma and others, being given an officiating charge does not create a justiciable right in 8 the person so appointed. He remains the in charge of the said office during the pleasure of the State and as held in the above said cases, an officiating post generates no legitimate justiciable right, removal from the same cannot be agitated before the High Court under Article 226 except on the grounds of malafide or incompetence of the authority to pass the impugned order.
10. Under the circumstances, this petition fails and is dismissed.
(ATUL SREEDHARAN) JUDGE ss SHYAMLEE SINGH SOLANKI 2019.09.03 12:07:58 +05'30'