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Madhya Pradesh High Court · body

2007 DIGILAW 586 (MP)

D. K. Singh Parihar v. State of M. P.

2007-05-16

S.K.GANGELE

body2007
ORDER 1. Heard. 2. Petitioner has filed this petition challenging the order Annexure P-1 dated 7.9.2006. The petitioner was appointed as Sub Engineer in the year 1973. He was posted in Sub Division (Road) Lahar. On 31.7.2006 one Mr. R.C. Gayakwad was retired from service, hence, the petitioner was posted on the post of Sub Engineer in the Sub Division (Road) Lahar vide order dated 8.8.2006. The order was passed by the Executive Engineer. The petitioner also posted as In-charge Sub Divisional Officer of Sub Division (Road) Lahar. As per the petitioner he submitted his joining report on 10.8.2006 and that order has been cancelled by the Chief Engineer vide impugned order, which is arbitrary and illegal. 3. Respondents No. 1 to 3 in its return stated that the Executive Engineer passed the order dated 8.8.2006 with regard to posting of the petitioner as In-charge Sub Divisional Officer, Sub Division (Road) Lahar because Executive Engineer had no power and authority, hence the order has been cancelled vide Annexure P-1. It has further been stated that an employee has no substantive right to be posted as In-charge Sub Divisional Officer. 4. Intervenor has also filed an application for intervention mentioning the fact that vide order dated 7.9.2006 he has been posted as In-charge S.D.O. in place of the petitioner. 5. Learned counsel for the petitioner has submitted that the impugned order of canceling the order issued by the Executive Engineer is illegal and being a senior employee petitioner has right to be posted as In-charge S.D.O. 6. Contrary to this learned Government Advocate has submitted that the petitioner has no right to be posted as In-charge S.D.O. and because the order was passed by the Executive Engineer hence, the Chief Engineer has rightly cancelled the order. 7. From the facts stated above, it is clear that by the impugned order Annexure P-1, the earlier order passed by the Executive Engineer dated 8.8.2006 with regard to posting of the petitioner as S.D.O. Sub Division (Road) Lahar has been cancelled. The substantive post of the petitioner is Sub Engineer. The Executive Engineer has temporarily posted the petitioner on the post of S.D.O. Sub Division (Road) Lahar because one Mr. R.C. Gayakawad was retired. There is no substantive right created in favour of the petitioner by the order dated 8.8.2006 and that has been cancelled by the Chief Engineer by the impugned order. 8. The Executive Engineer has temporarily posted the petitioner on the post of S.D.O. Sub Division (Road) Lahar because one Mr. R.C. Gayakawad was retired. There is no substantive right created in favour of the petitioner by the order dated 8.8.2006 and that has been cancelled by the Chief Engineer by the impugned order. 8. The Hon'ble Supreme Court reported in 2007 AIOL 700 in the case of State of Punjab and others v. Arun Kumar Aggarwal and others relying on the earlier judgments has held as under with regard to right of employee holding the current charge : "In the case of State of Haryana v. S.M. Sharma [1993 Supp. (3) SCC 252] while considering the identical question this Court held in paragraphs 11 and 12 as under : "11. Sharma was given the current duty charge of the post of Executive Engineer under the orders of the Chief Administrator and the said charge was also withdrawn by the same authority. We have already reproduced above Rule 4 (2) of the General Rules and Rule 13 of the Service Rules. We are of the view that the Chief Administrator, in the facts and circumstances of this case, was within his powers to issue the two orders dated June 13, 1991, and January 6, 1992. (12) We are constrained to say that the High Court extended its extraordinary 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." (15) We, accordingly, hold no such right much less indefeasible right has been accrued to the diploma-holder junior engineers (outstanding category) by virtue of giving CDC to the post of S.D.O. for regularization in the post. It was purely a stopgap arrangements, neither based on seniority nor efficiency and no cause of action arises by withdrawing the same by the order dated 22.6.2005." 9. On the basis of above principle of law laid down by the Hon'ble Supreme Court, in my opinion, the petitioner has no legal right to be posted as In-charge Sub Divisional Officer, because his substantive post is Sub Engineer. On the basis of above principle of law laid down by the Hon'ble Supreme Court, in my opinion, the petitioner has no legal right to be posted as In-charge Sub Divisional Officer, because his substantive post is Sub Engineer. Hence, I do not find any merit in this petition, it is hereby dismissed. 10. No order as to cost.