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2014 DIGILAW 1370 (MP)

Sanjay Soni v. State of M. P.

2014-10-27

C.V.SIRPURKAR, RAJENDRA MENON

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JUDGMENT : Rajendra Menon, J. In this appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 challenge is made to an order dated 3rd October, 2013 passed by the learned Writ Court in W.P. No. 5135/12. Petitioner herein is holding substantively the post in the cadre of 'Sanitary Inspector' in the municipal services of the State Govt. 2. It was his grievance in the writ petition that a circular has been issued by the State Govt. on 4th February, 2012 wherein certain directions have been issued in the matter of posting of Incharge Chief Municipal Officers in various Municipal Councils. It is submitted that the circular in question has been issued in view of an order passed by a Division Bench of this Court in a particular writ petition. It is said that by misconstruing the order passed in the writ petition, the circular has been issued, as a result, persons like the petitioner who are holding the post of 'Sanitary Inspectors' are deprived of their right to be posted as Incharge Chief Municipal Officers. It is argued that before implementation of the aforesaid circular, petitioner and other similarly situated employees who are working as 'Sanitary Inspectors' were being posted as Incharge Chief Municipal Officers but in view of the aforesaid circular, the right of the petitioner to hold the post on temporary officiating basis as Chief Municipal Officer is taken away. It is argued that if the circular is permitted to be implemented, it would take away the right of the petitioner to discharge his duties as the officiating Chief Municipal Officers and in their place juniors from other cadres can be posted. It is argued that the order passed by the High Court on 1.3.12 in W.P. No. 7104/08 is only to do away with the posting of Incharge Chief Municipal Officers is wrongly interpreted and implemented by the State Govt. and, therefore, the writ petition was filed challenging the circular in question. The Writ Court examined the matter and found that in accordance with the provisions of the Madhya Pradesh Municipal Service (Executive) Rules, 1973 read along with the provisions of Section 89(1) of M.P. Municipalities Act, 1961, only such persons are entitled to be posted as Chief Municipal Officers who are in the feeder cadre for promotion as Chief Municipal Officers. The Writ Court examined the matter and found that in accordance with the provisions of the Madhya Pradesh Municipal Service (Executive) Rules, 1973 read along with the provisions of Section 89(1) of M.P. Municipalities Act, 1961, only such persons are entitled to be posted as Chief Municipal Officers who are in the feeder cadre for promotion as Chief Municipal Officers. Finding that the posts of 'Sanitary Inspectors' does not constitute the feeder cadre, the Writ Court having upheld the tenability of the circular, therefore, this writ appeal has been filed. 3. Shri K.C. Ghildiyal took as through the provisions of the circular, the intent of the order passed in W.P. No. 7104/08 and tried to make a submission that the circular would result in juniors to the petitioner being posted as Chief Municipal Officers and right of the petitioner to work on temporary officiating basis will be taken away which was being followed for a long period of time. There being shortage of Chief Municipal Officers, the State Govt. can post the Incharge Chief Municipal Officers and merely because, the petitioner is not in the feeder cadre, his right to officiate on the post of Chief Municipal Officer, cannot be taken away. 4. Shri Ghildiyal submitted that petitioner is not claiming regularization or promotion on the post of Chief Municipal Officers and, therefore, the circular prohibiting the petitioner to officiate on the post of Chief Municipal Officer is wholly arbitrary and cannot be enforced. 5. Shri Rahul Jain refuted the aforesaid and argued that in W.P. No. 7104/08, a Division Bench of this Court has held that all posts of Chief Municipal Officers in the State of M.P. should be filled up in accordance with the requirements of statutory rules framed under Article 309 of the Constitution and if a reasonable decision is taken only to post such persons who are in the feeder cadre on the post of Chief Municipal Officers, petitioner cannot have any grievance in the matter. 6. It is argued by Shri Rahul Jain that an individual does not have any legal, enforceable right to stake the claim for working on the post on officiating or Incharge basis and once, the legal right is not available, a person cannot stake his claim to work in an officiating capacity. 7. We have heard learned counsel for the parties and perused the records. 7. We have heard learned counsel for the parties and perused the records. The learned Writ Court has considered the statutory provisions as contemplated under the M.P. Municipalities Act, 1961 and the provisions of the rules framed under Article 309 of the Constitution namely the M.P. Municipal Services (Executive) Rules, 1973. The State Municipal Services (Health and Engineering) Rules 1961 is also taken note of and it is found that promotion to the post of Chief Municipal Officer has to be done as per the statutory rules framed under Article 309 and under Section 3(8) of the M.P. Municipalities Act. The learned Writ Court has found that the Sanitary Inspectors does not fall in the feeder cadre for promotion on the post of Chief Municipal Officer and, therefore, the circular has been issued restricting the post from which the person can be deputed to work as Incharge Chief Municipal Officer based on the requirement of the statutory rule. The learned Writ Court has refused to interfere into the matter, we are of the considered view that in doing so, the Writ Court has not committed any error in rejecting the claim particularly when the circular in question dated 4.2.12 is in accordance to the requirement of the statutory provisions and issued guidelines to the department with regard to working as officiating and Incharge Chief Municipal Officers. If an employee does not have any legal right to work on incharge or officiating basis, no mandamus can be issued. 8. If the persons like the petitioner do not have any right to seek mandamus for being appointed on the post on officiating basis, we see no reason as to how the petition was maintainable. 9. That apart, the action of the State Govt. in issuing the circular is only to restrict the appointment of Sanitary Inspector to the post of Incharge Chief Municipal Officer and bring the appointment even on officiating basis in accordance with the requirement of the rules of recruitment No circular even for appointment on Incharge basis can be issued contrary to the rules of recruitment and, therefore, if in the matter of posting of Incharge Chief Municipal Officer, the State Govt. has taken a policy decision to bring it in conformity with the rules framed, no error can be found in the same. 10. has taken a policy decision to bring it in conformity with the rules framed, no error can be found in the same. 10. From para 8 onwards, the Writ Court has found no error in the circular issued, we are in the full agreement with the conditions narrated by the Writ Court and we see no reason to take a different view. As far as contention of the petitioner that possibility of the junior employee for the post of Chief Municipal Officer being posted as Incharge basis and the petitioner's grievance in working under the supervision of junior person is concerned, the circular in its totality cannot be quashed by us on such consideration. If such an eventuality arises, if would be for the employee concerned to represent to the State Govt. and the State Govt. can decide the grievance of the appellant in the matter of avoiding a junior person working under the control of the senior person. 11. That being so, we see no error in the order passed by the learned Writ Court warranting reconsideration. The appeal is therefore dismissed.