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Madhya Pradesh High Court · body

2016 DIGILAW 329 (MP)

Jagdish Shrivastava v. State of M. P.

2016-04-25

SANJAY YADAV

body2016
ORDER 1. Though an admitted petition posted for orders on I.A. No.13414/2010, an application for vacating the stay; however, taking into consideration the nature of issue involved, the matter is taken up for final hearing. 2. The issue is whether an incumbent holding a current charge can be not repatriated to his substantive post and secondly can the charge be given to a person not eligible to hold the post. 3. The issue emanates from the order dated 6.3.2006, which is under challenge and which is in the following terms : **dk;kZy; uxj ikfydk neksg Ø@u-ik-n-@lk-iz-@LFkk-@1694 neksg] fnukad 6@3@2006 dk;kZy; milapkyd uxjh; iz'kklu ,oa fodkl lkxj laHkkx lkxj ds i= Ø-LFkk@fo@neks@2005@2389 lkxj fnukad 25-10-2005 ,oa fof/k ,oa lkekU; iz'kklu lykgdkj lfefr ds fu.kZ; Ø-2 fnukad 5-1-2006 ds fu.kZ; vuqlkj txnh'k izlkn JhokLro mPp Js.kh fyfid izHkkjh ys[kkiky ds in ls i`Fkd~ dj ys[kkiky ds dk;Z gsrq Jh ijeyky jkBkSj fuEu Js.kh fyfid dks ys[kkiky cuk;s tkus dk fu.kZ; fy;k x;k gSA vr% Jh txnh'k izlkn JhokLro mPp Js.kh fyfid izHkkjh ys[kkiky dks vknsf”kr fd;k tkrk gS fd os viuk dk;ZHkkj ufLr;ka] ckmpj vkfn O;ofLFkr dj fnukad 10-4-2006 rd viuk izfrosnu dk;kZy; v/kh{kd dks izLrqr djsaA** eq[; uxj ikfydk vf/kdkjh uxj ikfydk ifj"kn neksg e-iz-** 4. Being trite it is that an incharge has no right to the post. Since there is no order on record to establish that the petitioner was substantively appointed/promotted to the post of Accountant, the petitioner cannot as a mater of right seek quashment of the said order nor a direction to continue as Accountant and grant of regular pay. In this context reference can be had of a decision in Ramakant Shripad Sinai Advalpalkar v. Union of India : [1991 Supp (2) SCC 733], wherein His Lordship has been pleased to held : “9. The third contention is that appellant's 'in charge' arrangements in the higher post had continued for so long a period that a determination of equivalence on the basis of his lower substantive post would become arbitrary. This contention ignores the fact that an 'in charge' arrangement is not a recognition of or is necessarily based on seniority and that, therefore, no rights, equities or expectations could be built upon it. The third contention is also unmeritorious.” 5. Though it is contended that the petitioner has not been given an opportunity of hearing before withdrawing the charge of the post of Accountant. The third contention is also unmeritorious.” 5. Though it is contended that the petitioner has not been given an opportunity of hearing before withdrawing the charge of the post of Accountant. In the considered opinion of this Court and in view of the law laid down in Ramakant Shripad (supra), since the petitioner was not substantively appointed/promoted as Accountant and had no right to hold the said post, the action of withdrawing the charge without affording an opportunity of hearing cannot be faulted with. Therefore, the relief sought by the petitioner cannot be granted. 6. Further grievance of the petitioner is that respondent No.4 being not qualified is entitled to be posted as Accountant? As to respondents ineligibility, petitioner has placed reliance on the decision in case of respondent No.4 in Miscellaneous Civil Case No.789/2004 decided on 22.7.2004. The Miscellaneous Civil Case No.789/2004 arose of decision in Writ Petition No.2518/1999 filed by respondent No.4. 7. The Miscellaneous Civil Case No.789/2004 was decided in the following terms : “This Court has decided Writ Petition No.2518/1999, on 15.1.2004. rule (R-1) was filed, which was not correct reproduction of the rule containing the qualification for the post of Accountant. It was mentioned in the rule (R-1) that selection has to be made out of the Clerical Cadre. This Court held that clerical cadre includes LDCs and UDCs. Review petition has been filed by the Municipal Council on the ground that in certain books rule has been published wrongly and the rule (R-1) which was filed was not the correct rule. I have seen the original gazette dated 29.9.1967 Hindi and English version both. The qualification for the post of accountant is prescribed thus : “Certificate of having passed Higher Secondary School Examination with special training in accounts. Suitable candidates will be selected from amongst Upper Division Clerks.” It is clear from the above quoted portion of the gazette that selection has been made out of the Upper Division Clerical Cadre. I have gone through the Hindi version also. Similar is position, accountant has to be selected out of the Upper Division Clerical Cadre. Thus, the decision which was rendered by this Court was obtained on a rule which was not correctly reproduced in Annexure (R-1) filed with the main writ petition. It appears that rule has not been correctly published in certain books due to which bona fide error has happened. Thus, the decision which was rendered by this Court was obtained on a rule which was not correctly reproduced in Annexure (R-1) filed with the main writ petition. It appears that rule has not been correctly published in certain books due to which bona fide error has happened. It is clear there was failure to produce the correct rule for perusal before the Court by both the parties. The error is required to be corrected. Hence, the order is recalled. It is clear that the petitioner was holding the post of Lower Division Clerk, as such his case for promotion to post of Accountant was rightly not approved by the State Government. Hence, the order of State Government not approving the selection was proper. Hence, petitioner is not entitled for any relief in the writ petition. Consequently, review petition is allowed. Order passed in writ petition is recalled. In view of above discussion writ petition is liable to be dismissed and same is dismissed. Let a copy of this order be placed on the record of the main writ petition.” 8. Evidently, respondent No.4 was not found eligible to be appointed/promoted as Accountant. When the impugned order, which directs appointment of respondent No.4 as Accountant, is tested on the anvil of the order passed in Miscellaneous Civil Case No.789/2004, the same cannot be approved of. Even otherwise the operation of said order was stayed on 17.3.2006. 9. In view whereof, while negativing the claim of the petitioner and the relief sought, appointment of respondent No.4 vide impugned order is also quashed. 10. The petition is finally disposed of in above terms. No costs.