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Madhya Pradesh High Court · body

2020 DIGILAW 664 (MP)

Santosh Kumar Sihare v. State of M. P.

2020-06-05

SHEEL NAGU

body2020
ORDER 1. Learned counsel for the rival parties are heard through Video Conferencing. 2. Challenge in this petition under Article 226 of the Constitution is to the order dated 19.3.2020 vide P-1 by which the charge on the post of CMO Municipal Council Joura District Morena is directed to be handed over to Shri Balkishan Gourav/respondent No. 2 herein, as a result of which the petitioner who was holding this post on officiating/in-charge basis has been relegated to his substantive post of Revenue Sub-inspector. 3. Learned counsel for the petitioner Shri Raghuvanshi submits that the petitioner vide P-2 was entrusted with officiate as CMO Municipal Council Joura, the post on which he joined on 22.6.2019. However, vide Annxure P-4 dated 22.6.2019, Annexure P-2 was cancelled impelling petitioner to prefer WP12388/2019 which was allowed vide order dated 15.7.2019. This order of the Single Bench was not disturbed by the Division Bench while disposing of WA No. 1417/19 as infructuous on 23.9.2019. It is submitted that the order of learned Single Judge in WP No. 12388/19 which had the stamp of approval of the Division Bench by implication, upheld the contention of the petitioner that the order of being posted as officiating CMO which was executed on 22.6.2019 by the petitioner could not have been cancelled. It is submitted that despite securing a judicial order in its favour, the official respondent by exercise of malice passed Annexure P-1 which is politically motivated in view of Annexure P-10 and P-11 both dated 12.2.2020 which are recommendatory letters of political functionaries asking the decision making authority to remove the petitioner from the post of CMO, Municipal Council Joura. In this factual background, the impugned order Annexure P-1 is assailed. 4. The question that falls for consideration herein is as to whether the ground of mala fide can be successfully raised by a person who otherwise does not have any vested right to the cause raised in the absence of the ground of mala fide. 5. Pertinently, this Court in WP No. 7675/2019 (Ram Kumar Sharma v. State of M.P. and ors.) had an occasion to decide the question involved herein, in the negative. The relevant extract of the said judgment is reproduced below: 7.1 The issue herein is not of regular posting or transfer but merely of conferring and depriving the officiating charge of the post of Accountant in Municipal Council Porsa, District Morena. The relevant extract of the said judgment is reproduced below: 7.1 The issue herein is not of regular posting or transfer but merely of conferring and depriving the officiating charge of the post of Accountant in Municipal Council Porsa, District Morena. It is trite law that officiating charge does not bestow any justiciable right on the holder of officiating charge. 7.2 The grievance of the petitioner that he has been deprived of the officiating charge by being replaced by an un-qualified person i.e. respondent No. 3 appears to be attractive at first blush but on deeper probe is untenable. 7.3 True it is that officiating charge of the post of Accountant ought to be given to a person who is equipped with accounts training in the interest of administration and public good but the mere fact that petitioner holds the post of Accountant mere on officiating basis does not bestow any justiciable right to him to challenge the deprivation of the said officiating charge even if the deprivation leads to replacement by an un-qualified person. 7.4 The petitioner not having any justiciable right while working on officiating basis cannot raise any grievance of being deprived of the said officiating charge. The issue as to whether respondent No. 3 is qualified or not will not make the case of the petitioner any better as the petitioner has to first stand on his own legs. 7.5 The decision of the apex Court in E.P.Royappa (supra) turns on it's own facts and relates to the issue of post of Addl. Secretary/Secretary being cadre post or not in Indian Administrative Service and thus has no application to the facts of the present case. 7.6 As regards the case of State of Haryana (supra) the same lays down the law which in facts supports the view taken by this Court herein. Relevant paras 9 and 11 of the said decision are reproduced below for ready reference and convenience : "9. It is only a posting order in respect of two officers. Withthe posting of Ram Niwas as Executive Engineer Sharma was automatically relieved of the current duty charge (if the post of Executive Engineer. Sharma was neither appointed/promoted/posted as Executive Engineer nor was he ever reverted from the said post. He was only holding current duty charge of the post of Executive Engineer. Withthe posting of Ram Niwas as Executive Engineer Sharma was automatically relieved of the current duty charge (if the post of Executive Engineer. Sharma was neither appointed/promoted/posted as Executive Engineer nor was he ever reverted from the said post. He was only holding current duty charge of the post of Executive Engineer. The Chief Administrator never promoted Sharma to the post of Executive Engineer and as such the question of his reversion from the said post did not arise. Under the circumstances the controversy whether the powers of the Board to appoint/promote a person to the post of an Executive Engineer were delegated to the chairman or to the chief Administrator. is wholly irrelevant. 11. We are constrained to say that the High Court extended its extraordinary jurisdiction under Article 2216 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 patient misuse of the process of the Court. " 6. In view of above, what comes out loud and clear is that the petitioner who substantively holds the post of Revenue Sub-inspector was entrusted with the officiating charge of the post of CMO Joura in the absence of a regular incumbent. It is settled principle of law that an officiating charge or posting in an in-charge capacity does not bestow any vested right with the incumbent. Much less any justiciable right. 7. The ground of impugned order P-1 being politically motivated is also of no avail to the petitioner as political functionaries have been held to be a part and parcel of the exclusive domain of the executive and discharge their duties as representative of people of the area concerned and therefore, any recommendation made by them is a reflection of the sentiment of the people they represent, unless otherwise can be proved which is not the case herein. The apex Court in the context of a transfer made on the recommendation of an MLA had an occasion to deliberate upon this aspect in Mohd. Masood Ahmad v. State of U.P. (2007) 8 SCC 150 . 8. The apex Court in the context of a transfer made on the recommendation of an MLA had an occasion to deliberate upon this aspect in Mohd. Masood Ahmad v. State of U.P. (2007) 8 SCC 150 . 8. In view of above and in the absence of any justiciable right in favour of petitioner, this Court declines interference and dismisses this petition.