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2022 DIGILAW 1065 (MP)

VINOD S/o KHERALIYA v. STATE OF MADHYA PRADESH

2022-08-29

SUBODH ABHYANKAR

body2022
ORDER : – Heard finally, although looking to the relief sought by the petitioner, this Court was not inclined to finally hear the matter looking to the long list of motion hearing and more importantly equally long list of final hearing cases matters some of which are more than a decade old but Shri L. C. Patne, learned counsel appearing for the petitioner has strenuously argued that if the petition is not decided today only, it would be rendered infructuous within two days’ time as the respondent No. 7 whose order of promotion is challenged by the petitioner, is due to retire on 31-8-2022 only. Although, the aforesaid prayer of early hearing of the petition is opposed by counsel for the respondents and it is submitted that there is no urgency in the petition which can very well be decided on any other day also as no prejudice would be caused to the petitioner who himself has no locus to file this petition and it would not be rendered infructuous if not decided today only. However, as Shri Patne has again vehemently submitted that grave injustice would be caused to the cause espoused by the petitioner, on his insistence the matter is heard finally. 2. The petition has been filed under Article 226 of Constitution of India, against the order dated 27-11-2015, passed by the respondent No. 2-Director (Nursing), Directorate of Health Services, Satpuda Bhawan, Bhopal promoting the respondent No. 7 - Smt. Marjari Ghorpade on the post of Matron in the pay scale of Rs. 9300-34800+Grade Pay 4200 which according to the petitioner, is de hors the provisions of Recruitment Rules governing such promotions namely, Madhya Pradesh Public Health and Family Welfare Department (Directorate of Health Services) Class-III Nurses Services Recruitment Rules, 1989, as amended by Gazette Notification dated 23-10-2015 issued by respondent No. 1 which provides five years of experience on the post of Nursing Sister for being considered for promotion on the post of Matron. The petitioner has sought the following reliefs in the petition : – “(a) to call for the relevant records of the case; (b) to quash the impugned promotion order dated 27-11-2015 (Annexure P/3) issued by Respondent No. 2 promoting Respondent No. 7 on the post of Matron in the Respondent No. 1 Department, by a writ of CERTIORARI/QUO WARRANTO or any other appropriate writ, direction or order; (c) to command the Respondent No. 1 to 6 to take suitable disciplinary and penal action against Respondent No. 7 for procuring promotion on the post of Matron, District Hospital, Mandsaur under Scheduled Caste category despite belonging to Unreserved category and despite not having the requisite experience of 5 years on the post of Nursing Sister, by writ of MANDAMUS or any other appropriate writ, direction or order; (d) to allow this petition with costs; (e) to pass such other order(s) as this Hon’ble Court may deem fit in the fact and circumstance of the case to grant relief to the petitioner.” 3. It is contended that the aforesaid qualification was lacking in the respondent No. 7, in as much as the respondent No. 7 was promoted from the post of Nursing Sister by an order dated 6-12-2010, without having five years experience in Nursing Sister as provided under the aforesaid Recruitment Rules. It is also averred that the promotion has been obtained by the respondent No. 7 under S.C. category, in active collusion with the officials of the respondent No. 1/Department, despite the fact that the respondent No. 7 belongs to unreserved category and, hence, her promotion on the post of Matron under the SC category is not only a fraud upon the Constitution, but it is also in violation of Rule 16(13) of Madhya Pradesh Public Health Services (Promotion) Rules, 2002, which provides that in no circumstances any vacancy of reserve category shall be filled up for promotion from the Public Servant belonging to any other category. And hence, a writ of quo warranto has been sought against the promotion of the respondent No. 7 as also a writ of Mandamus against the respondent Nos. 1 to 6 as the present petition is filed before this Court under Article 226 of the Constitution of India. 4. And hence, a writ of quo warranto has been sought against the promotion of the respondent No. 7 as also a writ of Mandamus against the respondent Nos. 1 to 6 as the present petition is filed before this Court under Article 226 of the Constitution of India. 4. Shri Patne, learned counsel for the petitioner has drawn attention of this Court to the aforesaid Rules as also the documents filed on record to submit that a fraud has been played by the respondent No. 7 in collusion with the other respondents of the Department. Counsel has submitted that the despite the fact that the respondent No. 7 belongs to the unreserved category. She has deliberately been promoted under the SC category on account of her strong political connection being a close relative of Finance Minister of the Govt. of Madhya Pradesh Shri Jagdish Devda. 5. Counsel for the petitioner has also referred to the DPC record which has been placed by the State as directed by this Court vide its order dated 10-8-2022, to demonstrate that the respondent No. 7’s promotion was made without following the due process and despite the respondents were very well aware of the facts that the respondent No. 7 belongs to unreserved category and did not have the requisite qualification of five years A.C.Rs., and in such circumstance, her promotion is liable to be quashed. In support of his submissions, Shri Patne has also relied upon the decision rendered by the Supreme Court in the case of Central Electricity Supply of Utility of Odisha vs. Dhobei Sahoo, (2014) 1 SCC 161 . Relevant paras 21 and 22 of the judgment read as under : – 21. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional Courts to see that a public office is not held by usurper without any legal authority. 22. While dealing with the writ of quo warranto another aspect has to be kept in view. Sometimes a contention is raised pertaining to doctrine of delay and laches in filing a writ of quo warranto. There is a difference pertaining to personal interest or individual interest on the one hand and an interest by a citizen as a relator to the Court on the other. The principle of doctrine of delay and laches should not be allowed any play because the person holds the public office as a usurper and such continuance is to be prevented by the Court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds. 6. And, in the case of Rajesh Awasthi vs. Nandlal Jaiswal and others, reported as (2013) 1 SCC 501 . Relevant para of the order reads as under : – “31. From the aforesaid pronouncements it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Kashinath G. Jalmi vs. Speaker, (1993) 2 SCC 703 = AIR 1993 SC 1873 .” 7. Replies have also been filed by the respondent No. 7 as also by the State Government. 8. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Kashinath G. Jalmi vs. Speaker, (1993) 2 SCC 703 = AIR 1993 SC 1873 .” 7. Replies have also been filed by the respondent No. 7 as also by the State Government. 8. So far as the respondent No. 7 is concerned, Shri Bhachawat, learned counsel for the respondent No. 7, at the outset has also drawn the attention of this Court to the fact that the respondent/State has already initiated a departmental enquiry against the respondent No. 7 and has already issued to her a charge sheet on 25-8-2022, in respect of her promotion under the SC category. Thus, it is submitted that since a Departmental Enquiry has already been initiated, it would not be necessary for this Court enter into the factual aspects of the matter because in the departmental enquiry a different procedure is provided as the petitioner would also be given an opportunity to lead her evidence during the course of the enquiry. And, thus, it would be premature to record any finding on the alleged acts of the respondent No. 7. 9. Shri Bhachawat, learned counsel appearing for the respondent No. 7, has also opposed the petition on merits submitting that the petitioner has filed this petition in his personal capacity seeking no relief for himself or for his organization viz. Bhim Army Bharat Ekta Mission and it is denied that they are working for the upliftment of the marginalized section of the society belonging to Scheduled Caste or Scheduled Tribe category, and he has no connection whatsoever with the promotion of the respondent No. 7 and is total alien to the subject matter of the petition. 10. Counsel has submitted that in the garb of this petition the petitioner who is a close friend of husband of one Smt. Tanuja Raikwar who is a Staff Nurse in the Civil Hospital, Mandsaur and is subordinate to respondent No. 7, and had certain disputes with her regarding her duty timings in the hospital, which has also led to the intervention of Tanuja Raikwar’s husband Ashwin Katariya, who happens to be friends with the petitioner. Counsel has submitted that the said Ashwin Katariya has also apologized for his behaviour and has compromised the matter, his letter of apology is also placed on record obtained from the concerned police station but who is trying to settle his score through the present petitioner. Counsel has also submitted that even otherwise the respondent No. 7 is going to retire within two days’ time i.e. on 31-8-2022, and she has not obtained any pecuniary benefit out of her promotion. It is also submitted that the respondent No. 7 was appointed on the post of Staff Nurse on 30-3-1981 and she was promoted to the post of Nursing Sister on 6-12-2010 and had become entitled to became the maximum pay scale of Rs. 9300-34800 + G-4200 with effect from 1-7-2011 and by this promotion no additional pecuniary benefit was going to be accrued to her. It is further submitted that even otherwise the respondent No. 7 has been erroneously promoted under the SC category but it is nobody case that because of her promotions, some other person of the SC category has been deprived of promotion as no other person, even of SC category has raised any objection regarding the respondent No. 7’s promotion. It is further submitted that the respondent No. 7 was promoted in the routine manner on 27-11-2015, pursuant to the decision of the Regional Promotion Committee by which one Smt. Shashidas of unreserved category, whose name also appears at serial No. 10 and who had completed only four years on the post of Nursing Sister was also promoted to the post of Matron regarding which no objection has ever been raised either by the petitioner or by any other person. Counsel has also submitted that the respondent No. 7 has never claimed her promotion under the SC category and has also written to the respondent No. 6 that her category be changed and a letter (undated), regarding which was also sent to the respondents which has also been filed on record. On this letter (undated), further action has also been taken by the respondent No. 6 vide its memo dated 5-2-2022 which is also placed on record. 11. Counsel has also submitted that the respondent No. 7 is not a close relative of the State Finance Minister Shri Jagdish Devda. On this letter (undated), further action has also been taken by the respondent No. 6 vide its memo dated 5-2-2022 which is also placed on record. 11. Counsel has also submitted that the respondent No. 7 is not a close relative of the State Finance Minister Shri Jagdish Devda. Neither the respondent No. 7 knows him nor does he know her and his name is deliberately and falsely dragged into the controversy. It is submitted that the respondent No. 7 is working on the post of Matron since last more than six and a half years and this petition has been filed only recently to malign her reputation as she is due to retire on 31-8-2022 only. 12. Shri Manish Nair, learned Government Advocate for the respondent/State, on the other hand, has also opposed the prayer of the petitioner and it is submitted that no case for interference is made out as the petitioner has no locus to file the petition. It is submitted that the State has also issued a charge sheet to the respondent No. 7 and in such circumstances; any order passed by this Court would directly prejudice the interest of the respondent No. 7 whose case is yet to be decided on merits, after giving due opportunity of hearing and after obtaining her reply to the charge-sheet. 13. Shri Nair has also placed the record of the D.P.C. in terms of the order passed by this Court on 10-8-2022 and it is submitted that all the issues are to be tried in the Departmental Enquiry only and, hence, the petition deserves to be dismissed and it is also submitted that because of the promotion of the respondent No. 7, she has not obtained any pecuniary benefit and no prejudice is caused to any other person. 14. Heard the counsel for the parties and also perused the record as also the copy of the charge sheet issued to the respondent No. 7. 15. 14. Heard the counsel for the parties and also perused the record as also the copy of the charge sheet issued to the respondent No. 7. 15. From the record, it is apparent that the petitioner has alleged mala fide on the part of the respondents and has also alleged that the respondent No. 7 Marjari Ghorpade, is a close relative of the Finance Minister of Madhya Pradesh, Shri Jagdish Devda and because of her close ties with Shri Devda, the respondent No. 7 has been given the undue benefit of promotion; whereas, Shri Jagdish Devda has not even been made as a party to the petition to rebut the allegations levelled by the petitioner. This Court finds that if it were to pass any order in favour of the petitioner on merits, on the pleadings in the petition, it would be certainly to the prejudice of Shri Jagdish Devda, who is not a party in this petition, thus, on this ground only the petition is liable to be dismissed, i.e., for non joinder of necessary party. 16. Even otherwise, it is also found that a charge sheet has already been issued to the respondent No. 7 in the departmental enquiry in respect of the grounds which are in issue before this Court in this writ petition. The charge sheet has been issued under section 14(3) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules 1966, which provides a detailed procedure for conducting the departmental enquiry including the right of the parties to lead evidence. It is true that the charge sheet has been issued only recently, and it might be that because of this petition only that the respondent/Department has issued the charge sheet to the respondent No. 7 but that is in itself cannot be a reason to deprive the respondent No. 7 to participate in the Departmental Enquiry. 17. It is also found that the petitioner has not filed any rejoinder to the reply filed by the respondent No. 7 on 10-8-2022 and the fact that the respondent No. 7 has averred that she is not a relative of the Finance Minister Shri Jagdish Devda and the respondent No. 7’s contention that the petitioner is acting at the behest of one Ms. Tanuja Raikwar’s husband Ashwin Katariya has also gone unrebutted. Tanuja Raikwar’s husband Ashwin Katariya has also gone unrebutted. And the fact that no additional pecuniary benefits have accrued to the petitioner because of her promotion to the post of Matron and also that she has not usurped the right of any other deserving candidate of reserved category, this Court is not inclined to exercise its discretion and use its extraordinary powers under Article 226 of the Constitution of India and to issue a writ of Mandamus or quo warranto to set aside the order of promotion issued to the respondent No. 7 dated 27-11-2015 which is due to come to an end in two days only and regarding which cognizance has already been taken by the respondents/Department in the Departmental Enquiry against the respondent No. 7. The decision relied upon by Shri Patne do not envisage such a scenario as in the present petition and as such on factual matrix, they are distinguishable, in view of the same, the petition is liable to be dismissed. 18. This Court is also of the opinion that the manner in which Shri Patne has stressed upon this Court to hear the petition finally despite the fact that the Departmental Enquiry has been already been initiated against the respondent No. 7, and there appear to be no prejudice caused to the petitioner, and also looking to the reliefs sought in the petition, it would not have made any difference had it been decided after some time. This also leads this Court to a conclusion that this petition has been filed with mala fide intentions, with a private agenda of harassing the respondent No. 7 only and in the process to score some political points for himself which is also apparent from para 5.2 of the petition which reads as under : – “That, the petitioner is a public spirited citizen and he is interested and concern to see that an usurper does not occupy a public post by practicing fraud and misrepresentation upon the public authorities which also amounts to fraud upon the Constitution le. the supreme law of land. The petitioner works for the upliftment of marginalized section of society belonging to Scheduled Caste and Scheduled Tribe under the banner of Bheem Army Bharat Ekta Mission.” 19. the supreme law of land. The petitioner works for the upliftment of marginalized section of society belonging to Scheduled Caste and Scheduled Tribe under the banner of Bheem Army Bharat Ekta Mission.” 19. Thus, there was no urgency to hear this petition today only when other more important matters and far more older matters were already fixed before this Court for motion and for final hearing (most of which are more than a decade old), in such circumstances, the petition is liable to be dismissed with exemplary cost, considering the fact that precious time of this Court which could have been utilised for some other needy persons, has been wasted by the counsel for the petitioner, especially when the Court is also running short of judges. Thus, the petition is hereby dismissed with an exemplary cost of Rs. 100,000/- (Rupees One lakh only) to be paid by the petitioner within a period of 45 days from today, in the account of High Court Legal Aid Services Authority, Indore and the receipt of which is to be filed in the Registry of this Court immediately thereon. If the amount is not so paid by the petitioner, the Collector Mandsaur is directed to recover the same from the petitioner as land revenue and submit its compliance report before the Registry of this Court.