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2023 DIGILAW 113 (MP)

Anil Kumar Khare v. State of M. P.

2023-01-23

VIVEK AGRAWAL

body2023
ORDER 1. Petitioner's contention is that the Incharge District Education Officer, Tikamgarh has passed the impugned order of his suspension dated 3.1.2023 but in the light of the Full Bench Decision of this Hon'ble High Court in Girja Shankar Shukla v. Sub Divisional Officer, Harda 1973 J.L.J 405, an Incharge District Education Officer is not entitled to pass an order of suspension, therefore, the impugned order dated 3.1.2023 be set aside. Parity is sought from the orders, which have been annexed by the petitioner as Annexure P/6 onwards. 2. Learned Government Advocate for the State in his turn submits that vide Gazette Notification Dated 20.12.2022, it is provided as under:- ''(d) In case, if it is necessary to fill up vacancies of the higher post immediately and the suitable Government Servant, who holds qualification required for higher post are available and eligible on basis of seniority-cum-merit then the appointing authority of the concerned post may issue an order for officiating of higher rank until further orders. The officers so ordered to officiate at such higher rank, shall have no seniority or pay of such higher rank of such higher post till such officer officiates on such higher post. Such officiating officer shall exercise all the powers of such higher post as exercisable by an officer promoted to such higher rank to which he is currently officiating.'' 3. Learned Government Advocate for the State submits that in view of the said amendment, a Coordinate Bench of this Court has also disposed of Writ Petition No.551/2023 (Shiv Shankar Tiwari v. State of Madhya Pradesh & Others) vide order dated 16.1.2023 giving liberty to the petitioner to file appeal against the said order. He also submits that the order of appointment of respondent No.3 nowhere reflects that he was given posting as District Education Officer on the basis of his seniority or pursuant to the Notification. 4. After hearing learned counsel for the parties, I am of the opinion that once a Gazette Notification is published on 20.12.2022, which provides that incase if it is necessary to fill up vacancies of the higher post immediately and the suitable Government Servant, who holds qualification required for higher post are available and eligible on basis of seniority-cum-merit then the appointing authority of the concerned post may issue an order for officiating of higher rank until further orders. The officers so ordered to officiate at such higher rank, shall have no seniority or pay of such higher rank of such higher post till such officer officiates on such higher post. Such officiating officer shall exercise all the powers of such higher post as exercisable by an officer promoted to such higher rank to which he is currently officiating. 5. In view of the Gazette Notification Dated 20.12.2022 and the order passed by the Coordinate Bench of this Court in Writ Petition No.551/2023 (Shiv Shankar Tiwari versus State of Madhya Pradesh & Others) on 16.1.2023, I am of the opinion that it is not open for this Court to conduct a roving enquiry as to whether the respondent No.3 was given charge as per his seniority or merit or not because there is deeming fiction in this regard, therefore, once it is held that the respondent No.3 was given charge and in terms of the Gazette Notification Dated 20.12.2022, such officiating person holdilng current charge is also entitled to exercise all powers of such higher post and merely on the ground of lack of charge, no indulgence is called for in the impugned order dated 3.1.2023. However, the petitioner will be free to file an appeal in accordance with Rule 23 of the Madhya Pradesh Civil Services (Classification, Control And Appeal) Rules, 1966. If such an appeal is filed by the petitioner within fifteen days from today then without adverting to the aspect of limitation, the appellate authority shall consider and decide such appeal on its own merits within a further period of thirty days. This Court has not opined anything on the merits of the case. In above terms, this writ petition is disposed of.