Executive instructions confer no right and cannot be enforced through a writ petition unless the posting runs contrary to any statutory provision or infringes any fundamental or statutory right of an employee.

Sujoy Paul, J.

The petitioner and the respondent No. 3 are at logger heads on the question of posting as In-charge Chief Medical and Health Officer (C.M.H.O.), Sidhi.

2. Shorn of unnecessary details the relevant facts are that the petitioner and the respondent No. 3 are substantively holding the post of Specialist in the respondent-department. The respondent No. 1 by order dated 19-05-2015 (Annexure P/2) posted the respondent No. 3 as C.M.H.O. on current charge basis. In other words, the respondent No. 3 was given officiating charge of the said post at Sidhi.

3. Shri R.N. Singh, learned Senior Counsel for the petitioner criticized this order by contending that the petitioner is admittedly senior to respondent No. 3. The petitioner's name finds place at S.No. 288 of seniority list whereas the name of respondent No. 3 finds place at S. No. 350. By placing reliance on executive instruction dated 30-12-2003, it is contended that being senior, petitioner has a preferential right to get charge on the post of C.M.H.O. Shri Singh further submits that posting of respondent No. 3 on the said post runs contrary to the said circular. He also placed reliance on document dated 11-11-2011 (Annexure R-3/7) to contend that in the manner this order is issued shows volumes about the conduct of the official respondents.

4. Shri Pushpendra Yadav, learned Government Advocate supported the order. He contended that the petitioner was posted as In-charge Civil Surgeon-cum-Chief Hospital Superintendent, Sidhi by order dated 19-05-2015 (Annexure P/1). In obedience of this order, the petitioner joined on the new place of posting. However, he did not disclose this material fact in the present petition. For this reason alone, the petition may be dismissed. He further urged that after joining at the new place of posting pursuant to Annexure P/1, the petitioner is 'estopped' from challenging the impugned order. He further submits that the petitioner has no vested or fundamental right to claim the charge of a higher post. He further submits that the petitioner was earlier given charge of C.M.H.O., Sidhi in the year 2011. During that period, epidemic of Malaria was spread and the petitioner could not control it in effective manner. Hence, a conscious decision has been taken to ignore the seniority of the petitioner and give charge to respondent No. 3. He urged that the circular dated 30-12-2003 is directory in nature and the department is free to take a decision in administrative exigency and in general public interest.

5. Shri K.C. Ghildiyal, learned counsel for the respondent No. 3 also opposed the prayer and contended that in view of the judgment of Supreme Court reported in (1993) 3 SCC 590 (State of Andhra Pradesh v. Dr. N. Ramachandra Rao and others) seniority of the specialist is to be drawn in a different manner. If seniority is drawn in consonance with the said judgment, the respondent No. 3 will be senior to the present petitioner. He borrowed the other contentions of learned Government Advocate.

6. Parties confined their arguments to the extent mentioned here in above.

7. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record.

8. This is admitted between the parties that the petitioner is senior to respondent No. 3 on the post of specialist. In nutshell, the petitioner is seeking enforcement of instructions dated 30-12-2003. The relevant portion of this letter reads as under:-

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