ORDER

1. With the consent, finally heard.

2. This petition filed under Article 226 of the Constitution of India takeS exception to the order dated 28.11.2022 (Annexure P/2), whereby officiating charge of District Ayush Officer is withdrawn from the petitioner and given to respondent No.3.

3. The case of the petitioner is that he is holding the post of Ayush Medical Officer, whereas the respondent No.3 is a Homeopathic Medical Officer. As per the statutory recruitment rules namely M.P. Ayush Department (Gazetted) Services Recruitment rules, 2013 (Recruitment Rules), the petitioner is holding the feeder post for promotion to the post of District Ayush Officer, whereas the post of respondent No.3 is not a feeder post for the promotional post of District Ayush Officer. Although, a person having degree in homeopathy is eligible for consideration as direct recruitee District Ayush Officer, respondent No.3 cannot claim eligibility for direct recruitment for twin reasons (i) he has crossed the maximum age of 40 years and (ii) he does not have degree in the subject of homeopathy. In view of Indore Bench order passed in W.P. No.14632/2020 (Vijay Kumar Sharma v. State of M.P.) and other connected matters, the person not holding the post in feeder cadre cannot be appointed on officiating basis on the higher post.

4. Shri Aditya Veer Singh, learned counsel for the petitioner by placing reliance on a Co-ordinate Bench order passed in W.P. No.4999/2023 (Dr. Kailash Narayan Mevafarosh v. State of M.P. and others) submits that the similar controversy is decided and it was held that the additional charge of District Ayush Officer cannot be given to a person, who cannot be promoted on the said post. The case of present petitioner is better than the case of Dr. Kailash Narayan (supra) because present petitioner is senior to respondent No.3. He placed reliance on the judgment of Supreme Court in E.P. Royappa v. State of Tamil Nadu and another AIR 1974 SC 555.

5. Learned Panel Lawyer for the State supported the impugned order.

6. Shri Yuvraj Vaidya submits that petitioner cannot claim benefit of officiating promotion by filing a writ petition. The reliance is placed on the order passed by this Court in Dr. V.B. Singh Baghel v. State of M.P. (2016) 3 MPLJ 152 and in W.P. No.15333 of 2019 (Dr. Murli Manohar Agrawal v. State of M.P. and two others) decided on 30.8.2019 and in W.P. No.7965 of 2022 (Dr. B.L. Mishra vs. State of M.P. and others) decided on 6.5.2022.

7. No other point is pressed.

8. Parties were heard at length.

9. The first and foremost question needs to be decided is whether this writ petition can be entertained whereby the officiating charge from the petitioner was taken away by order dated 28.11.2022 (Annexure P/2).

10. This Court in Dr. V.B. Singh Baghel (supra) followed the judgment of apex Court in State of Haryana v. S.M. Sharma and others AIR 1993 SC 2273. The petitioner therein (S.M. Sharma) was substantively holding the post of Sub Divisional Officer (SDO) and was given the current duty charge of the post of Executive Engineer. The said charge was subsequently withdrawn from S.M. Sharma. The apex Court after considering the relevant rules came to hold that 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 to S.M. Sharma. Thus, he had no cause of action whatsoever to invoke the writ jurisdiction.

11. The view so taken in S.M. Sharma (supra) and Dr. V.B. Singh Baghel (supra) was followed by Co-ordinate Bench in Dr. Murli Manohar Agrawal (supra) and Dr. B.L. Mishra (supra).

12. Shri Adityaveer Singh, learned counsel for the petitioner has taken pains to submit that neither in S.M. Sharma (supra) nor in the aforesaid judgments of this Court, the Constitution Bench judgment of Supreme Court in the case of E.P. Royappa v. State of Tamil Nadu and another AIR 1974 SC 555 was considered. A passing reference of the judgment of E.P. Royappa (supra) in Dr. Murli Manohar