The court affirmed that denial of charge to an eligible candidate based on arbitrary grounds violates principles of legitimate expectation and is subject to judicial review under Articles 14 & 16 of the Constitution.

ORDER :

1. This writ petition is filed being aggrieved of order dated 05.10.2023 (Annexure P-15) issued by the Dy. Secretary to the State Government giving charge of the post of Registrar, State Homeopathy Council in favour of the private respondent Dr. Anita Gupta.

2. Petitioner's contention is that vide Annexure P-6, an advertisement was issued by the Commissioner, Aayush on 23.08.2023, thereafter, applications were invited, these applications were scrutinized and as per the requirement of qualifications prescribed in the advertisement to possess a Post Graduate Degree from a recognized University in Homeopathy and five year's administrative experience. Besides preference was to be given to a Law Graduate, petitioner alongwith the private respondent and another person had made application for giving charge of the post of the Registrar.

3. After scrutinizing the aforesaid applications the Committee which was constituted by the Commissioner, Aayush as contained in Annexure P-8, petitioner was found to be the only eligible candidate but instead of giving charge to the petitioner, charge has been handed over to the private respondent and that being the bone of contention, it is submitted that once a legitimate expectation was raised, applications were invited, petitioner was found to be eligible candidate and then not giving charge to the petitioner is arbitrary and illegal.

4. Shri Agarwal, learned counsel for the petitioner, placing reliance on the reply filed by the State alongwith I.A. No. 1063 of 2024 on 22.01.2024 submits that the only ground which has been taken in the said reply to deny charge to the petitioner is that petitioner was over age as per the requirements of the Recruitment Rules. It is mentioned in para-8 of the said reply that the relevant statute i.e. M.P. Homeopathy Parishad Officers and Other Servants (Recruitment and Conditions of Services) Rules, 1996, prescribes minimum and maximum age for the candidate to be appointed as 25 & 35, respectively and in the present case, no candidate falls within this statutory bracket and when this position was realized, the process was halted, because the supremacy of a statute governing the recruitment was not intended to be ignored.

5. In view of such reply, it is submitted that when a fresh advertisement was issued which is not disputed by either the private respondent or by the State whereby qualifications pertaining to age limitation was removed, then, the advertisement as has been produced by the respondents/State wherein the column of minimum and maximum age has been deleted, then there was no justification for the State to deny appointment or handing over charge of the post of the Registrar despite recommendations of the Scrutiny Committee finding the petitioner to be the only eligible candidate to hold the charge of the post of Registrar.

6. Reliance is placed on the judgment of Co-ordinate Bench in W.P. No. 27876 of 2022 (Dr. Jogendra Singh Thakur Vs. State of M.P. & Ors.) decided on 04.10.2023, to point out that in the light of decision of Hon'ble Supreme Court in the case of E.P. Royappa Vs. State of Tamil Nadu & another AIR 1974 SC 555 which was not considered by the Co-ordinate Bench of this High Court while deciding Dr. V.B. Singh Baghel Vs. State of M.P. (2016) 3 MPLJ 152 on which reliance is placed by Shri Vivek Sharma learned Dy. Advocate General has been distinguished by the same Bench, it is held that action of withdrawal of officiating charge can be subject matter of judicial review on the anvil of Article 14 & 16 of the Constitution. Although, the said action cannot be called in question in the teeth of Article 311 of Constitution. Reliance is also place on the decision of this Court dated 31.03.2023 passed in W.P. No. 2107 of 2023 (Dr. Narendra Nath Mishra Vs. State of M.P. & Ors.). Reliance is also placed on the judgment of Supreme Court in the case of R.S. Mittal Vs. Union of India, 1995 Supp. (2) SCC 230 where in the ratio of the law is that where th