IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

JUSTICE SUJOY PAUL

ON THE 4^th OF OCTOBER, 2023

WRIT PETITION No. 27876 of 2022

BETWEEN:-

DR. JOGENDRA SINGH THAKUR S/O SHRI GOVIND

SINGH THAKUR, AGED ABOUT 41 YEARS, OCCUPATION:

WORKING AS IN CHARGE DISTRICT AYUSH OFFICER

SAGAR DISTRICT SAGAR (MADHYA PRADESH)

.....PETITIONER

(BY SHRI ADITYA VEER SINGH - ADVOCATE)

AND

1.

THE STATE OF MADHYA PRADESH THROUGH

PRINCIPAL SECRETARY AYUSH DEPARTMENT

VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

2.

THE

COMMISSIONER

AYUSH

DEPARTMENT

MADHYA PRADESH DIRECTORATE OF AYUSH

BHOPAL (MADHYA PRADESH)

3.

DR. RAJUL SINGHAI HOMEOPATHIC MEDICAL

OFFICER GOVERNMENT MEDICAL HOSPITAL

SAGAR DISTRICT SAGAR (MADHYA PRADESH)

.....RESPONDENTS

(SHRI ARNAV TIWARI - PANEL LAWYER FOR THE STATE AND SHRI

YUVRAJ VAIDYA - ADVOCATE FOR THE RESPONDENT NO.3)

This petition coming on for admission this day, the court passed the

following:

ORDER

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

1

Signed by: PARITOSH

KUMAR

Signing time: 10/6/2023

3:05:26 PM

Signature Not Verified

officiating charge of District Ayush Officer is withdrawn from the petitioner and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

vs. 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 vs. 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

vs. State of Tamil Nadu and another AIR 1974 SC 555.

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

2

Signed by: PARITOSH

KUMAR

Signing time: 10/6/2023

3:05:26 PM

Signature Not Verified

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

vs. State of M.P. and two others) decided on 30.08.2019 and in W.P.

No.7965 of 2022 (Dr. B.L. Mishra vs. State of M.P. and others) decided

on 06.05.2022.

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 vs