Prakash Shrivastava, J.:— Heard finally with consent.
2. This writ petition has been filed by the petitioner challenging the order dated 2.6.2015, whereby the charge of the civil surgeon-cum-Chief Hospital Superintendent, District Hospital Mandsaur has been given to the respondent No. 6.
3. In brief, the case of the petitioner is that he is the senior most specialist, therefore, vide order dated 4.4.2008 he was given the charge of the post of civil surgeon-cum-chief hospital superintendent, Mandsaur but by the impugned order the said charge has been given to respondent No. 6, though the respondent No. 6 is junior to the petitioner. The respondents have filed their reply taking the plea that considering the seniority from the date of entry into service, the respondent No. 6 is senior and that several cases are registered against the petitioner, therefore, charge has been given to the respondent No. 6.
4. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the charge of the civil surgeon-cum-chief hospital superintendent in the District Hospital is to be given in terms of the provisions contained in the Circular dated 30.12.2003 As per the said circular the senior most specialist is to be given the said charge but the rule of seniority is not inflexible rule and the same can be deviated in case if the departmental enquiry or criminal case containing the severe charges are pending against the senior most specialist.
5. So far as the seniority of the petitioner and the respondent No. 6 is concerned, it has been pointed out that the date of entry into service of the petitioner is 29.10.1991 and that of the respondent No. 6 is 29.5.1982 It has further been pointed out that the petitioner belongs to the reserve category, therefore, he had got the accelerated promotion as Specialist in 2003, whereas the respondent No. 6 had got the regular promotion as Specialist in 2008. A plea has been raised that applying the catch up principle as settled by the Supreme Court in the matter of Ajit Singh v. State of Punjab, reported in 1999 SCC (L&S) 1239, the respondent No. 6 is senior as Specialist. Though this Court is not going into the dispute of seniority, yet counting the seniority from the date of entry into the service the respondent No. 6 has longer length of service than the petitioner.
6. That apart the record reflects that various departmental inquiries have been initiated against the petitioner and the criminal cases are under investigation. The affidavit of the OIC dated 24.7.2015 reveals that when the charge of civil surgeon-cum-CHS was given to the petitioner in 2008, the departmental enquiry was pending against him, hence from the very inception the appointment of the petitioner as Civil Surgeon was contrary to the Circular dated 30.12.2003 It has also been disclosed that the complaint case has been registered against the petitioner and the same is pending before the CJM Mandsaur.
7. In the additional reply of the respondent No. 6 it has also been disclosed that the charge sheet was issued to the petitioner on 26.5.2008 for the misconduct, in which vide order dated 15.9.2009 the major punishment of downgrading him to minimum of the timescale along with recovery was imposed and thereafter the said order was modified in appeal by imposing a lesser penalty. The record reflects that serious allegations of financial irregularities were made against the petitioner in the course of time. The record further reflects that a probe by the Economic Offence Wing (EOW), Bhopal is also pending against the petitioner and the complaint alleging commission of offence by the petitioner under Section 420 read with Section 120-B of the IPC is pending before the CJM, Mandsaur.
8. In view of the aforesaid, I am of the opinion that no error has been committed by the official respondents in passing the impugned order dated 2.6.2015 and giving charge of the Civil Surgeon-cum-Chief Hospital Superintendent to the respondent No. 6.
9. This Court considering the similar circumstances in W.P No. 4151/2015 in the matter of Dr. B.R Ratnakar v. Public Health and Family Welfare Department vide order dated 16.11.2015 while dismissing the writ petition, had held as under:-
“Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that by the order passed by the State Government in the name of the Governor dated 19.5.2015, the petitioner was given the charge of the Civil Surgeon-cum-Chief Hospital Superintendent. Thereafter certain allegations were found against the petitioner, therefore, the Collector had passed the impugned order dated 22.6.2015 taking the charge of the said post from the petitioner and giving it to the respondent No. 4. The Collector on 19.6.2015 had sent the communication to the Principal Secretary disclosing the enquiry report and allegations against the petitioner and making a request to handover the charge of the said post to some other doctor. After sending that communication the Collector had passed the impugned order dated 22.6.2015 The order dated 22.6.2015 has duly been approved by the State Government vide order dated 2.7.2015
Considering the circumstances which are disclosed in the impugned communication dated 19.6.2015, no error is found in the impugned orders. The record reflects that an enquiry in respect of receiving bribe for issuance of disability certificate was conducted and a finding against the petitioner in the enquiry report has been recorded by the Joint Collector and the report has been forwarded to the Principal Secretary. The respondents have also placed on record the orders dated 7.12.2009 whereby the petitioner was imposed punishment of withholding of one increment without cumulative effect, order dated 18.3.2015 again inflicting the same punishment, the report of the Human Rights Commission dated 14.3.2012 recording findings against the petitioner which adequately furnishes the ground for taking charge of the post of In-charge Civil Surgeon from the petitioner. Counsel for the petitioner has placed reliance upon the Circular dated 30.12.2003 in support of his submission that the petitioner is senior to respondent No. 4, therefore, he has right to be appointed as In-charge Civil Surgeon but the said circular reveals that the rule of seniority cannot be applied in case if there are serious allegations against a doctor or in case where the Collector feels that sufficient other reason exists for not giving the charge to the senior most doctor. The procedure which has been prescribed in the Circular dated 30.12.2003 for departing the rule of seniority in exceptional circumstances by sending the proposal in this regard, has duly been followed by the Collector in the present case.
Considering the aforesaid circumstances, I am of the opinion that no illegality has been committed by the Collector in passing the impugned order dated 22.6.2015 and the State Government has rightly approved the said order, vide order dated 2.7.2015
Hence the writ petition is found to be devoid of any merit which is accordingly dismissed.”
10. The case of the present petitioner is similar and the action of the respondents is in accordance with the conditions stipulated in the Circular dated 30.12.2003, therefore, no ground for interference in the impugned order is made out.
11. The writ petition is accordingly dismissed.
12. C.C as per rules.
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