IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9436 of 2002 KAPIL MUNI DUBEY, son of Sri Haridwar Dubey, resident of village and Post Baraka Rajpur, Police Station Simri, District Buxar. Versus 1.THE STATE OF BIHAR 2.The Director, Department of Health, Government of Bihar, Patna. 3.Civil Surgeon-cum-Chief Medical Officer of District Buxar at Buxar. 4.Incharge Medical Officer, Primary Health Centre at Simri under District Buxar. 5.Gorakh Nath Prasad, Basic Health Worker at Primary Health Centre at Simri under District Buxar. ----------- 3 21/6/2010 Heard counsel for the petitioner and counsel for the State. All said and done, following prayer of the petitioner in this writ application, “That this is an application for issuance of an appropriate writ in nature of certiorari to quash the order passed by the Civil Surgeon Cum Chief Medical Officer, Buxar (the Resondent no.3) vide letter no. 851 dated 11.8.2000 as contained in Annexure-5 whereunder and whereby the petitioner order for additional charge of Sanitary Inspector of Simri (as contained in Annexure 4) has been cancelled and by the same letter the Respondent no.3 has been ordered to continue Gorakh Nath Prasad (the respondent no.5) as Sanitary Inspector, Simari on the basis of the order passed by the Health Minister, Government of Bihar vide letter no.1075 Office dated 7.8.2001 and further for issuance of an appropriate writ in nature of Mandamus commanding and directing the respondent no.3 to allow to work on the post of Sanitary Inspector at Simri to the petitioner as per the order passed by the Respondent no.3 vide letter No.818 dated 03.8.2001 as contained in Annexure 4 and/or pass such other appropriate writ or writs, direction or directions, order or orders as your Lordships may deem fit and proper in the interest of Justice.” is in fact to the same effect for which he has been 2 criticizing and condemning the respondent no.5. At one point of time the petitioner, holding the post of Basic Health Worker, some how or other, though there is no statutory provision, was made Incharge of the post of Sanitary Inspector. Obviously, such arrangement was purely temporary in nature on account of some retirement of incumbent on the said post. It however appears that some one else had an eye on the said post of Sanitary Inspector and he some how also got it with the support of the Minister of the department and that is how the earlier arrangement on the post of Sanitary Inspector, continuing in favour of the petitioner, was sought to be disturbed by modifying the said order in favour of the petitioner. Counsel for the petitioner explains that the departmental Minister had no business to pass an order to this effect and the Civil Surgeon ought not to have carried the said illegal order of the Minister. In the opinion of this Court, in absence of any right of the petitioner himself to the said post of Sanitary Inspector, he cannot claim continuation on the said post of Sanitary Inspector. True it is that the manner in which the impugned order came to be passed by the Civil Surgeon by giving reference to the order of Minister of Health is in teeth of the rules of Executive business, but then that by itself would not vest any right in the petitioner to claim continuance of an equally illegal order in favour of the petitioner especially when no statutory provision has been shown to this Court by the learned counsel for the petitioner that the post 3 of Sanitary Inspector can be filled up by way of promotion from the earlier post held by the petitioner, i.e, Basic Health Worker. The fact that when the petitioner could not be promoted on the said post, automatically disqualified him to hold the post of Sanitary Inspector even for a day, because it is well settled that an interim arrangement or order for holding higher post can only be made in favour of a person who is entitled to the same. If the petitioner was/is not eligible for the post of Sanitary Inspector the order passed in his favour by the Civil Surgeon making him even incharge of Sanitary Inspector, is also a rank illegal order and at least on the basis of that he could not claim his continuation on the said post. That being so, this Court would dispose of this writ application with a direction to the Civil Surgeon, Buxar to ensure that the post of Sanitary Inspector if at all is vacant and not filled up till date, must be filled strictly in accordance with law by discontinuing any person including Respondent no.5 holding the post who is not eligible for the same. With the aforementioned observation/direction this application is dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)