Heigrujam Kulachandra Singh vs The State of Manipur & ors.

Heard Ms. Th. Babita, the learned counsel appearing for the petitioner; Shri R.S. Reisang, the learned Sr. Government Advocate assisted by Th. Sukumar Singh, Addl. Government Advocate for the MPSC; Shri H. Debendra, the learned Government Advocate appearing for the State respondents and Shri Kh. Tarunkumar, the learned counsel appearing for the private respondent.

In the instant writ petition, the petitioner has prayed for issuing a direction directing the respondents to amend the Manipur Police Telecommunication Service Rules, 2015 by deleting the proviso below sub-rule (i) and (ii) of Rule 28 (a) of the said Manipur Police Telecommunication Service Rules, 2015 (hereinafter referred to as "the Service Rules, 2015"). 3. 1. According to the petitioner, he was initially appointed as the Assistant Technical Maintenance Officer (hereinafter referred to as "the ATMO") in Manipur Police Wireless Radio (Grid) vide order dated 04-09-1986 issued by the Joint Secretary (Home), Government of Manipur and after having served for more than eleven years as the ATMO, the petitioner was appointed on promotion to the post of Deputy Director (Wireless) vide Government order dated 08-05-1997. The next higher promotional post from the post of Deputy Director (Wireless) was the Superintendent of Police (Wireless) which was later up-graded and re-designated as the Director (Wireless) in the rank and status of the Deputy Inspector General of Police. In the meantime, the post of Deputy Director (Wireless) was also re-designated as the Joint Director (Wireless) on the introduction of the Manipur Services (Revised Pay) Rules, 1996 and accordingly, the petitioner became the Joint Director (Wireless) w.e.f. 01-01-1996.

3.2. On account of the said up-gradation of various posts as aforesaid, a peculiar situation did crop up by which the Government of Manipur felt the need of reorganisation of the Manipur Police Telecommunication System with a view to implement the Technical Standards Committee Report of the Directorate of Police Telecommunication, Directorate of Coordination (Police Wireless), Ministry of Home Affairs, Government of India which remained unimplemented in the State since 1988. Accordingly, the Police Department, Manipur vide its letter dated 03-10-2006 submitted a report/proposal to the State Government for revamping of Manipur Police Wireless Organisation, the main object of which was to constitute the Manipur Police Telecommunication Service as a separate cadre to be manned by qualified Telecommunication Engineers and Technical hands and the draft Manipur Police Telecommunication Service Rules was appended thereto as Annexure - C. On 11-07-2008, a Committee of Officers chaired by the Chief Secretary, Manipur decided to accept the proposal "Report on Revamping of Manipur Police Wireless Organisation" and when the said report/proposal was placed before the Cabinet which its meeting held on 03-11-2010 approved the revamping of Manipur Police Wireless Organisation as per the said proposal and pursuant thereto, the Home Department issued notifications dated 21-11-2011 and 05-03-2012, because of which the Manipur Police Wireless came to be known as the Manipur Police Telecommunication Organisation with the result that the posts of the erstwhile Director and Joint Director were re-designated as the Deputy Inspector General (Telecom) and Superintendent of Police (Telecom) w.e.f. 01-01-2012. In consequence of the said re-designation of the posts, the petitioner became the Superintendent of Police (Telecom).

3.3. After certain posts including the Deputy Inspector General (Telecom) and Superintendent of Police (Telecom) being re-designated as aforesaid, the framing of new Recruitment Rules thereof became necessary and accordingly, the Home Department submitted a consolidated proposal to the Department of Personnel & Administrative Reforms (Personnel Division), Government of Manipur vide its letter dated 11-11-2011 for framing/amendment of the Recruitment Rules. The Department of Personnel & Administrative Reforms after due consideration/examination of the proposal of the Home Department sent the draft Manipur Police Telecommunication Service Rules to the Manipur Public Service Commission (hereinafter referred to as "the MPSC") for a decision. Rule 28 which is relevant, deals with promotion to Supertime Grade of Deputy Inspector General (Telecom) and it reads as under:

"28. Promotion

A member of the Manipur Police Telecommunication Service shall be eligible for promotion to respective higher grades on fulfilment of the conditions as shown below:-

(a) Supertime Grade:

A member of the service in the officer''s grade with a minimum of 17 years of regular service out of which 3 years as SP (Telecom) or equivalent who fulfils the following:-

(i) B.E./B.Tech. in (Telecommunication/ Electronics/Information Technology) or equivalent with minimum 60% marks failing which M.Sc. (Physics/Applied Physics) with specialization in Wireless/Electronics with 60% marks in aggregate and not less than 70% marks in Electronics subject from a recognized University. The degree should be recognized by AICTE (All India Council for Technical Education).

(ii) Minimum 3 (three) years experience in supervisory level as SP (Telecom) or equivalent after passing Advanced Communication Course (ACC0 for Gazette Officers from Central Police Radio Training Institute (CPRTI), Ministry of Home Affairs."

The MPSC returned the draft rule with a proposal of addition a proviso to Rules 28 (a) and on receipt of the said draft rule as proposed by the MPSC, the Department of Personnel & Administrative Reforms (Personnel Division) notified the Manipur Police Telecommunication Service Rules, 2015 on 09-02-2015. The proviso to rule 28(a) reads as under: - " Provided that the educational and other qualifications mentioned at (a)(i) and (ii) above, shall be applicable to the fresh recruit officers under this rule only."

Being aggrieved by the said proviso being added to the Rule 28 (a) (i) and (ii) of the Manipur Police Telecommunication Service Rules, 2015, the instant writ petition has been filed by the petitioner.

In the affidavit-in-opposition filed on behalf of the respondent No. 4, the Home Department, a preliminary objection has been raised on the ground that since the petitioner was very much eligible, qualified and suitable for appointment on promotion to the post of Deputy Inspector General (Telcom) Supertime Grade under the Service Rules, 2015, he cannot be said to be an aggrieved person and therefore, he has no locus standi to challenge the same. It is also stated that the proposal for Revamping the Manipur Police Reorganisation was placed before the State Cabinet and although the draft Manipur Police Telecommunication Service Rules was also considered in principle, it cannot be assumed that the same was approved by the State Cabinet. When the draft rule was sent to the MPSC, it approved the same by adding the proviso to sub-rule (i) and (ii) of Ruile 28(a) and on receipt of the said draft rule, the Department of Personnel & Administrative Reforms forwarded it to the Home Department for its comments. Since the Home Department had no objection to the draft rule as approved by the MPSC, the same was notified by way of publication. It is further stated that the petitioner did not approach this court with clean hands for the reason that he did not disclose the fact that a writ petition being W.P. (C) No. 650 of 2012 filed by him was still pending before this court. The framing of the rules under Article 309 of the Constitution is legislative in character and since no right of the petitioner is affected by the said recruitment rules, there is no basis for questioning the validity and correctness of the recruitment rules. The MPSC also filed an affidavit wherein it is stated that the educational qualifications prescribed in Rule 28 (a) (i) (ii) of the Service Rules, 2015 were not there in the then recruitment rules for appointment to the post of ATMO/Dy. Director (Wireless) and that the MPSC, keeping in mind the fact that the new educational qualifications might affect serving officers who did not secure 60% marks in B.E/B.Tech or in M.Sc (Physics/Applied Physics) at their initial appointment, proposed the insertion of the proviso to Rule 28(a) of the Service Rules, 2015 to safeguard their rights and in other words, the serving officers be exempted from fulfilling the new educational qualifications at the time of consideration for appointment on promotion to Supertime Grade.

Admittedly, the main prayer in the writ petition is to direct the respondents to amend the Service Rules, 2015 and the writ petition being devoid of any merit, is liable to be dismissed, so far as the said prayer is concerned for the reason that the power to amend the provisions of a rule lies with the State Government and it being a matter of policy decision, the Court is expected not to interfere with it. But Ms. Th. Babita, the learned counsel appearing for the petitioner, during the course of hearing, submitted that at the time when the draft rule was approved by the State Cabinet, the said proviso was not there in the said draft rule and it is only the MPSC which had proposed the insertion of the proviso and the draft rule as approved by the MPSC with the addition of the proviso, was notified by the Department of Personnel & Administrative Reforms without obtaining approval thereof from the State Cabinet. In support of her contention, the learned counsel appearing for the petitioner has relied upon the decision rendered by the Hon''ble Supreme Court on 03-09-2015 in Lloyd Electric and Engineering Limited Vs. State of Himachal Pradesh & ors. in Civil Appeal No.6838 of 2015 wherein one of the questions was as to whether the Excise and Taxation Department could take a different stand when the Cabinet had taken a policy decision to extend its 2004 Industrial Policy in the matter of CST concession to the eligible units beyond 31-03-2009, the Hon''ble Supreme Court held that the Excise and Taxation Department could not take different view. What is given by the right hand cannot be taken by the left hand. The Government shall speak only in one voice. It has only one policy. The Departments are to implement the Government Policy.

Shri H. Devendra, the learned Government Advocate submitted that although the proposal for revamping of Manipur Police Wireless Organisation was approved by the Cabinet, the draft rule was not approved by the Cabinet for the reason that the same was not placed before it at all as is evident from the Memorandum for Cabinet. He further submitted that the draft rule with the proviso as proposed by the MPSC, was approved by the Department of Personnel & Administrative Reforms which is the competent authority in terms of the Rules of Business of the Government of Manipur. Shri R.S.Reisang, the learned Senior Government Advocate appearing for the MPSC fairly submitted that the proviso was added to the Rule 28 (a) of the Service Rules, 2015 at the instance of the MPSC which is compulsorily required to be consulted as has been held by the Hon''ble Gauhati High Court in Th. Basantakumar Singh Vs. State of Manipur & ors., reported in 2011 (2) GLT 584. Shri Kh. Tarunkumar Singh, the learned counsel appearing for the private respondent supported the arguments advanced by the learned Government Advocate and as regards the maintainability of the writ petition, both the Government Advocate and the learned counsel appearing for the private respondent have relied upon the decisions rendered by the Hon''ble Supreme Court in Anand Sharadchandra Oka Vs. University of Mumbai, reported in (2008) 5 SCC 217 and Ayaaubkhan Noorkhan Pathan Vs. State of Maharastra, reported in (20130 4 SCC 465.

It is not in dispute nor can it be disputed that the State Government is conferred power under the provisions of the Article 309 of the Constitution to enact law or make rules under the proviso thereof regulating the service conditions of its employees. The contention of the learned counsel for the petitioner is that after the State Cabinet did take a decision approving the draft rule, the subsequent amendments made therein, as proposed by the MPSC, was not brought to the notice of the State Cabinet for consideration and on the contrary, the Department of Personnel & Administrative Reforms, Government of Manipur had approved it. On the other hand, the stand of the State Government is that the draft rule was not placed before the State Cabinet at all for approval and what was placed before the State Cabinet was the one detailed in the Memorandum for Cabinet wherein it is nowhere mentioned about the said draft rule. The Department of Personnel & Administrative Reforms, Government of Manipur which is the only competent authority as per rules of business, did approve the draft rule with amendments as proposed by the MPSC and only thereafter, the Service Rules, 2015 was duly notified by it. In view of this rival contention, this court called for the records from the State Government which was placed before this court for perusal by the learned Government Advocate and on perusal thereof, it is seen that the Memorandum for Cabinet did not mention anything about the draft rule being placed before the Cabinet for approval and the proposal of revamping of Manipur Wireless Organisation as at para 3 & 4 thereof was placed before the Cabinet for consideration and approval which mainly talk about re-structuring of the MPR cadre, establishment of mini workshop and additional financial liability. It is no doubt true that in the report prepared by the Police Department for revamping of Manipur Wireless Organisation, a copy of the draft rule was appended thereto as Annexure-C but when the Memorandum for Cabinet was submitted, a copy of the said draft rule was not annexed therewith at all, may be, for this reason that in the affidavit filed on behalf of the State Government, it has been stated that the draft rule was not placed before the Cabinet for approval but it was considered by it in principle. On further perusal of the said records, it is found that when the draft rule with amendments as proposed by the MPSC was received, the Department of Personnel & Administrative Reforms sent the same to the Home Department for its comment and since the Home Department did not have any objection, the Department of Personnel & Administrative Reforms approved the same and notified it. There seems to be no wrong in the Service Rules, 2015 as regards the approval being granted by the State Government and at the most, the addition of a proviso to Rule 28 (a) can be said to be the result of a poor drafting. The said proviso states that the educational and other qualifications mentioned at (a) (i) and (ii) of Rule 28, shall be applicable to the fresh recruit officers under this rule only. In other words, the intent of proviso is to make the said qualifications mentioned at (a) (i) and (ii) of Rule 28 inapplicable to the officers being considered for promotion to Supertime Grade and if that be so, instead of adding the proviso to Rule 28, the educational qualifications mentioned at (a) (i) and (ii) could have been deleted so as to avoid any confusion because the requisite qualifications for appointment at the lowest grade of the services have been specifically prescribed at Rule 7. It may be noted that there is no direct recruitment for appointment, so far as the Supertime Grade is concerned and after the proviso being added, the only qualification which would remain unchanged, is that one has to be a member of the service in the officer''s grade with a minimum of 17 years of regular service out of which 3 years as SP (Telecom) or equivalent. In view of the above, the contention of the learned counsel for the petitioner has no substance with the result that the decision of the Hon''ble Supreme Court in Lloyd Electric and Engineering Limited Vs. State of Himachal Pradesh (supra), relied upon by her, will not be applicable to the facts of the present case. Having found that there is no merit in the case, the writ petition deserves dismissal and there is no need of referring to various decisions cited on behalf of the petitioner and the respondents.

For the reasons stated hereinabove, the writ petition fails and is accordingly dismissed with no order as to costs.