Ibeyaima Devi vs Registrar, Co-Operative Societies Manipur and Others

A.K. Patnaik, J.—In this application under Article 226 of the Constitution, the Petitioner has challenged the order dated 19.3.90 of the Registrar of Cooperative Societies, Manipur, Imphal, promoting the Respondent Nos. 3, 4 and 5 from the posts of Lower Division Clerks to the posts of Upper Division Clerks on regular basis.

Facts briefly are that after passing the PUC examination, the Petitioner was appointed on regular basis as Lower Division Clerk on 11.1.82 in the co-operation Department of Government of Manipur and she passed the examination of office procedure on 14.11.83. The Respondent Nos 3, 4 and 5 who were graduates were appointed as Lower Division Clerks in the said department on 20.5.83 and they passed the examination of office procedure on 14.11.83. In the seniority list prepared and finalised by the Registrar of Co-operative Societies dated 27.7.86, the Petitioner was shown in the 6th position whereas the Respondent Nos. 3, 4 and 5 were shown in the 17th, 18th and 19th position amongst the Lower Division Clerk of the Co-operation Department of Manipur. By order dated 3.11.86, the Respondent Nos 3 and 4 were appointed as Upper Division Clerks on officiating basis on the recommendation of the class-III DPC of the Co-operation Department of Manipur in its meeting held on 26.8.86 till eligible ST/SC candidates were available or the vacancies were unreserved as per the existing rules. Similarly, by order dated 6.2.87, the Respondent No. 5 was appointed as Upper Division Clerk on officiating basis on the recommendation of Class-III DPC of the Co-operation Department, Manipur, in its meeting held on 15.12.86 till eligible ST candidate was available for regular appointment. Thereafter, on 4.9.87, the Government of Manipur in the Co-operation Department created 4 posts of Lower Division Clerks by order dated 4.9.87 and a Class-III DPC was held on 18.6.88 for promotion of Lower Division Clerks to the posts of Upper Division Clerks in the Co-operation Department. On the recommendation of the said DPC held on 18.6.88, the Respondent Nos. 3, 4 and 5 were appointed by promotion to the posts of Upper Division Clerks on regular basis. The Petitioner has challenged the aforesaid order dated 19.3.90 of the Registrar of Co-operative Societies, Manipur, Imphal, promoting the said Respondent Nos. 3, 4 and 5 to the posts of Upper Division Clerks in the Co-operation Department of Manipur.

At the hearing Mr. A. Nilamani Singh, learned Counsel for the Petitioner assisted by Mr. N.B Sing learned Counsel, submitted that under the recruitment Rules notified under the notification dated 24.4.87 and framed by the Government of Manipur under proviso to Article 309 of the Constitution, the posts of Upper Division Clerk in the various departments of Government of Manipur are non-selection posts and the criteria for promotion of Lower Division Clerks to the said posts of Upper Division Clerks is on seniority-cum-merits. Since the Petitioner was senior to Respondent Nos. 3, 4 and 5, she was entitled to be considered first for promotion to the said posts and, in case, she was found unfit, the DPC would be justified in not recommending her case for promotion and to proceed for consideration of the cases of Lower Division Clerks who were junior to the Petitioner such as the respondent Nos 3, 4 and 5. In support of this submission, Mr. A. Nilamani Singh, learned Counsel for the Petitioner, cited the circular/ instruction of die Ministry of Home Affairs. No. 1/1/55-RPS, dated 17.2.55 and No. 1/4/55/RPS, dated 16.5.57 in which non-selection posts have been described as posts promotion to which are to be made by seniority subject to rejection on unfit. He also pointed out that in said circular it was clearly mentioned that while dealing with the case of non-selection posts, the DPC need not make a comparative assessment of the records officers but they should categorise as ''Fit'' or ''Not yet fit'' for promotion on an assessment of their records and the officers should be placed in the panel in order of their seniority. He further stated that as per the aforesaid recruitment rules notified under the notification dated 24.4.87, the eligibility for promotion of Lower Division Clerks to the post of Upper Division Clerks is three years of regular service in case of graduates and five years of regular service in case of undergraduates who have passed the examination of office procedure conducted by the Government of Manipur. According to him, the Petitioner was appointed on regular basis as Lower Division Clerk on 11.1.82, she had completed five years of regular service as Lower Division Clerk on 18.6.88 when the Class-III DPC was held to consider the cases of promotion from the posts of Lower Division Clerks to Upper Division Clerks. Yet the Petitioner''s case was not considered but the cases of those who are junior to her such as the Respondent Nos 3, 4 and 5 were considered first in violation of the aforesaid principle/criteria of seniority-cum- merit for promotion and the instruction/circular of the Ministry of Home Affairs. Mr. A. Nilamani Singh, learned Counsel for the Petitioner, submitted that on these facts this is a fit Case in which this Court should direct the State Respondent Nos. 1 and 2 to hold a DPC for consideration of the case of the Petitioner taking into account all her service records prior to 18.6.88 and to further direct that in case the DPC finds the Petitioner fit for promotion to the post of Upper Division Clerk, the Petitioner should be given promotion to the post of Upper Division Clerk with retrospective effect with consequential service benefits from the date on which the Respondent Nos. 3, 4 and 5 who are junior to the Petitioner as Lower Division Clerks were promoted on regular basis as Upper Division Clerks under the notification dated 19.3.90. On support of this submission, Mr. Nilamani Singh cited die judgment of the Apex Court in the case of the State of Mysore and Another Vs. Syed Mahmood and Others,

In reply, Mr. Jagatchandra Singh, learned Government Advocate, Manipur, relied on the affidavit-in-opposition filed on behalf of the Respondent Nos 1 and 2 and in particular, paragraphs- 8, 9 and 10 thereof in which it has been stated the DPC which was held on 18.6.88 did not recommend the case of the Petitioner whereas it recommended the cases of the Respondent Nos 3, 4 and 5; and that when the cases of Respondent Nos 3, 4 and 5 were considered by the DPC first, they have been appointed on officiating capacity in the posts of Upper Division Clerks and under the instruction/circular of the State Government dated 14.8.63, persons appointed in a officiating capacity to a grade were to be assigned a higher seniority than those who have been appointed later on.

I am unable to accept the aforesaid submission of Mr. Jagatchandra Singh, learned GA, Manipur. The instruction/circular of the State Government as quoted in paragraph-9 of the affidavit-in-opposition is quoted herein below:

...persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles shall be retained the relative seniority already assigned to them or such seniority as may thereafter be assigned to them under the existing orders applicable to their cases and shall enblocked be senior to all others in the grade.

It is clear from the aforesaid instruction/circular that it, applies to fixation of seniority in a grade and does not apply to promotion to higher posts. In my considered opinion, promotion to higher posts would strictly be governed by the relevant recruitment rules and in the present case, under the recruitment rules as notified under the notification dated 24.4.87, promotion to the post of Upper Division Clerks from amongst the Lower Division Clerks was to be strictly on the basis of seniority-cum-merit, the posts of Upper Division Clerks being a non-selection posts. In case, the aforesaid instruction/circular of the State Government dated 14.8.63 quoted above were to be made applicable to promotion from the posts of Lower Division Clerks to Upper Division Clerks, then the aforesaid principle/criteria of promotion on the basis of seniority-cum-merit to non-selection posts contained in the recruitment rules famed under the proviso to Article 309 of the Constitution would be negated.

It is apparent from the paragraph-10 of the affidavit-in-opposition filed on behalf of the Respondent Nos. 1 and 2 that the DPC proposed/recommended for regularisation of the officiating appointments of the Respondent Nos 3, 4 and 5 and that the cases of the said Respondent Nos 3, 4 and 5 were considered first by the DPC against the vacancies to be filled up by general candidates. This procedure adopted by the DPC was contrary to the aforesaid principle/criteria of promotion to non- selection posts of Upper Division Clerks as laid down in the recruitment rules as well as instruction/circulars of the Ministry of Home Affairs cited by Mr. A. Nilamani Singh learned Counsel for the Petitioner. As per the said principle/criteria of promotion on seniority-cum- merit as explained in the instruction/Circulars of the Ministry of Home Affairs, the case of the petitioner was senior to the Respondent Nos 3, 4 and 5 should have been considered first for promotion to the post of Upper Division Clerk and if the Petitioner was found fit she was to be promoted and only thereafter, the cases of those who were junior to the Petitioner as Lower Division Clerks such as the Respondent Nos 3, 4 and 5 were to be considered. Since this procedure have not been adopted by the DPC, I am of the considered opinion that the recruitment rules, instruction/circulars of the Ministry of Home Affairs as well as the rights of the Petitioner under Articles 14 and 16 of the Constitution of India for equality in the matters of appointment/promotion have been infringed.

Mr Jagatchandra Singh, learned GA, Manipur, further argued that under the recruitment rules as it existed prior to the recruitment rules notified under the notification dated 3.11.73 as well as the recruitment rules notified on 24.4.87, the eligibility for promotion to the posts of Upper Division Clerks from the posts of Lower Division Clerks was five years of regular service in case of under-graduates and three years of regular service in case of graduates. Accordingly, the Respondent Nos 3, 4 and 5 who were graduates became eligible for promotion on completion of three years of regular service with effect from 20.5.83, i.e. in the year 1986 whereas the Petitioner who was undergraduate became eligible for promotion to the post of Upper Division Clerk on completion of five years of regular service from 11.1.82 i.e., in the year 1987 and hence Respondent Nos. 3, 4 and 5 were senior for the purpose of promotion and had to be considered first for such promotion. He further explained that it is for these reasons that the Respondent Nos. 3, 4 and 5 were promoted earlier on officiating basis on the recommendation of the DPC under the orders dated 3.11.86 and 6.2.87.

I am unable to accept the aforesaid argument of Mr. Jagatchandra Singh, learned GA, Manipur. The appointment orders dated 3.11.86 and 6.2.87 of the Respondent Nos 3, 4 and 5 to the posts of Upper Division Clerks were on officiating basis till eligible ST/SC candidates were available as it would be clear from the language used in the said two orders. Hence, under the said orders dated 3.11.86 and 6.2.87, there were no regular promotions to the posts of Upper Division Clerks from the posts of Lower Division Clerks in accordance with the recruitment rules. Regular promotion in accordance with the recruitment rules to the posts of Upper Division Clerks were considered for the first time on 18.6.88 and hence the eligibility of the candidates, namely the Petitioner, the Respondent Nos. 3, 4 and 5 and other candidates have to be taken as on 18.6.88 and as on 18.6.88, admittedly, the Petitioner and the Respondent Nos. 3, 4 and 5 all were eligible for promotion to the posts of Upper Division Clerks from the posts of Lower Division Clerks. Once the Petitioner and the Respondent Nos 3, 4 and 5 were eligible for consideration for promotion to the posts of Upper Division Clerks from the posts of Lower Division Clerks on 18.6.88 what was to be considered next was their respective seniority in the grade of Lower Division Clerk because the principle/criteria for promotion to the posts of Upper Division Clerks from the posts of Lower Division Clerks was seniority-cum-merit Admittedly again, in the grade of Lower Division Clerks, the Petitioner was senior to the Respondent Nos 3, 4 and 5 and as per the said principle/criteria for promotion on the basis of seniority-cum-merit, the Petitioner being senior had to be considered first for promotion and not the Respondent Nos 3, 4 and 5 and it is only after the case of the Petitioner was considered that the cases of Respondent Nos 3, 4 and 5 could have been considered for promotion. This is the procedure which has to be followed in the case of promotions on the basis of seniority-cum-merit as has been held by the Supreme Court in the case of State of Mysore v. Syed Mahmood and Ors. (supra) cited by Mr. A. Nilamani Singh, learned Counsel for the Petitioner.

For the reasons stated above, I direct that the Respondent Nos 1 and 2 will within two months from the date of receipt of a certified copy of this judgment from the Petitioner, hold a DPC which will take into account die service records of the Petitioner prior to 18.6.88 and in case the said DPC finds the Petitioner fit for promotion to the post of Upper Division Clerk and the State Government accepts the recommendation of the said DPC, the Petitioner would be promoted to the post of Upper Division Clerk in the co-operation Department, Manipur, with retrospective effect from the date on which the Respondents Nos. 3, 4 and 5 were given regular promotion to the post of Upper Division Clerk under the impugned notification dated 19.3.90 and would be given all consequential service benefits accordingly.

With the aforesaid observations and direction the writ petition is allowed and disposed of. But considering the facts and circumstances of the case, the parties shall bear their own costs.