M. Biramangol Singh vs The State of Manipur

Heard Mr. I. Lalitkumar, learned Sr. Counsel assisted by Mr. I. Denning, learned counsel for the petiti oners. Heard also Mr. N. Kumarjit,

learned Advocate General assisted by Mr. P. Tamphamani as well as Mr. H. Debendra, learned GA for the State Respondents. Heard also Mr.

RS Reisang, learned Sr. GA assisted by Mr. Sh. Shyam Sharma, learned GA for the MPSC . Heard also Mr. A. Bimol, learned Sr. Counsel for

the private respondents. 6

These three petitions, namely, W.P.(C) No. 974 of 2014, W.P.(C) No. 975 of 2014 and W.P.(C) No. 110 of 2014 are heard together and

disposed of by this common judgment and order as similar and connected issues are raised.

The petitioners in W.P.(C) No. 974 of 2014 are challenging and seeking quashing of the Manipur Education Service Rules, 2012 more

particularly in respect of MES Grade-III posts under Schedule-I as these posts according to the petitioners are the posts are already included the

relevant Recruitment Rules of the Education (S) Department, Manipur(Assistant Inspector of Schools) Recruitment Rules, 2001 and hence, cannot

be part of the new Manipur Education Service Rules of 2012.

In W.P.(C) No. 975 of 2014, the petitioners are challenging and seeking quashing of the Manipur Education Service Rules, 2012 in respect of

MES Grade-II posts shown in the Schedule I as these posts are also included in the relevant Recruitment Rule of the Department of Education (S),

Manipur Deputy Inspector of Schools/ Head Master of High Schools Recruitment Rules, 2006 and hence cannot be part of the Manipur

Education Service Rules, 2012.

In W.P.(C) No. 110 of 2015, the petitioners are seeking quashing of the Manipur Education Service (1st Amendment) Rules, 2014 which was

notified vide Notification dated 26th Sept., 2014 and published in Manipur Gazette under No. 198 dated 4th Oct., 2014 giving retrospective

effect to the Manipur Education Service Rules, 2012 from the initial date of notification of rules.

The petitioners in W.P.(C) No. 974 of 2014 numbering 19 (nineteen) aver that they were appointed as Graduate Teachers on regular basis and

are presently holding the posts of Assistant Inspectors of Schools on incharge/ look after/utilization basis since 1996 onwards. The petitioners also

state that they are all eligible for promotion to the posts of Assistant Inspector of Schools as per the recruitment rules for the posts, namely,

Education (S) Department, Manipur (Assistant Inspector of Schools) Recruitment Rules, 2001 framed under the Proviso to Article 309 of the

Constitution of India. The petitioners in W.P.(C) No. 975 of 2014, four in number also making similar claim for promotion to the post of Deputy

Inspector of Schools/Head Master of High Schools on the basis of the old recruitment rules, namely, Department of Education (S), Manipur

(Deputy Inspector of Schools) Recruitment Rules, 2006.

It has been contended by the petitioners in WP(C) No. 974 of 2014 that there are 82 sanctioned posts of Assistant Inspectors of Schools as

mentioned under column No. 2 of the recruitment rules of 2001. It has been provided under the aforesaid recruitment rules that the said posts are

to be filled up by way of promotion in the ratio of 5:1 from Graduate Teachers and Head Masters of Primary Schools, i.e., 83% from Graduate

Teachers and 17% from Head Masters of Primary Schools. Those Graduate Teachers/Headmasters of Primary Schools having at least 5 (five)

years regular service in the grade and possessing Degree/Diploma of teaching are eligible for promotion.

The petitioners contend that the aforesaid recruitment rules are still in force and as such, since the petitioners are eligible for promotion to the

posts of Assistant Inspectors of Schools, the authorities are to take necessary steps in that regard. However, the same having been not done, some

of the petitioners (4 in number) approached the Gauhati High Court by filing a writ petition, being W.P. (C) No. 128 of 2007 for appropriate

directions, which was disposed of on 7.9.2009 with the direction to the respondents to consider the case of the petitioners as and when the post of

Assistant Inspector of Schools or equivalent is filled up, if they are found to be eligible as per the recruitment rules along with similarly situated

persons.

The petitioners contend that when the Hon''ble Gauhati High Court passed the order in the aforesaid writ petition, the High Court was referring

to the recruitment rules as existing on that date, i.e., the recruitment rules for the post of Assistant Inspector of Schools of 2001 (hereinafter

referred to as the RR of 2001) under which the posts of Assistant Inspectors of Schools are to be filled up by way of promotion from amongst the

Graduate Teachers and Head Masters of Primary Schools. Thus, while the petitioners were expecting that the respondent authorities would take

necessary steps for filling the posts under the aforesaid RR of 2001, the respondent authorities initiated the steps for filling up 41 posts by direct

recruitment through the Manipur Public Service Commission by issuing the Advertisement No. 3 of 2014 dated 17.7.2014 and Advertisement No.

8 of 2014 dated 23.7.2014 purportedly on the basis of a new recruitment rules known as the Manipur Education Service Rules, 2012 (hereinafter

referred to as the RR of 2012).

Under the new RR of 2012, the post of Assistant Inspector of Schools has been made a part of the Manipur Education Service Grade III. 50% of

the posts under Manipur Education Service Grade III are to be filled up by direct recruitment and the remaining 50% through Limited

Departmental Examination from amongst the persons who hold substantive posts mentioned in Schedule II to the said Rules. Accordingly, out of

the 82 sanctioned posts of Manipur Education Service Grade III, the respondent authorities sought to fill up 41 posts by direct recruitment and

remaining through Limited Departmental Examination.

The petitioners contend that the old RR of 2001 still govern the 82 posts of Assistant Inspector of Schools which were yet to be filled up on

regular basis and the said old RR of 2001 had not been repealed by the new RR of 2012.

Accordingly, being aggrieved, the petitioners filed a writ petition being W.P. (C) No. 599 of 2014 challenging the aforesaid advertisements

issued by the Manipur Public Service Commission and interim orders were passed on 22.8.2014 and 27.8.2014 for not proceeding to make any

appointment against the notified posts without leave of the Court. It may be stated that the said writ petition was disposed of by the High Court

along with other writ petitions on 28.03.2016 of which reference will be made later on.

The contention of the petitioners in short is that the said 82 posts of Assistant Inspector of Schools are still governed by the old RR of 2001

which have not been superseded by the Manipur Education Service Rules, 2012 under which the State authorities are proceeding to fill up the 82

posts. The petitioners contend that without creating new posts under the new RR of 2012, these 82 posts of Assistant Inspector of Schools cannot

be filled up under the new RR of 2012.

The petitioners also contend that the right created by the order of the High Court passed in W.P. (C) No. 128 of 2007 cannot be extinguished by

creation of the new RR of 2012 and the said 82 posts of Assistant Inspector of Schools governed by the old RR of 2001 cannot be transposed to

the new RR of 2012.

In these petitions, the petitioners have raised the following, inter alia, issues:-

Firstly, whether the recruitment rules, namely, Education (S) Department, Manipur (Assistant Inspector of Schools) Recruitment Rules, 2001

notified on 27th September, 2001 in respect of 82 posts of Assistant Inspectors of Schools will continue to govern the posts of Assistant Inspector

of Schools after these posts of Assistant Inspector of Schools have been categorised as Manipur Education Services Grade - III posts under the

Manipur Education Service Rules, 2012 notified on 4th December, 2012? Similarly, whether the posts of Deputy Inspector of Schools which are

categorised as Manipur Education Service Grade II posts under the Manipur Education Service Rules, 2012 will be governed by the new rules or

the earlier recruitment rules, namely, Department of Education (S), Manipur (Deputy Inspector of Schools) Recruitment Rules, 2006.

Secondly, in what manner the rights of those persons in W.P. (C) No. 128 of 2007 will be governed, under the RR of 2001 or RR of 2012?

Thirdly, even if the Manipur Education Service Rules 2012 notified on 4th December, 2012 are held to be the recruitment rules which will hold the

field as regards the posts of Assistant Inspector of Schools, do they suffer from the defect of providing for additional qualification for appointment

under promotion quota for the MES Grade III posts (Assistant Inspector of Schools)? While under the RR of 2001, those Graduate

Teachers/Headmasters of Primary Schools having at least 5 (five) years regular service in the grade and possessing Degree/Diploma of teaching

are eligible for promotion to the posts of Deputy Inspector of Schools, under the new Recruitment Rules of 2012, they must have the additional

educational qualification of Masters Degree in any subject and served not less than 10 years regular service in the State Government.

Coming to the first contention, Mr. I. Lalitkumar, learned senior counsel for the petitioners submits that the new RR of 2012 is not valid. He

submits that if one refers to the old Recruitment Rules published in the year 2001 in respect of the post of Assistant Inspector of Schools, it has

been mentioned very clearly that these rules have been framed under Proviso to Article 309 of the Constitution of India in supersession of all

previous rules in this regard. However, when the Manipur Education Service Rules, 2012 were notified on 4th December, 2012, nothing is

mentioned in the notification that the said rules were issued in supersession of the previous rules in this regard. Thus, the new RR of 2012 notified

on 4th December, 2012 cannot be said to have superseded the old Recruitment Rules notified in 2001. Learned senior counsel further submits that

when any amendment is made to supersede the existing rules, normally the new Recruitment Rules or amendment rule should specifically provide

that such new rules have been issued in supersession of the earlier rules in that regard. Since the same has not been mentioned under the new

notification issued on 4th December, 2017 nor in the new rules, it cannot be said that the new rules have superseded the earlier Recruitment Rules

notified in 2001. He therefore, contends that since the RR of 2001 had not been superseded by the RR of 2012 as contained in the Manipur

Education Service Rules, 2012, the old RR of 2001 would continue to have force of law and would continue to operate as far as those 82 posts of

Assistant Inspectors of Schools are concerned.

As regards the second contention, Mr. I. Lalitkumar, learned senior counsel for the petitioners submits that the right which has accrued by

virtue of the order passed by the High Court in W.P. (C) No. 128 of 2007 cannot be nullified or taken away by any subsequent amendment of the

relevant Recruitment Rules, more so when no valid Recruitment Rules have been framed subsequently in respect of the 82 posts of Assistant

Inspectors of Schools. He submits that the benefit granted under W.P. (C) No. 128 of 2007 to the petitioners for being considered for promotion

to the said posts of Assistant Inspector of Schools must be considered under the recruitment rules existing at the relevant time which cannot be

taken away by the subsequent RR of 2012.

Learned senior counsel further submits that even if the second Recruitment Rules notified in 2012 are deemed to be valid, yet these suffer from

a major defect by introducing a second source of direct recruitment for appointment to the post of Assistant Inspector of Schools which was not

available under the old Recruitment Rules of 2001. Under the Recruitment Rules of 2001, the post of Assistant Inspector of Schools was to be

filled up exclusively by promotion and there was no element of direct recruitment. However, when the new Recruitment Rules were notified in

2012, direct recruitment was introduced as another source of recruitment, which is not permissible, as it has adversely affected the rights of the

Graduate Teachers in the feeder grade.

Learned Senior Counsel further submits that even in respect of the promotional source of recruitment, the authorities have made additional

qualifications/higher qualification than what had been provided under old Recruitment Rules of 2001 because of which those who were earlier

eligible for promotion to the post of Assistant Inspector of Schools under the old Recruitment Rules would now be ineligible thus deprived from

being considered under the new Recruitment Rule even under promotion quota. It has been submitted that under the new Recruitment rule of

2012, 50% of the posts under Manipur Education Service Grade III (which consists of the posts of Assistant Inspector of Schools) shall be filled

by direct recruitment through Limited Competitive Examination from amongst the candidates holding the posts listed in the Schedule-II, who have

passed Masters Degree and degree of Bachelor of Education (B. Ed) and has completed 10 years of regular service in State Government. These

requirements of having Master''s Degree with B. Ed and completion of 10 years of regular service were not essential qualifications under the old

RR of 2001. This according to Mr. Lalitkumar, ld. Senior counsel is not permissible as this would go directly in contravention of the direction of

this Court in W.P. (C) No. 128 of 2007 as it would deprive such officers in the feeder post who were otherwise entitled to be considered for

promotion under the old RR of 2001 as per the decision of the High Court in W.P. (C) No. 128 of 2007. The new Recruitment Rules can be said

to be thus suffering from a vital defect as it would deprive the candidature of those persons who were governed by the decision of the Court in

W.P. (C) No. 128 of 2007 and others who were eligible under the old RR of 2001. The petitioners contend that by this act of the State authorities

in implementing the new Recruitment Rules of 2012 instead of implementing the old Recruitment Rules of 2001, the right of the persons governed

under the old RR has been deprived of, which is arbitrary and discriminatory. The petitioners accordingly, contend that the letter dated 30th May,

2014 issued by the Joint Secretary to the Manipur Public Service Commission in initiating the promotion/recruitment under the new Recruitment

Rules of 2012 ( Annexure-A/5 to A/7) is liable to be set aside. Similarly, the new Recruitment Rules of 2012 are also liable to be set aside.

The State authorities while issuing the new recruitment rules in the form of the Manipur Education Service Rules, 2012 did not specifically

provide that the earlier/former Recruitment Rules of 2001 in respect of the posts of Assistant Inspector of Schools shall stand repealed.

The State authorities later on after the implementation of the new Service Rules/Recruitment Rules of 2012 issued a Notification on 26.9.2014

published in the official Gazette on 4.10.2014 stating that ""On and from the date of coming into force of the principal rules, the earlier/former

Recruitment Rules in respect of the posts specified in the Schedule I shall stand repealed"". According to Mr. I. Lalitkumar, learned senior counsel

this notification dated 26.9.2014 cannot be considered to be the valid order issued in supersession of the earlier Recruitment Rules of 2001 and

this Notification was also issued after the advertisement of the post of Assistant Inspector of Schools for recruitment under direct recruitment quota

through the Manipur Public Service Commission in July, 2014. Learned senior counsel submits that there is no specific provision for supersession

of the earlier Recruitment Rules of 2001 in the new RR and the said Notification dated 26.9.2014 cannot be said to be a notification issued to that

effect. Thus the 82 posts of Assistant Inspector of Schools will continue to be governed by the earlier RR of 2001. Moreover, this Notification will

have only prospective effect and cannot be given retrospective effect. Accordingly, this notification has been challenged in W.P. (C) No. 110 of

2015.

Mr. Lalitkumar further submits that even if amendment notification dated 26.9.2014 is assumed to be correct or permissible; it can be given

effect only prospectively from 26.9.2014 and not from an earlier date when the earlier notification for the new service rules dated 4.12.2012 was

issued.

Accordingly, it has been submitted that the new Service Rules/Recruitment Rule notified in 2012 as well as Notification dated 26.9.2014

notifying the repeal of the earlier old Recruitment Rule from an earlier date are invalid and unconstitutional.

It has been further submitted that at the time of framing of the new Service Rules of 2012 as required under Article 320 of the Constitution of

India, the MPSC was to be consulted by the State authorities, which however was not done though it has been mentioned in the notification that

the MPSC had been consulted. It has been further submitted that even in the repeal notification issued on 26th September, 2014, nothing has been

mentioned about the consultation with the MPSC by the State authorities.

In response, Mr. N. Kumarjit, learned AG for the State has submitted that as regards the claim for consideration of those persons covered by

the decision of the Hon''ble High Court in W.P. (C) No. 128 of 2007, their cases had been duly considered by the authorities in terms of the old

Recruitment Rule of 2001 as also directed by this Court in W.P. (C) No. 707 of 2015 and other analogous petitions. This Court in the said batch

of petitions also directed that after consideration of those persons governed by the old RR, if there be any vacancies remaining, those remaining

vacancies should be filled up in terms of the new RR of 2012 as evident from Para No. 23.3 of the judgment dated 28-3-2016 passed in the

aforesaid batch of petitions.

Para no. 23.3 of the aforesaid judgement reads as follows:

[23.3] For the reasons stated herein above and in view of the peculiar facts and circumstances of these cases, all the writ petitions

being W.P(C) No. 707 of 2015; W.P.(C) No. 612 of 2015; W.P. (C) No 109 of 2015; W.P. (C) No. 599 of 2014; W.P. (C) No.

616 of 2014; W.P. (C) No. 422 of 2014; W.P. (C) No. 723 of 2014 and W.P. (C) No. 927 of 2014 are disposed of with the

following directions:

a) The State Government and in particular, the Department of Education (S) shall constitute a DPC and thereafter, consider the cases

of all eligible employees/teachers including all the petitioners herein as on 04-01-2010, in terms of the provisions of the Education(S)

Department, Manipur (Assistant Inspector of Schools) Recruitment Rules, 2001 and other relevant Rules relating to the seniority,

zone of consideration etc., within a period of two months from the date of receipt of a copy of this judgment and order;

b) After the DPC being constituted and held as aforesaid, all the employees/teachers including the petitioners who are found qualified

in terms of the provisions of the Education (S) Department, Manipur (Assistant Inspector of Schools) Recruitment Rules, 2001 and

other relevant Rules relating to the seniority, zone of consideration etc., shall be appointed as Assistant Inspector of Schools against

the vacancies of posts created and stipulated in the Education (S) Department, Manipur (Assistant Inspector of Schools) Recruitment

Rules, 2001 within a month thereafter;

c) After the directions (a) & (b) above having been complied with, if there are vacancies available, the Manipur Public Service

Commission shall declare the result of the said Manipur Education Service Examination, 2014 conducted pursuant to its

advertisement dated 17-07-2014 and Press Note dated 23-07- 2014 and submit a select list, to the State Government, considering

of the number of candidates equal to that of the remaining vacancies only. It is made clear that in the event of none of the

employee/teachers including the petitioners being found to be qualified for appointment on promotion to the post of Assistant

Inspector of Schools by the said DPC, the result of the said Manipur Education Service Examination, 2014 be declared as per the

said advertisement dated 17-07-2014 and Press Note dated 23-07-2014 issued by the Manipur Public Service Commission and

select list be prepared accordingly.

It is, therefore, the submission of the learned AG that the case of these petitioners who are challenging the validity of the new service

rules of 2012 had been already considered by the authorities in terms of the old RR of 2001 and those who were found suitable to be

promoted have been already given promotion in terms of the old RR of 2001 and the remaining vacancies which could not be filled

up after considering under the old RR have been now considered under the new service rules of 2012. In fact, the case of the

petitioners had been considered and the present petitioners were found not suitable for promotion. It has been submitted that no

order has been passed in any Appellate Court staying the order passed in W.P. (C) No. 707 of 2015 and analogous petitions.

Therefore, it cannot be said that the vested rights of those persons to be considered for promotion on the basis of the old RR of 2001

have been nullified by the authorities.

In support of his contentions, learned Advocate General has relied on the decision of the Hon''ble Supreme Court in Captain B.D. Gupta Vs.

U.P. & Anr., (1991) Supp (1) SCC 1 in which the Hon''ble Supreme Court held that no legislation can be challenged on the ground of malafide.

Further, the learned Advocate General has also relied on the decision in Orissa Judicial Service Vs. State of Orissa, (1992) Supp (1) SCC 187, in

which it was held that absence of statutory provision in the Recruitment Rules fixing the quota for the two sources of recruitment results in a state of

uncertainty leading to suspicion and litigation and accordingly the State Government was advised to take immediate steps in consultation with the

High Court for amending the Rules by prescribing quota fixed for the two sources of recruitment, as it would eliminate the exercise which the State

Government and High Court have to undergo every time whenever a vacancy arises, for determining the question whether it should be filled up

from which of the two sources. It has been submitted that in the present case the rule making authority has already prescribed two sources of

recruitment by fixing the respective quota. Ld. Advocate General further relying on the aforesaid judgment submits that amended rules framed

under the proviso to Article 309 cannot be challenged merely on the ground that it may adversely affect the chances of promotion. Accordingly, it

has been submitted that if the petitioners'' claim that their chances of promotion have been adversely affected by the framing of the new service

rules in 2012, that alone cannot be the ground for challenging the validity of the new recruitment rules/service rules of 2012. Further, since the case

of the petitioners had been already considered by the authorities in terms of the old recruitment rules in terms of the direction in W.P.(C) No. 128

of 2007, it cannot be said that any prejudice had been caused to the petitioners.

Further, relying on the decision of the Hon''ble Supreme Court in R.L. Bansal and Others Vs. Union of India & Ors. reported in (1992) Supp

(2) SCC 318, learned Advocate General also submitted that rules made under the proviso to Article 309 of the Constitution being legislative in

character cannot be struck down because the Court thinks that they are unreasonable, and that they can be struck down only on the grounds upon

which a legislative measure can be struck down. Learned Advocate General further submits that what are the grounds on which rules framed under

proviso to Article 309 of theConstitution can be interfered has been discussed in State of A.P. & Others Vs. Mcdowell & Co. and Others, (1996)

3 SCC 709. In the aforesaid case, it has been held in para 43 thereof that an enactment or law can be challenged on the ground that (i) it lacks

legislative competence and (ii) it violates any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional

provision and there is no other ground. It has been also held that if the enactment is challenged as violative of Article 14, it can be struck down only

if it is found it is violative of the equality clause/equal protection clause enshrined therein. It has been submitted that nothing has been shown in this

case as how to Article 14 has been violated by framing of the service rules/recruitment rules of 2012.

Mr. Debendra, learned GA continuing the arguments initiated by learned Advocate General submits relying on the decision of the Hon''ble

Supreme Court in High Court of Delhi & Another Vs. A.K. Mahajan & Others, (2009) 12 SCC 62 that the aforesaid case is similar in fact and

law with the present petition. In the aforesaid case there were 3 (three) posts in the feeder grade for promotion to the higher post of Assistant

Registrar in the High Court of Delhi viz., (i) Superintendents (ii) Court Masters and (iii) Private Secretaries. As per the recruitment rules,

promotions were considered by clubbing all these posts by maintaining a common seniority list. As the Private Secretaries were mostly senior to

the feeder posts of Superintendent and Court Masters, the incumbents to these two feeder posts made a representation to the High Court

authorities which accordingly, made amendments in the relevant recruitment rules by providing certain quotas for these respective feeder grades for

promotion to the higher posts of Assistant Registrars. The aforesaid fixing of quota resulted in denial of promotion to some of the Private

Secretaries and the amendment came to be challenged before the Delhi High Court by some of the Private Secretaries contending that their

promotional chances have been adversely affected by fixing the quota which was allowed by the High Court. However, the High Court in its

administrative capacity challenged the decision before the Hon''ble Supreme Court and the Hon''ble Supreme Court after considering the relevant

laws and decisions in this regard held that that no one can claim as a matter of right about the promotional chances. The other question which arose

for consideration was whether because of the retrospective nature of the amendment, the amendment itself could be invalidated. The Hon''ble

Supreme Court held that promotion is not a right of the employee. A mere chance of promotion if affected cannot and does not invalidate the

action on the part of the employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a

particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee.

It has been submitted that, however, in the present case, the petitioners were duly considered at the relevant time on the basis of the order passed

in W.P. (C) No. 128 of 2007 and therefore, it cannot be said that the right of the petitioner has been adversely affected and there cannot be basis

for relying again on the recruitment rules of 2001.

Mr. Debendra, learned GA has further relied on the decision of the Hon''ble Supreme Court in CMD/Chairman, Bharat Sanchar Nigam Ltd.

& Others Vs. Mishri Lal and Others, (2011) 14 SCC 739 in which the Hon''ble Supreme Court has held in para18 as follows:

A rule made under the proviso to Article 309 is a legislative act (though made by the executive). It is not a piece of delegated

legislation like a rule made under a statute. Hence it can be amended retrospectively.

Thus, in the present case, if by giving retrospective effect to the 2012 recruitment rules by the subsequent Notification dated 26th

September, 2014, it cannot be held to be invalid, as the legislature has the right to frame the rules with retrospective effect.

To the same effect, Mr. Debendra has relied on the decision of the Hon''ble Supreme Court in Chairman-cum-Managing Director,

Coal India Limited & Ors. Vs. Ananta Saha & Ors., (2011) 5 SCC 142. In the aforesaid case, it has been stated in paras 14 and 15

as follows :

In State of Mysore v. M.H. Krishna Murthy, (1973) 3 SCC 559: 1973 SCC (L&S) 190:AIR 1973 SC 1146;Raj Kumar v.

Union of India, (1975) 4 SCC 13: 1973 SCC (L&S) 198:AIR 1975 SC 1116; and K.C. Arora v. State of Haryana, (1984) 3 SCC

281: 1984 SCC (L&S) 520 , this Court observed that it was well-established that Rules made under the proviso to Article 309 of

the Constitution of India, being legislative in nature and character, could be given effect to retrospectively.

A Constitution Bench of this Court in State of Gujarat v. Raman LalKeshavLal Soni, (1983) 2 SCC 33: 1983 SCC (L&S)

231:AIR 1984 SC 161 , observed as under: (SCC p. 62, para 52)

... The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired

under existing laws but since the laws are made under a written Constitution, and have to conform to the do''s &dont''s of the

Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the

requirements of the Constitution today taking into account the accrued or acquired rights of the parties today.

Mr. Debendra, learned GA further submits that it has been mentioned in the recruitment rules of 2012 that the amendments were made in

consultation with the MPSC. Therefore, the allegation of the petitioners is not correct.

Supplementing the submissions made on behalf of the State, Mr. RS Reisang, learned Sr. GA for the Manipur Public Service Commission has

submitted relying on the decision of the Hon''ble Supreme Court in State of Tripura and Others Vs. Nikhil Ranjan Chakraborty and Others,

(2017) 3 SCC 646 that unless, there is total deprivation of the right to promotion, the rules cannot be said to be bad. It was held in the aforesaid

judgment, in para 9 thereof as follows:

The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, ""rules in force on the date"" the

consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date

when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal3

(supra), in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as

if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any

case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the

vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the

process to amend the Rules had also begun well before the Notification dated 24.11.2011.

3 Deepak Agarwal v. State of U.P., (2011) 6 SCC 725: (2011) 2 SCC (L&S) 175

Accordingly, Mr. RS Reisang, learned Sr. GA has submitted that in the present case the right of the petitioners have not been totally deprived of

and in fact, their cases were considered under the old recruitment rules. He submits that just because the number of candidatures for consideration

has increased because of the new service rules, it will not cause any prejudice to the petitioners. Since petitioners'' cases were duly considered

under the relevant old recruitment rules, the new rules do not suffer from any fatal defect.

Mr. I. Lalitkumar, learned Sr. Counsel for the petitioners in response has submitted that the learned Advocate General has not portrayed the

correct picture of the present status of the case in as much as the judgment which has been relied on heavily by the State Respondents i.e. the

order dated 28.3.2016 rendered in W.P. (C) No. 707 of 2015 and analogous matters is subject to appeal, as a writ appeal preferred against it is

pending before this Court. Hence, the said judgment has not attained finality and it cannot be said to be conclusive of the issues raised.

Further, Mr. Lalitkumar has submitted that the contention of the learned Advocate General that the cases of the petitioners have been duly

considered in terms of the directions of the Hon''ble Supreme Court rendered in W.P.(C) No. 128 of 2007 is not correct in as much as there are 3

(three) writ petitions viz., W.P. (C) No. 931 of 2016, W.P. (C) No. 1017 of 2016 and W.P. (C) No. 47 of 2017 which are pending before this

Court claiming similar reliefs which are yet to be considered by the authorities. As such it cannot be said that the case of the petitioners and other

similarly situated persons have been considered by the Government.

It has been further submitted that contentions of the learned Advocate General that the cases of the petitioners have been duly considered in terms

of the order passed in W.P. (C) No. 128 of 2007 is not based on any record, as the State Government has not produced any such record or filed

any affidavit to that effect.

Mr. Lalitkumar, learned Sr. counsel has submitted that the State Respondents are trying to confuse the Court by bringing in irrelevant facts as

the issue involved in the present case is about the validity of the Recruitment Rules of 2012 and Notification issued on 26th September, 2014 by

the authority by giving retrospective effect to recruitment rules of 2012. The learned Sr. Counsel submits that the judgment of the Hon''ble

Supreme Court is not Euclid''s theorem and cannot be applied without taking into consideration the facts involved, as a slight difference in the facts

may change the entire contour of the judgment in issue as reported in Union of India Vs. Chaiju Ram (Dead) by LRS. and Others, (2003) 5 SCC

It has been held in the aforesaid case of Chaiju Ram (supra) that it is now well settled that a decision is an authority for what it decides and

not what can logically be deduced therefrom. It is equally well settled that a little difference in facts or additional facts may lead to a different

conclusion. Accordingly, it has been submitted that the judgment relied on by the learned Advocate General in W.P. (C) No. 707 of 2015 and

other analogous matters are not applicable in the present facts of the case, especially W.P. (C) No. 599 of 2014 which was disposed of along with

W.P. (C) No. 707 of 2015. It has been submitted that the direction issued in W.P. (C) No. 128 of 2007 was with reference to the old recruitment

rules of 2001 and not with reference to the new recruitment rules of 2012.

Further, it has been submitted that the order passed in W.P. (C) No. 128 of 2007 also attained finality as no appeal was preferred by the

State Government. Ld. Senior counsel submits that the action taken on the basis of the new service rules of 2012 including the 1st amendment of

the recruitment rules, were contrary to the said judgment. In this regard, Mr. Lalitkumar, learned Sr. Counsel has relied on the decision in S.R.

Bhagawat and Others Vs. State of Mysore, (1995) 6 SCC 16, in which the Hon''ble Supreme Court held as follows :

It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made

ineffective with the aid of any legislative power by enacting a provision which in substance over-rules such judgment and is not in the realm of a

legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire

subject sought to be covered by such an enactment having retrospective effect. We may only refer to two of these judgments.

Accordingly, it has been submitted that the framing of the new recruitment rules of 2012 amounts to subversion of the judgment rendered by this

Court in W.P. (C) No. 128 of 2007.

It has been submitted that the judgment given in W.P. (C) No. 128 of 2007 was based the recruitment rules of 2001 and since the recruitment

rules of 2001 have not been superseded by any subsequent service rules, the rights accrued to the petitioners cannot be ignored. According to the

Ld. Senior Counsel, the new service rules/ recruitment rules of 2012 amount to invalidating the order passed by this Court in W.P. (C) No. 128 of

2007. Learned Senior Counsel further submits that though the legislature may be entitled to pass any law with retrospective effect, the same cannot

be done by taking away any accrued right or taking away fundamental rights as held by the Hon''ble Supreme Court in S.S. Bola and Others Vs.

B.D. Sardana and Others, (1997) 8 SCC 522 in para 159 as follows :

The power to make a law includes the power to give it retrospective effect subject to the restriction imposed by Article 20(1) that a

legislature cannot make retrospective penal laws. It would be valid for the legislature to make any other enactment with retrospective effect

provided no fundamental right is infringed by reasons of its taking away the vested right. Under the scheme of the Constitution, it is competent for

the legislature to put an end to the finality of a judicial decision and, therefore, it would be competent for the legislature to render ineffective the

judgment of a court by changing the basis of the Act upon which that judgment was founded (See: Shri Prithvi Cotton Mills Ltd. v. Broach

Borough Municipality, (1969) 2 SCC 283 : AIR 1970 SC 192 : (1970) 1 SCR 388 , Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC

96 (2) : AIR 1992 SC 522 .) Hidayatullah, C.J. in Shri PrithviMills case14 observed as under: (SCC pp. 286-87, para 4)

... When a legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for

ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that

the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative

competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in

exercise of judicial power which the legislature does not possess or exercise. A court''s decision must always bind unless the conditions on which it

is based are so fundamentally altered that the decision could not have been given in the altered circumstances.

This decision was considered in Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50 : 1978 SCC (L&S;) 103 : (1978) 3 SCR 334 but

was not doubted by the majority view in that case.

Further, it has been submitted by Mr. Lalitkumar, learned Sr. Counsel for the petitioner that the new recruitment rules of 2012 have

differentiated the Graduate Teachers by making only the Graduate Teachers with Master Degree eligible, leaving the Graduate Teachers who do

not have Master''s Degree ineligible. Equal opportunity which was given to all the Graduate Teachers under the old RR of 2001 has been denied

by making a differentiation between Graduate Teachers who have Masters Degree and Graduate Teachers who do not have Masters Degree.

Mr. Lalitkumar further submits that the impugned recruitment rules of 2012 also cover the 82 posts which were already covered by the old

recruitment rules of 2001 without making any specific order for supersession of the old RR of 2001 in the new service rules of 2012 and in this

regard has relied on the decision of the Hon''ble Supreme Court in Chairman, Railway Board and Others Vs. C.R. Rangadhamaiah and others,

(1997) 6 SCC 623 in which the Hon''ble Supreme Court held in para 20 as follows :

It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the

ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a

benefit which has been granted or availed, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution

to the extent it operates retrospectively.

Mr. I. Lalitkumar, learned Sr. Counsel for the petitioner has drawn the attention of this Court as to the meaning of the expression ""vested right"" or

accrued right"" as mentioned in para 24 of the aforesaid judgment as follows:

In many of these decisions the expressions ""vested rights"" or ""accrued rights"" have been used while striking down the impugned provisions

which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of

the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with

effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an

amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is

arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these

decisions are not in consonance with the decisions in Roshan Lal Tandon, AIR 1967 SC 1889 : (1968) 1 SCR 185 : (1968) 1 LLJ 576 , B.S.

Yadav, AIR 1969 SC 118 : (1968) 3 SCR 575 : (1970) 1 LLJ 499 and Raman LalKeshavLal Soni, (1983) 2 SCC 33 : 1983 SCC (L&S) 231:

(1983) 2 SCR 287 .

Mr. I. Lalitkumar submits that the issue involved is about the validity of the recruitment rules of 2012. It has been submitted that the relief

claimed in this petition is totally different from what the Advocate General is trying to submit before this Court that the case of the petitioners had

been considered in terms of W.P. (C) No. 128 of 2007 that too without bringing on record as how the case of the petitioners were considered

and in that connection has relied on the decision of the Hon''ble Supreme Court in Mc Dermott International Inc. Vs. Burn Standard Co. Ltd. and

Others, (2006) 11 SCC 181 wherein it has been held as follows :

What would constitute public policy is a matter dependent upon the nature of transaction and nature of statute. For the said purpose, the

pleadings of the parties and the materials brought on record would be relevant to enable the court to judge what is in public good or public interest,

and what would otherwise be injurious to the public good at the relevant point, as contradistinguished from the policy of a particular government.

(See State of Rajasthan v. BasantNahata, (2005) 12 SCC 77).

Mr. I. Lalitkumar, learned Sr. Counsel accordingly submits that the contention of the learned Advocate General should be ignored. He submits that

the petitioners are presently holding the posts of Assistant Inspector of Schools. Further, the MPSC at the time of proceeding to make the

impugned recruitment to the posts of Assistant Inspector of Schools under the new recruitment rules have made incorrect statements, by referring

to Annexure-A/5 to the writ petition at page 40 under the Heading (a) of Sl. No. (V) in which it has been stated that the MPSC had approved the

recruitment rules, which is not correct. Similarly, at page 41 of the said Annexure at sl. No. (VII), which deals with the information as to whether

any ad hoc interim arrangement were or have been made to fill the vacancies pending selection by the MPSC, it has been mentioned that these

posts are lying vacant for the last many years, though in fact the petitioners have been occupying the said posts since a long period.

Mr. Lalitkumar, learned Sr. Counsel submits that the fact that MPSC was not consulted in the finalisation of recruitment rules as mentioned in

para 13 of the petition, has not been denied and controverted by the Respondents and it has been submitted that if the MPSC not consulted with

regard to the recruitment rules, it will not be valid rules, relying on the decision of the Hon''ble Supreme Court in (i) Abdul Kalam Vs. State of

Manipur &Ors., 2006 (Suppl.) GLT 882, (ii) Th. Basantakumar Singh & Anr. Vs. State of Manipur& Others, 2011 (2) GLT 584.

Mr. Lalitkumar also submits that a fact which has not been denied or controverted in the written statement/affidavit-in-opposition shall be deemed

to have been admitted as decided in the case of State of Assam Vs. Union of India and others, (2010) 10 SCC 408.

Relying on the decision of the Hon''ble Supreme Court in Chandraprakash Madhavrao Dadwa and Others Vs. Union of India and others,

(1998) 8 SCC 154, learned Sr. Counsel submits that change or enhancement of the essential qualifications in the recruitment rules which would

adversely affect the accrued rights would be impermissible. Mr. I. Lalitkumar has submitted that in the aforesaid case the Hon''ble Supreme Court

held that the amendment of rule with retrospective effect violating the accrued right is not permissible and it being a Constitution Bench would

override the decision relied by the State Respondents in CMD/Chairman, Bharat Sanchar Nigam Ltd. & Others Vs. Mishri Lal and Others (2011)

14 SCC 739.

Similar submissions were advanced by the learned counsel for the respective parties in respect of W.P. (C) No. 975 of 2014 as similar issue

was raised in challenging the validity of the Manipur Education Service Rules, 2012 with reference to the posts in respect of Manipur Education

Service Grade II. Hence, these submissions are not separately referred to.

The issue raised in W.P.(C) No. 110 of 2015 challenging the Manipur Education Service (1st Amendment) Rules, 2014 which was notified

vide Notification dated 26th Sept., 2014 and published in Manipur Gazette under No. 198 dated 4th Oct., 2014 has also been addressed by the

respective counsel for the contesting parties.

From the submissions advanced by the petitioners and contested by the respondents, it is seen that many issues have been raised, more

particularly in W.P.(C) No. 974 of 2014 as noted by this Court in the preceding paragraph no. 11, as to,

(i) whether the old recruitment rules, namely, Education (S) Department, Manipur (Assistant Inspector of Schools) Recruitment Rules, 2001 will

continue to govern the 82 posts of Assistant Inspector of Schools mentioned in the said recruitment rules, or by the new Manipur Education

Service Rules, 2012 after the 82 posts of Assistant Inspector of Schools have been categorised as Manipur Education Services Grade - III

posts?,

(ii) in what manner the rights of those petitioners in W.P. (C) No. 128 of 2007 will be governed, under the old RR of 2001 or the new RR of

2012? and

(iii) whether, the change in the requirement of essential qualifications by bringing additional qualifications for promotion to the post of Assistant

Inspector of Schools under the new RR of 2012 adversely affects the rights of the existing incumbents holding the feeder posts?

(iv) whether the new service rules of 2012 were made in consultation with the Manipur Public Service Commission? etc.

On the other hand, if we examine the reliefs claimed in these petitions, we find that these are confined to questioning the validity of the Manipur

Education Service Rules, 2012 and the subsequent 1st Amendment to the Rules notified on 26.09.2014 giving retrospective effect to the principal

rules from the date of notification on 04.12.2012.

Thus, the issue raised in these petitions essentially is about the validity of the Manipur Education Service Rules, 2012 and the subsequent 1st

Amendment made to the rules. However, the petitioners have raised many other issues referred to above, which though related to the main relief

claimed can be independently decided before the appropriate forum, except those concomitant issues which necessarily have to be decided along

with the main issue involved in these petitions.

We are however, primarily concerned with the vires/validity of the Manipur Education Service Rules, 2012 and the subsequent 1st Amendment.

Laying down the conditions of service as provided under Article 309 of the Constitution of India is primarily the function of the legislature. The

Proviso to Article 309 of provides that till such appropriate legislation is made by the legislature, the President or Governor as case may be, may

make rules regulating the recruitment, conditions of service etc. as provided under Proviso to Article 309. The service rules made under Proviso to

Article 309 are legislative in nature and not merely executive or quasi-judicial and the rules made in exercise of the powers under Proviso to Article

309 of the Constitution constitute law within the meaning of Article 235 of the Constitution. Accordingly, such rules may be struck down by the

Court only on such grounds as it may invalidate a legislative measure. It has been held in State of A.P. vs. Mcdowell & Co. & ors.: (1996) 3 SCC

709 that the law made by the Parliament or the Legislature can be struck down by Courts on two grounds namely, (i) lack of legislative

competence and (ii) violation of any of the fundamental rights guaranteed in Part -III of the Constitution or any other constitutional provisions.

Recently, the Hon''ble Supreme Court of India in Shayara Banu vs. Union of India & ors., (2017) 9 SCC 1 after discussing various decisions of

the Hon''ble Supreme Court in this regard had gone beyond the principle laid down in Mcdowell''s case by holding that subordinate legislation can

be struck down on the ground that it is manifestly arbitrary and therefore, violative of Article 14 of the Constitution. In the aforesaid case of

Shayara Bano (supra), the Hon''ble Supreme Court, invoking the doctrine of arbitrariness, set aside the Triple Talaq as void and illegal being

manifestly arbitrary. It was held in Para Nos. 101 and 104 of the Shayara Bano (supra) as follows:-

It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC

641 : 1985 SCC (Tax) 121, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for

challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this

ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to

invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature

capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate,

such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out

by us above would apply to negate legislation as well under Article 14.

Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two

arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid

Ahmad v. Anisa Khatun, 1931 SCC OnLine PC 78: (1931-32) 59 IA 21: AIR 1932 PC 25, such Triple Talaq is valid even if it is not for any

reasonable cause, which view of the law no longer holds good after Shamim Ara v. State of U.P., (2002) 7 SCC 518 : 2002 SCC (Cri) 1814.

This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and

whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the

fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize

and enforce Triple Talaq, is within the meaning of the expression ""laws in force"" in Article 13(1) and must be struck down as being void to the

extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on

the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued

by the learned Attorney General and those supporting him.

One of the grounds available for challenging the vires of a legislation is whether the authority which made the law lacked jurisdiction or not.

That issue has not been raised in this case.

Therefore, we will examine the grounds on which the aforesaid new service rules, the Manipur Education Service Rules, 2012 framed under

Proviso to Article 309 of the Constitution and the 1st Amendment Rules of 2014 have been challenged.

We may first deal the issue of retrospectivity raised by the petitioners in challenging the vires of the 1st Amendment Rules, 2014 as well as the

new service rules of 2012.

It is now well settled that the legislature is competent to make laws or amend laws with retrospective effect.

............The power to legislate is a plenary power vested in the legislature and unless those who challenge the legislation clearly establish that their

fundamental rights under the Constitution are affected or that the legislature lacked legislative competence, they would not succeed in their

challenge to the enactment brought forward in the wisdom of the legislature. Conferment of a right to claim the benefit of a statute, being not a

vested right, the same could be withdrawn by the legislature which made the enactment. It could not be said that the Amendment Act lacked either

legislative competence or that it is unconstitutional. [Mylapore Club v. State of T.N., (2005) 12 SCC 752]

Rules made under the Proviso to Article 309 of the Constitution is also legislative in nature and accordingly, can be made giving retrospective

effect.

However, there are certain limitations to making the rules with retrospective effect.

It is no doubt true that Rules made under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights

and benefits which have already been earned or acquired under the existing Rules cannot be taken away by amending the Rules with retrospective

effect. (See N.C. Singhal v. Armed Forces Medical Services5; K.C. Arora v. State of Haryana6 and T.R. Kapur v. State of Haryana7.)

Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which

had accrued to the employees under the unamended rules."" [State of M.P. v. Yogendra Shrivastava, (2010) 12 SCC 538]

5: (1972) 4 SCC768

6: (1984) 3 SCC 281

7: (1986) Supp SCC 584

It is now also well settled that though the right to be considered for promotion is a fundamental right, mere chance to promotion is not, as held in

High Court of Judicature of Madras v. R. Perachi, (2011) 12 SCC 137:

Besides, there is no right of promotion available to an employee. He has a right to be considered for promotion which has been held to be a

fundamental right (see para 13 of S.B. Bhattacharjee v. S.D. Majumdar15). However, though a right to be considered for promotion is a condition

of service, mere chance of promotion is not (see para 15 of the Constitution Bench judgment in Mohd. Shujat Ali v. Union of India16).

15: (2007) 10 SCC 513

16: (1975) 3 SCC 76

In Union of India v. Sangram KeshariNayak, (2007) 6 SCC 704, it has been also held that:

Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its

purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the

hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of

the respondent for promotion.

Therefore, this right to be considered for promotion if vacancies exist and if the person is eligible and within the zone of consideration, can be said

to be a vested right which cannot be deprived by amendment of the service rules.

Thus, if there were eligible candidates for promotion to the posts of Assistant Inspector of Schools before the new service rules of 2012 came into

force, and if vacancies existed then, such candidates will have a fundamental right to be considered for promotion under the relevant recruitment

rules operating at the relevant time.

However, this is an issue which essentially relates to applicability of the relevant recruitment rules. It has no bearing as to whether the new service

rules/recruitment rules are valid or not. The new service rules or the recruitment rules may be perfectly valid yet may not be applicable to certain

vacancies which would depend on the applicability of the rules. Merely because certain vacancies or posts have to be filled up under the old

service rules/recruitment rules cannot have any effect on the legality of the new service rules. The legality of the rules has to be examined on its own

worth as to whether these are made by competent authority or these suffer from any of the defects on which a legislative measure can be

challenged as held in Mc Dowells'' case (Supra)

Accordingly, we are not inclined to examine the validity of the new service rules or the RR of 2012 on the ground that the new service rules of

2012 may not be applicable for filling up the vacancies/posts which were in existence when the old RR of 2001 was in force and before the new

recruitment rules of 2012 came into force.

Whether by giving retrospective effect, it will adversely affect any accrued right of any person has to be separately dealt with and determined

separately, and if it is found that by giving retrospective effect to the rules, such rules may be inapplicable to certain individual or category of

persons, it is an aspect which will not have any bearing on the issue of validity of the rules. At best, on consideration of the relevant facts, the Court

may hold that the new service rules to be not applicable to certain individual(s) which itself cannot render the service rules invalid on the ground

that it has been given retrospective effect and are not applicable to them.

We would like to add that this issue had been raised earlier and considered by this Court in the aforesaid Writ Petition No. 599 of 2014 which

was disposed of along with W.P.(C) No. 707 of 2015 on 28.3.2016. Accordingly, we are of the view that this is an issue which does not require

any further examination by this Court, more so, as it is not directly relevant for deciding the issue as to whether the new service rules, i.e., the

Manipur Education Service Rules, 2012 are valid or not.

Mr. I. Lalitkumar learned senior counsel for the petitioners has also challenged the validity of the Manipur Education Service Rules, 2012 on

the ground that it cannot cover the 82 posts of Assistant Inspector of Schools, as these are already covered by the old RR of 2001 which has not

been superseded by the new service Rules.

It may be mentioned that the State respondents have taken a plea that with the enforcement of the Manipur Education Service Rules, 2012 and

with the repeal of the earlier Recruitment rule of 2001, the erstwhile posts of 82 Assistant Inspector of Schools ceased to exist and in their place,

82 posts of Assistant Inspector of Schools with different eligibility criteria have been included as deemed post in Grade-III of MES Rules. As

such, 82 sanctioned posts of Assistant Inspector of Schools specified in Scheduled 1 of MES Rules, 2012 shall be deemed to have been created

newly and these posts are to be filled up as per MES Rules, 2012. It has been also stated that till then, no post of Assistant Inspector of Schools

was filled up as per the old Recruitment rules of 2001 for the post of Assistant Inspector of Schools.

As regards this contention of the State respondents, it is to be noted that it was only after the notification dated 26.9.2014 by virtue of the Manipur

Education Service (Amendment) Rule, 2014 that by inserting Rule 30 A it was provided that on and from the date of coming into force of the

principal rule (i.e., the new Service Rules/ Recruitment Rules of 2012), the earlier/former Service rules/ Recruitment rules of 2001 in respect of the

posts specified in the Scheduled-I shall stand repealed. In other words, old Service rules/ Recruitment rules of 2001 shall stand repealed from 10th

December, 2012 when the amendment of the rules were brought in 2014 by giving retrospective effect. The stand of the State respondents is that

once the aforesaid Service rules/ Recruitment rules of 2001 are repealed with retrospective effect from 10.12.2012, the earlier 82 posts of

Assistant Inspector of Schools would be deemed to have ceased and will be deemed to be newly created under the Manipur Education Service

Rules, 2012. We, however, are unable to accept this plea for the reason that these 82 sanctioned posts under the old RR of 2001 cannot be said

to have ceased with the enforcement of the new rules, to the extent that, the persons who were already appointed as Assistant Inspector of

Schools have to be counted out of the 82 sanctioned posts. Moreover, if there were eligible candidates in the feeder grade and who came within

the zone of consideration for promotion to the post of Assistant Inspector of Schools prior to enforcement of the new Service rules/ Recruitment

rules of 2012, their cases are to be considered against the existing vacancies out of the 82 sanctioned posts. Only such number of posts out of 82

posts which could not be filled up due to lack of suitable and eligible candidates prior to enforcement of the new Service rules/ Recruitment rules of

2012 would be governed by the new service rules of 2012 even if the sanctioned posts is mentioned as 82 in the new service rules.

It is to be remembered that the issue relating to the existence of the number of sanctioned posts is not related to the validity of the rules. As to how

many posts are there is to be determined by the post creation orders. As to how these posts are to be governed will depend on the service rules.

The validity of the service rules has no relation with the existence of the number of posts.

Though new Service rules/ RR of 2012 also mention 82 sanctioned posts in the Manipur Education Service Grade-III which consists of

Assistant Inspectors of Schools, we would hold that unless these posts are newly created posts, the new service rule will cover only such number

of the 82 posts which would have remained unfilled by applying old Service rule/ Recruitment rule of 2001. Of course, in terms of the new service

rules of 2012, the number of posts cannot exceed 82, which means that the number of Assistant Inspector of Schools already appointed under the

old recruitment rules of 2001 and the vacancies if any remaining, cannot exceed 82, unless new additional posts are created. In absence of creation

of additional posts, the sanctioned strength will continue to remain 82, which would include those Assistant Inspector of Schools who are already

in service when the new service rules of 2012 came into existence. The new service rules will operate only in respect of the remaining vacancies of

the 82 sanctioned posts which remain unfilled. Accordingly, we do not accept the contention of the State Respondents that with the repeal of the

earlier recruitment rules of 2001, the erstwhile posts of Assistant Inspectors of Schools cease to exist and in their place Assistant Inspectors of

Schools with different eligibility criteria have been included as duty posts in the Grade III of the Manipur Education Service Rules. We also do not

accept that these 82 sanctioned posts of Assistant Inspectors of Schools shall be deemed to have been created newly and that all these 82

sanctioned posts are to be filled up as per MES Rules, 2012, as the number of posts out of the 82 sanctioned posts to be governed by the new

rules will depend on the number of promotions already made on the basis of the earlier recruitment rules on the date the new service rules come

into force, unless, the State government creates additional posts. In the present case, the respondent authorities have not shown any post creation

order. If there were indeed eligible persons available for promotion to the post of Assistant Inspector of Schools just prior to commencement of

the new service rules, their claims have to be first examined and necessary promotion made, if they are found suitable against the vacancies

available out of 82 posts. Only after completion of the said exercise, the remaining posts of 82 sanctioned posts of Assistant Inspector of Schools

can be filled up on the basis of the new service rules/RR of 2012.

We would like to add that this is an aspect which can be considered separately and independently as decision in this issue does not have any

bearing on the issue as to whether the new service rules of 2012 are valid or not. This issue revolves round the applicability of the service rules and

not on the validity of the rules and hence not decided herein.

Learned senior counsel for the petitioners also have raised the issue about the rights of the petitioners in W.P(C) No.120 of 2007 as to

whether their rights will be governed under the Service rules/ Recruitment rules of 2001 or under the new Service rules/ Recruitment rules of 2012

. As regards this issue for the reasons discussed above, we are of the opinion that the decision in this issue will have no bearing on the validity of

the Service rules/ Recruitment rules of 2012 as it is primarily concerned with the applicability of either of the rules and not with the validity of the

new service rules and as such, we refrain from making any observation and decision on this issue as it is to be decided before the appropriate

forum.

We may however, add that this issue had been already dealt with earlier in the common judgment and order dated 28.3.2016 passed in W.P. (C)

No. 707 of 2015 and batch of writ petitions. Mr. I. Lalitkumar, however, submits that there are other pending writ petitions where the applicability

of the new service rules of 2012 has been questioned. We have already held that this has no relevance with the issue as to whether the then service

rules of 2012 are valid or not.

The other issue raised is about the allegation of arbitrariness and discrimination from which the new service rules of 2012 allegedly suffer. This

is the only ground, in our opinion, which is directly relevant to the issue and relief claimed in these petitions. Under the new service rules/recruitment

rules of 2012, additional essential qualifications have been stipulated for being considered for promotion to the post of Assistant Inspector of

Schools which will have a direct bearing on the determination of the validity of the new service rules/RR of 2012. Under the old Service

rules/Recruitment rules of 2001, those graduate teachers who have completed 5 years of regular service in their grade and possess degree or

diploma of teaching were eligible for promotion to the post of Assistant Inspector of Schools. However, under the new service rules/Recruitment

rules of 2012, such graduate teachers must have also completed Master''s degree in any discipline and also 10 years of regular service in the State

Government. Thus, the new Service rules/Recruitment rules of 2012 will debar those graduate teachers who do not have post graduate degree and

have not completed 10 years of regular service. It has been, therefore, the contention of the petitioners that new service rules have created two

kinds of graduate teachers, one with the post graduate degree and others without post graduate degree who have been denied the right to be

considered for promotion to the said post of Assistant Inspector of Schools. It has been accordingly, submitted that it is not only arbitrary but also

discriminatory.

As regards this contention, it is to be noted that the State respondents have explained the reasons for making the new Service rules/

Recruitment rules of 2012. It has been stated that keeping in mind the Right to Free and Compulsory Education, 2009 which has been

implemented in the entire country including the State of Manipur, with the mandate of free and compulsory education for all the children of 6-14

age group and to streamline the administration for delivery of a more effective performance based and for introducing a more efficient and

systematic fulfilment of the Centrally Sponsored Scheme, the new Manipur Education Service Rules, 2012 were framed. It has been contended

that the requirement of possession with higher educational qualifications and longer regular service have been made to meet the standard

requirement under new Education Policy.

As regards stipulating necessary essential qualifications for appointment to the post of Assistant Inspector of Schools, we are of the view that

this essentially falls within the realm of policy decision of the State, the appointing authority and unless it is manifestly arbitrary or violative of any of

the fundamental rights as guaranteed under Part-III of the Constitution of India or any other constitutional provisions, the same cannot be interfered

with. The new education policy may require possession of higher educational qualifications. Therefore, we do not consider that such an act on the

part of the State to stipulate higher educational qualification and longer service to be arbitrary or unreasonable. Any person who may claim for

promotion to the higher post must possess those qualifications as prescribed under the service rules. While the old Service rules/ Recruitment rules

of 2001 enable all graduate teachers with 5 years of service, to be considered for promotion to the higher post of Assistant Inspector of Schools,

they cannot claim as a matter of right, in absence of the relevant provisions in the service rules. Old service rules ceased to exist upon the

implementation of the new Service rules/ Recruitment rules. Therefore, the issue of discrimination or arbitrariness does not arise upon the framing

and implementation of the new service rules. We do not feel that prescription of higher educational qualification and longer service experience for

being appointed to the post of Assistant Inspector of Schools under the new Service rules/ Recruitment rules of 2012 is manifestly arbitrary or

unjust. Accordingly, we are not inclined to entertain the plea of the petitioners that the prescription of the higher educational qualification and longer

service amounts to discrimination or arbitrariness as to invalidate the new Service rules/ Recruitment rules of 2012.

In this regard one may refer to the decision of the Hon''ble Supreme Court in State of Gujarat v. Arvindkumar T. Tiwari, (2012) 9 SCC 545

wherein it has been held that,

Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot

be the subject-matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service,

for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be

changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be

governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as

the procedural aspects are concerned, but it must meet the requirement of eligibility, etc. The court should therefore, refrain from interfering, unless

the appointments so made, or the rejection of a candidature is found to have been done at the cost of ""fair play"", ""good conscience"" and ""equity"".

(Vide State of J&K v. Shiv Ram Sharma9 and Praveen Singh v. State of Punjab10.)

9: (1999) 3 SCC 653

10: (2000) 8 SCC 633

We would like to refer to the other contention of the petitioners that at the time of framing the new service rules of 2012, the Manipur Public

Service Commission had not been consulted and hence invalid for violation of Article 320 (3) of the Constitution of India. We are not inclined to

examine this issue as it has been specifically mentioned in the new service rules very clearly that these rules have been made in consultation with the

Manipur Public Service Commission. The petitioners have not produced any material to indicate otherwise.

We, accordingly, for the reasons discussed above, hold that there is no merit in W.P. (C) No. 974 of 2014 as well as in W.P. (C) No. 110 of

2015. We also hold, for similar reasons, that there is no merit in W.P. (C) No. 975 of 2014.

These petitions are accordingly dismissed.