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Judgment
Heard Shri M. Devananda, the learned counsel appearing for the petitioner; Shri P. Tamphamani, the learned counsel appearing for the private respondent and Shri K. Jagat, the learned Government Advocate appearing for the State respondents.
Being aggrieved by the impugned order dated 22-08-2016 issued by the Deputy Secretary (Education/S), Government of Manipur, the instant writ petition has been filed by the petitioner praying for quashing it.
1. According to the petitioner, she was initially appointed as the Assistant Science Graduate Teacher in the Madhumati Junior High School, Irengbam vide order dated 26-11-1984 issued by the Director of Education (S), Government of Manipur on ad-hoc basis for a period of six months and her adhoc service was extended from time to time till when she was regularised w.e.f. 24-05-1986 vide order dated 18-12-1986 by the Director of Education (S), Government of Manipur. While the petitioner was working in that capacity, she was allowed to work as the in-charge Asst. Head Mistress in the same school vide various orders issued by the State Government from time to time. 3.2. The Deputy Secretary (Education/S), Government of Manipur issued an order dated 04-07-2016 allowing the petitioner to function as in-charge Head Mistress with D & D.O. of the said school and in compliance with the said order, the petitioner submitted her joining report to the Zonal Education Officer, Bishnupur. But to her shock and surprise, the Deputy Secretary (Education/S), Government of Manipur issued another order, impugned herein, dated 22-08-2016 by which the order dated 04-07-2016 was cancelled and the private respondent was allowed to function as in-charge Head Mistress with D & D.O. Being aggrieved by the said impugned order dated 22-08-2016, the petitioner has filed the present writ petition on the inter-alia grounds that the law has been settled by the Hon''ble Supreme Court in the case of State of Haryana & ors. Vs. Piara Singh reported in (1992) 4 SCC 118 that the in-charge appointment cannot be replaced by another in-charge appointment and that the issue involved herein is covered by the judgment and order dated 21-11-2016 passed by this court in W.P. (C) No. 496 of 2016.
In the affidavit-in-opposition filed by the private respondent, it is stated that she was initially appointed as the Arts Graduate Teacher vide order dated 27-05-1983 issued by the Director of Education (S), Government of Manipur on substitute basis against the regular vacant post and her service was regularized w.e.f. 24-05-1986 vide order dated 30-08-1986 issued by the Director (Education/S), Government of Manipur. It is further stated that she is senior to the petitioner as per the final seniority list published vide notification dated 15-06-2012; that the order dated 04-07-2016 allowing the petitioner to function as in-charge Head Mistress with D & D.O. was issued without verifying the undisputed seniority position of the graduate teachers in the Department and that the decision of the said Piara Singh''s case will not apply to the facts of the present case for the reason that the private respondent is senior to the petitioner. The stand of the State Government is similar to that of the private respondent and in the affidavit filed on behalf of the State Government, it is stated that the impugned order was issued in consideration of the final seniority list dated 15-06-2012 keeping in mind the exigency of service and for administrative convenience. It is also stated that on perusal of the documents filed by the petitioner, it is clear that the petitioner has sought political pressure for extending favour to her. To counter the averments made in the said counter affidavits, the petitioner did file a rejoinder wherein it is stated that the private respondent is not senior to the petitioner and moreover, the said final seniority list published vide order dated 15-06-2012 has already been quashed by this court vide judgment and order dated 09-03-2016 passed in W.P. (C) No. 493 of 2012.
It is not in dispute that an in-charge appointment cannot be replaced by another in-charge appointment as the law having been laid down by Hon''ble Supreme Court in the case of State of Haryana & ors. Vs. Piara Singh reported in (1992) 4 SCC 118. All that the learned counsel appearing for the private respondent as well as the learned Government Advocate have submitted, is that since the private respondent being senior to the petitioner in terms of the final seniority list dated 15-06-2012, there is no illegality or irregularity in the impugned order. This submission made on behalf of the respondents is not acceptable to this court for the reason that there is no material on record to show that the private respondent is senior to the petitioner. The said final seniority list dated 15-06-2012, relied upon by the respondents, with respect to the petitioner and the private respondent is no longer in existence, as the same has been quashed by this court vide judgment and order dated 09-03-2016 passed in W.P. (C) No. 493 of 2012, a copy of which has been placed on record by the petitioner. Although the State Government is aware about the said final seniority list having been quashed by this court, it has not come before this court with clean hands and rather, it has relied upon the same which is not in existence at all. Even assuming for the sake of argument that the private respondent is senior to the petitioner, there is no rider in the law laid down by the Hon''ble Supreme Court in Piara Singh''s case that an in-charge appointment can be replaced by another in-charge appointment provided he or she is senior to the earlier one. In the present case, the petitioner is allowed to function as in-charge Head Mistress with D & D.O. vide order dated 04-07-2016 which has been cancelled vide impugned order dated 22-08-2016, without assigning any reason thereof, by which the private respondent is allowed to function as In-charge Head Mistress with D & D.O. Moreover, one point which needs to be noted is that the private respondent appears to have no grievance against the order dated 04-07-2016 for the reason that she has not challenged it at all. The order dated 04-07-2016 appears to have been issued by the State Government on the basis of its conscious decision because at the time of issuing it, the State Government was fully aware of the details in respect of the petitioner and the private respondent and the law laid down by the Hon''ble Supreme court. The whole controversy is created by the State Government and as such, the State Government cannot take advantage of it. It has also been contended by the State Government in its affidavit that the petitioner appears to have obtained the said order dated 04-07-2016 on the basis of political influence and interference. If that be the case, it was within the power and domain of the State Government to take appropriate action against the petitioner in accordance with law but since there is no material on record to show that such action has ever been taken by the State Government, its contention has no substance at all so far as the facts and circumstances of the present case are concerned. Moreover, a similar issue has already been considered and decided by this court in W.P. (C) No. 496 of 2016, Dr. Ngangkham Ibotombi Singh Vs. State of Manipur & others vide judgment and order dated 21-11-2016 wherein the issue that arose for consideration by this court was as to whether the appointment of the petitioner therein as in-charge Principal could be replaced by the private respondent as in-charge Principal merely because the private respondent was senior to the petitioner. Allowing the writ petition, this court held:
[7] On perusal of the decisions rendered by the Hon''ble Supreme Court and the Hon''ble Gauhati High Court and in particular, the decision in Government of Andhra Pradesh and anr. Vs. A.V. Venugopala Rao, reported in (1995) 1 SCC 179 wherein the Hon''ble Supreme Court upheld the interim arrangement made by the State Government to keep the senior most in the provisional list of respective divisions who are eligible for promotion to the posts of Executive Engineer as in-charge so as to avoid heart burning among the officers, it is seen that it is well settled that in matters of appointment on in-charge basis, the senior most employee is to be given preference for consideration to his juniors. But the issue involved herein is not as to whether a junior employee, ignoring the case of the senior most employee, can be appointed to a particular post on in-charge basis or not. In the present case, the petitioner, along with other incumbents, was appointed as the in-charge Principal, Imphal College vide order dated 04-03-2016 issued by the Deputy Secretary (Hr. & Tech. Edn.), Government of Manipur. It may be noted that at the time of issuing the said order dated 04-03-2016, the fact that the private respondent and two other Associate Professors who are senior to the petitioner are available for consideration, is known to the State Government and as has been stated herein above, the said order dated 04-03-2016 has not been challenged by anyone including the private respondent and the said two other Associate Professors which clearly indicates that they have no any grievance thereto. In partial modification to the said order dated 04-03-2016, the Deputy Secretary (Hr. & Tech. Edn.), Government of Manipur issued the impugned order by which the private respondent was appointed as the in-charge Principal by replacing the petitioner without any cogent reason being assigned therein except stating that the impugned order has been issued in the public interest. It may be noted that the State government being an institution having no heart and soul and manned by individuals, it will make no difference whether the post of Principal is held by the petitioner or the private respondent on in-charge basis and the only concern of the State Government appears to be to ensure the smooth functioning of the administration. But any appointment of an employee on in-charge basis in the absence of proper norms or guidelines, by simply following the method of pick and choose, will render itself to be unreasonable and arbitrary. The State Government through the Deputy Secretary (Hr. & Tech. Edn.), issued the impugned order on its own only in respect of the petitioner without the order dated 04-03-2016 being challenged by anyone. Had the Government order dated 04-03-2016 been challenged by any aggrieved person, a similar order passed by this court in R.K. Nando Singh'' case (supra), could have been passed in this case also. But it has not been done so in this case. In the affidavit filed on behalf of the State respondents, the reasons given for issuing the impugned order are that the appointment of the petitioner as in-charge Principal is purely on stop-gap /temporary arrangement and that the private respondent is senior to the petitioner. It is also not in dispute that the appointment of an employee on incharge basis is within the domain and jurisdiction of the State Government and in other words, it is a matter of discretionary power of the State Government but it is well settled that such discretionary power shall be exercised by the State Government in accordance with certain principles of law on the touchstone of fairness and reasonableness. But neither of the counsels appearing for the parties has produced any material on record relating to guidelines being issued by the UGC or the State Government with respect to appointment of Principals on in-charge basis. The only question that arises for consideration is as to whether the appointment of the petitioner as incharge Principal can be replaced by the private respondent as in-charge Principal in view of the law laid down by the Hon''ble Supreme Court in the case of Piara Singh''s case. Shri R.K. Deepak, the learned counsel appearing for the private respondent has submitted that the law laid down in the said Piara Singh''s case is not applicable to the facts and circumstances of the present case for the reasons as contended by him herein above. It is true to some extent that the term "in-charge" has not been used in Piara Singh''s case. In matters relating to appointment in Government service, different terminologies namely, ad-hoc, temporary, contract, in-charge, etc. are also being used quite often by the State Governments including various governmental authorities but the purpose for which the appointment is made on ad-hoc, temporary, contract, in-charge, etc. remains almost the same for the reason that such appointment is made purely as a stop-gap arrangement till the regular appointment is made in respect of the posts which are held by such ad-hoc, temporary, contract, in-charge, etc. employees. The learned counsels appearing for the parties have not brought to the notice of this court any statute in which the term "in-charge" is defined nor have they brought to the notice of this court any decision of the Hon''ble Supreme Court interpreting it. Therefore, the contention of the learned counsel appearing for the private respondent has no substance and the law laid down in the Piara Singh''s case will apply to the facts of the present case also and accordingly, the impugned order is liable to be quashed and set aside. However, it is open to the State Government to take any decision with cogent reason for replacing the petitioner by any other Associate Professor appointing him on incharge basis, provided the petitioner is found to be incapable or unsuitable or to be indulging in any corrupt practice or maladministration in the discharge of his duties or take a decision consequent upon the examination of the overall issue relating to appointment of Principals on in-charge basis in respect of all the Government colleges after laying down a detailed guidelines which appears to be indispensable for the reason that many posts of Principal are lying vacant for want of Associate Professors, as seen in one of the cases which has come to this court in the recent past, who fulfil the requisite qualifications prescribed in the UGC Regulations, 2010 for appointment on regular basis and that Principals are required to be appointed on in-charge basis, for the time being, in the interest of the administration of the college.
The facts of the present case are almost identical to that of Dr. Ngangkham Ibotombi Singh''s case (supra) and therefore, it can be safely held that the issue involved herein is covered by the said decision rendered in Dr. Ngangkham Ibotombi Singh''s case (supra), W.P. (C) No. 496 of 2016. The various decisions cited by the learned counsel appearing for the private respondent in support of his contention are not applicable to the facts of the present case and therefore, the same are not being referred to herein.
For the reasons stated herein above, the instant writ petition is allowed and consequently, the impugned order dated 22-08-2016 issued by the Deputy Secretary (Education/S), Government of Manipur is quashed and set aside. There shall be no order as to costs.