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Judgment
Heard Mr.H.S. Paonam, learned Sr.counsel assisted by Mr.N. Bipin, Mr.Juno Rahman, learned counsel appearing on behalf of the petitioners as well as Mr.I. Lalitkumar Singh, learned Sr.counsel appearing for respondent-Manipur Public Service Commission, Mr.R.S. Reisang, learned Sr.GA for State respondents and Mr.M. Devananda, learned counsel appearing on behalf of the private respondents.
All these three writ applications were heard together and are being disposed of by this common judgment and order as the issue involving in all the cases is the same and similar.
Before proceeding further in the matter, the order which was recorded on 21.11.2016 needs to be reproduced which is here-under:
" 2 (two) petitioners, namely Md. Rajib Khan and P. Tarunkumar Singh were appointed as S.I. of Police in the year 2009, whereas, the petitioner namely Th. Phulchandra Singh was initially appointed on the post of A.S.I., but subsequently, was promoted to the post of S.I. in the year 2008. On being appointed, all the 3 (three) petitioners discharged their duties to the full satisfaction of the authorities. During that course, Md. Rajib Khan received 1 (one) Police Medal for Gallantry (PMG); as well as 1 (one) Chief Minister Police Medal for Gallantry (CMPMG) and that apart, he also received 26 (twenty six) Good Service mark. In the same manner, Mr. P. Tarunkumar Singh received 2 (two) Police Medal for Gallantry (PMG); 1 (one) Chief Minister Police Medal for Gallantry (CMPMG) and 31 (thirty one) Good Service mark; and the third one, Th. Phulchandra Singh received 2 (two) Police Medal for Gallantry (PMG) as well as 10 (ten) Good Service mark, which entitled all the 3 (three) petitioners to be considered out-of-turn promotion to the post of Inspector of Police in terms of the relevant Recruitment Rules. The said Rule of Promotion reads as follows:
" Matriculation/H.S.L.C. or its equivalent Sub-Inspectors of Police who have passed the Departmental Examination conducted by M.P.S.C. and completed 5 (five) years'' regular service in the grade.
Provided that not more than 10% of the vacancies arising in a recruitment year may be filled from Matriculate H.S.L.C. or its equivalent Sub-Inspector of Police who have passed the Departmental Examination conducted by M.P.S.C and completed 3 (three) years'' regular service in the grade and who have been recommended by the Director General of Police for promotion by reason of their conspicuous acts of gallantry in discharge of official duties OR 5 (five) good service marks awarded by Director General of Police as provided under Rule 44 of Part III of Assam Police Manual irrespective of their rank/position in seniority list.
Provided that officers recommended beyond the normal zone of consideration under such category shall be placed below the officers recommended under normal zone of consideration in the merit list."
Further case seems to be that the Director General of Police having considered these petitioners and others fit for consideration of promotion out-ofturn, made recommendation to Manipur Public Service Commission for promotion to the post of Inspector. A D.P.C. was constituted who was supposed to take decision in the matter of Promotion of 76 posts regular as well as out-of-turn in association with the Manipur Public Commission. According to the case of the petitioners, out of 76 (seventy six) posts, 8 posts in terms of the Rule as mentioned above should have been earmarked for out-of-turn promotion, but the D.P.C. taking only 2 (two) posts being available for out-of-turn promotion made recommendation for promotion for only to 2 (two) persons as the stand which has been taken by the State is that only 2 (two) posts were available for the year in which the matter of promotion was taken up and thereby respondent Nos. 4 & 5 were promoted to the post of Inspector leaving aside the claim of these 3 (three) petitioners as in terms of the said Rule there were 8 (eight) posts to be filled up for promotion.
According to Mr. H.S. Paonam, learned senior counsel appearing for the petitioners, the stand which has been taken up by the State is that in the year 2015, only 2 (two) posts were available for promotion whereas rest of the posts were shown to have had fallen for every year starting from 2009-2015. It was further pointed out that in spite of the fact that no promotion took place for the year 2009-2014, the vacancies occurred for those years were never considered to be available on the assumption that only those vacancies, which fell vacant in the year when the matter was taken up for promotion, are to be filled up and thereby only 2 (two) posts were filled up. But the State Government, while taking such decision has overlooked or contravened the relevant provision which speaks that 10 (ten) per cent of the posts be kept reserved for out-of-turn promotion for every recruitment year. Since recruitment year from 2009- 2015 would be only one, 8 (eight) posts out of 76 (seventy six) should have been taken to be posts available for out-of-turn promotion. Since it has not been done, the D.P.C committed illegality in recommending the name of only 2 (two) persons for promotion to the post of Inspector.
Further it was pointed out that so far as eligibilities are concerned, no one has raised any objection rather the stand which has been taken by the State in the counter affidavit is that all the petitioners are eligible to be promoted.
Lastly, it was submitted by Mr. H.S. Paonam, learned senior counsel that though a challenge for promotion is on all the posts but he would be confining his prayer to 8 (eight) posts meant for outof- turn promotion.
Learned counsel appearing for the State respondents and also learned counsel appearing for other respondents submitted that they shall be making their response on Friday, i.e. 25.11.2016.
As prayed for, matter be posted on 25.11.2016".
To-day when the matter was taken up, Mr.H. S. Paonam, learned Sr.counsel appearing for one of the petitioners by referring to a document dated 7th July 2016 issued by the Director General of Police, Manipur to the Additional Chief Secretary (Home), Govt. of Manipur did point out the position of vacancies right from the year 2009-2010 - 2015-2016 which is here-under:
Year-wise No. Of vacancies
2009-2010 29
2010-2011 5
2011-2012 6
2012-2013 10
2013-2014 14
2014-2015 7
2015-2016 5
Total = 76
4.1. By referring to the aforesaid vacancy position and also the relevant rules relating to the promotion of Inspector of Police in the Police Department, Manipur, Mr.Paonam submits that if the 10% of those 76 vacancies is calculated, it would come to 8 but the Government has come out with the case that during the period from 2009-2010 - 2015-2016 only 4 vacancies were there and as against those vacancies respondents 4 & 5 were promoted from 10% quota, still the stand which has been taken by the State that only 2 vacancies were available against 10% quota.
The vacancies relating to the 10% quota has been determined by the State in the following manner:
Year-wise No. Of vacancies accrued Reservation under 10% categories
2009-2010 29 10% of 29 = 2.9 say 2
2010-2011 5 10% of 5 =0.5 say nil
2011-2012 6 10% of 6 =0.6 say nil
2012-2013 10 10% of 10 = 1
2013-2014 14 10% of 14 = 1.4 say 1
2014-2015 7 10% of 7 = 0.7 say nil
2015-2016 5 10% of 5 = 0.5 say nil
Total = 76 4
Mr.H.S. Paonam, learned Sr.counsel submits that the aforesaid determination of the vacancies has been made taking into account accrual of the vacancies each year which is never in accordance with the rules relating to the promotion, rather it should have been determined taking into account the total vacancies accrued in a recruitment year and the recruitment year in terms of the decision of the Hon''ble Supreme Court would be 2009-2010 to 2015-2016 and no promotion had taken place during those period except one which is under challenge and in that process only two persons, i.e. respondents 4 & 5, were promoted against 10% quota and the rest two posts were filled up by the persons of general quota. However, it was pointed out by learned counsel appearing for the State that those posts would be filled up by adopting sealed cover process. This was clarified by Mr.H.S. Paonam that those two posts are being treated as vacancies against general (90%) quota. Otherwise those two vacancies would have been given to 10% quota.
Be that as it may. Since a serious challenge to the promotion on two or four posts has not been made, I need not to go into that issue.
The point falls for consideration as to whether the determination of 2/4 posts against 10% quota is in accordance with relevant rules or not? 8.1. Here, I would again refer to the rules relating to the promotion which reads as follows:
" Matriculation/H.S.L.C. or its equivalent Sub-Inspectors of Police who have passed the Departmental Examination conducted by M.P.S.C. and completed 5 (five) years'' regular service in the grade.
Provided that not more than 10% of the vacancies arising in a recruitment year may be filled from Matriculate H.S.L.C. or its equivalent Sub-Inspector of Police who have passed the Departmental Examination conducted by M.P.S.C and completed 3 (three) years'' regular service in the grade and who have been recommended by the Director General of Police for promotion by reason of their conspicuous acts of gallantry in discharge of official duties OR 5 (five) good service marks awarded by Director General of Police as provided under Rule 44 of Part III of Assam Police Manual irrespective of their rank/position in seniority list.
Provided that officers recommended beyond the normal zone of consideration under such category shall be placed below the officers recommended under normal zone of consideration in the merit list."
In terms of said rule determination of 10% vacancies needs to be done in reference to recruitment year. Obviously question would crop up as to what is the meaning of recruitment year. According to Mr.I. Lalitkumar Singh, learned Sr. Counsel appearing for the Public Service Commission, it should be read as Financial Year as in case of reservation of posts for Scheduled Casts and Scheduled Tribes in the State of Manipur the said clause ''recruitment year'' is being read as financial year. In this regard he has even referred to an Act called as "The Manipur Reservation of Vacancies in Posts and Services for Scheduled Castes and Scheduled Tribes Act, 1976". Section 2(b) of which reads as follows:- " Recruitment Year" means the financial year during which a recruitment is actually made". The definition, as has been given, is never in the said term as was stated by Mr. I. Lalitkumar Singh, learned Sr. Counsel as the recruitment year never means the financial year in terms of that definition, rather recruitment year happens to be the financial year during which recruitment takes place and this is the case of the petitioners. Exactly the same proposition has been laid down by the Hon''ble Supreme Court when it had occasions to deal with the matter which pertains to ''recruitment year'' in a case of Harish Cahndra Ram -Vs - Mukh Ram Dubey & Ors. Reported in 1994 Supp (2) SCC 490 wherein following propositions in paras-5 & 6 has been laid down which reads as follows:
In view of the aforestated resolutions, it is clear that the general candidates will not be considered for promotion to the post for SC, ST or BC reserved candidates. The reserved candidates even if they are not available, it is settled law that unless dereservation is done the vacancy will not be thrown open to the general category. It is not incumbent upon the Government as soon as the vacancy arises that it must be filled by recruiting the candidates either by direct recruitment or promotion from feeder cadre or by transfer. So, as and when recruitment takes place the cases of all the candidates including reserved candidates must be considered according to rules which would arise only when recruitment takes place. Take for instance an hypothetical case. A and B are eligible for consideration and were considered in 1980 for two vacancies and B was found suitable and was appointed to one vacancy in 1982. One more vacancy arose in 1983. In the year 1983, A, C and D were considered. A and D were promoted in 1984. The recruitment years are 1982 and 1994, and not 1980 when one vacancy existed or 1983 when two vacancies existed. So each year is not the year of recruitment. As and when recruitment takes place in a particular year, it would be the year of recruitment.
Take another illustration. Suppose Public Service Commission advertises for direct recruitment in the year 1980, but actually selects the candidates in 1984. Whether 1980 would be the recruitment year? Answer would be no. Second advertisement was made in 1985 and recruitment was made in 1990. The second recruitment year is 1990 and not 1985. It is thus clear that the recruitment year is the year in which recruitment takes place, but not each three successive years in which the vacancy exists. The same yardstick would apply to fill in the reserved vacancy. Dereservation will be considered only at the end of third recruitment year provided reserved candidates are not available, or considered at the recruitment and found not fit for promotion or carried forward for three successive recruitment years. Then the matter should be placed before the competent authority for consideration for dereservation of the reserved posts and a resolution or order should be made dereserving the posts. Then those alone reserved posts or vacancies will be thrown open for recruitment by the general candidates".
That apart, there may be reasons for using the word "recruitment year" instead of financial year as the matter relating to the promotion may not have been taken by the authority every year which is reflecting from the facts of this case as during 2009 - 2016 only once matter relating to promotion was taken and therefore, the proposition which was advanced by Mr. I. Lalitkumar singh, learned counsel cannot be accepted that recruitment year be taken as financial year.
In that event there has been no difficulty in accepting the case of the petitioners that taking into account total vacancies during 2009 - 2016 accruing 76, 10% of it would be 8. However, according to Mr.R.S. Reisang, learned Sr.GA and also the other respondents all the 76 posts have been filled up. But at the same time Mr.H.S. Paonam, learned Sr.counsel submits that taking into account the date of retirement given under the seniority list, a supplementary affidavit has been filed wherein it has been stated that up to December 2016, 7 vacancies has accrued. Learned counsel by referring to statement made in supplementary affidavit pointed out that 2 vacancies fell in the month of June,2016 (which was never the part of the process of promotion under taken), 1(one) in the month of October, 2016 and 4 in the month of December, 2016 and thereby total vacancies as on to-day existing is 7, which fact has not been denied. In such a situation, there has been no difficulty in accepting the fact that presently 7 vacancies are existing and as against that only three persons, who are the petitioners in three writ petitions, have come to this Court putting claim of promotion on the post of Inspector under 10% quota. In such a situation in spite of the process of determination of the vacancies under 10% quota being found bad, I am not inclined to interfere with the process undertaken by the Manipur Public Service Commission for filling up the 76 posts on account of the reason that 7 vacancies are existing and all the petitioners are eligible to be promoted under 10% quota. Accordingly I hereby direct the authority to undertake the process of DPC within two months for taking the matter for promotion of the petitioners to the posts of Inspectors under 10% quota. Upon being promoted the authority must consider the matter for giving effect of the order of promotion notionally w.e.f. 7th July, 2016 keeping in view that had the vacancies been taken to 8. The petitioners would have been promoted and that the petitioners would be put to disadvantageous position in having minimum period of eligibility for being promoted to higher post if the order of promotion is not given effect to notionally w.e.f. 7th July, 2016.
Thus, the aforesaid three writ petitions stand disposed of.