Shri Pukhram Ramu Singh & ANR. vs The State of Manipur & ORS.

Heard Shri I. Denning, the learned counsel appearing for the petitioner; Smt. Th. Sobhana, the learned Government Advocate appearing for the State respondents, Shri N. Surendrajit, the learned counsel appearing for the respondent No. 6 and Shri R.K. Umakanta, the learned Addl. Government Advocate appearing for the MPSC. None is present for the other respondents.

The correctness or legality of the inter-se seniority list of the Assistant Engineers (Agri. Engg.)/ equivalent in the Joint Engineering Cadre of CADA notified vide Government order dated 05-07-2014 is being questioned in this writ petition on the inter-alia ground that while determining the said inter-se seniority, the general principles contained in the O.M. dated 07- 02-1986, adopted in the State of Manipur, have not been followed by the State Government.

1. According to the petitioners, the Administrator, the Command Area Development Department, Manipur issued a notice dated 09-08-1996 followed by another notice dated 16- 08-1996, inviting applications from amongst the eligible candidates for appointment to two vacant posts of Assistant Engineer (Agri. Engg.) on adhoc basis for a period of six months and in response thereto, the petitioners being qualified and eligible, applied for the same. As per the notice dated 20-11-1996 issued by the Administrator, CAD Department, Manipur, the DPC for appointment to the said posts of Assistant Engineer (Agri. Engg.) was held on 26-11-1996 and on the recommendation of the said DPC, the petitioners were appointed to the said posts of Assistant Engineer (Agri. Engg.) on ad-hoc basis vide Government order dated 02-12-1996 issued by the Secretary (CAD), Government of Manipur against the posts created vide Government order dated 27-05-1996. The ad-hoc services of the petitioners were extended from time to time till 29-12-1998 when the ad-hoc services of the petitioners were regularised with effect from 29-12-1998 vide Government order dated 29-12-1998 issued by the Commissioner, CAD, Government of Manipur.

The Under Secretary, Government of Manipur vide its letter dated 29-02-2000 addressed to the Additional Chief Engineer, CADA, Manipur circulated a tentative inter-se seniority list of the Assistant Engineers/Equivalent in the Joint Engineering Cadre of CADA inviting objections/ suggestions wherein the names of the petitioners were placed at Sl. No. 17 and 18 respectively. On coming to know about the said letter being addressed to the Additional Chief Engineer (CADA), the petitioners submitted their objections, on receipt of which the Additional Chief Engineer informed the Commissioner (CAD), Government of Manipur vide its letter dated 12-04-2000 requesting him for examination and rectification in regard to the seniority list of the Assistant Engineers/ Equivalent in the Joint Engineering Cadre. Accordingly, the revised inter-se seniority list was prepared and the Deputy Secretary (CAD), Government of Manipur addressed a letter dated 03-05-2014 to the Additional Chief Engineer (CADA) requesting him to circulate the same to the Assistant Engineer concerned and in the said inter-se seniority list, the names of the petitioners appeared at Sl. No. 7 and 8 respectively which, according to the petitioners, were found to be correct. However, apprehending that their correct position in the inter-se seniority list circulated vide letter dated 03-05-2014 might be disturbed sometime later, the petitioners submitted their representations to the Commissioner (CAD) to maintain their seniority position. In spite of their correct positions being shown in the letter dated 03-05-2014, the Deputy Secretary (CAD), Government of Manipur, contrary to the O.M. dated 19-08-1998 with respect to determination of seniority position of direct recruit and promotees, issued the order dated 05-07-2004, impugned herein, restoring the seniority positions of the petitioners as shown in the tentative seniority list dated 29- 02-2000. Being aggrieved by the said impugned order dated 05- 07-2014, the instant writ petition has been filed by the petitioners on the inter-alia ground that while determining the inter-se seniority, the respondents have not followed the general principles contained in the O.M. dated 07-02-1986 which was adopted by the State of Manipur vide Memorandum dated 13-11- 1987 issued by the Joint Secretary (DP), Government of Manipur.

The instant writ petition is vehemently contested by the State respondents by filing an affidavit-in-opposition wherein it is stated that the appointment of the petitioners on ad-hoc basis vide order dated 02-12-1996 and their retrospective regularisation on 29-12-1998 were made as per the relevant Recruitment Rules, 1996 and that the seniority list was fixed in compliance with the directions contained in the order dated 26- 11-1996 passed by the Hon''ble Gauhati High Court, Imphal Bench in C.R. No. 970 of 1996 after having consulted the Law Department and the Department of Personnel and also after having followed the norms laid down in the Memorandum dated 13-11-1987. It is further stated that based on the said seniority list notified on 05-07-2014, three separate DPCs for promotion to the post of Executive Engineer have already been held on 22-05- 2014, 20-12-2014 and 15-01-2016 respectively and the proceeding thereof have not been questioned by anyone including the petitioners and therefore, the seniority positions of the petitioners having been settled, the same cannot be allowed to be unsettled. As per the settled principles of law, the petitioners are barred from challenging the impugned order dated 05-07-2014. The affidavit-in-opposition filed by the respondent No. 6 is in tune with the stand taken by the State respondents and therefore, the details thereof are not repeated here for the sake of brevity.

From the pleadings, it is seen that there is no controversy amongst the parties as regards the facts of the case and therefore, this court need not go into them. It is not in dispute that the inter-se seniority is to be determined in accordance with law and in particular, the general principles contained in the O.M. dated 07-02-1986 adopted by the Stae of Manipur vide Memorandum dated 13-11-1987 issued by the Department of Personnel. All that the learned Government Advocate submitted, is that since the inter-se seniority list has been finally fixed in compliance with the directions contained in the order dated 26-11-1996 passed by the then Hon''ble Gauhati High Court, Imphal Bench in C.R. No. 970 of 1996, there is nothing wrong or illegal in the Government order dated 05-07- 2014 impugned herein. On perusal of the said order dated 26- 11-1996, it appears that the validity and correctness of the O.M. dated 07-02-1986 as adopted by the State Government, was not the subject matter in issue in CR No. 970 of 1996 because the Hon''ble Gauhati High Court, while passing the said order, did not make any observation in respect thereof. The directions contained in the said order dated 26-11-1996 are given as under- "3. After hearing counsel of both sides, this writ petition is disposed with the following directions:-

(a) The D.P.C. for direct recruit which is going to be held today at 11 A.M. shall be allowed to be held and pursuant to the selection appointment may be made to the direct recruitment.

(b) For the remaining four vacancies for promottees, the same D.P.C, shall be constituted within the month of December, 1996 and shall hold its sitting within December 1996 itself and recommended candidates shall also get appointment within December itself. General rule applied to direct recruits and promottees is that, if the recruitment is done in the same year the promotees shall rank over direct recruit. While fixing inter-se seniority between the direct recruit and promottees, this principle shall be strictly adhered to."

The only thing that needs to be noted is that while passing the said order, the Hon''ble Gauhati High Court, Imphal Bench has referred to the general principles with the observation that if the recruitment takes place in the same year, the promottees shall rank over the direct recruits and that while fixing inter-se seniority between the direct recruits and the promotes, the general principles be followed strictly. In other words, the specific direction is that general principles shall be strictly followed while fixing the inter-se seniority. The controversy has arisen due to the fact that the Hon''ble Gauhati High Court, Imphal Bench has not correctly observed as regards the true intent of the O.M. dated 22-12-1959 which provides that where appointment to a grade is to be made 50% by direct recruitment and 50% by promotion from a lower grade, the inter-se seniority of direct recruits and promotes is determined on 1:1 basis. But there was difficulty in following the said principles in cases where there was delay in direct recruitment or promotion or where enough number of direct recruits or promotes did not become available and accordingly, a modification came to be made in the O.M. dated 07-02-1986 wherein it is provide that if adequate number of direct recruits do not become available in any particular year, rotation of quotas for purpose of determining seniority would take place only to the extent of the available direct recruits and the promotes. In other words, to the extent direct recruits are not available, the promotes will be benched together at the bottom of the seniority list, below the last position upto which it is possible to determine seniority on the basis of the rotation of quotas with reference to the actual number of direct recruits who become available. In the present case, the words "the promottees shall rank over direct recruits" mentioned in the order dated 26-11-1996 have been erroneously construed by the State Government to mean that all the promotes shall be placed en-bloc above the direct recruits. This interpretation is totally incorrect for the reason that the Hon''ble Gauhati High Court, Imphal Bench did not observe what has been interpreted by the State Government. Reading the direction (b) as a whole makes it very clear to mean definitely that the general principles that the inter-se seniority of direct recruits and promotes is determined on 1:1 basis, shall be strictly adhered to. In other words, the seniority position of the promotes and direct recruits shall be fixed in accordance with the illustration mentioned in the O.M. dated 07-02-1986. The fact that the general principles are followed by the State Government in respect of other Departments while determining the inter-se seniority, is evident from the order dated 21-01-2000 issued by the Joint Secretary/Planning, Government of Manipur, a copy which has been placed on record. The State Government being an institution which is expected to act fairly and reasonably, cannot be permitted to play hot & cold as regards the fixation of final inter-se seniority. Moreover, even assuming that the manner in which the order dated 26-11-1996 has been construed by the State Government is correct, the order dated 26-11-1996 will not be binding upon the petitioners herein because they were not made parties in CR No. 970 of 1996 and cannot be construed so as to infringe their right or interest without they being given an opportunity of being heard. Therefore, applying the said general principles, the petitioner No.1 ought to be placed below Shri Th. Dilip Singh and above Shri M. Jugindro Singh whereas the petitioner No.2 be placed below Shri M. Jugindro Singh and above Shri K. Ibochou Singh and the rest are to be placed en-bloc below Shri K. Ibochou Singh. Since the State Government has failed to do that, the impugned order is bad in law and is liable to be quashed.

For the reasons stated herein above, the instant writ petition is allowed and consequently, the impugned order dated 05-07-2014 issued by the Deputy Secretary (CAD), Government of Manipur is quashed and set aside. The State respondents and in particular, the respondent No.2 are directed to re-fix the final inter-se seniority of the Assistant Engineers / equivalent in the Joint Engineering Cadre of Agriculture, Horticulture & Soil Conservation and Command Area Development Department, Manipur, in accordance with the general principles as contained in the O.M. Dated 07-02-1986 adopted by the State of Manipur, within a period of one month from the date receipt of a copy of this judgment and order. There shall be no order as to costs.