Smt. Khulem Sundari Devi vs The State of Manipur

Heard Shri H.S. Paonam, the learned Sr. Advocate appearing for the petitioner; Smt. Th. Sobhana, the learned Government Advocate

appearing for the respondent Nos. 1 and 2; Shri H. Dijen, the learned counsel appearing for the respondent No. 3 and Shri N. Surendrajit, the

learned counsel appearing for the private respondent.

The subject matter in issue relates to the question of determining seniority between the petitioner and the private respondent in the Department

of Statistics, Biramangol College, Manipur and in other words, the question is as to who is senior between them.

The facts and circumstances as narrated in the writ petition are that the petitioner and the private respondent, in response to the advertisement

dated 18-02-1999 issued by the Secretary, the Biramangol College, applied for appointment to the post of Lecturer in Statistics Department, the

Biramangol College. Both of them being found to be eligible by the DPC, they were temporarily appointed to the post of Lecturer in Statistics

Department vide separate order(s) dated 15-04-1999 issued by the Secretary, the Biramangol College, Manipur. Their services along with other

teaching staff were confirmed to their respective posts vide order dated 14-07-2001 issued by the Secretary, the Biramangol College, Manipur

wherein the name of the petitioner is shown at Sl. No. 7 while that of the private respondent at Sl. No. 6. On 30-07-2001 an order was issued by

the Secretary, the Biramangol College stating that the petitioner and the private respondent were placed in order of merit as per the

recommendation of the DPC held on 20-03-1999. After about 14 years, the Principal, the Biramangol College vide its letter dated 15-01-2015

submitted a list of Teaching Faculty and Non-Teaching staff members to the Director, University & Higher Education, Manipur by showing the

name of the private respondent above the petitioner. Similarly, while furnishing the information in respect of 14 lecturers to the Director, University

& Higher Education, Government of Manipur by the Principal (i/c), the Biramangol College vide its letter dated 28-02-2015, the position as

regards the seniority between the private respondent and the petitioner continued to remain the same. After her name being found to be shown

after the private respondent, the petitioner vide her letter dated 13-05-2016 requested the Principal, the Biramangol College to rectify the error as

regards the seniority list in the Department of Statistics, the Biramangol College followed by another letter dated 27-07-2016 requesting him to

maintain attendance register in proper order. Having not received any response from the Principal, the Biramangol College as requested by the

petitioner, she submitted a representation dated 28-07-2016 to the Director, University & Higher Education, Government of Manipur requesting

him to give a direction to the Principal, the Biramangol College for declaring the petitioner to be senior to the private respondent and in response

thereto, the Director, University & Higher Education, Government of Manipur addressed a letter dated 12-08-2016 to the Principal, the

Biramangol College requesting him to do the needful for rectification of the seniority list in the Department of Statistics followed by another letter

dated 24-09-2016, for the same purpose, with details being given therein the basis of its letters. In its reply to the said letters, the Principal, the

Biramangol College has stated that the private respondent is senior to the petitioner in terms of the confirmation order; that there is no resolution

book in the College office for verification and that the information furnished by the Biramangol College in respect of 14 lecturers was based on the

seniority list. Being aggrieved by the inaction on the part of the Principal, the Biramangol College pursuant to the letter dated 24-09-2016, the

petitioner submitted a representation dated 05- 12-2016 to the Director, University & Higher Education stating therein that the Principal, the

Biramangol College has not honoured its two letters and therefore, a prompt and necessary action be taken by re-looking into the matter and the

same is still pending for disposal by the respondents. Being aggrieved further by the inaction on the part of the respondents, the instant writ petition

has been filed by the petitioner.

The stand of the respondent No.3, the Biramangol College as indicated in its affidavit, is that as per the records available in the College, the

private respondent is senior to the petitioner from the day when they joined their services and in particular, the order dated 14-07-2001 by which

the private respondent has been shown to be senior to the petitioner. It has also been stated therein that in the college statistics from the year

2002-03 till 2015-16 published by the Manipur University, the private respondent is shown above the petitioner and moreover, the inter-se

seniority of permanent employees shall be determined in accordance with the date of confirmation in the grade. The order dated 30-07-2001 filed

along with the petition is not available in the office record of the Biramangol College and although there are seven lecturers in the Statistics

Department, only the names of the private respondent and the petitioner are shown therein. In the two letters dated 07-09-2016 and 28-11-2016

of the Principal, the Biramangol College, the dispute with respect to the seniority between the private respondent and the petitioner has been

clarified as per records available in the College. An affidavit has also been filed by the private respondent taking a similar stand as that of the

respondent No.3, the College and therefore, the details thereof need not be repeated here for the sake of brevity. However, it has been stated in

his affidavit that the order dated 30-07-2001 is a fabricated one and in order to resolve the issue involved herein, the resolution books of the

Collage are required to be looked into.

Seniority is an incidence of service and is one of the factors to be taken into account at the time of consideration of the eligible persons by the

DPC for purpose of promotion to the next higher post. Subject to the rules specially made in respect of the determination of seniority, it is to be

determined normally on the basis of the date of appointment on regular basis and in other words, the date of entry into the cadre shall be the basis

for determining seniority. The service jurisprudence recognises certain methods of recruitment, of which the methods- by direct recruitment and by

promotion, are commonly incorporated in the relevant rules made by the Government under the proviso to Article 309 of the Constitution of India.

The problem of determining seniority often arises mainly when the employees are appointed from more than one source, say, by direct recruitment

as well as by promotion. It is not so in the present case and it is not in dispute that both the private respondent and the petitioner were appointed,

by way of direct recruitment on the same day, probably on the recommendation of a DPC. It may be noted that if the appointments are made by

way of direct recruitment, the seniority is determined on the basis of merit and in the event of the select list not being prepared on the basis of merit,

the age of the candidates is considered to be the prime factor for determining seniority.

In the present case, as has been stated hereinabove, both the private respondent and the petitioner were initially appointed temporarily as the

lecturers in the Department of Statistics, the Biramangol College vide separate orders dated 15-04-1999 of the Secretary, the Biramangol College.

It is surprising to note as to why separate orders were issued when they were to be appointed, on the same day, on the basis of the

recommendation of a DPC. The whole controversy has arisen on account of the fact that the relevant records are not available in the office of the

respondent No.3, the Biramangol College, Manipur for the reasons best known to it. It is so stated in its affidavit. Since the appointments were

made by way of direct of recruitment, there would have been no problem provided the relevant records were/ are available in the College. To

substantiate her case, the petitioner has relied upon the order dated 30-07-2001 issued by the Secretary, the Biramangol College wherein the

petitioner has been shown to be senior to the private respondent and the letter dated 24-09-2016 of the Director, University & Higher Education

to contend that as per the Manipur Education Code, 1982, if the private respondent was aggrieved by the said order of the Director, University &

Higher Education, she ought to have preferred an appeal before the State Government. On the contrary, the private respondent has relied upon the

order dated 14-07-2001 by which the services of both of them along with others were confirmed and her name was shown above the petitioner.

The private respondent has taken a stand that the order dated 30-07-2001 is fabricated one. The Biramangol College in its affidavit has not

categorically denied the existence of the order dated 30-07-2001 but has only stated that the same is not available in its office record and has

shown primarily its surprise as to how the seniority was determined only in respect of the private respondent and the petitioner leaving the other

lecturers in the Statistics Department. But looking into its affidavit as a whole, it has supported the case of the private respondent.

Be that as it may, the fact remains that the relevant records with respect to the proceedings of the DPC are not available in the College and the

resolutions taken thereon as well and the documents which are relied upon by the private respondent and the petitioner are contradictory. In other

words, the private respondent has contended that the said order dated 30-07-2001 relied upon by the petitioner is a fabricated one. Therefore, in

the absence of the relevant records and in particular, the proceedings of the DPC, the point relating to the existence or for that matter, the

correctness of the order dated 30-07-2001 cannot be considered by this court for the reason that it is a disputed question of fact which can be

resolved only on the basis of the evidence adduced by the parties. It may be noted that the issue involved herein is not the one which requires

interpretation of any provision of law but the one which is required to be decided on true and correct materials on record and in the absence of

such materials, any decision given by this court may be rendered a hypothetical one. It is true that Article 226 of the Constitution confers

extraordinary jurisdiction on the High Court to issue prerogative writs for enforcement of fundamental rights or for any other purpose but the

Constitution does place any fetter on exercise of extraordinary jurisdiction. The power of the High Court is so vast that the sky is considered to be

its limit. As has been held by the Hon''ble Supreme Court in some cases, the ground on which the exercise of discretion can be declined by the

High Court is that the right claimed by the petitioner is not capable of being established in the summary proceeding under Article 226 of the

Constitution because it requires a detailed examination of the evidence and in other words, it has also been held that the object of Article 226 of

the Constitution is the enforcement and not the establishment of a right. Having heard the learned counsels appearing for the parties and perused

the materials on record, this court is of the view that this is not a fit case which warrants interference by this court and moreover, the remedy of the

petitioner lies somewhere else.

In view of the above and for the reasons stated hereinabove, the instant writ petition is disposed of as not maintainable with the observation that

it is open to the petitioner to approach an appropriate forum for redressal of her grievance and it is made clear that in the event of any forum being

approached by the petitioner, it may decide the issue without it being influenced by any of the observations made hereinabove by this court.