State of Manipur and Others vs Yumnam Mangibabu Singh and Others

H.K. Sema, J.—These batches of Writ Appeals are directed against the judgment and order dated 25.3.1994 passed by the learned Single Judge in Civil Rule No. 495/1994/111/1994 (Imphal Bench) and Civil Rule No. 247/1994. A common question of facts and law has arisen in these Writ Appeals and as such they are being disposed of by this common judgment.

Respondent No. 1 herein as writ Petitioner filed a petition praying for setting aside the Government order dated 4th January, 1994 (Annexure-A/8), the Government order dated 31st January, 1994 (Annexure-A/13) and the Government order dated 31st January, 1994 (Annexure-A/15) in the writ petition. In the said writ petition filed by Shri Yumnam Mangibabu Singh, Respondent No. 1 herein, the Appellant in writ appeal No. 24/94 and writ appeal No. 25/94 was arrayed as Respondent No. 1 and the Appellant in writ appeal No. 26/94 and writ appeal No. 27/94 was arrayed as Respondent No. 5. The learned Single Judge after hearing counsel of both sides allowed the petition and set aside the office memorandum dated 4.1.1994 (Annexure-A/8) fixing the inter se seniority of the Petitioner below the Respondent No. 5. The learned Single Judge also directed the Respondent No. 1 to 4 to fix the inter se seniority of the Petitioner according to the observation and decision made by the Single Judge in the judgment.

We have heard Mr. A. Nilamani Singh, learned Senior Counsel for the Appellant in the appeals and Mr. Ng. Kumar, learned Counsel for the Respondents in all the appeals.

Four reasons have been assigned by the learned Single Judge in allowing the petition.

These are;

(1) Writ Petitioner, Respondent No. 1 herein was senior to the Respondent No. 5 (proforma Respondent herein) in the cadre of Executive Engineer;

(2) The appointment on ad hoc basis of the writ Petitioner to the post of S.E. was earlier to the appointment of Respondent 5 on ad hoc basis to the post of S.E.; in as much as the writ Petitioner was appointed on ad hoc basis to the post of S.E. on 12.9.80 and the Respondent 5 was appointed to the post of S.E. on ad hoc basis on 4.12.82;

(3) The writ Petitioner had become eligible for promotion to the post of S.E. earlier than the Respondent 5 inasmuch as the writ Petitioner became eligible for promotion to the post of S.E. on 9.5.81 and the Respondent 5 became eligible for promotion to the post of S.E. on 4.6.82;

(4) The writ Petitioner has put in more length of continuous service in the post of S.E. than the Respondent 5.

On the basis of the aforesaid reasons the learned Single Judge had held in paragraph 8 of its judgment that the inter se seniority between the Petitioner and the Respondent 5 in the cadre of S.E. should be determined according to the seniority in the feeder post, namely, in the cadre of Executive Engineer. It would thus appear that the findings of the learned Single Judge solely based on seniority of the writ Petitioner and Respondent 5 in the cadre of Executive Engineer, holding that the promotion to the post of S.E. should be made in accordance with the seniority in the feeder post i.e. Executive Engineer,

Mr. A. Nilamani Singh has assailed the aforesaid Findings of the learned Single Judge on the ground that the findings of the learned Single Judge are contrary to the outstanding general principle for determination of seniority laid down under the office memorandum dated 22.11.1959 by the Govt. of India, Ministry of Home Affairs and circulated by the Manipur administration in its letter dated 14 August, 1962 and letter dated 7.2.1986 of the Govt. of India, Ministry of Personnel, Public Grievances and Pension and adopted by the Govt. of Manipur by its memorandum No. 21/24/87-DP dated 13 November, 1987 annexed in these writ appeals. According to Mr. Nilamani Singh, the post of S.E. is a selection post and the seniority in the selection post has to be determined in order of merit in accordance with the guidelines and principle determining the seniority.

That the post of S.E. is a selection post is not disputed at the Bar. If that is so, the inter se seniority to the post of S.E. has to be determined in order of merit and in accordance with the guidelines/principles for promotion to selection post in determining the inter se seniority. Mr. A. Nilamani Singh has taken pain in taking us though various provisions of the Govt. of India,s Notification and adopted by the Govt. of Manipur as referred to above. We may refer to few provisions strictly for the purpose of disposal of these writ appeals.

Clause (a) of the principles for promotion to selection post provides the number of clear regular vacancies proposed to be filled in the year and number of officers to be considered and says if the number of vacancies are four or more, the officers to be considered must be three times the number of vacancies. In Clause (b) a provision has been made that where the number of eligible officers in the feeder grades is less than the number prescribed in Clause (a), then all the officers so eligible should be considered.

Clause (d) provides the preparation of consolidated select list in the order of merit and says that such promotion will have only prospective effect, even in cases where the vacancy relates to an earlier year.

By Anr. office memorandum dated 22nd December, 1959, the Govt. of India laid down general principles for determining the seniority of various categories of persons employed in Central Service. This was adopted by the Govt. of Manipur by a Notification dated 14th August, 1962. By then the State of Manipur was under Central administration. After Manipur achieved Statehood, the said principle was adopted by a Gazette Notification dated 21st January. 1972.

Paragraph 5(1) of the principles deals with the relative seniority of persons promoted to the various grades and says that promotion to various grades shall be determined in the order of their selection for such promotion.

An explanation has been given to para 5(1) of general principles and says, where promotions are made on the basis of selection by a D.P.C., the seniority of such promotees shall be in the order in which they are recommended for such promotion by the Committee

(Emphasis supplied).

In the light of aforesaid provisions of guidelines let us now examine the case at hand in its prospective.

D.P.C. set on 9.7.84 for regularisation of the S.E. (Electrical). Proceeding of the D.P.C. is annexed in these writ appeals and the same is perused. We may at this stage, say that nobody has challenged the proceeding of the D.P.C. and therefore the minutes of D.P.C. remains in tact. In paragraph 2 of the minutes of D.P.C. it has been clearly mentioned that there are four sanctioned posts of S.E. (Electrical) were available at the time of sitting of D.P.C. In paragraph 3 of the minutes it is mentioned that there were only six Executive Engineers in the regular capacity. Out of six, one Executive Engineer Shri H. Anantakumar Sharma was not eligible for promotion to the post of S.E. as he does not possess a Degree. Therefore, the D.P.C. considered all the remaining five eligible candidates including the writ Petitioner Shri Yumnam Mangibabu Singh and the Respondent 5 Shri G.B. Sharma. Since the number of officers to be considered are less than the prescribed number in Clause (a) Col. No. 2 of the principles for promotion to selection post as discussed above, all the eligible candidates were considered in terms of Clause (b) of the aforesaid principles. In order to promote the eligible candidates to the section post of S.E. the D.P.C. considered the following documents:

(a) Integrity Certificate

(b) Property and Assets

(c) ACRs for the last 5 years.

The ACRs of all eligible candidates have been re-produced in the minutes of D.P.C. as under:

Sl. Name of Officer 79-80 80-81 81.82 82-83 83-84

Shri E. Nandakumar Singh Good V. Good V. Good V. Good V. Good

2, Shri A.K. Sharma Not eligible as per R.R. for S.E. (Elect)

Shri M. Manihar Singh V. Good Good Good V. Good V. Good

Shri Y. Mangibabu Singh Good Fair Ordinary Under Suspension

Shri R.K. Tikendra Good Good/ V. Good V. Good V. Good V. Good

Shri G.B. Sharma N.A. V. Good V. Good V. Good V. Good

The D.P.C. after examining the records of all the officers found all them fit for promotion to the posts of S.E. and prepared a consolidated select list in the order of merit in the following order:

Sl. Name of officer Date of eligibility

Shri E. Nandakumar Singh 27.12.79

Shri M. Manihar Singh 9.5.81

Shri R.K. Tikendra Singh 9.5.81

Shri G. Brajabidhu Sharma 4.6.82

In the list the name of the writ Petitioner Shri Y. Mangibabu Singh was not included.

It is submitted by Mr. Ng. Kumar that D.P.C. did not consider the case of the writ Petitioner on merit because he was then under suspension and the relevant records are not available in respect of the writ Petitioner before the D.P.C. for consideration at the time of D.P.C. sitting. According to the counsel in such a situation sealed cover procedure ought to have been resorted to. Next, it is contended that the D.P.C. did not prepare the select list in order of merit inasmuch as Shri R.K. Tikendra whose gradings are much better than Shri M. Manihar Singh has been put below the serial number of Shri Manihar Singh in a consolidated select list.

We are unable to accept the submission of Mr. Ng. Kumar for more than one reasons. Firstly, as already held by us the proceeding of D.P.C. has not been impugned by the writ Petitioner and at this stage he is estopped from raising it. Secondly, if any error is committed by the D.P.C. in preparing the consolidated select list in fixing the position of Shri M. Manihar Singh above R.K. Tikendra Singh, the right person to be aggrieved is Shri R.K. Tikendra Singh. Shri Tikendra Singh has not raised any grievances. Therefore, the writ Petitioner has no locus standi to raise grievance on behalf of Shri Tikendra Singh. This apart, on perusal of the ACRs, Shri M. Manihar Singh secured three very good. It is a common knowledge that when an incumbent secures maximum number of very good, it is deemed to be graded as very good in all the periods. No doubt, the grading of Shri Tikendra Singh is also to be graded as very good. There is yet Anr. submission of Mr. Ng. Kumar which needs disposal. It is contended by Mr. Ng. Kumar that the case of the Petitioner was not considered for the reason that he was under suspension at the relevant time. We have gone through the proceeding of D.P.C. No where it is said that the case of the writ Petitioner was not considered because he was under suspension. On the other hand the D.P.C. found him fit for promotion, but because at the relevant time only four (4) regular posts were lying vacant and therefore only four (4) officers were recommended for appointment in the order of merit. Even otherwise, we have perused the ACR of the writ Petitioner for the periods as quoted above and find that his gradings are far more inferior to the other selectors for appointment. Therefore, there is no merit in the contentions of Mr. Ng. Kumar. We are of the view that the D.P.C. has correctly prepared the consolidated select list in the order of merit in terms of the principle laid down for promotion to the selection posts.

In view of the aforestated reasons we allow these Writ Appeals by setting aside the judgment and order dated 25.3.1994 passed by the learned Single Judge in Civil Rule No. 495/94/111/94 and Civil Rule 247/1994. Considering the facts and circumstances, parties are asked to bear their own costs.

Appeal allowed.