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Tuesday, September 15, 2015

Promotion in Promotion quota - the appellants are Master Degree/Degree Holders serving in the Public Health Engineering Department as Section Officers Grade-I. The next higher promotional post for them is the post of Assistant Engineer, which is to be filled up in terms of the recruitment rules known as PWD, IFCD and PHED, Manipur Assistant Engineer (Civil/ Mechanical) /Assistant Surveyor of Works Recruitment Rules, 2009 (in short “Rules of 2009”). As per the aforesaid recruitment rules, 60% of the posts of Assistant Engineers are to be filled up by promotion and the remaining 40% by direct recruitment. As regards the 60% promotional quota, 50% of the vacancies thereof are to be filled by Degree Holders Section Officers Grade-I and the remaining 50% by Diploma Holders and others.=still there are 16 vacancies available against the promotion quota and the appellants come within eight in the seniority list. They shall automatically get promotion. Having regard to the fair submissions made by Mr. Gupta, learned counsel, we do not want to go into the question raised by Mr. Rao, learned counsel appearing for the appellants.- 16 vacancies for promotion against the promotion quota are available and in any case the appellants shall be considered for promotion. In that view of the matter, we are not inclined to interfere with the impugned order passed by the High Court. However, we dispose of the appeals holding that the appellants' case shall be considered for promotion against the promotion quota as they are much above in the seniority list. The question of law raised by the appellants shall be kept open.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.6783 OF 2015
               (Arising out of S.L.P.(Civil) No.35459 of 2013)

KSH. LAKSHAHEB SINGH
AND OTHERS                                   …..Appellant(s)
                                   versus

STATE OF MANIPUR AND OTHERS             ..Respondent(s)

                                    WITH
                        CIVIL APPEAL NO.6784 OF 2015
               (Arising out of S.L.P.(Civil) No.21904 of 2014)

LAISHRAM GOKULCHANDRA
SINGH AND OTHERS                        …Appellant(s)
                                   versus
STATE OF MANIPUR AND OTHERS             ..Respondent(s)

                                    WITH
                        CIVIL APPEAL NO.6785 OF 2015
              (Arising out of S.L.P. (Civil) No. 21910 of 2014)

LAIRIKYENGBAM TAMOCHA ROY
        AND OTHERS                                   …..Appellant(s)
                                   versus
STATE OF MANIPUR AND OTHERS             ..Respondent(s)


                                  JUDGMENT

M. Y. EQBAL, J.



Leave granted.

2.    The appeal arising out of S.L.P.(Civil) No.35459 of 2013  is  directed
against the Judgment and  order  dated  25.09.2013  passed  by  the  learned
Single Judge of High Court of Manipur, who disposed  of  the  writ  petition
preferred by the appellants seeking quashing of the letter dated  02.02.2013
issued by the Department of Personnel & Administrative  Reforms,  Government
of Manipur to the Manipur Public Service Commission to initiate the  process
for direct recruitment to the post of  Assistant  Engineers  in  the  Public
Health Engineering Department, Government of Manipur.



3.    The facts of the case in brief are  that  the  appellants  are  Master
Degree/Degree Holders serving in the Public  Health  Engineering  Department
as Section Officers Grade-I.  The next higher promotional post for  them  is
the post of Assistant Engineer, which is to be filled up  in  terms  of  the
recruitment rules known as PWD, IFCD and PHED,  Manipur  Assistant  Engineer
(Civil/ Mechanical) /Assistant Surveyor of  Works  Recruitment  Rules,  2009
(in short “Rules of 2009”).   As per the aforesaid  recruitment  rules,  60%
of the posts of Assistant Engineers are to be filled  up  by  promotion  and
the remaining 40% by direct recruitment.  As  regards  the  60%  promotional
quota, 50% of the vacancies thereof are  to  be  filled  by  Degree  Holders
Section Officers Grade-I and  the  remaining  50%  by  Diploma  Holders  and
others.



4.    It has been pleaded that due to certain financial crunch faced by  the
State Government in the past, the State Government took  a  policy  decision
in the year 1999 by which a total  ban  was  imposed  on  appointment  under
direct recruitment quota. Thereafter, the State Government, considering  the
continuing acute financial condition of  the  State  Government,  issued  an
order on 19.03.2001 by which all appointments made on  part-time,  contract,
adhoc, substitute, casual basis, etc.  on  direct  recruitment  were  to  be
terminated  and  various  Government  Departments  were  also  subjected  to
downsizing of staffs.



5.    Before the High Court, the  writ  petitioners  pleaded  that  although
there were 27 vacancies in the grade of Assistant  Engineer  in  the  Public
Health Engineering Department  most  of  which  were  to  be  filled  up  by
promotion, the office of the Chief Engineer, PHED, Manipur vide  his  letter
dated 29.8.2012 submitted a  proposal  to  the  Principal  Secretary  (PHE),
Government of Manipur for filling up 25  of  the  vacant  posts  by  way  of
direct recruitment.   The writ petitioners contended that till  the  ban  is
lifted on direct recruitment, the Department cannot proceed to initiate  any
action for filling up the vacant posts by direct recruitment  and  as  such,
the aforesaid action on the part of the authorities to fill  up  the  vacant
posts by way of direct recruitment is not permissible.   It  has  also  been
contended on behalf of the appellants that  as  per  the  office  memorandum
dated 29.4.1999 issued by  the  Department  of  Personnel  &  Administrative
Reforms, Personnel Division, Government of Manipur the vacancies are  to  be
filled up on year wise basis and quota for promotion  vis-à-vis  the  direct
recruitment is to be worked out on year wise basis.   It  has  been  further
pleaded  that  those  vacancies  which  became  available   prior   to   the
enforcement of the Rules of 2009 for the Assistant Engineers i.e.  29.7.2009
cannot be counted in the determination of number  of  vacancies  for  direct
recruitment quota. According to them, the number  of  vacancies  for  direct
recruitment quota under the 2009 Rules should be calculated on the basis  of
vacancies available after  28.7.2009.  However,  the  authorities  have  not
followed any norm for determination of vacancies to the  post  of  Assistant
Engineer which are to be filled up by way of direct recruitment.



6.    After hearing learned counsel on either side and perusing  a  copy  of
the Government order dated 12.8.2013 placed on record by the  learned  Govt.
Advocate appearing for the  State,  which  showed  that  the  Government  of
Manipur had relaxed the ban on direct recruitment partially  in  respect  of
certain  services/posts  including  the  post  of  Assistant  Engineer   for
Power/Works/PHE/IFC departments, learned Single  Judge  of  the  High  Court
disposed of the writ petition observing as under:

“Since the Government has already taken  a  decision  as  evident  from  the
order dated 12.8.2013 for lifting the ban on  direct  recruitment  partially
in respect of certain posts including the post  of  Assistant  Engineer  for
Public Health Engineering Department, the action  taken  by  the  Department
for filling up the vacancies in the  grade  of  Assistant  Engineer  against
direct  recruitment  quota  as  mentioned  in  the  impugned  letter   dated
02.02.2013 cannot be faulted with and accordingly, no writ can be issued  to
set aside/ quash the impugned letter dated 02.02.2013. However,  as  regards
the actual number of vacancies to the post  of  Assistant  Engineer  in  the
Public Health Engineering  Department  which  may  be  filed  up  by  direct
recruit, it is clarified that the State  authorities  would  re-examine  the
exact number of vacancies falling under direct recruitment quota before  any
appointment is made to the post  of  Assistant  Engineer  in  terms  of  the
recommendation  of  the  Manipur  Public  Service   Commission   on   direct
recruitment quota, so that any vacancy, which  otherwise  would  fall  under
the promotion quota is not filled up by direct recruitment. Accordingly,  if
any appointment is made under the direct recruitment quota in excess of  the
direct  recruitment  quota  as  per  the  relevant  recruitment  rules,  the
petitioners, if aggrieved, would  be  at  liberty  to  approach  this  Court
again.”



7.     Aggrieved  by  the  decision  of  the  High  Court,  the  three  writ
petitioners preferred this appeal by special leave.   While  issuing  notice
in the matter on 29.11.2013, this Court directed  that  the  result  of  the
selection shall remain pending subject to  final  decision  of  the  special
leave  petition.   Thereafter,  respondents-State  moved  an   interlocutory
application being IA No.1/2014 for vacating stay, upon which learned  senior
counsel on both sides were heard and following  order  was  passed  by  this
Court on 3.7.2014:

“Our order dated 29.11.2013 is modified to the following extent:

The State shall be free to fill up the vacancies advertised  in  the  direct
recruitment quota subject to the condition that three out of such  vacancies
are left unfilled.

Appointment against the advertised vacancies, if any, shall  remain  subject
to the ultimate outcome of these proceedings.

Appointment orders issued to  the  selected  candidates  shall  specifically
mention  that  their  appointments  are  subject  to  the  outcome  of  this
petition.

     Post  the  petition  for  final  disposal  after  six  weeks.   Counter
affidavits and rejoinder, if any, be filed in the meantime  if  not  already
filed.”



8.    Other Section Officers Grade-I also preferred  writ  petitions  before
the High Court with a prayer for direction to the respondents to keep  posts
vacant for the writ-petitioners.    Upon this prayer, learned  Single  Judge
of the High Court on 25.7.2014 observed that it would not be appropriate  on
the part of the High Court to direct that some post be  kept  unfilled  and,
therefore, refused to pass any interim order  except  that  any  appointment
made in pursuance of the advertisement shall be subject to  outcome  of  the
writ application.



9.    Aggrieved by the decision of the  High  Court  to  not  grant  interim
order, aforesaid two groups of Section Officers Grade-I are also  before  us
by way of appeals under Article 136 of  the  Constitution.   We  have  heard
learned counsel appearing for the parties at length.

10.   Mr. P.P. Rao, learned counsel appearing for the appellants,  made  the
following submissions:

(I)   The statutory Recruitment Rules dated  27.07.2009  and  the  Rules  in
force even earlier mandate that 60% of the  vacancies  shall  be  filled  by
promotion and 40% by direct recruitment and not the posts in the cadre.  But
the Chief Engineer, the Government and the Public  Service  Commission  have
applied the quotas to the 'cadre strength' of Assistant  Engineers  and  not
to the vacancies which is contrary to the statutory rules.

(II)  The respondents herein have not only applied the quota  to  the  cadre
strength as stated above but also carried forward almost all  the  vacancies
on the erroneous supposition that they are meant for direct recruitment  and
filled up 22 out of the  27  accumulated  vacancies  by  direct  recruitment
subject to  the  outcome  of  the  SLP,  keeping  three  vacancies  for  the
appellants in terms of the interim order. This is a clear violation  of  not
only the statutory rules and administrative instructions but  also  Articles
14 and 16(1) of the Constitution.

(III) According to Mr. Rao, learned Senior Counsel for the  appellants,  the
quota  prescribed  for  promotion  and  direct  recruitment  will  apply  to
vacancies and not to posts in the cadre.

(IV)  For the last 30 years, there  is  not  a  single  promotion  given  to
candidates eligible for promotion as Assistant Engineers. An officer  should
get at least two promotions in his  career  as  per  law  declared  by  this
Court. But the respondent-Government has acted most arbitrarily by  allowing
stagnation of officers eligible for the post of Assistant Engineer  for  the
last 30 years in violation of Articles 14 and 16(1) of the Constitution.

(V)   The High Court failed  to  decide  the  issues  arising  in  the  Writ
Petitions. The impugned judgment is liable to be set aside. This  Court  may
be pleased to  grant  special  leave,  allow  the  appeals  and  direct  the
respondents to fill up the  vacancies  of  2007,  2009,  2010  and  2012  by
promotion  with  retrospective  effect  and  fill  the  remaining  vacancies
according to the respective quotas i.e. 60% by promotion and 40%  by  direct
recruitment.



11.   On the other hand,      Mr.  Jaideep  Gupta,  learned  senior  counsel
appearing for the respondent-State,  firstly  drawn  our  attention  to  the
operative  portion  of  the  impugned  judgment  and  submitted   that   the
appellants raised only one question before the High  Court  which  has  been
decided by the impugned judgment.

12.   Mr. Gupta, learned counsel, denied the submissions made  by  Mr.  Rao,
learned senior counsel appearing for the appellants that no promotions  have
been given to the candidates eligible for promotion for the last  30  years.
He also denied that there is stagnation  in  the  service  inasmuch  as  the
appellants and other similarly situated persons have been  granted  benefits
under the ACP scheme.



13.   In course of arguments, Mr. Gupta,  learned  senior  counsel,  submits
that still there are 16 vacancies available against the promotion quota  and
the  appellants  come  within  eight  in  the  seniority  list.  They  shall
automatically get promotion.  Having regard to the fair submissions made  by
Mr. Gupta, learned counsel, we do not want to go into  the  question  raised
by Mr. Rao, learned counsel appearing for the appellants.



14.   As notice above, Mr. Gupta, learned  counsel,  very  fairly  submitted
that 16 vacancies for promotion against the promotion  quota  are  available
and in any case the appellants shall be considered for promotion.   In  that
view of the matter, we are not  inclined  to  interfere  with  the  impugned
order passed by the High Court. However, we dispose of the  appeals  holding
that the appellants' case shall be  considered  for  promotion  against  the
promotion quota as  they  are  much  above  in  the  seniority  list.    The
question of law raised by the appellants shall be kept open.



                                                                  ……………………J.
                                                                (M.Y. Eqbal)



                                                                  ……………………J.
                                                               (C. Nagappan)
New Delhi
September 02, 2015


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