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1993 DIGILAW 133 (GAU)

V. H. Varte v. State of Manipur

1993-06-07

W.A.SHISHAK

body1993
These two petitions under Article 226 of the Constitution have been filed by the petitioner impugning different orders of the Government of Manipur. 2. The controversy involved in Civil Rule No.151 of 1993 appears to be a short one and as such I shall deal with it first. In this petition the main and in fact the only relief sought for is retrospective regularisation of the services of the petitioner in the post of UDC from the date of his initi I appointment to the said post on ad-hoc basis wef 12 1.79 at Annexure A/1 with all the consequential benefits. 3. By an order dated 12.1 79 issued by the Commissioner (GAD) as many as sixteen (16) persons including the petitioner were appointed on promotion as UDCs in the Manipur Secretariat on ad-hoc basis for six (6, months with immediate effect or till regular appointments to the post of UDCs are made Whichever is earlier. 4. By another order dated 6th November, !979 as many as twenty six (26) persons including the petitioner were appointed on promotion as UDCs in the Manipur Secretariat with immediate effect until further orders. The n 'me of the petitioner appears at SI. No.23 of this order. Since 4,1 91 the petitioner has been serving as Assistant which is higher post in the same Secretariat. The petitioner claims that since he was initially appointed on ad-hoc basis as UD 2 wef 12.1.79, the service of the petitioner should be regularised in the said post of UDC from the date of initial appointment and not from 6.11.79 when the order of regular promotion w is issued, As against this submission the learned Advocate General, Manipur submits that the said order of promotion issued by the Government on 6 11.79 does not clearly show that it is order of promotion on regular basis. I have perused the said order dated 6.11.79. I entertain no doubt in my mind that this order is an order of promotion on regular basis. In this view of the matter, it appears to me that the service of the petitioner should be regularised with effect from initial appointment its the said post of UDC on ad-hoc basis from 12.1.79, 5. I shall now deal with the Civil Rule No. 1346 of 1992. In this view of the matter, it appears to me that the service of the petitioner should be regularised with effect from initial appointment its the said post of UDC on ad-hoc basis from 12.1.79, 5. I shall now deal with the Civil Rule No. 1346 of 1992. In this case the petitioner claims that he has a right to be considered for promotion to the.peit of Section Officer/Desk Officer against the post created by the Government in accordance with the Recruitment Rules of 1986. 6. Recruitment Rules framed under the Proviso to Article 3(N of the institution of India by the Government of Manipur provides for promotion to the post of Section Officer In Rule 8 (e) (i) (ii) which is as follows : "8. (e) for promotion to the post of Section Officer the select list shall be made from - (i) amongst the members of Manipur Secretariat Subordinate Service Category I (ii) Assistants with 3 (three) years' regular service in the grade failing which Upper Division Clerks with 12(twelve) years' regular service in the grade in the Secretariat and passed the Accounts Test conducted either by the Accountant General Assam or the Government of Manipur as also the Office Procedure Examination conducted by the Government of Manipur from time to time.'' As per Rule 5 of the said Recruitment Rules the strength of the post-, under each of the categories shall be such as may be determined by the Governor from time to time. In terms of Rule 5 as stated above, the Government of Manipur was pleased to accord sanction to the creation of posts in the Minipur Secretariat by order dated 26th October, 1991. In terms of this order there were five (5) pasts of Section Officer and another five (5; posts of Desk Officer in the same scale of pay. This was an executive order and it was issued as contemplated to the aforesaid Rule 5 of 1986 Rules. Para 2 (iv) of the said order states that the "post of Section Officers and Desk Officers will be inter-transferable and that all references to Section Officers in Manipur Secretariat Service Rules shall be deemed to apply to Desk Officers also". 7. In terms of 1986 Rules one Smti Ph. Para 2 (iv) of the said order states that the "post of Section Officers and Desk Officers will be inter-transferable and that all references to Section Officers in Manipur Secretariat Service Rules shall be deemed to apply to Desk Officers also". 7. In terms of 1986 Rules one Smti Ph. Binodini Devi an Assistant of the Manipur Secretariat was promoted to the post of Section Officer against the post created by Government order dated 26.10.1991 as stated in the foregoing para. 8. By Government notification dated 30th December, 1991 the 1986 Rules were amended. In the said amended Rules the post of Section Officer and Desk Officer are in Rule 2 (5). In the amended Rules qualifying years of service as Assistant for promotion to the higher post in question is five (5) years but the length of service of 12 years in the grade of UDC which is clearly contemplated in 1986 Rules has been completely deleted. 9. It is contended on behalf of the petitioner that since the petitioner was already entitled for promotion to the post of Section Officer under 1986 Rules and since posts had been created before the amendments were effected deletion of 12 years service as UDC in the subsequent amendment cannot be applied to the petitioner. It is also submitted that since the promotion of the said Smti Binodini Devi had been made in terms of 1986 Rules and in terms, of the posts created on 26.10.1991 by the executive order of the Government of Manipur, the petitioner should also be treated likewise. Amendment was effected on 30th December, 1991 as stated above and as such said amendment came into force only after three months of the creation of the posts of Section Officer and Desk Officer by Government order dated 26th October, 1991. 10. Mr. Y. Imo Singh learned Advocate General, Manipur submits that in terms of 1986 RR three years regular service as Assistant or twelve years service as UDC is contemplated for promotion to the post of Section Officer, in view of this, according to the learned Advocate General, since requisition was made on 5.2,92, the petitioner was not qualified for promotion as he had hardly put in one year service as Assistant. However, it is not disputed by the learned Advocate General that in terms of 1986 Rules, the petitioner's case for promotion could have been considered if he had fulfilled the qualifying service for such promotion in the cadre of UDC. It is correct that Rules made under Article 309 of the Constitution can be amended only under the said Article. There is no dispute that amendment was duly effected by the Government under Article 309 of the Constitution by notification dated 30t'i December, 1991. It is, however, submitted by the learned Advocate General that the petitioner can claim for promotion to the post of Section Officer only and that also in terms of 1986 Rules This submission is made on the basis that the post of Desk Officer was created only in 1991 by order dated 26th October, 1991. It may be stated here that when the requisition was made on 5.2.92 the post of Desk Officer was already available. At the same time as stated above in terms of 1986 Rules and on the basis of creation of posts on 26th October, 1991 one Assistant was promoted to the post or Section Officer. This means that order dated 27th October, 1991 by which post of Desk Officer was created and strength of both Section Officer and Desk Officer was deter-min in terms of Rule 5 of 1986 Rules had already been acted upon by the Government. 11. It is contended on behalf of the petitioner that the petitioner's case for promotion can be considered against the post reserved for Scheduled Castes and Scheduled Tribes. 12. Upon perusal of the various Government orders and upon hearing learned counsel of the parties, it appears to me that vacancies had already occured prior to the coming into force of the new Recruitment Rules .n 1991 It also appears to me that since five posts of Section Officer and five posts of Desk Officer had already been created by Government order dated 26th October, 1.91 in terms of Rule 5 of 1986 Rules. It would be quite just and equitable that the petitioner's case should also be considered in terms of the said order dated 26.10.1991. 13. In the light of the facts stated by me above it appears to me that it would be fair and reasonable to consider the promotion of the petitioner is accordance with the 1986 Rules. It would be quite just and equitable that the petitioner's case should also be considered in terms of the said order dated 26.10.1991. 13. In the light of the facts stated by me above it appears to me that it would be fair and reasonable to consider the promotion of the petitioner is accordance with the 1986 Rules. In the result these petitions are allowed.; The regularisation of the petitioner in the post of UDC shall be made effective from 12.1,79 in terms of my findings above. Also the case of the petitioner shall be considered for promotion in terms of the Recruitment Rules of 1986 and in terms o! Government order dated 26.10.1991, In the circumstance of the case the parties arc directed to bear then own costs.