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1994 DIGILAW 69 (GAU)

Sharmurailatpam Brojen Sharma Phurailatpam Deveswar Sharma v. State of Manipur and Ors.

1994-04-13

W.A.SHISHAK

body1994
These two petitioners in the above Civil Rules are both claiming one post of Section Officer Grade I (Civil) now lying vacant in Electricity Depart­ment and therefore, I propose to dispose of these two petitions by a common judgment. 2. The petitioner in Civil Rule No. 952 of 1993 was appointed as Section Officer Grade I alongwith others on 21st November, 1990 on ad-hoc basis for a period of six months. It is contended that after the period of six months, the petitioner's service was extended by order dated 23rd December, 1992. DPC for selection of candidates for appointment to the post of Section Officer (Civil) Grade I was held on 7th and 9th December, 1992 for filling up two vacant posts. In the said DPC name of the petitioner was kept in the waiting list at serial No. l. The petitioner could not be appointed at that time on regular basis as there was no vacant post. However, he was allowed to hold the post to which he was appointed earlier on ad-hoc basis. Consequent to the results of the said DPC two persons, namely Shri S. Jayantakumar Singh and Shri Kamkhalen Lengen who had been recommended by the DPC against the two clear vacant posts were duly appointed. Thereafter, on 5.3.93 on account of appointment of one Shri H. Jay Singh as Assistant Engineer on promotion, one post of Section Officer Grade I (Civil) fell vacant. Since the petitioner's name was in the waiting list at serial No. 1 of the DPC held in December, 1992 his case was recommended by the concerned Minister for appointment against the vacant post consequent on the promotion of said Jay Singh. The petitioner claims that since there is a clear vacant post and since his name appears at serial No. 1, he is entitled to be appointed as Section Officer, Grade I (Civil) on regular basis. It may be stated that the post of Section Officer, Grade I vacated by Shri H. Jay Singh still remains unfilled by virtue of this Court's order dated 13.10.93. DPC was held in December, 1992. This writ petition was filed in first week of OctoJer,1993. It is contended that the list prepared by DPC was still valid when this writ petition was filed. 3. DPC was held in December, 1992. This writ petition was filed in first week of OctoJer,1993. It is contended that the list prepared by DPC was still valid when this writ petition was filed. 3. The petitioner in Civil Rule No. 888 of 1993 was appointed as computer in the Engineering Department by direct recruitment on 24.10.77 although he did not possess the qualification for being appointed as Computer in terms of the recruitment rules, but subsequently his service was regularised on the recommendation of Class III DPC wef 9.12.81, According to the petitioner, although he was appointed against the vacant post of Computer, his service was utilised as Section Officer Grade I (Civil) since 14.7.78 till today. In view of this, it is submitted that in spite of the appointment as Computer, since he has been utilised as Section Officer Grade I (Civil) he has got enough experience and knowledge, of civil work. It is stated that the post of Computer in the Electricity Department is not a feeder post for appointment to any other higher post in the Department. As such one who is appointed as Computer would retire as Computer. This, according to learned counsel for the petitioner, is unreasonable and unjust inasmuch as there should be at least one channel of promotion to the next higher post in the service career of an employee. It is further submitted by learned counsel that in respect of Section Officer Grade I, eiher with Degree or Diploma in Engineering, is eligible for promotion to the higher post of Assistant Engineer and also further to the post of Executive Engineer and higher. It is contended that the petitioner has been approaching the authority to appoint him by transfer to the post of Section Officer, Grade I (Civil) so that he may have prospect of getting further promotion to the post of Assistant Engineer and thereafter to the post of Executive Engineer etc. It is further contended that Section Officer, Grade I (Civil) also carries the same scale of pay with that of the petitioner who hold the post of Computer. The petitioner also requested the Secretary (Power) to transfer him by appointment as Section Officer, Grade I against the post vacated by H. Jay Singh on promotion as Assistant Engineer on 5.3.1993. It is further contended that Section Officer, Grade I (Civil) also carries the same scale of pay with that of the petitioner who hold the post of Computer. The petitioner also requested the Secretary (Power) to transfer him by appointment as Section Officer, Grade I against the post vacated by H. Jay Singh on promotion as Assistant Engineer on 5.3.1993. In the circumstances stated above, the petitioner claims that he has right to be appointed by transfer against the vacant post of Section Officer, Grade I (Civil) which became vacant on promo­tion of Shri H. Jay Singh on 5.3.93. It may be stated that Chief Engineer (Power) also requested the Government to consider the case of the petitioner for appointment by transfer of the petitioner who is Computer as Section Officer Grade I (Civil) against the post vacated on 5.3.93 due to the promotion of Shri H. Jay Singh as Assistant Engineer. Letter of Chief Engineer dated 15 June, 1993 indicates in para 2 that the vacant post of Section Officer in question is unreserved. 4. Government has filed affidavit and I have heard Mr. K. Irabot Singh, learned Senior Govt. Advocate. It is the case of the Government that there is no classification of the post of Computer as Electrical or Civil. The petitioner was appointed to the post of Computer on regular basis wef 9.12.1981 under the Chief Engineer (Power). It is also stated in the affidavit that the post of Computer is not included in the feeder post for promotion to the post of Assistant Engineer (Elect) or Assistant Engineer (Civil) as per existing recruitment rules of Assistant Engineer. Para 10 of the Government affidavit states that the petitioner was appointed on ad-hoc basis as Computer wef 24.10.77 at his personal request. Thereafter his service was regularised wef 9.12.81 on the recommendation of a DPC. It is averred on behalf of the Government that there is no prevision for appointment on transfer to the post of Section Officer, Grade I (Civil) from the post of Computer under the recruitment rules. It is contended that appointment to a particular post will have to be made by a competent authority in terms of relevant recruitment rules. Mr. It is averred on behalf of the Government that there is no prevision for appointment on transfer to the post of Section Officer, Grade I (Civil) from the post of Computer under the recruitment rules. It is contended that appointment to a particular post will have to be made by a competent authority in terms of relevant recruitment rules. Mr. K. Irabot Singh submits that since there is no such method of filling up the vacant post by way of transfer from the post of Computer to the post of Section Officer, Grade I (Civil), the claim of the petitioner cannot be entertained. It is submitted that if found eligible, the case of the petitioner should be considered by a competent authority for selection for the post of Section Officer, Grade I (Civil) and not by way of transfer. 5. After hearing Mr.L. Nandakumar Singh, learned counsel for the petitioner as well as Mr. K. Irabot Singh, learned Senior Govt. Advocate, it appears to me that the claim of the petitioner to appoint him to the post of Section Officer which is now lying vacant on account of promotion of the earlier incumbent Shri H. Jay Singh as Assistant Engineer, by way of transfer from the post of Computer which now the petitioner holds, is not contemplated under the relevant recruitment rules. As such the submission made in this regard is rejected. 6. Admittedly, although there exists a post of Computer which is to be held by an officer who has certain requisite academic qualification, there is no channel of promotion to any higher post. This means that once appointed as Computer one will have to remain in the same post till retirement. This does not appear to be reasonable. In any employment, there must be at least one channel of promotion if not more. la this view of the matter, it is necessary that relevant recruitment rules are suitably amended to include some avenue of promotion of a Computer to the next higher post. 7. In Civil Rule No. 952 of 1993 Mr.K. Irabot Singh.learned Senior Govt. Advocate submits that waiting list is not meant for filling up future vacancy. It is not disputed that the petitioner's name appears at serial No. l of the waiting list prepared by DPC in December, 1992. 7. In Civil Rule No. 952 of 1993 Mr.K. Irabot Singh.learned Senior Govt. Advocate submits that waiting list is not meant for filling up future vacancy. It is not disputed that the petitioner's name appears at serial No. l of the waiting list prepared by DPC in December, 1992. As stated earlier, there were two vacant posts of Section Officer, Grade I (Civil) when the DPC was held in December 1992. Two persons were duly selected against the said vacant post, the petitioner's name was kept at serial No. 1. There were some others whose names were also kept in the waiting list. Mr. K. Irabot Singh submits that such list is kept to meet eventuality when the regular selectees do not join the post. In this situation, learned Senior Govt. Advocate submits that the petitioner should appear before the DPC. According to him another DPC should be held for filling up the vacant post. It is therefore, submitted by him that if the petitioner is appointed against the vacant post, many others who are eligible for this post will be deprived of the opportunity of fighting for this post and such appointment will hit Articles 14 and 16 of the Constitution. As to the validity of the waiting list at the time the petitioner approached this Court in October 1993, learned Senior Govt. Advocate is not able to make specific submission. However, he submits that normally waiting list will remain valid for some time. It appears, since DPC was held in December, 1992, in my view the list in question would be valid on 5.3.93 and in October, 1993 which was less than a year from the date of the holding of the DPC in question. At the same time, the petitioner faced the DPC and he was found eligible for appointment on regular basis. He was not appointed at that time because there was no vacant post. It appears in such a case, it will be only just and reasonable that the petitioner's case should be considered for appointment against the vacancy which arose soon after the selection was made by the DPC. 8. In the result, Civil Rule No. 952 of 1993 is allowed. In the light of my findings above, the petitioner Shri Brojen Sharma shall be given appoint­ment as Section Officer, Grade I (Civil) against the existing vacant post. 8. In the result, Civil Rule No. 952 of 1993 is allowed. In the light of my findings above, the petitioner Shri Brojen Sharma shall be given appoint­ment as Section Officer, Grade I (Civil) against the existing vacant post. In view of my finding in Civil Rule No. 952 of 1993. the petition filed by Shri Ph. Deveswar Sharma (Civil Rule No. 888 of 1993) is rejected. However, the respondents are directed to make suitable amendments of RR to include promotional avenue of the post of Computer to higher post. Further the petitioner who is now holding the post of Computer shall also be allowed to appear before DPC for selection for appointment to the post of Section Officer, Grade I (Civil) when such DPC is held. With the above observation and directions the said Civil Rules are disposed of. I pass no order as to costs.