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Gauhati High Court · body

2005 DIGILAW 13 (GAU)

H. Manikumar Singh v. State of Manipur and Ors.

2005-01-06

M.B.K.SINGH

body2005
The petitioner, who is now serving as Superintending Engineer (for short, 'SE')/Public Health Engineering Department (for short, 'PHED),, Manipur has filed this writ petition praying mainly for issuing a writ of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India against the State respondents to consider for his appointment to the post of Superintending Engineer (SE)/Addl. Chief Engineer (ACE)/Chief Engineer(CE) with effect from the dates on which his juniors were promoted. According to the petitioner, he has been badly treated by the Government by allowing his juniors to supersede him repeatedly at the level of SE/ACE/CE inspite of his representations and favourable orders from the Court. It is the case of the petitioner that since his service as Executive Engineer of PHED, Govt. of Manipur was regularized, vide order dated 4th April, 1991 w.e.f. 26/12/1979, he is entitled to be considered for giving appointment to the post of SE w.e.f. 2/7/1993 which is the date on which his juniors namely, GA Jaichandra Sharma and N. Ranjit Singh who had been promoted as EE w.e.f. 27/9/1985, were promoted as SEs. Further, the petitioner claims that he is entitled to be considered for giving appointment to the post of ACE and CE on 8/3/2001 and 28/2/2002 respectively in as much as his juniors GA. Jaichandra Sharma was promoted to the said post on the said dates respectively. The petitioner brings to this court's notice that his junior N. Ranjit Singh was also promoted to the post of ACE in 2000. The basis of the petitioner's claim of being senior to the said GA Jaichandra Sharma, N. Ranjit Singh and others is the said order dated 4/4/1991 regularising his service as EE w.e.f. 26/12/1979. 2. I have also heard the parties through their respective counsel. The materials before the court are also perused. It is ascertained that this court, vide common order passed on 29/12/1998 in connection with C.R. No.165/1991 and C.R. No. 166/1991, quashed the said order dated 4/4/1991 by which the service of the petitioner as EE had been regularized w.e.f. 26/12/1979. 2. I have also heard the parties through their respective counsel. The materials before the court are also perused. It is ascertained that this court, vide common order passed on 29/12/1998 in connection with C.R. No.165/1991 and C.R. No. 166/1991, quashed the said order dated 4/4/1991 by which the service of the petitioner as EE had been regularized w.e.f. 26/12/1979. While quashing the said order dated 4/4/91, this court was of the view that the said regularization had been made without consulting the MPSC which was required to be consulted under the relevant recruitment rule and that if the said regularization be allowed to remain, it would be un-settling many settled positions. The present petitioner is, admittedly, a party in that said two cases. The present respondent No.4, namely, G.A. Jaichandrea Sharma is the petitioner of C.R. No.165/91. This court made the above said decision quashing the order dated 4/4/91 after due hearing of the concerned parties and for cogent and sufficient reasons. I do not think that there is any need of stating all the reasons for the said decision again. However, in the interest of better appreciation of the matter involved in the case, some of the reasons for the said decision are stated below. 3. As per the finding of this court in the above said common order passed on 29/12/98, while serving as Aes, on the basis of the final seniority list of AEs dated 6/11/84, which was prepared following quota-rota rule, the seniority position of the present writ petitioner was at Sl. No.19 and the seniority position of the present respondent No.4 was at Sl. No.7 and as such, the present petitioner was not senior to the present respondent No.4. Further, as per finding of this court in the above said common order, when the DPC, which was held for giving promotion to the post of Ees in 1995, prepared a panel according to the merit, the names of the present respondent No.4 and present petitioner were at Sl. No.4 and Sl. No.12 respectively. The Government issued the order of promotion to the post of EE on 27/9/1985 by accepting the recommendation of the DPC. The said promotion order was not challenged by the present petitioner. No.4 and Sl. No.12 respectively. The Government issued the order of promotion to the post of EE on 27/9/1985 by accepting the recommendation of the DPC. The said promotion order was not challenged by the present petitioner. It is also ascertained that as per finding of this court, the DPC, which was held on 25/7/93 for giving promotion to SEs, considered the present petitioner, the present respondent No.4 and others for giving promotion but recommended only three persons, namely, in order of merit, Shri Ak. Raghumani, the present respondent No.4 and Shri N. Ranjit Singh for appointment to the post of SE. Accepting the said recommendation of the DPC, the above said three persons were given promotion as SE, PHED vide order passed on 2/7/1993. The said promotion order was not interfered with by any competent authority and the present writ petitioner can not claim that he is still to be considered as senior to the said respondent No.4 even after the said promotion. At the time of giving promotion to the respondent No.4 to the post of SE, the case of the present petitioner was also considered and not selected for giving promotion. The present petitioner can not claim that he should be promoted to the post required to be filled up on selection basis. Moreover, as per the finding of this court in the said common order, it is difficult to conclude that any vacancy in respect of the post of EE was available for general candidates in the PHE Dept. on 26/12/1979 and that had there been any DPCs on 26/12/79, the present petitioner and others would have been promoted to the post of EEs. The finding of this court in the said common order is also to the effect that the claim of the present petitioner for his regularization to the post of EE was not tenable because even in 1974's DPC, he was not considered for regular promotion to the post of AE and therefore, he could not become eligible for promotion to the post of .EE in the year 1979. 5. The decision of this court dated 29/12/98 was passed, inter-alia, on the above said findings it has not been modified or set aside by any competent court. The said decision and findings of this court are binding on the present petitioner. 5. The decision of this court dated 29/12/98 was passed, inter-alia, on the above said findings it has not been modified or set aside by any competent court. The said decision and findings of this court are binding on the present petitioner. In view of the said decision of this court made on 29/12/98, disposing of C.R. No.165/91 and C.R. No.166/91, the present petitioner has no basis for claiming any of the relieves, prayed in this case in as much as the said order dated 4/4/91 by which his service as EE was regularized w.e.f. 26/12/79 and on which he has been basing his claim was quashed by the said decision. 6. Apparently being aggrieved, the present petitioner filed Writ Appeal No.18/1999 challenging the said decision of the Single Bench made on 29/12/98. The division Bench of this court vide order passed on 21/1/1999 stayed the operation of the said decision made on 29/12/98. While pending the said writ appeal, the present respondent No.4 was promoted as Addl. .CE, PHED on regular basis vide order dated 8/3/2001 on the recommendation of the DPC and on 28/2/2002, he was again promoted to the post of CE, PHED on the recommendation of the DPC and with the concurrence of the MPSC. On 3/7/2002, purportedly, after due consideration and examination of objections/representations in respect of the tentative seniority list of Executive Engineers in PHED dated 27/3/2001, the concerned authority notified the final seniority list of EEs in the PHED, Manipur. As per the said final seniority list, the present writ petitioner is at Sl. No.2 and one Ch. Bikramjit Singh is in Sl. No.1 and the date of regular appointments of both of them is shown as 27/9/1985. At the relevant time, the present respondent No.4 was already promoted to Addl. CE, PHED on regular basis. Thereafter, the Government issued an order on 1/8/02 purportedly accepting the objection made by the present writ petitioner through his counsel, stating to the effect that the date of his regularization to the post of EE is to be treated as 26/12/1979 in place of 27/9/1985 and that his seniority position in the final seniority list should remain at Sl.No.2 subject to the out-come/order of the High Court in the Writ Appeal No. 18/1999. As per the terms of the said order dated 1/8/02 itself, the present petitioner can not claim that he is senior to Ch. As per the terms of the said order dated 1/8/02 itself, the present petitioner can not claim that he is senior to Ch. Bikramjit Singh who is not also a party in the present case. The said order dated 1/8/02 is apparently to maintain the date of regularization of the present petitioner to the post of EE in the said final seniority list of EE dated 3/7/2002 as 26/12/79 at par with the date mentioned in the Government order dated 4/4/91 which had already been quashed by the High Court vide common order passed on 29/12/98 in respect of C.R. No.165/91 and C.R. No.166/91 but stayed by the Division Bench of the High Court in Writ Appeal No. 18/99. It was highly irregular on the part of the Government to issue the above said order dated 1/8/02 when the question of legality or otherwise of the order dated 4/4/91 regularising the services of the present petitioner and others to the post of EEs with retrospective effect from 26/12/1979 was pending for consideration and decision in the said writ appeal No.18/99 before the Division Bench of the High Court after staying the order of the Single Bench which had quashed the said order dated 4/4/91. There is no dispute that the said writ appeal No. 18/99 was dismissed on 12/11/2003 as the appellants counsel (the present writ petitioner was one of the appellants) did not press the appeal. 7. In the above facts and circumstances, the said order of the Division Bench is no longer in operation and decision of the Hon'ble Single Bench of this court made on 29/12/98 will remain in force. Since this court has already made a decision to the effect that the present petitioner is not legally entitled to regularize his service to the post of EE w.e.f. 26/12/79, it will not be proper on the part of this court to grant the relieved claims by him on the basis of the said Government order dated 1/8/2002 which is in effect directly contrary to the said decision of this court. The learned counsel of the State respondents also submits that the said Government order dated 1/8/2002, which is an Executive order, can not be treated as an appellate order of the High Court and that the said Government order automatically ceased to have effect at the moment Writ Appeal No.18/99 was dismissed. The learned counsel of the State respondents also submits that the said Government order dated 1/8/2002, which is an Executive order, can not be treated as an appellate order of the High Court and that the said Government order automatically ceased to have effect at the moment Writ Appeal No.18/99 was dismissed. On the other hand, the view of the learned counsel of the writ petitioner is that when the Government superseded all the previous orders and confirmed the writ petitioner's date of appointment to the post of EE w.e.f. 26/12/1979 vide the said order dated 1/8/02, all cases in that regard became infructuous. This view of the learned counsel for the petitioner is not acceptable because as per findings of this court, the writ petitioner is not legally entitled to get the said retrospective regularization to the post of EE w.e.f. 26/12/79 and he can not be allowed to get the benefit which he is not legally entitled. At the same time, the executive order can not be allowed to flout the decision of this court given after due hearing of the concerned parties on the matter. It is quite unreasonable on the part of the petitioner to say that because of the fact of long pendency of the said order dated 21/1/1999 of the Division Bench of this court taken along with the fact of issuance of the said order of the Government dated 1/8/2002, the interim order has become absolute and the writ appeal has become infructuous. The said interim order was obviously passed only to be operated during the pendency of the appeal. It did not subsist after dismissal of the appeal. Thus, the actual position was that the said interim order remained in force only during the pendency of the writ appeal as per the order of the said order. The moment the writ appeal was dismissed, the said order no longer operated and order of the Single Bench challenged in the said appeal came into force in as much as the said order was not interfered with. In the above circumstances, the said order of the Government dated 1/8/02 is of no consequence in as much as it is an order having an effect directly contrary to the said decision of the Single Bench of this court. In the above circumstances, the said order of the Government dated 1/8/02 is of no consequence in as much as it is an order having an effect directly contrary to the said decision of the Single Bench of this court. This court is not in a position to give any relief to the petitioner on the basis of the said government order dated 1/8/02. 8. The writ petitioner's counsel cites a number of decision - ( 1975 1 SCC 770 , (1976) 1 SCC 194 , (1974) 1 SCC 675 , (2001) 8 SCC 443 , (2003) 2 SCC 436 , (1971) 1 SCC 34 , (1987) 2 SCC 555 and AIR 1970 SC 1273 etc. However, on perusal of the said decisions, I find that none of the said decisions if of any help to the petitioner in the facts and circumstances and none of the said decisions is applicable to the present case. 9. On the basis of the facts and circumstances brought to the notice of this court, the petitioner's case has no merit. There is no legal basis for issuing any order or direction prayed by the present petitioner. Accordingly, this writ petition is hereby dismissed.