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2005 DIGILAW 17 (GAU)

Khumanlambam Nilaroton Singh v. State of Manipur

2005-01-07

MAIBAM B.K.SINGH

body2005
JUDGMENT M.B.K. Singh, J. 1. I have heard Mr. Kh. Binoykumar, learned Counsel appearing on behalf of the Petitioner and Mr. R.S. Reisang, learned Addl. Government Advocate. 2. The Petitioner's grievance is that he is going to retire from service on attaining superannuation on 28.2.2005 after serving as Sericulture Inspector for a period more than 29 years of which a period more than 5 years on ad hoc basis and period of about 24 years on regular basis without getting any promotion during the said whole period of about 29 years. 3. There is no dispute in respect of the following facts: the Petitioner was initially appointed as Sericulture Demonstrator in the Industries Department, Manipur on 18.7.1969 on ad hoc basis basing on the recommendation of a duly constituted DPC against a clear vacant post (Annexure-A/1). His service was confirmed vide order passed on 2.3.1979 with effect from 18.7.1973 retrospectively against a permanent post (Annexure-A/2). He was promoted to the next higher post of Sericulture Inspector on ad hoc basis, vide order dated 31.12.1975 issued by the Director of Industries, Government of Manipur (Annexure-A/3), on the recommendation of the DPC and with the approval of the Government for a period of 3 months. While serving as Sericulture Inspector from 31.12.1975 onwards without any break and also getting all the benefits such as increment of pay and relevant allowances etc., an order dated 30.1.1981 (Annexure-A/3/1) was issued giving promotion to the Petitioner to the post of Inspector (Seri.) on regular basis w.e.f. 12.1.1981 on the recommendation of the DPC and with the approval of the Government of Manipur. The Petitioner is to retire from service 28.2.2005 on superannuation. 4. It is ascertained that during the service period of the Petitioner starting from 18.7.1969 till today, he got only one promotion on regular basis i.e. as Sericulture Inspector in the year, 1981. The next higher post is the post of Superintendent (Seri/Tasar) and there is no dispute that the Petitioner is eligible for promotion to the said next higher post under the relevant rules on completion of three years regular service as Inspector (Seri). However, the Petitioner has remained stagnated to the same post for the last more than 20 years. 5. The next higher post is the post of Superintendent (Seri/Tasar) and there is no dispute that the Petitioner is eligible for promotion to the said next higher post under the relevant rules on completion of three years regular service as Inspector (Seri). However, the Petitioner has remained stagnated to the same post for the last more than 20 years. 5. The learned Counsel for the Petitioner vehemently submits that injustice has been caused to the Petitioner by not giving promotion to a higher post for the last more than 20 years and that there is no scheme of Assured Career Promotion applicable to the Petitioner. The learned Counsel draws this Court's attention to the following decisions of the Supreme Court of India. 6. In State of Tripura and other v. K.K. Roy, AIR 2004 SC 1249 , the Hon'ble Supreme Court after referring to its earlier decisions about the need for providing promotional avenue, held: The Appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the Respondent having regard to its constitutional obligations adumbrated in Articles 14 and16 of the Constitution of India. Despite its constitutional obligation, the State cannot take a stand that as the Respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of promotion, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional function of the State. It is not disputed that the other States in India. Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted a higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned Counsel appearing on behalf of the Appellant even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India and what impeded it from doing so. When questioned, the learned Counsel appearing on behalf of the Appellant even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India and what impeded it from doing so. Promotion being a condition of service and having regard to the requirement thereof as has been pointed out by, this Court in the decision referred to hereinbefore, it was expected that the Appellant should have followed the said principle. 7. In U.T. Chandigarh v. Avtar Singh and other, (2002) 10 SCC 432 , the Hon'ble Supreme Court held that stagnation in service for an unduly long period without having any avenue for promotion is not in the interest of administration. The Supreme Court directed the appropriate authority to create post within a period of three months and to consider the case of all the concerned employees for promotion to the said post within a stipulated time. 8. The learned Addl. Government Advocate submits that there is no vacant post of Superintendent (Seri) to which the Petitioner may be promoted and that there are also other senior eligible Inspectors (Seri) in the same condition as the Petitioner is. According to the learned Addl. Government Advocate, there was a ban on the creation of post during 8th Plan vide Government order passed on 23.1.1992 and since 1999, as a matter of policy necessitated by acute financial problem, there has been down seizing of post in the Department of Sericulture and as such some posts of Superintendent (Seri) have already been abolished and some are to be abolished as and when they are vacant. On the basis of the submission of the learned Addl. Government Advocate, there is not any doubt that the Petitioner is not going to get his promotion before retirement. 9. On the basis of the submission of the learned Addl. Government Advocate, there is not any doubt that the Petitioner is not going to get his promotion before retirement. 9. On the other hand, it is already seen that State is constitutionally obliged to create promotional avenue, As observed by the Hon'ble Supreme Court the other States in India, Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenue. There is no dispute that there is no such scheme of Assured Career Promotion in this State in respect of the employees of the Department of Sericulture. Having regard to the position of law in this connection, it will be appropriate on the part of the Respondents to consider either for creation of promotional avenue or for providing a scheme of Assured Career Promotion in respect of stagnated employees of the said department. Since the Petitioner is going to retire within a very short period of time, i.e. 28.2.2005, he is not likely to get any relief from any future correctional measure taken by the State. 10. Accordingly, having regard to all the relevant considerations, the Respondents are directed that the Petitioner be paid promotion in the next higher scale of pay w.e.f. the date of his completion of 12 years of regular service as Inspector (Seri). 11. This writ petition is disposed of with the aforementioned direction. No costs.