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2005 DIGILAW 560 (GAU)

State of Manipur v. A. Subhas Singh

2005-08-05

B.K.ROY, P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. This Writ Appeal by the State of Manipur is directed against the judgment dated January 11, 2002 passed by the learned Single judge in Writ Petition (C) No. 896/2000, whereby, vide common judgment, the learned Single Judge disposed of the Writ Petition (C) No. 896/2000 and Writ Petition (C) No. 1347/2000. Both these writ petitions were filed by Respondent No. 1 Dr. A. Subhas Singh (hereinafter referred to as the Writ Petitioner for convenience). 2. The Writ Petitioner joined the Manipur State Services as Veterinary Assistant Surgeon (V.A.S.) vide order dated January 24,1974. The Writ Petitioner was given ad-hoc promotion as Research Officer (Cattle) vide order dated February 6, 1981 and subsequently, his promotion was regularized vide order dated November 28, 1984. At the relevant point of time, the recruitment rules of 1978 governed the matter. Thereafter, the Manipur Veterinary and Animal Husbandry Service Rules, 1993 came into effect from January 18, 1993. The 1993 Rules had a very short span life as these were superseded by the 1994 Rules which came into effect from October 17, 1994 (Para 4.3 of the Writ Petition) Under the 1978 Rules, a Master degree holder was eligible to be considered for promotion to the higher post of Deputy Director/equivalent posts after rendering four years of regular service in any feeder post whereas, a degree or PG diploma holder became eligible for such promotion after rendering six years of service in a feeder post. 3. The further case of the Writ Petitioner is that under the 1978 Rules, the Petitioner and some others became eligible for promotion for the post of Deputy Director which was required to be filled up by way of cent percent promotion and although there were as many as fifteen vacancies, no DPC was held for the purpose. In the meantime, 1993 Rules came into force and thereafter the 1994 Rules also came into force superseding the 1993 Rules. The Respondent authority according to the Writ Petitioner filled up as many as seven vacancies in an arbitrary manner on ad hoc basis and when the said ad-hoc appointments were discontinued, a Writ Petition being Civil Rule No. 126/1993 was filed and it was earned on in Writ appeal 101/1995. The Respondent authority according to the Writ Petitioner filled up as many as seven vacancies in an arbitrary manner on ad hoc basis and when the said ad-hoc appointments were discontinued, a Writ Petition being Civil Rule No. 126/1993 was filed and it was earned on in Writ appeal 101/1995. Vide order dated January 29, 1997 the Division Bench of this Court held that as the vacancies had occurred during the pendency of 1978 Rules, the same shall be filled up in accordance with the above Rules. 4. Pursuant to the direction of this Court, a DPC was convened on March 21, 1997 and on the recommendation of the said DPC, ten officers including the Writ Petitioner were appointed to the posts of Deputy Directors vide order dated March 29, 1997. The other persons, who were given promotion along with the writ Petitioner, were arrayed as Respondent Nos. 6 to 14. 5. The main grievance of the Writ Petitioner in the Writ Petition is that the private Respondent Nos. 6 to 14 were not eligible for promotion in view of the provisions of the Recruitment Rules of 1978 and as such the DPC as well as the State Government fell into error in considering their promotion and in passing the appointment orders in their favour. It was stated that under the 1978 Rules, the period of service of a person on ad-hoc basis in the respective feeder post cannot be counted towards the qualified service and this provisions of the 1978 Rules cannot be supplanted/superseded by an executive order. 6. The Writ Petitioner further challenged the proceedings of the DPC dated March 21, 1997 on the ground that the seniority list which was the basis for selection was prepared in violation of the 1978 Rules. In the Writ Petition the Writ Petitioner prayed for the following relief: (a) To quash the proceedings of the DPC held on March 21, 1997. (b) Prayed for a direction to hold fresh DPC under the 1978 Rules. (c) To quash the order dated March 29, 1997 issued by the Respondent State. 7. The present Appellant, State of Manipur did not file any counter in the above Writ Petition. However, the private Respondent No. 8 filed a counter affidavit and raised the plea that the Writ Petitioner is guilty of laches for undue delay in approaching the Hon'ble Court. 7. The present Appellant, State of Manipur did not file any counter in the above Writ Petition. However, the private Respondent No. 8 filed a counter affidavit and raised the plea that the Writ Petitioner is guilty of laches for undue delay in approaching the Hon'ble Court. It was stated that the impugned promotion order was passed on March 29, 1997 and a number of incumbents were promoted to the higher posts of Joint Director and in the meantime they have retired from service on attaining the age of superannuation after enjoying the benefits of the impugned promotion order. Thus if the prayer sought for by the Petitioner is granted it will unsettle the settled position and may create chaos in the entire service structure. The Respondent No. 9 on the other hand filed an affidavit supporting the claim of the Writ Petitioner. 8. The learned Single Judge vide impugned judgment held that in view of the Note No. 3 below the 1978 Rules, the DPC fell into error in considering the case of Respondent Nos. 7, 11, 12, 13 and 14 as they had not earned their eligibility criteria prior to November 28, 1990 and as the DPC was considering the promotions which occurred till 1989 only, the case of the above mentioned Respondents should not have been considered along with the Writ Petitioner and other Respondents who had master degree and who had attained the eligibility on November 28, 1988. The learned Single Judge, however, considered the fact that as the above Respondent Nos. 7, 11, 12, 13 and 14 had already gone on retirement their appointments were not declared as void and contrary to law but it was provided that they shall be deemed to have been brought under the cadre on 1993. The writ Petitioner as well as the Respondent Nos. 6, 8, 9, 10 were deemed to have been brought into service with effect from November 28, 1988 and they were declared to be senior to the other Respondents. The Writ Petition were disposed of with the following directions: 13. In the result, the writ petitions succeed. The Petitioner and the Respondent Nos. 6, 8, 9 and 10 who are master degree holders are deemed to have been appointed on promotion to the post of Dy. The Writ Petition were disposed of with the following directions: 13. In the result, the writ petitions succeed. The Petitioner and the Respondent Nos. 6, 8, 9 and 10 who are master degree holders are deemed to have been appointed on promotion to the post of Dy. Director/equivalent pursuant to the recommendation of the DPC and they are further deemed to have been absorbed under Grade-III of the Manipur Veterinary and Animal Husbandry Service Rules, 1994 while the Respondent Nos. 7, 11, 12, 13 and 14 (who are not master degree holders) are deemed to have been kept outside the cadre and should be deemed to have been brought to the cadre of Dy. Director after two years from the date of absorption of the Petitioner and the private Respondent Nos. 6, 8, 9 and 10 and they are deemed to have been juniors to the Petitioner and the Respondent Nos. 6, 8, 9 and 10 (master degree holders). 14. With these observations, the authority is directed to recast the seniority position of the Petitioner and the Respondent Nos. 6 to 14 accordingly. 9. In this Appeal, the Appellant has challenged the impugned order stating inter-alia that because of the delay and laches on the part of the Writ Petitioner in approaching the Court after three and half years from the date of the DPC, if the relief sought for is granted, it will unsettle the entire hierarchy of the service and may lead to conflicting orders; that the impugned judgment directly or indirectly undo the directions of the Division Bench dated January 29, 1997 passed in Writ Appeal No. 101/1995; that the learned Single Judge failed to consider that in the meantime Respondent Nos. 3,4 and 6 have already retired as regular Joint Director and Respondent Nos. 2 and 5 have retired as Deputy Director with all benefits and as they had acquired eligibility at the time of DPC, the Writ Petition was liable to be dismissed. 10. We have heard Mr. A. Potsangbam, Advocate General, Manipur, for the Appellant and Mr. N.K. Singh, learned Senior Advocate for the Respondent/Writ Petitioner. 11. The learned Counsel for the Appellant as well as the Respondent have filed their written arguments which are kept with the records. 12. 10. We have heard Mr. A. Potsangbam, Advocate General, Manipur, for the Appellant and Mr. N.K. Singh, learned Senior Advocate for the Respondent/Writ Petitioner. 11. The learned Counsel for the Appellant as well as the Respondent have filed their written arguments which are kept with the records. 12. Before proceeding further, we may mention here that this Appeal along with the connected cases was placed before the full Bench to resolve the alleged conflict in relation to the views taken by the Division Benches. However, vide order dated April 12, 2005, the Full Bench remanded the matter back to this Bench holding that no conflict or different views had been shown to exist. The broad facts of the case as stated above are not in dispute. Notes 1, 2 and 3 of the 1978 Rules reads as follows: 1. The combined seniority list of these officers shall be determined from the dates of their eligibility for promotion. 2. Where a person is considered for such appointment all persons in the grade possessing the requisite qualifications and who are senior to him in the grade shall also be considered irrespective of the fact whether or not they fulfill the requirement as to the minimum periods of qualifying service for the purpose of the promotion mentioned above. 3. Any period of ad-hoc appointment prior to then regularization of their appointment in consultation with the Commission shall not be counted in the minimum period of service prescribed for promotion. 13. In the present case, we find that the services of the Writ Petitioner as well as the Private Respondent Nos. 2 to 14 in the Writ Petition were regularized by a common order dated November 28, 1984. The learned Single Judge relying on Note 3 as quoted above held that the Respondents who had no Master degree, were not eligible for consideration till 1990 whereas, the Writ Petitioner and some of Respondents who had master degree became eligible on November 24, 1988 and as such they are to be treated as senior. 14. The learned Advocate General, Manipur has submitted that one of the Respondents had approached this Court for giving him the benefits for ad-hoc period of service and this Court granted the relief. 14. The learned Advocate General, Manipur has submitted that one of the Respondents had approached this Court for giving him the benefits for ad-hoc period of service and this Court granted the relief. In view of the directions of this Court, the State Government acted fairly and granted relief to all similarly situated persons although some of them did not approach the Court for such relief. The learned Advocate General, Manipur was, however, fair enough to submit that may be the provisions of Note 3 were not brought to the notice of the learned Single judge in the earlier case. 15. It seems that the learned Single Judge has read Note 3 in isolation without considering Note 2 above, which provides that where a person below in the gradation list is considered for promotion, the persons above him in the said gradation list shall also be considered whether they have completed the minimum period of qualified service or not Admittedly, the Writ Petitioner was below the private Respondents in the seniority list and there is no dispute that the private Respondents possessed the requisite qualification except the qualified period of service in the year 1988 and hence in view of Note 2, the DPC was required to consider their case. We, therefore, find no illegality in the matter of consideration of the case of the private Respondent Nos. 7, 11, 12, 13 and 14. 16. There is another aspect of the matter also. The DPC dated March 21, 1997 was convened by the Appellant in compliance of the directions passed by the Division Bench of this Court on January 29, 1997 in Writ Appeal No. 101/1995. The relevant portion of the directions of the Division Bench reads as follows: As of today, the Writ Appellant is not claiming any relief against those 7 officers whose promotions have since been regularized. Further the writ Appellant is also not pressing the issue as regards the validity of office memo dated 9.10.92. However, it is the contention of the Writ Appellant that since vacancies are still available in the Deptt., his case for promotion and regularization as Dy. Director should be considered. It is the accepted view that if vacancies had arisen while 1978 Rules were in force, a consideration for promotion should be made within the purview of the said 1978 rules. Director should be considered. It is the accepted view that if vacancies had arisen while 1978 Rules were in force, a consideration for promotion should be made within the purview of the said 1978 rules. As we have sttated above, there were 15 (fifteen) vancancies when 1978 Rules were in force. There are still vacancies in the Deptt. in the post of Dy. Director. This statement is made by Mr. HNK Singh learned Counsel who appears on behalf of the Government. In this view of the matter we are inclined to say that the case of the Writ Appellant should be considered along with the cases of other eligible persons in the Department against the vacancies which occurred while 1978 Rules were in force. Let DPC for this purpose be held within 1 (one) month from today. 17. As per the findings recorded by the learned Single Judge, Respondent Nos. 7, 11, 12, 13 and 14 who were not master degree holders had attained the eligibility with effect from November 28, 1990; as a matter of fact, the learned Single Judge has also directed that they shall be deemed to have been brought to the cadre of the promoted posts with effect from November 28, 1990. Hence, when the DPC was held on March 21, 1997 these Respondents had the necessary eligibility. The promotions were considered under the 1978 Rules which were in force till 1993 and at that relevant point of time also the Respondents had the eligibility. 18. The question that crops up for determination is what is the effect of the date of eligibility? A service holder has the right to be considered for promotion when he becomes eligible for such promotion but the employer is not duty bound to promote him from that date itself. When several employees have attained or acquired the eligibility on different dates and if no selection is made earlier and when the selection committee comes forward and considers the case of all eligible persons, who are within the zone of consideration, whether the date of attaining eligibility has any relevance? In a way, all such candidates stand on the same footing and their cases are to be considered for promotion and in view of the specific provisions contained in Note 2, as quoted above, the persons who are senior in the gradation list cannot be deprived of their dues. 19. In a way, all such candidates stand on the same footing and their cases are to be considered for promotion and in view of the specific provisions contained in Note 2, as quoted above, the persons who are senior in the gradation list cannot be deprived of their dues. 19. In the present case, we find that vide impugned judgment, the learned Single Judge have recast the seniority position of the Writ Petitioner vis-a-vis the private Respondents. However, on perusal of the Writ Petition, we find that the Petitioner has nowhere prayed for such relief. The Writ Petitioner had prayed for quashing the DPC held on March 21,1997 and the consequent order passed by the State on March 29, 1997. The Writ Petitioner has even prayed for a direction to hold a fresh DPC. Thus the question of inter-se-seniority between the Writ Petitioner and the private Respondents was not the issue before the learned Single Judge. The seniority list was, however, challenged in W.P.(C) No. 1347/2000. 20. The learned Advocate General has also submitted that the Writ Petition suffers from laches and delay and thus disentitles the Writ Petitioner from any relief under Article 226 of the Constitution. In support of the submissions, the learned Advocate General has placed reliance on the decision of the Apex Court in P.S. Sadasivaswamy v. State of Tamil Nadu (1975) 1 SCC 152 . It is submitted that appointments of the officers in the grade of Joint Directors and Directors have been made long before and as such it is impermissible for the Writ Petitioner to question and challenge the appointments in the lower grade of Deputy Directors and it may unsettle many positions at different grades already settled for many years. 21. There is no dispute at the Bar that the DPC proceeding was held on March 21, 1997 and the consequential orders of promotion were passed on March 29,1997. The Writ Petitioner slept over the matter for more than three years. The only explanation given by the Writ Petitioner is that he could not detect the procedural illegalities allegedly committed by the DPC although the order dated February 27, 1999 made some revelations. The Writ Petitioner admittedly slept over the matter for more than a year after the passing of the order on February 27, 1999. 22. Mr. The only explanation given by the Writ Petitioner is that he could not detect the procedural illegalities allegedly committed by the DPC although the order dated February 27, 1999 made some revelations. The Writ Petitioner admittedly slept over the matter for more than a year after the passing of the order on February 27, 1999. 22. Mr. N.K. Singh, learned Counsel for the Writ Petitioner has placed reliance on the observations of the Apex Court in the case of Dehri Rohtas Light Railway Co. Limited v. District Board, Bhojpur AIR 1993 SC 802 . The Apex Court had observed: The rule which says that the court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the Petitioner should come to the Writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. 23. The question was raised before the learned Single Judge and even prayer was made that it may be taken as primary issue as regards the maintainability of the Writ Petition but the impugned judgment is altogether silent on the issue. The writ Petitioner has given a very cryptic explanation for the alleged delay and we find that in the meantime, a number of officers were given further promotion and they have also retired on attaining the age of superannuation. The writ Petitioner has given a very cryptic explanation for the alleged delay and we find that in the meantime, a number of officers were given further promotion and they have also retired on attaining the age of superannuation. As a matter of fact at the time of hearing of the Writ Appeal No. 69/1995, the writ Petitioner had abandoned his relief against as many as seven officers as seen from the following observations: As of today, the Writ Appellant is not claiming any relief against those 7 officers whose promotions have since been regularized. Further the Writ Appellant is also not pressing the issue as regards the validity of office memo dated 9.10.92. However, it is the contention of the Writ Appellant that since vacancies are still available in the Deptt., his case for promotion and regularization as Deputy Director should be considered. 24. The learned Advocate General has referred to the following observations of the Apex Court in the case of State of Maharastra v. Digambar (1995) 4 SCC 683 : 14. How a person who alleges against the State of deprivation of his legal right can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article226 of the Constitution against a State, could be relieved of his obligation to establish his unableworthy conduct for getting such relief, where the State against which relief is sought is a Welfare State, is also difficult to comprehend. Moreover, how a citizen claiming discretionary relief under Article226 of the Constitution against a State, could be relieved of his obligation to establish his unableworthy conduct for getting such relief, where the State against which relief is sought is a Welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the Welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obt4in such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 25. 25. It has been submitted on behalf of the Appellant that prior to the constitution of Veterinary Service Rules in the year 1993 and 1994, the Recruitment Rules of 1978 were governing the matter and as many as ten officers including the Writ Petitioner were appointed on a higher grade and at that juncture the Writ Petitioner could have challenged his earlier appointment as Deputy Director. If the impugned judgment is to be implemented, it will unsettle many positions at different grades and cause much inconvenience. In support of his submissions, the learned Advocate General has placed reliance on the following observations of the Apex Court in the case of P.S.N. Rao v. State of Orissa (2002) 6 SCC 478 . in the context of the facts and circumstances of the case any interference in the matter at such a belated stage would have created confusion and complications in the cadre. 26. In P.S. Sadasivaswamy (supra), their Lordships of the Supreme Court held that a writ petition challenging the promotion/seniority must be filed within a period of six months of the accrual of the cause of action or at the most within a year. Failure of the Petitioner to challenge the promotion of five persons for a period of more than one year is a sufficient ground for declining the requisite relief to him. 27. The above decision was reiterated in the case of Jai Singh v. State of Haryana 1997 (3) S.L.R. 408. 28. There is another aspect of the matter also. The Writ Petitioner had no where contended or alleged that under the 1978 Rules, the promotions are required to be considered on a year wise basis, as a matter of fact, there is no statement as to when the concerned vacancies arose, that is, the particular year in which the vacancies arose and the number of persons who were eligible for consideration against the said vacancies. The direction of the Division Bench as quoted above was to consider the pre 1994 vacancies as per 1978 Rules and accordingly the DPC on consideration of the vacancies considered the case of all eligible persons as on the relevant date under the 1978 Rules and as stated above, the Writ Petitioner as well as the private Respondents were found eligible and promotions were recommended. 29. 29. We, therefore, hold that the learned Single Judge fell into error in holding that under the 1978 Recruitment Rules, Respondents were not eligible for consideration for promotion in the year 1989. In view of Note 2 of 1978 Rules, their cases were rightly considered. Moreover, the Writ Petitioner did not raise any objection and kept silent over the matter in the Writ Appeal No. 101/95, where the direction for holding the D.P.C. was given. Further, he slept over the matter for more than three years even after publication of order of promotions in respect of private Respondents and allowed to retire in the meantime in some higher posts. The Petitioner was definitely negligent. The Petitioner is not entitled to any relief and the impugned judgment is liable to be set aside. 30. In view of what has been stated above, we allow this Appeal. The impugned order passed by the learned Single Judge is set aside. Both the Writ Petitions stand dismissed.