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2006 DIGILAW 535 (GAU)

State of Manipur and Anr. v. A. Bormani Singh

2006-06-06

D.BISWAS, T.NANDA KUMAR SINGH

body2006
Nandakumar, J.:- 1. This writ appeal is directed against the judgment and order of the learned Single Judged dated 11.9.2000 passed in W.P(C) No. 486 of 2000 directing the appellant/respondents to consider the respondent/writ petitioner who is holding the lone post of Head Clerk in the establishment of Ashram Schools for promotion to the lone post of Superintendent in the establishment of Tribal Development and Backward Classes, Govt. of Manipur, i.e. in the Directorate of Tribal Development and Backward Classes, Govt. of Manipur. 2. The main ground taken in the present writ appeal is that the establishment of Ashram Schools is separate from the establishment of Tribal Development and Backward Classes, Govt. of Manipur, i.e. the Directorate of Tribal Development and Backward Classes, Govt. of Manipur. 3. Succinct facts basing on which the appellants/respondents in the writ petition filed the present writ appeal are that the respondent/writ petitioner was initially appointed as Lower Division Clerk (LDC) in the erstwhile Development Department, Govt.of Manipur on regular basis vide order dated 17.3.1973 issued by the Development Commissioner and by the same order he was posted at the Chassad Kamjong Tribal Development Block. On the recommendation of the DPC, the respondent/writ petitioner was promoted to the post of Upper Division Clerk (UDC) vide order dated 21.5.1979. 4. By an order of the Govt. of Manipur being No. 1/US/81- TW Imphal, the 1st Sept., 1982, the respondent/writ petitioner was transferred to the office of the Director of Ashram Schools as UDC against the vacant post of UDC created vide order No. 29/31/78-SE (SWP dated 20.6.1979 in the same scale of pay of Rs.335-575/- p.m. with immediate effect. After the petitioner was transferred as UDC to the office of the Director of Ashram Schools, there was a regular DPC for considering the case of the respondent/writ petitioner for appointment as Head Clerk in the Directorate of Ashram Schools. On the recommendation of the said duly constituted DPC, the respondent/writ petitioner was regularly appointed as Head Clerk in the Directorate of Ashram Schools vide order of the Secretary (TD), Govt. of Manipur being No. 10/215/95-TD: Imphal, the 11th September, 1986. Subsequently on the recommendation of the DPC held on 23.2.1989, the respondent/writ petitioner was confirmed to the post of Head Clerk in the Directorate of Ashram Schools w.e.f. 3.7.1989 vide order of the Director for Development of Tribal and Backward Classes, Govt. of Manipur dated 10.1.1991. of Manipur being No. 10/215/95-TD: Imphal, the 11th September, 1986. Subsequently on the recommendation of the DPC held on 23.2.1989, the respondent/writ petitioner was confirmed to the post of Head Clerk in the Directorate of Ashram Schools w.e.f. 3.7.1989 vide order of the Director for Development of Tribal and Backward Classes, Govt. of Manipur dated 10.1.1991. The further case of the appellant/respondent is that since the respondent/writ petitioner had been absorbed in the post of Head Clerk in the establishment of Ashram Schools, his “lien” against any post in the Department of Tribal Development and Backward Classes or in the Office of Director of Tribal Development and Backward Classes, Govt. of Manipur would stand terminated w.e.f. 3.7.1989. 5. It is also the further case of the appellant/respondent that when a post of Head Clerk was lying vacant in the year 1989 in the Directorate for Tribal Development and Backward Classes, Govt. of Manipur, a DPC was held on 12.7.1989 and did not consider the cases of any UDCs belonging to the Directorate of Ashram Schools for promotion to the post of Head Clerk. Similarly, not a single DPC was convened for promotion to the post in the Directorate of Ashram Schools by considering the cases of any employees in the Directorate for Development of Tribal and Backward Classes and vice-versa. By an order dated 7.12.1987, the final seniority list of the Head Clerk/Accountants in respect of the Directorate for Tribal Development and Backward Classes was published. In that final seniority list of the Head Clerk/Accountants, no name of the persons/employees including the name of the respondent/writ petitioner holding the post of Head Clerk in the Directorate of Ashram Schools was included as they belonged to a separate cadre. 6. According to the appellant/respondent, in the Govt. of Manipur, there are many establishments in various departments which were controlled by the same Directorate, but those establishments have their separate cadres which are not transferable to each other. The Directorate of Arts and Culture, controlled the office of the Central Library and Office of State Museum, however, those staff of the said two offices are not transferable. Such being the circumstances, the Govt. The Directorate of Arts and Culture, controlled the office of the Central Library and Office of State Museum, however, those staff of the said two offices are not transferable. Such being the circumstances, the Govt. of Manipur issued an order being No. 35/1/93-TD Imphal the 23rd November, 1993 that in pursuance of the Confidential and Cabinet Deptt., notification No. 3/1/77-CCN (Pt) dated 21.8.1993, the Governor of Manipur was pleased to declare the Director of Tribal Development and Backward Classes Deptt., Manipur as the head of department in respect of the Ashram Schools. 7. As the establishment of Ashram Schools is different from that of Directorate for Tribal Development and Backward Classes, the name of the respondent/writ petitioner does not appear in the final seniority list of the Head Clerks/Accountants in the Directorate for Development of Tribal and Backward Classes. Based on the said inter se seniority list of the Head Clerks/Accountants of the Directorate for Development of Tribal and Backward Classes, a DPC associated with the Manipur Public Service Commission (for short MPSC) held its meeting on 13.5.1988 to consider the case of the eligible Head Clerk for promotion to the post of Superintendent in the Tribal Development Department and the said DPC held on 13.5.1988 did not consider any person working in the establishment of Ashram Schools for appointment by promotion to the post of Superintendent in the Tribal Development Department. On the recommendation of the said DPC, one Shri Th. Ibochou Singh was promoted to the post of Superintendent in the Tribal Development Department vide order of the Governor of Manipur being No. 10/83/87-TD Imphal the 18th June, 1988. It is no doubt correct that there is a common Recruitment Rules called “the Department/Offices under the Govt. of Manipur (Superintendent) Recruitment Rules, 1991”. 8. In the course of hearing of the present writ appeal, the learned Sr. counsel appearing for the appellants/respondents placed a copy of the orders of the Govt. of Manipur being No. 20/7/2000-TD (ASM): Imphal the 28th May, 2002 before this court for perusal. The learned counsel for the respondent/writ petitioner also does not deny the correctness of the said order of the Govt. of Manipur dated 28.5.2002. counsel appearing for the appellants/respondents placed a copy of the orders of the Govt. of Manipur being No. 20/7/2000-TD (ASM): Imphal the 28th May, 2002 before this court for perusal. The learned counsel for the respondent/writ petitioner also does not deny the correctness of the said order of the Govt. of Manipur dated 28.5.2002. For easy reference, the said order of the Govt of Manipur dated 28.5.2002 is quoted hereunder in entirety: “GOVERNMENT OF MANIPUR SECRETARIAT: TRIBAL DEVELOPMENT DEPARTMENT ------ ORDERS BY THE GOVERNOR OF MANIPUR Imphal, the 28th May, 2002 No.20/7/2000-TD(ASM): Whereas the Directorate for Development of Tribals & Scheduled Casts, Manipur and the Directorate of Ashram Schools, Manipur were established as 2(two) separate Directorates by the Govt. of Manipur, each having its own separate Cadres of staffs and employees and functioning in different spheres of administration: and 2. Whereas, initially the Directorate of Ashram Schools was placed under the Administrative control of the Education Department, Government of Manipur and after a spell of time, by a Government Order No. 1/115/76-T.W. dated 18th August, 1981, the same was brought under the Administrative Control of Tribal Welfare Department, Govt. Of Manipur and by another Government Order No. 16/21/2001-PIC(G) dated 11th July 2001, it was again placed under the Education('Schools) Department with immediate effect, though all the while its staffs and employees remained as a separate cadre and never merged/amalgamated with any of Cadres of the Directorate for Dev. of Tribals and Scheduled Castes, Manipur at any point of time; and 3. Whereas, while the Directorate of Ashram Schools was under the Administrative Control of Tribal Welfare Department, purely for the purpose of delegation of financial power, exercise of power under some of the service rules such as granting of leave etc. the Director of Tribal Development was declared as the cadre controlling officer and Head of Department vide Order No. 10/124/91- T.W. dated 3rd February, 1989 and No. 35/1/93-TD dated 22nd November, 1993, respectively; and 4. Whereas, during the said period when the Directorate of Ashram Schools was functioning under the Administrative Control of Tribal Welfare Department (though the designation was changed from time to time) through confusion and inadvertence, many, orders/ letters/memorandums etc. of the Directorate of Ashram Schools were wrongly issued in the names of Director of Development of Tribals and Backward Classes or Secretary, T.D., Govt. of the Directorate of Ashram Schools were wrongly issued in the names of Director of Development of Tribals and Backward Classes or Secretary, T.D., Govt. of Manipur and this has created administrative confusion and has given opportunity to some of the staffs and employees in the cadre of the Directorate of Ashram Schools to falsely claim promotion and other service advantages etc. which are available only to the staffs belonging to the exclusive cadre of Directorate for Development of Tribals and Scheduled Castes. 5. Now, therefore, to set the record straight, the Governor of Manipur is pleased to clarify and order that all letters/ orders, office correspondences pertaining to the Directorate of Ashram Schools, Manipur which were issued during the period when the Directorate of Ashram Schools was placed under the Administrative Control of the Tribal Development Department in the office name of Directorate for Tribal Development and Backward Classes or Director for Development of Tribals and Backward Classes, shall be deemed/read as letters/orders/office correspondences issued by the Directorate of Ashram Schools or Director, Ashram Schools, Manipur. 6. Further ordered that, though the Ashram Schools is transferred to the Education(S) Department vide order No. 16/21/2001-PIC(G) dated 11.7.2001, the Director (DTSC), Manipur shall however continue to be the Head of Department as per Govt. order No. 35/1/93-TD dated 22.11.1993 till such time the transfer is effected and fresh order is issued in this regard by the concerned authority. By orders & in name of the Governor, Sd/- (L.P.Gonmei) Commissioner (TD), Govt. of Manipur” 9. The respondent/writ petitioner filed the writ petition, i.e. W.P(C) No. 486 of 2000 basing on the sole ground that the establishment of Ashram Schools and that of the Directorate of Tribal Development and Backward Classes Department are one and the same inasmuch as the administration of Directorate of Ashram Schools is under the control of Tribal Development and Backward Classes Deptt. and also the , Govt. and also the , Govt. of Manipur and also the Directorate of Tribal Development and Backward Classes is the head of department in respect of Ashram Schools and as such the respondent/writ petitioner holding the regular post of Head Clerk in the establishment of Ashram Schools shall also be considered for promotion to the post of Superintendents in the establishment of Director of Tribal and Backward Classes and also that there is only one common recruitment rules for the post of Superintendent for the different offices/departments under the Govt. of Manipur. The appellant/respondent filed their affidavit-in-opposition by specifically denying that the establishment of Ashram Schools and establishment of Tribal Development and Backward Classes Deptt. are one and the same. The appellant/respondents in their affidavit clearly stated that the establishment of Ashram Schools is totally different from that of the Tribal Development and Backward Classes Deptt. and also that the consideration of the respondent/writ who is holding the regular post of Head Clerk in the establishment of Ashram Schools for appointment by promotion to the post of Superintendent in the establishment of Tribal Development and Backward Classes Deptt. will amount to cadre encroachment. It appears that the learned Single Judge passed the impugned judgment and order without considering the jurisdictional fact as to whether or not the establishment of Ashram Schools is different from the establishment of Tribal Development and Backward Classes Deptt. and whether or not appointment of the respondent/writ petitioner who is holding the regular post of Head Clerk in the establishment of Ashram School by promotion to the post of Superintendent in the establishment of Tribal Development and Backward Classes will amount to cadre encroachment, passed the impugned judgment and order dated 11.9.2000 directing the appellants/respondents to consider the case of the respondent/writ petitioner by constituting a fresh DPC for appointment by promotion to the lone post of Superintendent in the establishment of Tribal Development and Backward Classes Deptt., Govt. of Manipur. 10. From the above fact discussed above, and also perusal of the orders of the Govt. of Manipur. 10. From the above fact discussed above, and also perusal of the orders of the Govt. of Manipur dated 28.5.2002, it is crystal clear that consideration of the respondent/writ petitioner who is holding the regular post of Head Clerk in the establishment of Ashram Schools for appointment by promotion to the post of Superintendent in the establishment of Tribal Development Backward Classes will amount to cadre encroachment and also that mere having one common recruitment rules for the post of Superintendent in the different offices/departments under the service of the Govt. of Manipur does not mean that Head Clerk of a particular establishment/service cadre would be considered for appointment by promotion to the post of Superintendent in the different establishment/service cadres under the service of the Govt. of Manipur. We are of the considered view that with great reluctance and due respect to the learned Single Bench, the impugned judgment and order dated 11.9.2000 passed in W.P(C )No.486 of 2000 is to be interfered with and we hereby do. 11. In the result, the writ appeal is allowed and the impugned judgment and order dated 11.9.2000 passed in W.P(C) No. 486 of 2000 is hereby set aside. Consequently, the W.P(C) No. 486 of 2000 is hereby dismissed. Parties are to bear their own costs.