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2007 DIGILAW 806 (GAU)

Moirangthem Kiranchand Singh v. State of Manipur

2007-12-11

T.NANDAKUMAR SINGH

body2007
JUDGMENT T.N.K. Singh, J. 1. The reliefs sought for in the present writ petition filed by the petitioner, who is a regular Principal of the Government College namely, L.M.S. Law College are: (i) Issue writ of certiorari and/or any other appropriate writ/order/direction setting aside the order of the Government of Manipur being No. 3/18/86-EDN/DP dated 22nd April, 2003 for reversion of the writ petitioner from the post of Director of Education (U), Government of Manipur to L.M.S. Law College as Principal with immediate effect. (ii) Issue writ of mandamus and or any other appropriate writ/order/direction to the respondents directing them to regularize/absorb the petitioner to the post of Director of Education (U) within the stipulated period. (iii) Pass any other appropriate writ/order/direction that this Court deem fit and just in the interest of justice. 2. Heard Mr. N. Ibotombi, Learned Counsel appearing for the petitioner as well as Mr. Y. Ashang, learned Government Advocate appearing for the respondents. 3. By filtering the unnecessary detail fact, the concise fact which should be sufficient for deciding the present writ petition is that the L.M.S. Law College was taken over as a government College by the order of the Government of Manipur being No. 1/19/79-SE dated 13th February, 1981 w.e.f. 1st April, 1981. Since 1st April, 1981 the LMS Law College is one of the Government Colleges of the Government of Manipur. 4. The Governor of Manipur in supersession of all previous orders in this regard and in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, makes the rules "Education Department, Manipur, Director of Education (University) Recruitment Rules 1982" vide Notification No. 82-RR/DP dated 8.6.1982. The said R.R. 1982 for the post of Director of Education(U), Government of Manipur is still in force. The post of Director Education(U) is to be filled up either by transfer from Principal of Government College (Selection Grade) having the pay scale of Rs. 1400-2000 or the promotion from Principal of the Government College in the pay scale of Rs. 1200-1800 with five(5) years regular service in the grade. The post of Director Education(U) is to be filled up either by transfer from Principal of Government College (Selection Grade) having the pay scale of Rs. 1400-2000 or the promotion from Principal of the Government College in the pay scale of Rs. 1200-1800 with five(5) years regular service in the grade. In the said R.R. it is clearly mentioned that the promotees should fulfill the condition of qualifying service for promotion on the date on which the proposal is sent to the commission provided that where a person is considered for such appointment all persons who possess 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 period or mentioned above. Any period of ad hoc appointment prior to the regularization of their appointment in consultation with the Commission shall not be counted in the minimum period of service prescribed for promotion. On bare perusal of the recruitment Rules 1982, it is clear that the post of Director of Education(U) can only be filled up by the regular Principal of the Government College either by promotion or by transfer. 5. The petitioner, after obtaining Post Graduate Degree, i.e., LL.M. joined as lecturer on ad hoc basis of the LMS College on 8.7.1982. Later on the service of the petitioner as lecturer had been regularized under the orders of the Government of Manipur being No. 5/3/86-S/SE(I) dated 21.11.1986 and under the said order he was on probation for the period of two(2) years. Since then the petitioner had served as regular lecturer of the LMS College till he was appointed by promotion to the post of Principal LMS College on regular basis on the recommendation of the Manipur Public Service Commission under the order of the Government of Manipur being No. 5/2/96-S/SE dated 30.6.1998. It is the clear case of the petitioner that since June, 1998, the petitioner has been serving as a regular Principal of the Government Law College. It is also stated that even before his appointment by promotion to the post of Principal of the Government Law College on regular basis under the said order of the Government of Manipur dated 30.6.1998 petitioner was appointed as Reader with effect from 9.7.1985. It is also stated that even before his appointment by promotion to the post of Principal of the Government Law College on regular basis under the said order of the Government of Manipur dated 30.6.1998 petitioner was appointed as Reader with effect from 9.7.1985. It is stated that the petitioner is eligible for appointment either by transfer or by promotion to the post of Director of Education(U), Government of Manipur under the said recruitment Rules, i.e., R.R. 1982 for the post of Director of Education(U), Government of Manipur which is admittedly still in force. 6. Taking Into consideration of the eligibility of the petitioner for appointment as the Director of Education(U), Government of Manipur and also exigency of the services of the Director of Education(U), Government of Manipur, the petitioner was appointed as Director Education(U), Government of Manipur by transfer as an interim stop gap arrangement in the scale of Rs. 14,300 - 18,300 P.M. under the orders of the Government of Manipur being No. 3/18/86-EDN/DP(Pt) dated 25.11.2002. 7. While the petitioner was serving as Director of Education(U), Government of Manipur, Government of Manipur issued the impugned order dated 22.4.2003 for reverting the petitioner from the post of the Director of Education(U), Government of Manipur to L.M.S. Law College as Principal with immediate effect. Being aggrieved by the order dated 22.4.2003, the petitioner filed the present writ petition. 8. The respondents also filed their affidavit-in-opposition in the present writ petition. In the affidavit-in-opposition so filed by the respondents, respondents are not denying the fact that the petitioner is eligible for appointment to the post of Director of Education(U), Government of Manipur under the relevant Recruitment Rules i.e., said R.R. 1982 for the post of Director of Education(U), Government of Manipur. But in the affidavit-in-opposition, the respondents have stated that mere holding of post of Director of Education(U), Government of Manipur on in charge basis by the petitioner shall not accrue any sort of right to the petitioner for regular appointment. It is stated that the regular appointment to the post of Director of Education(U), Government of Manipur could only be made by following the procedure and also completing the formalities prescribed in the said recruitment Rules i.e., R.R. 1982 for the post of Director of Education(U), Government of Manipur. 9. It is stated that the regular appointment to the post of Director of Education(U), Government of Manipur could only be made by following the procedure and also completing the formalities prescribed in the said recruitment Rules i.e., R.R. 1982 for the post of Director of Education(U), Government of Manipur. 9. In the course of the hearing of the present writ petition, both the parties have submitted at the bar that the post of Director of Education(U), is now manned by the senior IAS officers on look after basis and also that such practice had been followed by the Government of Manipur even before the petitioner was appointed as Director of Education(U), Government of Manipur under the said order of the Government of Manipur dated 25.11.2002 and after his reversion to the post of Principal L.M.S. Law College under the impugned order dated 22.4.2003 senior IAS officers were allowed to hold the post of Director Education(U), Government of Manipur. It appears from the submissions of the Learned Counsel s appearing for the parties and also from-the records that the post of Director of Education(U), Government of Manipur is allowed to be manned by the senior IAS officers for a considerable length of time. 10. The Government of Manipur framed the rules i.e., Recruitment Rules for the different posts for following the same at the time of filling up the posts and riot for violating those rules. In the instant case, it appears that the Government of Manipur is violating its own law/rules in filling up the post of Director of Education(U), Government of Manipur. It makes no sense in filling up the post of Director of Education(U) by violating the relevant Recruitment Rules. It goes without saying that it is the Government of Manipur who is to decide the requirement of the service of the Director of Education(U), Government of Manipur and in case the service of the Director of Education(U) is at all required, the government has to fill it up by following the rules. It is the constitutional scheme contemplated in the constitution of India that the posts are to be filled up in the public interest by following the procedure prescribed in the statute and the rules. The Apex Court in a catena of cases had depreciated the act of concerned authority in filling up the post by violating the relevant recruitment Rules. It is the constitutional scheme contemplated in the constitution of India that the posts are to be filled up in the public interest by following the procedure prescribed in the statute and the rules. The Apex Court in a catena of cases had depreciated the act of concerned authority in filling up the post by violating the relevant recruitment Rules. In this regard, this Court is not require to burden itself by referring to different decision of the Apex Court. The Apex Court in Dwarka Nath v. ITO AIR 1966 SC 81 , observed that our constitution designedly used the wide language in Article 226 of the Constitution of India to enable the court to reach injustice wherever it is found necessary and to mould the reliefs to meet the peculiar and complicated requirements of this country. This Court in Air India Statutory Corporation v. United Labour Union and Ors. 1997 SC (2) 165 held that the armed of the High Court is long enough to reach the R.R. injustice. In the facts discussed above, this Court is of the considered view that filling up the post of the Director of Education(U), Government of Manipur violating the relevant recruitment Rules, i.e., said R.R. 1982 is not the constitutional scheme contemplated in the constitution and it causes injustice not only to the eligible officers for the post of Director of Education(U), Government of Manipur but also shall defeat the objects and reasons for framing R.R. for the post of Director of Education(U), Government of Manipur for effective administration. Therefore, this Court by following the ratio laid down by the Apex Court in Dwearka Nath (supra) and Air India Statutory Corporation (supra) would exercise the power under Article 226of the Constitution of India to reach injustice whenever it is found inasmuch as filling up the post of Director of Education(U), Government of Manipur in derogatory to the said R.R. 1982 is causing serious injustice not only to the eligible officers for the post of Director of Education(U), Government of Manipur but also defeat the constitutional scheme for filling up the public posts in public interest. 11. In the peculiar facts and circumstances of the case, this Court is of the considered view that the relief sought for in the present writ petition are required to mould appropriately. The Apex Court in Comptroller and Auditor-General of India and Anr. 11. In the peculiar facts and circumstances of the case, this Court is of the considered view that the relief sought for in the present writ petition are required to mould appropriately. The Apex Court in Comptroller and Auditor-General of India and Anr. v. K.S. Jagannathan and Anr. (1986) 2 SCC 679 , held that in any fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give direction which the government or the public authority should have passed or given had it properly and the lawfully exercised its discretion. 12. Para 20 of the SCC in Comptroller and Auditor-General of India and Anr. (supra) reads as follows: 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongfully exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy fur implementing which such, discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. 13. The Apex Court is of the similar view in Union of India and Anr. v. B.C. Chaturvedi (1995) 6 SCC 749 and Food Corporation of India v. S.N. Nagarkar (2002) 2 SCC 475 . Para 19 of the judgment in S.N. Nagqrkar (supra) reads as follows: 19. Having regard to the facts and circumstances of the case, the court was satisfied that the respondent was not only to be considered for promotion to the promotional posts, but was also entitled to arrears of pay and allowances since he had been deprived of those benefits not on account of any fault of his but on account of the fault of the authorities concerned. It is well settled that in exercise of writ jurisdiction, the court may mould the relief having regard to the facts of the case and interest of justice. 14. For the reasons discussed above and also for compelling the respondents to follow the constitutional scheme contemplated by the Constitution of India in filling up the post in public interest, the respondents are directed to fill up the post of Director of Education(U), Government of Manipur by following the relevant recruitment Rules, i.e., R.R. 1982 for the post of Director of Education(U), Government of Manipur in case the Government of Manipur requires the service of the Director of Education(U) and it is also made clear that the Government of Manipur should not fill up the post of Director of Education(U) by violating the relevant recruitment Rules. 15. It is also made clear that the Government of Manipur should fill up the post of Director of, Education(U), Government of Manipur as expeditiously as possible. 16. To the extent mentioned above, the writ petition is allowed. Petition allowed.