Mangsatabamimomacha Singh v. State of Manipur & Ors.
2012-08-09
T.VAIPHEI
body2012
DigiLaw.ai
T. Vaiphei, J.— This is a classic instance in which the State-respondents are, apparently, playing cat and mouse game with the orders of this Court with a view to frustrate and circumvent thereof. This forensic battle started with the order dated 21st February, 2012, under challenge in this writ petition, by which the private respondent, who is holding a substantive post of Superintending Engineer, was made to hold the charge of Chief Engineer in the Public Health Engineering Department of Government of Manipur when there is the petitioner, who is holding the substantive post of Additional Chief Engineer in the same Department and who is the OSD to the Principal Secretary (PHE) in the Secretariat PHE by drawing the pay of Additional Chief Engineer. When this Court by the order dated 29.2.2012 and 15.3.2012 stayed the operation of the impugned order, in apparent retaliation, the State-respondents issued another order dated 11.5.2012 transferring the petitioner in a non-cadre post of Secretary (Technical), PHED. Holding the view, such transfer to a non-cadre post amounts to deputation, which cannot be done without the consent of the petitioner, this Court by the order dated 23.5.2012 stayed the impugned order dated 11.5.2012 for a limited period, but it has been extended from time to time till date. Some contempt petitions have also been filed by the petitioner against some official respondents for not complying with the interim orders of this Court. Anyway, we are presently concerned with the legality of the impugned order directing the private respondent to hold the charge of Chief Engineer at the expense of the petitioner. 2. Unfolding his submissions, Mr. A. Romenkumar, the learned counsel for the petitioner, argues that the impugned order is contrary to the well-settled principle of service jurisprudence that the senior-most should be made incharge of promotional post till the post is regularly filled up. He further contends that the impugned order is issued not in public interest as is evidenced by the conspicuous absence of the term "public interest" therein. Referring to the standing order dated 20.6.2009 of the State-respondents, he also submits that consistent with the past practice and declared to be so by this order of allowing the Addl.
He further contends that the impugned order is issued not in public interest as is evidenced by the conspicuous absence of the term "public interest" therein. Referring to the standing order dated 20.6.2009 of the State-respondents, he also submits that consistent with the past practice and declared to be so by this order of allowing the Addl. Chief Engineer, PHED to hold the charge of Chief Engineer, PHED in the absence of Chief Engineer either on leave or on training or on tour, the petitioner held the legitimate expectation that he should be allowed to hold the charge of Chief Engineer, more so, when he is the senior-most engineer in the Department: such legitimate expectation cannot be defeated except for overwhelming public interest, which, as already noted, is nonexistent in the instant case. A number of decisions have been cited by him to buttress his contention. Suffice it to refer to the decisions of the Apex Court in (1) Dr. Suman Agarwal Vs. Vice-Chancellor, (1996) 1 SCC 632 ; (2) Govt. of A. P. Vs. A. V. Venugopal, (1995) 1 SCC 179 and (3) Ramdhar Pandey Vs. State of U.P., 1993 Supp(3) SCC 35 and (4) Gwalior Mahila Mandal Vs. State of M.P, AIR 2009 SC 1638 ; (5) Union of India Vs. Arulmozhi Iniarasu, (2011) 7 SCC 397 and the decisions of this Court in (1) Satya Charan Biswas Vs. State of Assam, 2004 (Suppl.) GLT 808:(2005) 3 GLR 275; (2) Potsangbam Super Singh Vs. State of Manipur, 2009 (3) GLT 635; (3) Wahengbam Uttarani Devi Vs. State of Manipur, 2009 (1) GLT 331 and (4) Moatemjan (Dr.) Vs. State of Nagaland, 2011 (5) GLT 513. 3. The impugned order is defended by Mr. S. Napoleon, the learned Additional Government Advocate appearing for the State-respondents with considerable force. He brings to the notice of this Court at the time of hearing the order dated 7.8.2012 issued by the State-respondents cancelling the impugned order and contends that in view of this subsequent development, this writ petition does no longer survive for consideration and is liable to be dismissed as infructuous. The submission of the learned State counsel is supported by Mr.
The submission of the learned State counsel is supported by Mr. H.S. Paonam, the learned counsel for the private respondent, who additionally maintains that allowing this writ petition will come into conflict with WP(C) No.274 of 2012, which is not yet ready for hearing and where this Court had stayed the order dated 11.5.2012 appointing the petitioner as the Secretary (Technical), PHED. According to the learned senior counsel, when the validity of this order is yet to be decided by this Court, it is premature to finally decide this case and this Court should defer the hearing of this case and wait for consolidated hearing of the two writ petitions to avoid any possible conflict between the judgments of this Court. He also contends that this Court may not issue a direction to the respondent authorities to consider the petitioner for holding the charge of Chief Engineer as that would amount to usurping the legitimate function of the State-respondents. He, therefore, prays that the writ petition, which is bereft of merit and has also become infructuous in view of the subsequent development, is liable to be dismissed. 4. In my opinion, the point for consideration in this writ petition lies on a narrow compass, namely, whether the State-respondents in allowing the private respondent, who is junior to the petitioner and is merely holding the substantive post of Superintending Engineer, to hold the post of Chief Engineer on in-charge basis in the presence of the petitioner, who admittedly holds the substantive post of the higher post of Additional Chief Engineer, suffers from the vice of irrationality? I am not unmindful of the established legal position that the scope of judicial review against administrative actions which suffer from the vice of illegality, irrationality/arbitrariness and procedural impropriety. In other words, when there are two possible views on any issue, this Court cannot interfere with the view taken by the State-respondents. Conversely, if the view taken by them is not a possible view or is rather an irrational view, this Court certainly has the power, nay, the constitutional duty, to interfere with such an irrational view taken by them. In the instant case, I am unable to understand the rationale of the State respondents in allowing a junior officer to hold the charge of Chief Engineer when there is an officer admittedly senior to him.
In the instant case, I am unable to understand the rationale of the State respondents in allowing a junior officer to hold the charge of Chief Engineer when there is an officer admittedly senior to him. What public interest, assuming there is any, is being served by such arrangement is yet to be disclosed from the affidavit-in-opposition of the State-respondents. 5. The law relating to transfer in public employment that as long as a senior officer is available, a junior officer cannot be allowed to hold charge of a higher post until such post is filled up on a regular basis, is no longer res Integra. Once the post is regularly filled up, the officer holding the charge must give way to the regularly appointed official. This is the law laid down by the Apex Court in a long line of decisions such as Dr. Suman Agarwal (supra), Gwalior Manila Mandal (supra), A. V. Venugopal (supra) and by this Court in Satya Charan Biswas (supra), Potsangbam Super Singh, Wahengbam Uttarani Devi and Moatemjan (Dr.) & Ors.. In A. V. Venugopal (supra), when the Tribunal interefered with the interim arrangement made by the Government appointing a senior most eligible employee in the provisional seniority list to hold the charge of the promotional post pending finalization of the inter-se seniority list, the Apex Court quashed the decision of the Tribunal. According to the top court, such an interim arrangement has got a rational and reasonable basis to avoid administrative hardship or heartburning to the persons who claimed to the posts of respective Executive Engineers, Superintending Engineers and the Chief Engineers, as the case may be. As for the submission of the learned counsel for the respondents that as the petitioner was also earlier allowed to hold the charge of Chief Engineer even when there was an engineer a was holding a higher substantive post, it will be highly improper and unfair for him now question the impugned order, my answer is that two wrongs do not make a right. Irrationality cannot be perpetuated. Similarly, in the face of consistent past decisions of this Court and of the Apex Court, I do not think it necessary to consider the other contentions raised by the learned counsel appearing for the rival parties in support of their respective cases.
Irrationality cannot be perpetuated. Similarly, in the face of consistent past decisions of this Court and of the Apex Court, I do not think it necessary to consider the other contentions raised by the learned counsel appearing for the rival parties in support of their respective cases. After considering the matter from all angles, I am thus of the considered view that the impugned transfer order suffers from the vice of arbitrariness and irrationality warranting the interference of this Court. 6. In view of the subsequent development, there remains one question to be decided by this Court, namely, whether a consequential order can be passed by this Court. As already noticed, the State-respondents have now cancelled the impugned transfer order, but I do not think this to be the end of the matter. Some consequential order needs to be passed to protect the right of the petitioner. In my judgment, in the absence of any other engineer senior to the petitioner, the most reasonable and rational action called for is to consider appointing the petitioner as the Chief Engineer (PHED) on in charge basis. This is the well-settled principle of service jurisprudence to be scrupulously observed by the respondent authorities to avoid heart-burning to the senior most eligible engineer such as the petitioner. 7. The result of the foregoing discussion is that this writ petition succeeds. The impugned order of transfer dated 21.02.2012 (Anne-xure-A/10 to the writ petition) is, accordingly, quashed. The State-respondents shall now consider the appointment of the petitioner as the Chief Engineer (PHED) on in charge arrangement till the post is regularly filled up, keeping in mind the legal principles reiterated in the foregoing, without further loss of time. No costs. _____________