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2014 DIGILAW 140 (MAN)

M. Manichand Singh v. State of Manipur

2014-12-17

KH.NOBIN SINGH

body2014
JUDGMENT Kh. Nobin Singh, J. 1. Heard Shri N. Surendrajit, learned counsel appearing for the petitioner and Miss L. Monomala Devi, learned Government Advocate appearing for the respondents. 2. The petitioner has filed the above writ petition praying inter alia that the respondents be directed to make retrospective appointment of the petitioner to the post of Farm Manager w.e.f. 17-10-1996 or w.e.f. 05-05-1997 from which other persons similarly situated were regularly appointed. 3. The case of the petitioner is that on the recommendation of a duly constituted DPC held on 02-12-1993 to 03-12-1993, the petitioner and some others were recommended for appointment as a Farm Manager in the Fishery Department, Government of Manipur. Pursuant to the order dated 09-10-1996 passed by the Hon'ble Gauhati High Court, the Director of Fishery, Government of Manipur issued an order dated 17-10-1996 by which the petitioner along with 2 (two) others namely, Shri K. Dineshwor Singh and Shri A.S. Angam were appointed to the post of Farm Manager against the available higher post of Fishery Inspector by invoking the provisions of GFR-77 from the date of their joining duties until further orders. It is also the case of the petitioner that by two subsequent orders dated 05-05-1997, Shri A.S. Angam and Keisham Dineshwar Singh have been appointed temporarily to the post of Farm Manager. Even though the petitioner had been serving as Farm Manager w.e.f. 17-10-1996 for the last about 16 (sixteen) years, he was unable to avail the benefits of Assured Career Progression (ACP) Scheme provided in the O.M. dated 20-07-2005 on account of his non-appointment as Farm Manager against the vacant post. The petitioner submitted several representations for his appointment as Farm Manager w.e.f. the date of his initial appointment so as to enable him to get the service benefits under the ACP Scheme and that all such representations are pending for consideration by the Department of Fishery. Having no alternative, the petitioner filed a writ petition being W.P. (C) No. 604 of 2011, prayer 1 and 2 of which are reproduced herein below:- "1) A writ in the nature of mandamus directing the respondents to make adjustments of the appointment of the Petitioner against a vacant post of Farm Manager w.e.f. 17-10-1996. 2) A writ in the nature of Mandamus directing the respondents to provide the service benefits of ACP and others available in the ACP Scheme etc." 4. 2) A writ in the nature of Mandamus directing the respondents to provide the service benefits of ACP and others available in the ACP Scheme etc." 4. The said writ petition was disposed of by the Gauhati High Court, Imphal Bench vide order dated 26-09-2012 by which the Hon'ble High Court directed the respondents therein to regularly appoint the petitioner as Farm Manager against the available vacancies in the post of Fish Farm Manager in the Department of Fisheries, Government of Manipur. 5. Pursuant to and in compliance of the said order dated 26-09-2012, the Director of Fisheries, Manipur issued an Office Memo dated 29-12-2012 (appears to be wrongly typed as 29-11-2011) by which the petitioner herein was appointed temporarily to the post of Fish Farm Manager against the existing vacant post with immediate effect. The petitioners, being aggrieved by the action of the respondents for having not appointed him as Farm Manager with effect from 17-10-1996 or from 05-05-1997 from the date when similarly situated persons were regularly appointed, filed the present writ petition praying inter-alia that the respondents be directed to make retrospective appointment of the petitioner to the post of Farm Manager w.e.f. 17-10-1996 or w.e.f. 5-5-1997 from which other persons similarly situated were regularly appointed. 6. Counsel for the respondents submitted that the DPC did not recommend the petitioner for appointment to the post of Farm Manager. The DPC recommended only 2 (two) persons for appointment to the post of Farm Manager/Fishery Demonstrator against clear vacant posts available at the time of DPC and in order to avoid holding of DPC in future, the Committee decided to recommend 6 (six) persons including the petitioner to be kept in the waiting list. The petitioner figures at Sl. No. 4 in the waiting list. Only in compliance of the order dated 9-10-96 passed by the Hon'ble Gauhati High Court, the Government Order dated 17-10-96 was issued appointing the petitioner, along with other, to the post of Farm Manager against the available higher post of Fishery Inspectors by invoking the provisions of GFR - 77. Since the petitioner has no grievance against the order dated 17-10-06, it is submitted by the counsel for the respondents that the issue involved herein is covered by a decision rendered by the Hon'ble Supreme Court in the case of P.S. Gopinatha Vs. State of Kerala reported in : (2008) 7 SCC 70 . Since the petitioner has no grievance against the order dated 17-10-06, it is submitted by the counsel for the respondents that the issue involved herein is covered by a decision rendered by the Hon'ble Supreme Court in the case of P.S. Gopinatha Vs. State of Kerala reported in : (2008) 7 SCC 70 . 7. It is further submitted by the counsel for the respondents that when 2 (two) clear vacancies arose for the post of Fish Farm Manager/Fishery Demonstrator, the 2 (two) candidates who were above the petitioner in the said waiting list were appointed on regular basis in the year 1997. For want of vacancy, the petitioner was not appointed as Fish Manager on regular basis. Therefore, the petitioner was not entitled to avail the benefit of ACP since he had not rendered 12/24 years of regular service in the grade. 8. It is not in dispute that the DPC was held on 02-12-21993 and 03-12-1993 for appointment to the post of Farm Manager. From the proceedings of the DPC which is filed herein as Annexure-R/1, it is very clear that the DPC recommended only 2 (two) candidates only against clear vacancies and six candidates including the petitioner were kept in the waiting list. It is a well settled law that a candidate whose name is kept in the waiting list is not entitled to be appointed and can be appointed as and when the vacancies arise and the waiting list has not lapsed as per relevant rules. When the Petitioner was appointed as Farm Manager against the available higher post by invoking the provisions of GFR - 77, he was satisfied with it and not being aggrieved by it, the petitioner did not challenge the validity and correctness of the said order dated 12-10-1996. Thereafter, the petitioner was appointed only on 29-12-2012 as Fish Farm Manager with immediate effect and that too, pursuant to and in compliance of the order dated 26-09-2012 passed by the Hon'ble Gauahti High Court, Imphal Bench. It may be noted that the Hon'ble Gauhati High Court while passing the order dated 26-09-2012 has not directed for retrospective regularization of the petitioner either with effect from 17-10-1996 or 05-05-1997. Moreover, the prayers made in the earlier writ petition being W.P. (C) No. 604 of 2011 are similar to that of the present writ petition. It may be noted that the Hon'ble Gauhati High Court while passing the order dated 26-09-2012 has not directed for retrospective regularization of the petitioner either with effect from 17-10-1996 or 05-05-1997. Moreover, the prayers made in the earlier writ petition being W.P. (C) No. 604 of 2011 are similar to that of the present writ petition. It is contended by the counsel for the petitioner that since the issues involved in the said WP (C) No. 604/2011 have not been decided, the principles of Res Judicata under Section 11 of CPC would not apply. The principles of Res Judicata may not strictly apply to the facts of the case but the fact remains that when the issues were being argued in WP (C) No. 604/2011 and the Hon'ble High Court chose not to decide them, the petitioner could have preferred an appeal. Instead of preferring an appeal, the petitioner remained satisfied with the order dated 26-9-2012 by which the Hon'ble High Court, in view of the peculiar facts and circumstances of the said case, directed the respondents therein to issue order for regular appointment of the petitioner as Fish Farm Manager without any retrospective effect. Therefore, the petitioner is entitled only to what is granted by the Hon'ble High Court vide order dated 26-09-2012 which has duly been complied with by the respondents by issuing the impugned order. As has been submitted by the counsel for the respondents, the Hon'ble Supreme Court has rendered a decision, which substantiates the contention of the counsel for the respondents, in the case of P.S. Gopinath -Vs- State of Kerala reported in : (2008) 7 SCC 70 and the relevant portion is given as under- "The act and action of the appellant in accepting his appointment as temporary one, amounts to his assent to the temporary appointment and the appellant throughout till he raised an objection on 28-10-1992 has slept on his right of being appointed permanently on the post of District & Sessions Judge. By his conduct at the time of the issuance of order by the High Court on 29-02-1992 and thereafter issuance of the second appointment order on 15-07-1992 with full knowledge of his own right and the act of the High Court which infringes it, led the High Court to believe that he has waived or abandoned his right." In view of the aforesaid, I find no merit in the writ petition and accordingly dismissed the same. No order as to cost.