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2014 DIGILAW 47 (MAN)

Tingvowon A. Shimray v. State of Manipur and Ors.

2014-04-16

L.K.MOHAPATRA, N.KOTISWAR SINGH

body2014
JUDGMENT Acting CJ This writ appeal arises out of the judgment and order of the learned single Judge dated 4.9.2009 in WP(C) No.453 of 2009. The appellant was the petitioner in the writ application. 2. The State respondents initiated process for filling up of the post of Asst. Director (Handloom). The appellant, challenging the process, filed W.P(C)No.121 of 2008 on the ground that reservation policy has not been followed and the post should be filled up by a candidate belonging to ST. Initially Court passed an interim order on 14.3.2008 directing the State respondents not to fill up one post of Asstt. Director in the Department of Commerce & Industries. Later on, the said interim order was challenged before a Division Bench by a private respondent who was one of the aspirants for selection to the said post. The Division Bench of this Court disposed of the said writ appeal on 21.5.2008 with the following order: “21.5.2008 Heard Mr. HS Paonam, learned counsel appearing on behalf of the private respondent no.3 as well as Mr. RS Reisang, learned Addl. GA appearing on behalf of the Sate respondents 1 & 2 submit at the bar that the post of Assistant Director (Handloom) in the Department of Commerce and Industries had already been filled up on the recommendation of the duly constituted DPC associated with the Manipur Public Service Commission. If that be so, the present writ appeal has become infructuous. Mr. Kh. Tarunkumar Singh, learned counsel appearing on behalf of the petitioner submits that liberty may be granted to the petitioner for challenging the promotion order. The prayer is allowed. Writ appeal stands disposed of as infructuous.” 3. Thereafter, the writ application out of which this appeal arises, was filed by the petitioner praying for filling up of the post of Assistant Director (Design) in the Department of Commerce & Industries by following the backlogged carry-forward rules within a specified time. The said prayer of the petitioner (appellant) was opposed by the State respondents on the ground that there is one post of Assistant Director (Design) and one post of Assistant Director (Handloom) and they are single posts in their respective cadres. Therefore, in terms of the decision of the Apex Court reported in 1998 4 SCC 1 a single post in the cadre could not be reserved which shall amount to 100% reservation. Therefore, in terms of the decision of the Apex Court reported in 1998 4 SCC 1 a single post in the cadre could not be reserved which shall amount to 100% reservation. The learned single Judge, in the impugned order, accepted the stand taken by the State respondents and dismissed the writ petition. 4. Mr. Tarunkumar, learned counsel appearing for the appellant, challenging the impugned order of the learned Single Judge, placed reliance on a letter written by the Under Secretary(Commerce & Industries), Govt. Of Manipur to the Secretary, Manipur Public Service Commission, Imphal dt. 26.5.08 in which the Under Secretary has intimated that Assistant Director of Industries (Handloom) and Assistant Director of Commerce & Industries (Design) are of the same cadre having its own nomenclature governed by a single Recruitment Rules. Relying on the above, it was contended by Mr. Tarunkumar that since there are two posts available in the same cadre, reservation policy can be made applicable and the finding of the learned Single Judge that both the posts are single posts in their respective cadres, is not born out from the record. 5. Mr. S. Nepolean, learned GA appearing for the State respondents, refered to the additional affidavit filed in the writ appeal and submitted that the post of Assistant Director Industries (Handloom) is single post in the cadre and post of Assistant Director of Industries (Design) is also a single post in the cadre. However, both the posts could be filled up from the feeder cadre. Therefore, reservation policy will not be applicable to a single post. 6. Undisputedly, under the department of Commerce & Industries, two posts are available such as Assistant Director of Industries (Design) and Assistant Director of Industries (Handloom). The only question to be adjudicated in this writ appeal is as to whether they are single post in their respective cadre or both the posts belong to same cadre. Much reliance was placed by the learned counsel appearing for the appellant on the above letter dt. 26.5.2008 in Annexure-A/11 wherein the Under Secretary (Commerce & Ind) was of the view that Assistant Director Industries (Handloom) and Assistant Director of Industries (Design) are of the same cadre having its own nomenclature governed by a single Recruitment Rules. Much reliance was placed by the learned counsel appearing for the appellant on the above letter dt. 26.5.2008 in Annexure-A/11 wherein the Under Secretary (Commerce & Ind) was of the view that Assistant Director Industries (Handloom) and Assistant Director of Industries (Design) are of the same cadre having its own nomenclature governed by a single Recruitment Rules. However, in the additional affidavit it is stated on behalf of the respondents that common Recruitment Rules which was published on 28.1.1992 indicates that there was one post of Assistant Director of Industries (Design) and two posts of Assistant Director of Industries (Handloom). Out of the two posts of Assistant Directors of Industries (Handloom), one post was downsized and subsequently abolished. Therefore, there is only one post of Assistant Director Industries (Design) and one post of Assistant Director (Handloom) available in the Department. It is also specifically stated that both the posts are single posts in their respective cadres. The additional affidavit has been filed by the same officer who had issued the letter dt. 26.5.2008. Therefore, the additional affidavit is in the nature of an explanation to the letter written by the same officer in Annexure-A/11. Since in the additional affidavit the same officer states that both posts are independent of each other and belong to separate cadre and both posts are only posts available in their respective cadres, the letter in Annexure-A/11 dt. 26.5.08 loses its importance. In consideration of the additional affidavit, we find that though there are two posts, they are separate and belong to different cadre. Since there is only one post in each cadre, it cannot be reserved in view of the above decision of the Apex Court. 7. For the reasons stated above, we find no merit in the appeal and accordingly dismiss this appeal.