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2016 DIGILAW 125 (MAN)

Thounaojam Surendra Singh v. Manipur University

2016-08-04

R.R.PRASAD, SONGKHUPCHUNG SERTO

body2016
JUDGMENT & ORDER : R.R. PRASAD, J. This appeal is directed against the judgment and order dated 17.11.2015 passed by the learned single Judge whereby challenge to the appointment of Respondent No.2 as lecturer (Hindi) Manipur University under the writ of quo warranto was rejected. 2. It is the case of the petitioner-appellant that 3 of Lecturers (Hindi) were advertised to be filled up by the eligible candidates. The petitioner-appellant and also the respondent No.2 applied for the said post. Out of three posts, 1 post was reserved for the candidate belonging to OBC category. After selection was over, the respondent No.2 was appointed on the post which was reserved for the candidate of OBC category. Thereupon, the respondent after collecting necessary information filed a writ petition challenging the appointment of the respondent No.2 on the said post on the ground that the respondent No.2 is not eligible to hold the public office and thereby usurped the legal right of the petitioner fit to be appointed on the said post reserved for the candidate of OBC category. The reason which had been assigned for taking a plea of respondent No.2 usurping a public office is that the father of the respondent No.2 had been appointed directly as Class-I officer and thereby in terms of the office Memorandum issued by the Government of India on 8.9.94, the respondent No.2 belonging to class of creamy layer was not entitled to have OBC certificate. Still, she was granted OBC certificate by the competent authority on the basis of which the respondent No.2 was appointed and thereby appointment made against the rule relating to reservation being illegal, is fit to be quashed. The stand taken by the respondent No.2 is that the father of respondent No.2 had never been appointed directly on class-I post and thereby it was not wrong on the part of the authority to issue OBC certificate to the respondent on the basis of which she was appointed on the post of lecturer (Hindi) in Manipur University. 3. The learned single Judge was pleased to hold that appointment of respondent No.2 on the post of Lecturer (Hindi) had never been made in violation of any statutory rules and thereby it was held that question of issuance of writ of quo warranto never does arise and accordingly the writ petition was dismissed on 17.11.2015. 3. The learned single Judge was pleased to hold that appointment of respondent No.2 on the post of Lecturer (Hindi) had never been made in violation of any statutory rules and thereby it was held that question of issuance of writ of quo warranto never does arise and accordingly the writ petition was dismissed on 17.11.2015. Being aggrieved with the said judgment and order, this appeal has been preferred. 4. Mr. Rarry, learned counsel appearing for the appellant that whenever the court finds that the public office has been held by the usurper without any legal authority, writ of quo-warranto is issued quashing the order of appointment. In other words, if public office is occupied by the person having no eligibility to hold that post or such appointment is made contrary to the statutory rules, such person is never allowed to hold the post and appointment is cancelled by issuing writ of quo-warranto. But, here in the instant case learned single Judge has been pleased to hold that the respondent No.2 had never been appointed contrary to rules though the respondent No.2 being person of the category of creamy layer on account of her father being appointed on Class-I post directly was not eligible to take benefit of the reservation meant for OBC candidate in terms of office Memorandum issued on 8.9.1993 and thereby it was quite obvious that respondent No.2 had been appointed in violation of the statutory rules. Under the circumstances, it was quite unjustified on the part of the learned single Judge to dismiss the writ application by holding that the appointment had never been made in violation of any rule. It was, further, submitted that the petitioner in his writ application had clearly averred that Shri E. Yaima Singh (father of respondent No.2) working as Dy. Director of Education was appointed as Joint Director of Education in the pay scale of Rs.1150/- which post in term of the notification dated 23.3.1978 happens to be a class-I post and thereby the respondent No.2 falling to the category of creamy layer in terms of office Memorandum mentioned above was never entitled to be appointed on the post of lecturer (Hindi) reserved for OBC candidate and thereby it is clear-cut case of respondent No.2 being appointed illegally in contravention of rule relating to reservation. 5. As against this Mr. 5. As against this Mr. Amarjit Naorem, learned counsel for the respondent No.2 submits that father of the respondent had never been appointed on the post of Joint Director (Class-I Post) directly, rather the father of the petitioner who had initially been appointed as Assistant Science Graduate teacher at Canchipur High School in the year 1948 was appointed as Assistant teacher in a Government aided school where he was promoted to the post of Headmaster in the year, 1955. Subsequently, he was promoted to the post of Dy. Inspector of School in 1959. Later on in the same year he was appointed as Special Officer (planning & Statistics) and in course of time he was promoted to the post of Joint Director of Education (planning) on 2.5.1979 and was retired as Director of Education and thus it has never been the case that the father of the respondent No.2 was appointed directly on the post of Joint Director. Though it is the case of the appellant that father of respondent No.2 was directly appointed on the post of Joint Director (Class-I post), the appellant has palpably failed to establish that the father of the respondent No.2 had directly been appointed on the post of Joint Director, rather from the hierarchy of the posts which the father of the respondent No.2 held, it is apparent that he had been promoted to the post of Joint Director of Education. Therefore, the competent officer had issued OBC certificate to respondent No.2 which subsequently under the order of writ court was verified by the DC Imphal west district who had issued the certificate and found issuance of OBC certificate to Respondent No.2 to be just and proper and thereby the learned single Judge rightly rejected the writ application. Thus, the first and foremost question does arise as to whether the father of the respondent No.2 had directly been appointed or not on the post of Joint Director? 6. In order to have answer to this issue, we would straightway refer to the very pleading made in this regard attention to which had also been drawn by the learned counsel appearing for the appellant which is at para 9 of the writ application wherein it has been stated as follows: That in the Manipur Gazette published on 9.5.1979 Shri E. Yaima Singh working as Dy. Director of Education was appointed as Joint Director of Education (Planning).This has been replied with by respondent No.2 in his affidavit in-opposition in para 6 where it has simply been stated that with regard to para 8,9,10 and 11 of the writ petition the answering deponent has nothing to say. Further, in the rejoinder filed by the writ petitioner to the affidavit in-opposition filed by the respondent No.2, a statement has been made in para (iv) which reads as follows: “It is submitted that the petitioner begs to file few relevant appointment orders published by the Government of Manipur to substantiate the admitted fact that father of the respondent No.2 was a direct recruit directly appointed to the following 3 posts namely i. Dy. Inspector of Schools (Valley) -29.12.1959 ii. Special officer (Planning & Statistics) -29.12.1959; iii. Joint Director of Education (Planning) -02.5.1979” By taking recourse of all these statements, submission which was advanced on behalf of the writ petitioner-appellant is that it was specific plea of the petitioner that the father of the respondent No.2 had been appointed directly on the post of Joint Director of Education which has not specifically been denied and thereby this fact raised by the petitioner can be said to have been admitted and as such it needs not to be proved. Respectfully, we would say that it is not a correct fact of the proposition advanced on behalf of the writ petitioner-appellant as in para 9 of the writ petition as we have noticed above of the writ petition, it had never been stated that the petitioner, father of the respondent No.2 had directly been appointed on the post of Joint Director of Education (Planning) and therefore the respondent No.2 would not have thought it proper to make any reply to it. 7. Further, we do find that the writ petitioner-appellant, in order to prove his case that father of respondent No.2 has been appointed directly to the post of Joint Director of Education (Planning), has referred to an order pertaining to appointment of someone to the post of Joint Director as contained in Annexure-A/6 to the writ petition to show that whenever one is appointed as Joint Director on promotion, the words “promotion” used to be there in the order relating to appointment. On comparing these two orders relating to appointment, one cannot say definitely that if the words, “promotion” is not there, then it would be deemed that the person has been appointed directly. Thereby, by taking such plea as has been stated above it can never be said that writ petitioner-appellant has been able to establish the fact that father of respondent No.2 has been appointed directly on the post of Joint Director of Education. Furthermore, it does appear from the plea of the petitioner and also from the report of the D.C. that before the father of the respondent No.2 joined the post of Joint Director of Education, he did work on the post of Assistant Teacher, Asst. Headmaster, Head Master and then was promoted to the post of Dy. Inspector of Schools (Valley) in the year, 1959 and thereupon in the year 1979 father of the respondent No.2 was appointed as Joint Director of Education. The hierarchy of the posts which the father of the respondent No.2 did hold, go to prove otherwise, in absence of any proof being there that the father of the respondent No.2 was appointed directly on the post of Joint Director of Education, that he held the post as promote. 8. Going further with the matter it be stated that in order to resolve the dispute as to whether the certificate of OBC had rightly been issued to respondent No.2 or not, the writ court directed the District Magistrate, Imphal West to hold enquiry on the genuineness of the certificate of OBC granted to the respondent No.2 in the context of plea that the father of respondent No.2 had held class-I post directly. On holding enquiry it was placed before the Court that the certificate had rightly been issued after being satisfied that the status of the father of respondent No.2was never there as that of person of creamy layer. 9. According to Mr. Rarry, learned counsel appearing for the writ petitioner-appellant that upon such report being submitted by the D.C. he has filed objection. 9. According to Mr. Rarry, learned counsel appearing for the writ petitioner-appellant that upon such report being submitted by the D.C. he has filed objection. But, point of objection was never taken into account by the learned single Judge while taking into consideration the report of the D.C. We do not find any substance in the submission of the learned counsel for the reason that any such sort of dispute as to whether the certificate had been genuinely issued or not, it needs to be agitated before a Committee constituted by the State Government pursuant to decision rendered in Km. Madhuri Patil & Anr. vs. Addl. Commissioner of Tribal Development& Ors. : (1994) 6 SCC 241 . Keeping in view this aspect of the matter, learned single Judge was pleased to hold that since no finding is there of the Scrutiny Committee regarding certificate being false or that it is not in accordance with the office Memorandum, the appointment in absence of it, cannot be held to be illegal and on account of this reason learned single Judge after finding, that there has not been any contravention of any rule relating to appointment, was pleased to hold that writ in the nature of quo warranto in the facts and circumstances of the case cannot be issued for setting aside appointment of the respondent No.2. 10. Further, we are quite surprised to note the point being raised relating to creamy layer when the father of the respondent No.2 did hold the post of Joint Director in the year, 1979 whereas Office Memorandum was issued in the year,1993 pursuant to judgment rendered in a case of Indira Sawhney& Ors vs. Union of India upon submission of report of Mandal Commission and thereby criteria laid down for exclusion of socially advanced person under the Office Memorandum dt. 8.9.1993 can never relate back to the year 1979 and this ground is sufficient to reject the entire contention of the writ petitioner-appellant. Thus, we do not find any merit in the appeal and hence it is dismissed.