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2016 DIGILAW 3 (MAN)

Huidrom Rajen Singh v. Dhurba Oinam

2016-01-18

KH.NOBIN SINGH

body2016
ORDER : 1. Heard Shri Kh. Tarunkumar, learned counsel appearing the petitioner; Shri H.S. Paonam, learned senior counsel appearing for the applicant/respondent No. 3 and Shri Y. Nirmolchand, learned counsel appearing for the Chief Engineer. 2. The instant application has been filed by the respondent No. 3 praying for modifying/vacating/discontinuing the interim order dated 04-01-2016 passed by this Court in M.C.(W.P.(C)) No. 1 of 2016 on the inter-alia ground that the Hon’ble Gauhati High Court, Imphal Bench, vide its order dated 02-06-2010 passed in W.P. (C) No. 545 of 2009, has observed the following:- “(3) .. It is not dispute that the rule regulating the service conditions of Section Officer Grade-I and administrative instructions issued by the Government in this regard, do not recognize bifurcation or trifurcation of the cadre of S.O. Grade-I as (i) appointees by a direct recruitment on the recommendation of a Selection Committee/DPC, (ii) appointees by regularization to the post of S.O. Grade-I on the basis of Selection Committee, and (iii) appointees by absorption to the post as direct recruits. Once a person has been appointed under any of the methodologies mentioned above, he is to be treated as an officer born to the cadre of Section Officer Grade-I from the date on which he is appointed/absorbed or regularized. (6) On consideration of the submission made by the learned counsels for the parties and the documents available on record, this court is of the opinion that the communication dated 31-08-2009 (Annexure-A/16) which seeks to lay down certain conditions for determination of seniority of S.O. Grade-I, is an obstacle in the finalization of seniority list of S.O. Grade-I and as such, the communication dated 31-08-2009 (Annexure-A/16) is hereby interfered with. (7) In view of the above, this writ petition is disposed of by directing the respondents to finalize the tentative seniority list dated 31-08-2009 (Annexure-A/16), after disposing of objection/representation filed by the concerned incumbents, within a period of four months from the date of receipt of a certified copy of this order. (7) In view of the above, this writ petition is disposed of by directing the respondents to finalize the tentative seniority list dated 31-08-2009 (Annexure-A/16), after disposing of objection/representation filed by the concerned incumbents, within a period of four months from the date of receipt of a certified copy of this order. It is made clear that while determining the final seniority list of S.O. Grade-I, the authority shall be guided by the administrative orders issued in this regard by the Department of Personnel and law laid down by this court as well as by the Apex Court.” It is submitted by Shri H.S. Paonam, learned Senior counsel appearing for the applicant that the communication dated 31-08-2009 publishing the Final Seniority List of Section Officer Grade-I had already been interfered with by the Hon’ble Gauhati High Court, Imphal Bench vide its order dated 02-06-2010 which had attained finality since the same had not been challenged by any one as well as the State Government. 3. The instant application is contested by the petitioner by filing an affidavit-in-opposition contending inter-alia that the application is not maintainable; that the State Government has taken a policy decision, as recorded in the Note No. 74 ante in Govt. File bearing No. 3/3/2007-IFC to the effect that there is no provision for inclusion of work-charged employees converted into regular establishment in the seniority list, which has been disclosed by way of filing an affidavit-in-opposition in W.P. (C) No. 1 of 2012; that it is not clear as to whether the said policy decision of the State Government was placed before the Hon’ble Gauhati High Court, Imphal Bench for consideration by the State Government at the time of hearing the W.P. (C) No. 545 of 2009 or not and that the applicant and the private respondents in the writ petition have no right to include their names in the seniority list of the Section Officer Grade-I. 4. In the writ petition, the legality and correctness of the Seniority List published vide Office Order dated 25-11-2015 is challenged on the inter-alia ground that the private respondents including the applicant who were converted into regular establishment, have no right to include their names in the Seniority list. On 11-12-2015 when the above writ petition was listed for motion, this court was pleased to issue notice and direct that interim prayer would be considered after the service was completed. On 11-12-2015 when the above writ petition was listed for motion, this court was pleased to issue notice and direct that interim prayer would be considered after the service was completed. With the apprehension that the DPC was to be held on the basis of the said impugned Seniority List, M.C.(W.P.(C)) No. 1 of 2016 came to be mentioned before the Vacation Bench on 04-01-2016 with the prayer that the same be taken up for consideration as unlisted item and since the learned counsel appearing for the State respondents could not get instructions for want of time, the application was directed to be listed on 11-01-2016, i.e., on the reopening of the court. In the meantime, the State respondents were restrained from holding DPC for promotion only in respect of the Assistant Engineer (Mech.) in the Department of Irrigation and Flood Control. On 11-01-2016 when the above writ petition was listed again for consideration, the same was adjourned to 15-01-2016 on the request of the learned Government Advocate and the interim order passed on 04-01-2016 was directed to be continued. 5. In the service jurisprudence, there are mainly two methods of appointments - one, by direct recruitment and another, by promotion, which are commonly prescribed in many recruitment rules framed by the different State Governments under Article 309 of the Constitution of India. There is the third method of appointment by absorption, which is also prescribed in some recruitment rules and not in all recruitment rules. A copy of the relevant Recruitment Rules for appointment to the post of Section Officer Grade-I is not placed on record but it appears that there is no such method of appointment by absorption being prescribed therein. From the perusal of the facts narrated in the writ petition as well as the applications and also the Office Order dated 05-12-1998, it is seen that it is not in dispute that the applicant and other private respondents were absorbed by way of conversion from the work-charged establishment into regular establishment on the basis of a policy decision which came to be probably withdrawn sometime in the year 2002. In other words, the applicant and other private respondents have not been absorbed as per the relevant recruitment rules and in fact, had the applicant and other private respondents been absorbed in terms of the relevant recruitment rules, the present issue would not have arisen at all. In other words, the applicant and other private respondents have not been absorbed as per the relevant recruitment rules and in fact, had the applicant and other private respondents been absorbed in terms of the relevant recruitment rules, the present issue would not have arisen at all. In the Office Order dated 05-12-1998 itself, it is specifically stated that the inter-se seniority of the whole department will be decided in due course which is followed by the Government Order dated 19-03-2001 wherein it is provided that the conversion was one time measure and further promotion/appointment/benefits under the scheme shall not be extended with immediate effect. The posts against which the applicant and the private respondents have been absorbed, are not regular posts as is evident from the letter dated 20-07-2010 and accordingly, these posts were later enlisted as zero in the MGEL as had been done in respect of PWD and PHED. Shri H.S. Paonam, Senior counsel appearing for the applicant has heavily relied upon the order dated 02-06-2010 passed by the Hon’ble Gauhati High Court, Imphal Bench in W.P. (C) No. 545 of 2009 wherein it has been held that once a person has been appointed under any of the methodologies mentioned in the judgment, he is to be treated as an officer born to the cadre of Section Officer Grade-I from the date on which he is appointed/absorbed or regularised. On the other hand, Shri Kh. Tarunkumar, learned counsel appearing for the petitioner has submitted that although the applicant and the private respondents have been absorbed by way of conversion in accordance with a policy decision, the State Government has taken further decisions, referred to hereinabove, to the effect that it will not be appropriate to include work-charged employees, converted into regular establishment, in the seniority list of Section Officer Grade-I as the benefit of further promotion is not allowed. Shri Kh. Tarunkumar seems to be right when he submits that it is not clear as to whether the said policy decisions as regards the non-inclusion of the work-charged employees, converted into regular establishment, were placed before the Hon’ble Gauhati High Court, Imphal Bench for consideration while passing the said order dated 02-06-2010 and on perusal thereof, it does not seem to have been done that by the State Government. The State respondents have not yet filed any counter affidavit in the writ petition nor have they filed any reply to the M.C.(W.P. (C)) No. 8 of 2016. During the course of hearing, Shri Y. Nirmolchand, learned counsel appearing for the respondent No. 2, the Chief Engineer, IFCD has not denied the factum of having filed the said affidavit-in-opposition in W.P. (C) No. 1 of 2012 but all that he has submitted, is that since the order dated 02-06-2010 has attained finality and in view thereof, the applicant and the other private respondents are entitled to be included in the seniority list of Section Officer Grade-I. In other words, his contention is in line with that of H.S. Paonam, senior counsel appearing for the applicant but is contrary to the stand taken by his predecessor, Shri Devananda, learned counsel appearing for the same Chief Engineer, IFCD and recorded in the order dated 04-01-2012 passed by the Hon’ble Gauhati High Court, Imphal Bench in W.P. (C) No. 1 of 2012. 6. In view of the above, this court is of the prima facie view that the order dated 02-06-2010 passed by the Hon’ble Gauhati High Court, Imphal Bench cannot be said to have settled the issue involved herein namely whether the private respondents including the applicant are entitled to be included in the seniority list of Section Officer Grade-I when the State Government has taken a decision contrary thereto. As long as the said policy decisions are not withdrawn, it is prima facie impermissible for the State Government to include them in the seniority list. The balance of convenience is in favour of the petitioner and the said interim order dated 04-01-2016 was passed by this court keeping in mind the prima facie case and also the fact that in case the DPC is allowed to be held on the basis of the impugned seniority list, the instant writ petition will be rendered infructuous. Therefore, there is no need of modifying/vacating/ discontinuing the interim order dated 04-01-2016 for the time being. It is made clear that this court has not considered the case on merit and the writ petition will be considered and decided on merit only after hearing the learned counsels appearing for the parties. 7. For the reasons mentioned above, the instant application being M.C.(W.P. (C)) No. 8 of 2016 is devoid of any merit and is accordingly dismissed.