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2018 DIGILAW 29 (MAN)

Huidrom Nandakumar Singh v. State of Manipur

2018-06-15

N.KOTISWAR SINGH

body2018
JUDGMENT : N. Kotiswar Singh, J. 1. Heard Mr. H.S. Paonam, learned senior counsel assisted by Mr. Gunabanta, learned counsel for the petitioner. Also heard Mr. B.P. Sahu, learned senior counsel assisted by Ms. Jyotibala, learned counsel for the respondent Nos. 2 & 3 and Mr. Th. Khagemba, learned counsel for the respondent No. 4. 2. The present petition has been filed challenging the appointment of the respondent No. 4 to the upgraded post of the Superintending Engineer without holding any DPC in Manipur Development Society. 3. The petitioner states that he is presently serving in Manipur Development Society having joined service in the said society as a Section Officer Grade-II in the year 1993. While serving as such, he obtained M.Tech from the I.I.T Kharagpur in the year 1990, DIM(IGNOU) in the year 1992, AMIE(Civil) Section B exam. from the Institution of Engineers'(India) in the year 2011 and PGD+ MBA (Project Management)- MIT & ADTU in the year 2013. Subsequently he was promoted to the post of Assistant Engineer in 1991. Thereafter on the recommendation of the competent DPC, he was promoted to the post of Executive Engineer in the year 2002. In the said consideration for promotion, the private respondent No. 4 was also considered but he was given promotion subsequently to the post of Executive Engineer only in the year of 2010. Accordingly, the petitioner is claiming to be much senior to the private respondent No. 4 in the grade of Executive Engineer, which is the feeder grade for the higher post of Superintending Engineer. 4. While the petitioner was serving as an Executive Engineer, he was placed under suspension vide order dated 29.10.2010 on the ground that he was in the police custody for the period exceeding 48 hours in connection with FIR Case No. 214(10) 2010 SJM PS under section 420, 120-B IPC and MCS (Banning)Act, 1978. The petitioner claimed that though he was discharged from liability in the said FIR case, the respondent authority did not take any step for revoking the suspension order because of which the petitioner approached this High Court by filing W.P(C) No. 106 of 2014 which was allowed by the Court vide order dated 06.06.2014 by setting aside the suspension order. The petitioner claimed that though he was discharged from liability in the said FIR case, the respondent authority did not take any step for revoking the suspension order because of which the petitioner approached this High Court by filing W.P(C) No. 106 of 2014 which was allowed by the Court vide order dated 06.06.2014 by setting aside the suspension order. Accordingly, the compliance order was issued on 31.07.2014 revoking the suspension order of the petitioner directing that the period of suspension will be treated as on duty for all purposes. The petitioner claims that after the petitioner was reinstated in the service, he came to know that the post of Surveyor of Works which is equivalent to Executive Engineer, which the private respondent No. 4 was holding, was upgraded to the post of Superintending Engineer vide order letter dated 18.03.2013. By the same order, the private respondent No. 4 was appointed as Superintendent Engineer without holding any DPC. The petitioner claims that though he knew about the appointment of the private respondent No. 4 to the upgraded post, a copy of the said order was not made available to him for a long time and was made available only in the last week of April 2015. Accordingly, he could not challenge the said upgradation order of the respondent No. 4 earlier. 5. Petitioner has challenged the aforesaid upgradation of the respondent No. 4 to the Superintending Engineer on the ground that it is in violation of Article 16 of the Constitution of India as no recruitment process was undertaken nor case of the petitioner was considered while making appointment of the private respondent No. 4 to the aforesaid upgraded post of Superintending Engineer. He submits that undisputedly respondent No. 4 was junior to him in the grade of Executive Engineer and as such, at the time of the consideration for appointment to the higher post of the Superintending Engineer, the case of the senior Executive Engineer like the petitioner ought to have been considered, which was not done and as such, the appointment of the respondent No. 4 as Superintending Engineer by the aforesaid order dated 18.03.2013 to the said upgraded post is bad in law and is liable to be set aside. 6. Mr. 6. Mr. H.S Paonam, learned senior counsel for the petitioner, in support of his case, had relied on the decisions of Hon'ble Supreme Court rendered in Bal Krishna v. Delhi Administration & Anr., 1999 Supp (2) SCC 351 and Ajit Singh & Ors (II) v. State of Punjab & Ors: (1997) 7 SCC 209. In the aforesaid case of Bal Krishna (supra), it was held by Hon'ble Supreme Court as follows:- “9. In service, there could be only one norm for confirmation or promotion of persons belonging to the same cadre. No junior shall be confirmed or promoted without considering the case of his senior. Any deviation from this principle will have demoralizing effect in service apart from being contrary to Article 16(1) of the Constitution.” Similarly, in Ajit Singh case(supra), it was held that equal opportunity means the right to be considered for promotion of an eligible person within the zone of consideration and if not considered for promotion, then, it could be a clear infraction of his fundamental right to be considered for promotion, which is a personal right. Accordingly it has been submitted that since the petitioner was eligible for promotion and was senior to respondent No. 4, non- consideration of the petitioner for appointment to the upgraded post of Superintending Engineer was illegal and unconstitutional. 7. The respondents have contested the contention of the petitioner by filing affidavit-in-opposition. Respondents No. 2 and 3 in their affidavit have claimed that in the 23rd Annual General Body meeting of the Manipur Development Society held on 26.12.2009, the General Body took a decision for re-organisation of staffing pattern of the MDS, on basis of which, a Committee was constituted which submitted its report recommending the need for the upgradation of the post of Surveyor of Works to the post of Superintending Engineer with incumbent due to the exigency of works. Accordingly, considering the acute shortage of service of the Superintending Engineer, the Chief Secretary/Chairman, MDS vide letter dated 18.03.2003 upgraded the said post Surveyor of Works with incumbent to the post of Superintending Engineer. 8. It has been further stated that while upgrading the said post with incumbent, the petitioner was at that time placed under suspension for his alleged involvement in the FIR case mentioned in the writ petition, which involved collection of the huge amount of money through networking. 8. It has been further stated that while upgrading the said post with incumbent, the petitioner was at that time placed under suspension for his alleged involvement in the FIR case mentioned in the writ petition, which involved collection of the huge amount of money through networking. The official respondent have stated that since the petitioner was under suspension, his case was not considered and since only the respondent No. 4 was eligible, he was given appointment to the said upgraded post of Superintending Engineer. 9. The private respondent No. 4 also contested the petition by taking similar stands and it has been also submitted that the petitioner was involved in a serious case of fraudulent collection of large amount of money from the public causing huge loss to the public by way of networking and it was a big scandal. However, the petitioner never disclosed about his involvement in such fraudulent financial transaction and since he has not approached this Court with clean hands, the petitioner may not be given any relief under this extraordinary jurisdiction. It has been further submitted that since the petitioner was under suspension, he could not have been equated with other candidates, who had unblemished career and as such, ignoring the claim of the petitioner, who was under cloud, cannot be said to be illegal. 10. The issue raised before this Court is whether a person who is placed under suspension could be completely ignored for promotion to a higher post as has been done in the present case. There is no dispute that the petitioner was under suspension at the relevant point of time. Also, there is no dispute that the authority/the employer has a right to upgrade any post to a higher post. However, there is no law that a person holding the post will be automatically appointed to the upgraded post. The authorities are to consider the cases of all eligible candidates if available, who could be appointed to the aforesaid higher upgradation post. It is not in dispute that the case of the petitioner was not considered for appointment to the aforesaid upgraded post of Superintending Engineer on the ground that he was placed under suspension. The fact that the petitioner was placed under suspension is not in dispute. The question is whether on being placed under suspension, an employee lost his right to be considered for promotion. The fact that the petitioner was placed under suspension is not in dispute. The question is whether on being placed under suspension, an employee lost his right to be considered for promotion. Though, in the present case, the parties have not referred to the Service Rules governing the appointment to the higher post, it is the general principle of service law that if a post is to be filled up by direct recruitment, the post is to be advertised and necessary recruitment process was to be undertaken to consider the claim of all eligible candidates who apply for the post. On the other hand, if the post is a promotional post, those who are eligible in the feeder post and within the zone of consideration, are to be considered for promotion. It is not the case of anybody that the said upgraded post of Superintending Engineer was to be filled up by direct recruitment. If that is so, those officers, who were eligible and in the feeder grade and within the zone of consideration were to be considered. It is not also in dispute that the petitioner is senior to the respondent No. 4 in the grade of Executive Engineer/Surveyor of Works and that he was also eligible for appointment to the post of Superintending Engineer. If that is so, the petitioner ought to have been also considered for promotion to the upgraded post of Superintending Engineer. However, his case was not considered on the ground that he was placed under suspension. The law is well settled that a person who is under suspension cannot be given promotion but his case cannot be ignored and his case should be considered under the “sealed cover” procedure. It means that even when one is placed under suspension, his case is to be considered but kept in a sealed cover. Thus, if on the conclusion of the departmental inquiry, the employee has been honourably discharged from any liability, and upon opening of the “sealed cover”, it is found that such suspended employee was found to be more suitable and recommended, but for the fact that he was placed under suspension, was not given promotion, the suspended employee upon closure of the departmental proceeding has to be given promotion. In the present case, though the relevant records were requisitioned by this Court, the authority had not been able to produce the records. In the present case, though the relevant records were requisitioned by this Court, the authority had not been able to produce the records. Accordingly, the only conclusion that can be drawn in absence of records and in view of specific stand taken by the respondents that the case of the petitioner was not considered for appointment to the upgraded post of Superintending Engineer as he was under suspension, is that case of the petitioner was not considered for promotion to the said higher upgraded post of Superintending Engineer. Since the said “sealed cover” procedure was not adopted, this Court has no option but to conclude that at the time of consideration of the appointment to the higher upgraded post of Superintending Engineer, though the petitioner who was eligible and senior to the respondent No. 4, his case was not considered, which is impermissible, illegal and in violation of the fundamental right under Articles 14 and 16 of the Constitution of India. To that extent, this Court endorses the submission made by the learned counsel appearing for the petitioner and rejects the contentions of the respondents. 11. The submission made by the respondents official as well as the private respondent that the petitioner at the relevant time, was under suspension for involving in an FIR case is not of much relevance as the petitioner claims that he was discharged from the liability of the case, which fact has not been disputed by the respondents. Therefore, even if the person may have been charged with serious allegations, if he has been discharged from any liability, he cannot be made to suffer on account of the allegation made against him. Since the petitioner has been absolved of the charges, the question of withholding any service benefit on account of a charge not proved does not arise. It has been also stated that, no departmental proceedings had been also initiated by the Manipur Development Society against the petitioner, and as such, they cannot claim that the petitioner was guilty of serious misconduct. Such unproved charges cannot come in the way of consideration of promotion of the petitioner to the higher upgraded post if found eligible and within the zone of consideration. 12. Such unproved charges cannot come in the way of consideration of promotion of the petitioner to the higher upgraded post if found eligible and within the zone of consideration. 12. It has been seen and not denied by the respondents that there was no promotional process by way of consideration of eligible persons by any Selection Committee/Departmental Promotion Committee on whose recommendation, the private respondent was promoted. In fact, the “sealed cover” procedure was not adopted. Thus, the case of the petitioner was not considered by the department on the ground that the petitioner was under suspension in connection with an FIR case and thus under a cloud. As discussed above, anyone under suspension could not be excluded from consideration, if he is otherwise, eligible and within the zone of consideration. It is not the case of anyone that the petitioner was not eligible nor within the zone of consideration. Accordingly, this Court would holds that non consideration of the petitioner for promotion to the upgraded post of Superintending Engineer is illegal and as such, the upgradation of the private respondent cannot be sustained. 13. For the reasons discussed above, the present petition is allowed. The impugned order dated 18.03.2013 is set aside as far as the appointment of the respondent No. 4 as Superintending Engineer is concerned. It is directed that the post of upgraded Superintending Engineer be filled up afresh by considering cases of all the eligible candidates including the petitioner and the respondent No. 4 by holding a D.P.C, which exercise shall be undertaken by authority within a period of 1(one) month from today. However, in order to avoid any dislocation in the administration, it is directed that the respondent No. 4 would continue to hold the post of Superintending Engineer for the said period of one month purely as an interim measure, which will not confer any right to claim as Superintending Engineer on regular basis, which is to be decided by the competent D.P.C./Selection Committee as per rules. It is further directed that in the event of non finalization of the process within the aforesaid period of 1(one) month, the respondent No, 4 will cease to be Superintending Engineer and if there is any necessity for filling up of the upgraded post of Superintending Engineer on interim basis, it is to be done purely on the basis of seniority in the grade of Executive Engineer/Surveyor of Works/Equivalent posts, i.e., the feeder posts.