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Manipur High Court · body

2021 DIGILAW 55 (MAN)

Hoineilam Kipgen v. Manipur University, Canchipur

2021-10-26

M.V.MURALIDARAN

body2021
JUDGMENT [1] This writ petition has been filed by the petitioner seeking to quash the impugned advertisement bearing No.1 of 2019, dated 27.5.2019 in respect of the post of Deputy Finance Officer as the same violated the terms and conditions provided in the letter dated 2.11.2017 of the Ministry of Human Resource Development, Government of India and to consequently direct the respondent authorities to fill up the post of Deputy Finance Officer by promotion. [2] The case of the petitioner is that she belongs to the Scheduled Tribe community and was appointed to the post of Assistant Registrar of Manipur University with effect from 1.4.2010 and since then, she has been serving to the said post without any adverse entries. The hierarchy for promotion from the post of Assistant Registrar is the post of Deputy Registrar and the Joint Registrar. According to the petitioner, the Ministry of Human Resource Development wrote a letter dated 2.11.2017 to the UGC regarding the scheme of revision of pay for the post of Registrar, Deputy Registrar, Assistant Registrar, Controller of Examination, Deputy Controller of Examination, Assistant Controller of Examination, Finance Officer, Deputy Finance Officer and the Assistant Finance Officer on the recommendation of the 7th Central Pay Commission. [3] Further case of the petitioner is that there are four sanctioned post of Deputy Registrar and out of four, three posts have been filled up so far by direct recruitment and the remaining lone post meant for reserved quota for promotion among the eligible candidates. According to the petitioner, the post of Deputy Registrar, Deputy Controller of Examination and Deputy Finance Officer of Manipur University are similar post carrying the same scale of pay and they are inter-transferable. While so, by the impugned advertisement, applications were called for various Group-A posts of the University for appointment on open competition, including the post of Deputy Finance Officer. According to the petitioner, she is eligible for appointment to the said post, for which she applied by paying necessary fee and also by enclosing all related papers. She had also received call letter dated 09.1.2020 to appear personally at the interview to be held on 20.1.2020 in the office of the Vice-Chancellor. According to the petitioner, she is eligible for appointment to the said post, for which she applied by paying necessary fee and also by enclosing all related papers. She had also received call letter dated 09.1.2020 to appear personally at the interview to be held on 20.1.2020 in the office of the Vice-Chancellor. [4] It is the further case of the petitioner that after the receipt of the call letter, she came to know the existence of the letter dated 2.11.2017 that the post of Deputy Finance Officer has to be reserved for promotion. On 13.1.2020, the petitioner and one Anisul Alam submitted a representation to the Vice-Chancellor requesting for cancellation of the interview for the post of Deputy Finance Officer, as the same post has to be reserved for promotion. Since no action was taken on the said representation, on 14.1.2020, the petitioner submitted a separate representation. However, the said representation was also not considered by the authority concerned and on coming to know that the authority concerned is taking steps to proceed further, the petitioner had issued a legal notice through her lawyer to the respondents 1 and 2. Though the respondents 1 and 2 received the legal notice, they have not sent any positive response to the petitioner. Since the petitioner’s rightful claim is affected, she has filed the present writ petition seeking to set aside the impugned advertisement and also sought direction on the respondent authorities to fill up the post of Deputy Finance Officer under reserved quota of promotion. [5] Respondents 1 and 2 have filed affidavit-in-opposition stating that the hierarchy for promotion from the post of Assistant Registrar is the Deputy Registrar and therefore, the plea of the petitioner that the hierarchy for promotion of Assistant Registrar is the Deputy Finance Officer is false and baseless and not correct. [5] Respondents 1 and 2 have filed affidavit-in-opposition stating that the hierarchy for promotion from the post of Assistant Registrar is the Deputy Registrar and therefore, the plea of the petitioner that the hierarchy for promotion of Assistant Registrar is the Deputy Finance Officer is false and baseless and not correct. It is stated that in the case of Deputy Finance Officer, there is only one sanctioned post in Manipur University and the present recruitment exercise is legitimately for filling up the vacant post of Deputy Finance Officer, which is clearly within the direct recruitment quota of 75% as per the relevant rule and as there has been a promotion in the post of Deputy Finance Officer earlier on two different occasions, the quota for 25% has already been exhausted and the present recruitment process which has been initiated falls within the 75% quota of the post of Deputy Finance Officer. According to respondents 1 and 2, there is no rule, instruction or decision of the Ministry of Human Resource Development or UGC for placing the Deputy Registrar and Deputy Finance Officer within the same cadre and the post of Deputy Registrar and Deputy Finance Officer are not inter-transferable. It is stated that the petitioner has challenged the recruitment process of Deputy Finance Officer by claiming that the post falls within promotion quota which is based on wrong interpretation of rules and that the post of Assistant Registrar, which the petitioner is holding, is not a feeder post of Deputy Finance Officer and as such there is no question of deprivation of the right. [6] The fourth respondent filed affidavit-in-opposition stating that the post of Deputy Finance Officer is a lone post and as per the rules, the post falls within 75% direct recruitment quota and the post cannot be treated as on promotion quota. It is stated that the plea of the petitioner that there are four sanctioned post to be filled in the ratio of 75:25% is completely false and baseless. Further, the plea of the petitioner that the lone post of Deputy Finance Officer has to be reserved for promotion is also totally baseless and the quota of promotion to the post of Deputy Finance Officer had already been made two times from Assistant Finance Officer. Further, the plea of the petitioner that the lone post of Deputy Finance Officer has to be reserved for promotion is also totally baseless and the quota of promotion to the post of Deputy Finance Officer had already been made two times from Assistant Finance Officer. Since the petitioner does not have any locus or right to claim for promotion to the post of Deputy Finance Officer, the fourth respondent prayed for dismissal of the writ petition. [7] Assailing the impugned advertisement, learned counsel for the petitioner submitted that the petitioner is serving as Assistant Registrar of Manipur University and the promotional avenue for the post of Assistant Registrar is Deputy Registrar and Joint Registrar/equivalent. Learned counsel further submitted that the sanctioned number of posts for Deputy Registrar/Deputy Controller of Examinations and Deputy Finance Officer for Manipur University is four, out of which 75% i.e., three posts shall be filled by direct recruitment and 25% i.e., one shall be filled by promotion from among the eligible Assistant Registrar/Assistant Finance Officer/Assistant Controller of Examination as per the letter dated 2.11.2017 of the Ministry of Human Resource Development, Government of India. [8] Learned counsel for the petitioner then submitted that the post of Deputy Finance Officer should not have been advertised for direct recruitment as it is to be filled by promotion from among the eligible Assistant Registrar/Assistant Finance Officer/Assistant Controller of Examinations. It is the submission of learned counsel for the petitioner that if interview/direct recruitment is held as proposed, it will be an irreparable loss of opportunity for the eligible Assistant Registrar/Assistant Finance Officer/Assistant Controller of Examinations, who have been working sincerely. [9] Learned counsel for the petitioner next submitted that the present process for appointment to the post of Deputy Finance Officer pursuant to the impugned advertisement is the third advertisement for appointment to the said post by making the same for appointment on open competition and that the petitioner is eligible for appointment to the post of Deputy Finance Officer even under the category of direct recruitment. [10] Learned counsel for the petitioner argued that the concerned authorities of Manipur University have not Initiated any steps for appointment on promotion of the reserved post for promotion to the post of Deputy Registrar/equivalent, including the post of Deputy Finance Officer and instead of initiating the process for promotion to the said post, the impugned advertisement was made for appointment of the said post from open competition by changing the category of the said post. Since the rights for the candidates/employees holding the feeder post have been grossly deprived, the petitioner has filed the present writ petition seeking to quash the impugned advertisement and that the said post/vacancy can be filled up by promotion from eligible candidates. [11] Per contra, learned counsel for the official respondents submitted that the instant writ petition cannot stand on its own merit, as the next promotional post of the petitioner holding a post of Assistant Registrar is Deputy Registrar and as such she cannot be promoted to the post of Deputy Finance Officer. Learned counsel would submit that there is no rule for placing the Deputy Registrar and Deputy Finance Officer within the same cadre and that the said two posts are not inter-transferable and there is no past instances in Manipur University for transfer and posting of any Deputy Registrar as Deputy Finance Officer and vice versa. [12] Learned counsel for the official respondents further submitted that the post of Deputy Finance Officer is a lone post and as per the rules, the post falls within 75% direct recruitment quota and that the post cannot be treated as on promotion quota. Learned counsel would further submit that the statement of the petitioner that there are four sanctioned post to be filled in the ratio of 75:25% is false, as there are only three sanctioned post i.e., Deputy Registrar (Administration), Deputy Registrar (Controller of Examination) and Deputy Finance Officer and that the recruitment of Dr. R.K. Joteen as Deputy Registrar (Admn) was given after the promotion of David K. Zote from the post of Deputy Registrar (Admn) to the post of Joint Registrar and Shantikumar as Deputy Registrar (Controller of Examination) which does not in any way affect the 75% recruitment quota status of the lone post of Deputy Finance Officer as per the rules followed by the University. According to learned counsel for the Official respondents, nowhere in the history of Manipur University, promotion from Assistant Registrar to Deputy Finance Officer was made. To make clear of the matter, learned counsel for the official respondents submitted that in case of direct recruitment when invitations are called for the post of Deputy Registrar and Deputy Controller, the post advertised for the recruitment of the above two post are called as Deputy Registrar, which are later on designated as Deputy Registrar (Admn) and Deputy Registrar (Controller of Examination) for which they are inter-transferable, but the direct recruitment of Deputy Finance Officer, when called for recruitment cannot be called as Deputy Registrar, but it has to be specifically designated as Deputy Finance Officer because the post of Deputy Finance Officer as it is not inter-transferable. [13] Learned counsel for the private respondent submitted that the petitioner has no locus standi to challenge the impugned advertisement as she could not be promoted to the post of Deputy Finance Officer and that the post of Assistant Registrar, which the petitioner is now holding, is not a feeder post of Deputy Finance Officer. [14] This Court considered the submissions made by learned counsel appearing for the parties and also perused the materials available on record. [15] The grievance of the petitioner is that there are four sanctioned posts of Deputy Registrar in Manipur University and out of the said four sanctioned posts, three posts have been filled up and one post of Deputy Registrar has been lying vacant and the said post of Deputy Registrar has to be filled up by promotion. However, without considering the said fact, the impugned advertisement was issued advertising the post of Deputy Finance Officer of the University along with the other post for appointment from open competition. As the post of Deputy Finance Officer has to be reserved for promotion, issuance of the impugned advertisement in respect of the post of Deputy Finance Officer will deprive the promotional right of the petitioner along with other employees holding the feeder post. [16] It appears that the erstwhile Executive Council of the University resolved for creation of the post Deputy Finance Officer or Treasurer is a lone post and the eligibility criteria to the said post is – (i) should be an M.A./M.Sc./M.Com. or B.A./B.Sc./B.Com. [16] It appears that the erstwhile Executive Council of the University resolved for creation of the post Deputy Finance Officer or Treasurer is a lone post and the eligibility criteria to the said post is – (i) should be an M.A./M.Sc./M.Com. or B.A./B.Sc./B.Com. with S.A.S. and (ii) possess at least ten years experience of dealing finance and establishment in a supervisory/administrative capacity in a University/Institution of Higher Education or in a Government offices. [17] It also appears that the University in its earlier advertisements for the direct recruitment to the post of Deputy Registrar and Deputy Finance Officer invited applications separately, which means that the posts are different and has separate essential qualifications. Therefore, it is clear that the post of Deputy Finance Officer is a lone post and not inter-transferable even though they carry the same scale of pay. [18] Coming to the case of the petitioner, she was initially appointed to the post of Assistant Registrar and her next promotional post is Deputy Registrar either Deputy Registrar (Administration) or Deputy Registrar (Controller of Examination). The hierarchy for promotion from the post of Assistant Registrar is the Deputy Registrar and the petitioner has failed to substantiate her plea by producing material evidence that the hierarchy for promotion of Assistant Registrar is the Deputy Finance Officer. [19] According to learned counsel for the petitioner, the lone post of Deputy Finance Officer has to be reserved for promotion since out of four sanctioned posts of Deputy Registrars, three posts have already been filled up. The plea of the petitioner that the lone post of Deputy Finance Officer has to be reserved for promotion cannot be countenanced as the reading of the letter dated 2.11.2017, particularly paragraph No.2(v) indicates that 75% of the post of Deputy Registrar/Deputy Finance Officer/Deputy Controller of Examination, as the case may be, shall be filled by direct recruitment, as at present. A careful reading of the above paragraph would reveal the presence of punctuation mark “/” in between the words “Deputy Registrar”, “Deputy Finance Officer” and “Deputy Controller of Examination” followed by the phrase “as the case may be” within parenthesis, clearly indicates that the direct recruitment quota of 75% shall be calculated separately for Deputy Registrar, Deputy Finance Officer and Deputy Controller of Examination, as the case may be. Thus, it is clear that in the case of Deputy Finance Officer, there is only one sanctioned post in Manipur University and the present recruitment exercise is for filling up the vacant post of Deputy Finance Officer, which is clearly within the direct recruitment quota of 75% as per the rule. The official respondents have also able to demonstrate that there has been a promotion in the post of Deputy Finance Officer earlier on two different occasions and that the quota for 25% has already been exhausted and the present recruitment process which has been initiated falls within the 75% quota of the post of Deputy Finance Officer. There is also no rule and/or instruction of the Ministry of Human Resource Development or the University Grants Commission or Manipur University for placing the Deputy Registrar and Deputy Finance Officer within the same cadre. [20] As stated supra, since the petitioner was initially appointed to the post of Assistant Registrar and the next promotional post of the petitioner is either Deputy Registrar (Administration) or Deputy Registrar (Controller of Examination), she cannot be promoted to the post of Deputy Finance Officer, inasmuch as only Assistant Finance Officer can be given promotion to the post of Deputy Finance Officer. At this juncture, it is pertinent to point out that if the petitioner desires to be appointed as Deputy Finance Officer, she has to face the interview under the direct recruitment quota, the reason that the quota of promotion to the post of Deputy Finance Officer has already been made two times from the Assistant Finance Officer, namely S. Shyamjai Singh promoted to the post of Deputy Finance Officer on 7.6.1997 and M. Biren Singh to the post of Deputy Finance Officer on 13.10.2003. The petitioner questioned the instant recruitment process of Deputy Finance Officer by claiming that the post falls within promotion quota is based on wrong interpretation of rules. Moreover, as stated supra, the post of Assistant Registrar, which the petitioner is now holding, is not a feeder post of Deputy Finance Officer. [21] It is to be noted that pursuant to the impugned advertisement, the petitioner, the private respondent and 18 other candidates were eligible to be appointed under the direct recruitment quota were called for interview. Having the petitioner applied under the direct recruitment quota for the post and was called for interview, now she cannot question the impugned advertisement. [21] It is to be noted that pursuant to the impugned advertisement, the petitioner, the private respondent and 18 other candidates were eligible to be appointed under the direct recruitment quota were called for interview. Having the petitioner applied under the direct recruitment quota for the post and was called for interview, now she cannot question the impugned advertisement. If the petitioner is eligible for appointment to the post of Deputy Finance Officer under the direct recruitment quota, she has to face the interview. [22] The petitioner, by way of this writ petition has challenged the recruitment for the post of Deputy Finance Officer, which is in no way concerned with the post of the petitioner and the relief sought is completely out of question as a person holding a post of Assistant Registrar, even if presumed to be eligible otherwise, cannot be promoted to the post of Deputy Finance Officer. That apart, as stated supra, the post of the Assistant Registrar, which the petitioner is holding, is not a feeder post of Deputy Finance Officer and as such there is no question of deprivation of the rights of the petitioner. The respondent authorities are duty bound to proceed with the recruitment process for the appointment of Deputy Finance Officer which falls within 75% quota and that the post of Deputy Finance Officer has to be filled by direct recruitment as unreserved category. Since there is no merit in the claim made by the petitioner, the writ petition is liable to be dismissed. [23] Accordingly, the writ petition is dismissed. There will be no order as to costs. [24] Registry is directed to issue copy of this order to both the parties through their whatsapp/e-mail.