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Manipur High Court · body

2022 DIGILAW 195 (MAN)

Sarungbam Nimai Singh v. State of Manipur

2022-10-10

M.V.MURALIDARAN

body2022
JUDGMENT 1. W.P.(C) No.1143 of 2018 has been filed challenging the order dated 30.11.2018 as illegal and to direct the official respondents to conduct a review Departmental Promotion Committee by abiding the office memorandum dated 15.5.2014. 2. The petitioner is a gold medalist in Degree of Fine Arts from the Banaras Hindu University. He pursued Master Degree in Fine Arts in the year 1993 and was awarded Fellowship by the State Kala Academy in the year 1999 and Junior Fellowship Fine Art 2008-2010 Human Resource Development, New Delhi. The petitioner was thereafter appointed as Lecturer in the Imphal Art College vide order dated 15.2.1996. Considering the achievements and works of the petitioner and being the senior-most among the teaching staff of the Imphal Art College, the Deputy Secretary (Art and Culture), Government of Manipur, vide letter dated 14.12.2017 conveyed approval of the Government to allow the petitioner to hold charge of Principal, Imphal Art College, Manipur, as an interim arrangement till a regular Principal is appointed through a competent DPC. The petitioner was working as Principal in-charge of the Imphal Art College for over eleven months. The petitioner was required to furnish certain documents by the Joint Director (Art and Culture), Manipur, which the petitioner duly furnished. When the petitioner was awaiting appointment to the regular post of Principal, the Vice Chairman, Governing Body, Imphal Art College, issued an order dated 30.11.2018 appointing the fourth respondent, Arambam Hemanta Singh, Senior Lecturer, on promotion, to the post of Principal, Imphal Art College. 3. It is the case of the petitioner that the post of Principal is a selection post as per the Recruitment Rules and the petitioner being the senior-most lecturer and having discharged the duty of Principal in-charge, he ought to have been considered for the said post. It is added that even as per the Office Memorandum dated 15.5.2014, more especially Rule 5.7(b), the officers who are included in the panel for promotion will have to be arranged in the order of their inter se seniority in the lower category without reference to the overall grading obtained by each of them, but ignoring the same, the respondent authorities have adopted a different method than stipulated in the Office Memorandum dated 15.5.2014 and appointed the fourth respondent. 4. This court, vide order dated 6.12.2018, suspending the impugned order dated 30.11.2018. 4. This court, vide order dated 6.12.2018, suspending the impugned order dated 30.11.2018. The interim order was extended periodically and is in force as on date. The Vice-Chairman of the said college filed a Misc.Case No.16 of 2019 for vacating the interim order, which is still pending. The person who has been appointed in the place of the petitioner filed Misc.Case No.28 of 2019 seeking to vacate the exparte interim order dated 6.12.2018. 5. When things stood thus, the Vice Chairman issued a show cause notice to the petitioner on 15.1.2019 alleged that he took away some important files and paintings, to which the petitioner submitted his reply on 19.1.2019. Thereafter, the Vice Chairman issued another show cause notice dated 16.5.2019 levelling certain allegations against the petitioner. The petitioner, in his reply, submitted that the Vice Chairman has no authority to issue the show cause notice as the term of the Governing Body already expired on 2.5.2019. However, the Vice-Chairman vide order dated 31.5.2019, which is under challenge in W.P. (C) No.567 of 2019, placed the petitioner under suspension and self-assumed himself as the Principal to look after the Imphal Arts College. 6. Calling into question the appointment of the Vice- Chairman as the Principal to look after the Imphal Arts College, Imphal, the petitioner filed W.P.(C) No.898 of 2019 styled as a quo-warranto alleging that no rule except Fundamental Rule 56(d) permits for re-engagement of a retired person, subject to the fulfillment of the conditions as laid down in the said rule. The fifth respondent in the said writ petition retired in the year 2012 and was allowed to teach the students as a visiting Lecturer only for the session 2017 to 2018 and he his appointment is unconstitutional and against all the known norms and rules and, therefore, needs to be quashed. Seeking stay of the operation of the dismissal order dated 15.1.2020, the petitioner filed Misc. Case No.12 of 2020. 7. Be that as it may, the registration certificate of the Imphal Arts College bearing No.67 of 1961-62, dated 11.10.1961 was issued by the Registrar of Societies, Manipur under Section 20 of the Societies Registration Act XXI of 1860. It is the case of the petitioner that such registration is nowhere in existence as per the information received under the Right to Information Act dated 24.6.2019. It is the case of the petitioner that such registration is nowhere in existence as per the information received under the Right to Information Act dated 24.6.2019. It is further stated that the Manipur Societies Registration Act, 1989 is the new Act governing the field and inasmuch as the Imphal Arts College is not registered under the either of the Acts, the registration dated 11.10.1961 is to be set aside and all the acts and things done by the said non-existent Governing Body need to be declared as null and void. Seeking such relief, the petitioner filed W.P. (C) No.920 of 2019. 8. Pending the aforesaid proceedings, the Principal Look-after, the Imphal Art College, vide proceedings dated 15.1.2020, dismissed him from service with immediate effect. The said order was passed despite the fact that the court vide order 5.3.2020 extended the interim order passed in W.P. (C) No.1143 of 2018 till the next date of hearing and that due to pandemic Covid-19, all the interim orders granted by the courts were extended by the High Court of Manipur vide notification dated 23.3.2020. It is the case of the petitioner that for appointing and removing staff, the approval of the government is required. It is further stated that the suspension order and departmental enquiry were under the provisions of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, whereas the dismissal order was issued under the provisions of the Constitution of Imphal Arts College, which is altogether an illegal order. The Vice-Chairman cannot be a judge of his own cause. Assailing the order dated 15.1.2020, the petitioner filed W.P.(C) No.576 of 2021. He also sought a direction to the official respondents to take over the administration of the Imphal Arts College for any fresh departmental enquiry against the petitioner, by excluding the participation of respondents 5 and 6 therein. 9. Inasmuch as during the currency of the interim order passed in W.P.(C) No.1143 of 2018, the Chairman by order dated 26.11.2020 appointed the fourth respondent therein as Principal In-charge of the Imphal Arts College, the petitioner filed Contempt Petition No.50 of 2021 to punish the respondent/contemnors for their wilful and deliberate violation of the order dated 6.12.2018. 10. 9. Inasmuch as during the currency of the interim order passed in W.P.(C) No.1143 of 2018, the Chairman by order dated 26.11.2020 appointed the fourth respondent therein as Principal In-charge of the Imphal Arts College, the petitioner filed Contempt Petition No.50 of 2021 to punish the respondent/contemnors for their wilful and deliberate violation of the order dated 6.12.2018. 10. The Vice-Chairman of the College, in his reply, submitted that the Recruitment Rules cited by the petitioner are not yet implemented and that they have followed the Recruitment Rules in vogue and, therefore, there is no error in recommending the name of the fourth respondent in W.P.(C) No.1143 of 2018. It is further submitted that there is no violation of Rule 5.7(b) of the Office Memorandum dated 15.5.2014, as the post in question is a selection post and more meritorious candidate has been recommended by the DPC. Therefore, it is beyond the scope of judicial review. 11. The Vice Chairman and Principal, Imphal Art College, further submitted that by virtue of Regulation No.9 of the Imphal Art College, the Governing Body has got the power for appointment and removal of all the staff and the government approval shall be obtained as and when necessity arises and, therefore, the approval of the Government is not mandatory. 12. Refuting the aforesaid submission, learned counsel for the writ petitioner submitted that the Director, Art and Culture, Government of Manipur, in his report dated 31.12.2020 had categorically stated that the Government approval is obligatory on the part of the Imphal Arts College for any matter with direct or indirect financial implications. Whereas in Contempt Case No.50 of 2021, the Commissioner, Art and Culture, Government of Manipur has stated on oath that Government Approval is required to be taken for the appointment and removing of the teaching and non-teaching staff. Thus, the respondent authorities are blowing hot and cold at the same time. 13. It is submitted on behalf of the Vice Chairman and Principal, Imphal Art College, that the college has obtained registration under the Societies Registration Act, 1860 and all the registrations done under the earlier Act have now been taken over by the new Act called the Manipur Societies Registration Act, 1989 and inasmuch as the petitioner has an alternative remedy under Section 22 of the Manipur Societies Registration Act, 1989, W.P.(C) No.567 of 2019 is not maintainable. 13. 13. Heard learned counsel on either side and perused the documents available on record. 14. It is beyond any demur that the Deputy Secretary (Art and Culture), Manipur, vide letter dated 14.12.2017, conveyed approval of the Government to allow the petitioner to hold charge of the Principal, Imphal Art College, Manipur, purely as an interim arrangement, till a regular Principal is appointed through a competent DPC. The petitioner was thereafter working as Principal In-charge of Imphal Art College after approval of the Governing Body in its meeting held on 11.1.2018 and in this regard an order dated 29.11.2018 was issued by the Chairman, Governing Body, Imphal Art College, declaring that the petitioner has been working as Principal Incharge for the last 11 months. 15. When things stood thus, the Vice-Chairman, Governing Body, Imphal Art College, issued an order dated 30.11.2018 to the effect that one Arambam Hemanta Singh is appointed to the post of Principal, Imphal Art College. At this juncture, it is apposite to refer to Office Memorandum dated 15.5.2014, more specifically, Clause 5.7(b) thereof, which stipulates the principles to be observation and preparation of panel and which reads as under: '5.7. (b) For promotion to all posts/services below the pay band Rs.15600 - 39100 plus grade pay of Rs.7600, the bench-mark would be 'Good'. All Officers whose overall grading is equal to or better than the bench-mark should be included in the panel for promotion to the extent of the number of vacancies. They will be arranged in order of their inter se seniority in the lower category without reference to the overall grading obtained by each of them provided that each one of them has an overall grading equal to or better than the bench-mark of 'Good'.' 16. The Vice-Chairman of the College submitted that the aforesaid Clause has been complied with inasmuch the name of the writ petitioner was also included in the panel for consideration of the DPC, however, the post being a selection post, a more meritorious candidate has been recommended by the DPC and, therefore, the writ court exercising jurisdiction under Article 226 of the Constitution of India should not interfere with the same. 17. 17. Barring such a bald statement that the writ court should not exercise its jurisdiction, there is nothing placed on record to show that the candidature of both the candidates was arranged in order of their inter se seniority in the lower category without reference to the overall grading obtained by each of them. 18. That apart, vide order dated 6.12.2018, this court passed an interim order suspending the operation of the impugned order dated 30.11.2018 appointing Arambam Hemanta Singh on promotion as the Principal of Imphal Art College. It is not in dispute that the said interim order is still in force. 19. During the subsistence of the interim order, the Vice-Chairman, Imphal Art College, exercising the power conferred under Rule 10(1) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, placed the writ petitioner, addressing him to be the Lecturer of Imphal Art College, under suspension with immediate effect. 20. At this juncture, it is apposite to refer to Rule 10(1) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, which reads as under: '10(1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension- (a) Where a disciplinary proceeding against him is contemplated or is pending; or' [emphasis supplied] 21. A perusal of the aforesaid provision makes it clear that a suspension order is to be issued by the appointing authority, etc. The petitioner has been appointed as Principal In-charge and he continues to hold the said post by virtue of the interim order dated 6.12.2018. Therefore, there is no one to look after the charge of the Principal of the Imphal Art College. To make the above said suspension order look proper, the Vice- Chairman, added Principal Look after against his designation. In effect, the Vice-Chairman assumed the charge of the Principal of the Imphal Art College by himself without any authority of law. 22. It is not in dispute that the post of Principal should be filled from the existing/serving Lecturers or any other government employee competent to hold the charge. The Vice- Chairman, in the case on hand, is admittedly a retired government employee and there is no order issued by the government approving his appointment as the Principal Lookafter. 22. It is not in dispute that the post of Principal should be filled from the existing/serving Lecturers or any other government employee competent to hold the charge. The Vice- Chairman, in the case on hand, is admittedly a retired government employee and there is no order issued by the government approving his appointment as the Principal Lookafter. Therefore, the very initiation of the proceedings against the petitioner is by an authority, who is not empowered to do so. 23. To fortify the aforesaid view, it is apposite to refer to the relevant portions of the judgment of this court in Dr. Kangujam Rajo Singh v. State of Manipur and others, [W.P.(C) No.295 of 2014, dated 2.9.2014], which read as under: '4. Undisputedly, the respondent no.2 at the time of retirement was working as in-charge Director. From the counter affidavit, it is also clear that there was no officer who had the requisite years of service either in Grade-I or combined service in Grade-I & Grade-II to be appointed as the Director. Therefore, the State Government was resorting to incharge arrangement for holding the two posts of Director, i.e. the Director (Medical & Health) and the Director of Family Welfare, Govt. of Manipur. Since the respondent no.2 was eligible to be appointed as a Director and had been kept as in-charge Director on his retirement, he could not have been appointed as the Director as the Rules do not provide for such appointment having not got the requisite qualification. Apart from above, F.R.56 (d) clearly lays down that no Government servant shall be granted extension in service beyond the age of retirement of sixty years except in few cases as enumerated therein. The respondent no.2 does not come within the purview of the proviso under which extension could be granted. Under these circumstances, I am of the view that appointment of respondent no.2 after retirement as Director is not sustainable as it not only contravenes F.R.56 but also is against the Rules which provide that an Officer who has completed 3 years regular service in MHS Grade-I or 8 years' combined service in Grade-I & II who could only be considered for promotion to the post of Director. Since the respondent no.2 did not have the said qualification, he had been posted as in-charge Director and therefore, on his retirement he could not be appointed as a Director. 4.1. Since the respondent no.2 did not have the said qualification, he had been posted as in-charge Director and therefore, on his retirement he could not be appointed as a Director. 4.1. So far as the petitioner is concerned, there is no dispute that he is the next officer to be considered for appointment to the post of Director. Since he is not eligible as per the rules to be promoted as Director of Family Welfare, as per the practice adopted by the State Government, he should have been appointed as in-charge Director of Family Welfare. From Annexure-A/5 it also appears that the Under Secretary (Health and Family Welfare) had recommended for appointment of the petitioner as in-charge Director (Family Welfare). 5. I, therefore, while quashing the appointment of respondent no.2 under an agreement as Director (Health Services) further direct that the case of the petitioner for being appointed/promoted as in- charge Director(Family Welfare) be considered and a decision be taken within a period of one month from the date of communication of this order.' [emphasis supplied] 24. The aforesaid judgment was upheld by the Apex Court in the judgment dated 25.9.2014 passed in SLP (C) No.26510 of 2014, rejecting the appeal preferred by the State of Manipur. In the case on hand, Y.Ibochaoba, Vice-Chairman, retired in the year 2012 and was allowed to teach the students as a Visiting Lecturer only for the season 2017 to 2018. Thus, the appointment of Y.Ibochaoba, Vice-Chairman as the Principal Look-after is contrary to Rule 56(d) of the Fundamental Rules. 25. Coming to the dismissal of the petitioner from service, it is apt to refer to Rule 7 of the Constitution of Imphal Art College, which reads as under: '7. The Governing Body shall have the power of appointing and removing staff (teaching & non teaching) deciding promotion and increment, granting leave of absence of staff (teaching & non teaching), fee of students and stipend, managing of funds of the college, framing the annual budget and annual report, dealing with all schemes of developments and such other matter as are brought before them for consideration. However Government approval shall be obtained when necessity arises.' [emphasis supplied] 26. As already held in the preceding paragraphs, the Vice Chairman, Governing Body, is not the competent authority to initiate disciplinary action against the staffs, employees, etc. Such action can be initiated only by the Principal. However Government approval shall be obtained when necessity arises.' [emphasis supplied] 26. As already held in the preceding paragraphs, the Vice Chairman, Governing Body, is not the competent authority to initiate disciplinary action against the staffs, employees, etc. Such action can be initiated only by the Principal. Inasmuch as by dint of the interim order passed by this court, the petitioner continues to be the Principal of the College, the Vice-Chairman, assuming himself the power of Principal, ought not to have passed the order of dismissal. In the instant case, no document has been produced to show that government approval has been obtained for removing the petitioner from service. 27. When the statute prescribes an act to be done in a particular manner, it should be done in that manner only and not otherwise. The Apex Court in State of Uttar Pradesh v. Singhara Singh and Ors., AIR 1964 SC 358 , highlighting the aforesaid proposition, held as under: '8. In Nazir Ahmed's case L.R. 63 IndAp 372 the Judicial Committee observed that the principle applied in Taylor v. Taylor [1875] 1 Ch. D. 426 a Court, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that or nor at all and that other methods of performance are necessarily forbidden, applied to judicial officers making records under s. 164 and, therefore, held that magistrate could not give oral evidence of the confession made to him which he had purported to record under s. 164 of the Code. It was said that otherwise all the precautions and safe guards laid down in Sections 164 and 364, both which had to be read together, would become of such trifling value as to be almost idle and that "it would be an unnatural construction to hold that any other procedure was permitted than which is laid down with such minute particularity in the section themselves.' 9. The rule adopted in Taylor v. Taylor [1875] 1 Ch. D. 426 is well recognised and is founded on sound principle. Its result is that if a statue has conferred a power to do an act and has laid down the method in which power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. D. 426 is well recognised and is founded on sound principle. Its result is that if a statue has conferred a power to do an act and has laid down the method in which power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.' [emphasis supplied] 28. Moreover, no one can be a judge of his own cause. In the case on hand, the Vice-Chairman, who can never be considered to be a principal by virtue of the findings recorded in the preceding paragraphs, cannot have passed the dismissal order in the capacity of Principal Look-after. The initiation of the proceedings against the petitioner right from the inception is bad in law and, therefore, the same cannot be sanctified at a later stage. To buttress the aforesaid proposition, a reference of the judgment in the case of State of Orissa and Ors. v. Mamata Mohanty, (2011) 3 SCC 436 , is apposite: 'ORDER BAD IN INCEPTION: 20. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (vide: Upen Chandra Gogoi v. State of Assam and Ors. MANU/SC/0225/1998 : AIR 1998 SC 1289 ; Mangal Prasad Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by L.Rs. and Ors. MANU/SC/0153/2005 : AIR 2005 SC 1964 ; and Ritesh Tiwari and Anr. v. State of U.P. and Ors. MANU/SC/0742/2010 : AIR 2010 SC 3823 ).' [emphasis supplied] 29. (vide: Upen Chandra Gogoi v. State of Assam and Ors. MANU/SC/0225/1998 : AIR 1998 SC 1289 ; Mangal Prasad Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by L.Rs. and Ors. MANU/SC/0153/2005 : AIR 2005 SC 1964 ; and Ritesh Tiwari and Anr. v. State of U.P. and Ors. MANU/SC/0742/2010 : AIR 2010 SC 3823 ).' [emphasis supplied] 29. That apart, the registration No.67 of 1961-62, dated 11.10.1961 issued by the Registrar of Societies, Manipur, under Section 20 of the Societies Registration Act is nowhere in existence in the office of the Registrar of Societies, Manipur and the Manipur Societies Registration Act, 1989 has its own new provisions and rules which have to be complied. There is nothing placed on record to show that such registration of the college under the new provisions governing it have been obtained. 30. For the foregoing reasons, the following order is passed: (i) W.P.(C) No.1143 of 2018 is allowed and the order dated 30.11.2018 appointing Arambam Hemanta Singh, as Principal, Imphal Art College, is set aside; (ii) W.P.(C) No.567 of 2019 is allowed and the order dated 31.5.2019 suspending the petitioner from service is set aside. (iii) W.P.(C) No.898 of 2019 is allowed and the appointment of private respondent No.5 as Principal Look-after, Imphal Art College, is set aside as illegal and unconstitutional and consequently the resolution dated 7.1.2019 and appointment order dated 14.1.2019 are set aside. (iv) W.P.(C) No.920 of 2019 is allowed with a direction to the respondent college to strictly comply with the provisions of the Manipur Societies Registration Act, 1989 and till the governing body in terms of the Act in vogue obtains sanction, the Government shall control the affairs of the college. (v) W.P.(C) No.576 of 2021 is allowed by setting aside the dismissal order dated 15.1.2020, inasmuch as the initiation of the proceedings itself is bad in law. The petitioner shall be reinstated forthwith into service with full service benefits, including backwages. (vi) As W.P.(C) No.1143 of 2018 is allowed, M.C.Nos.16 and 28 of 2019 are dismissed. (vii) Inasmuch as the order of dismissal dated 15.1.2020 has been set aside, no further orders are required in M.C.No.12 of 2020 and it is accordingly dismissed. (viii) Contempt Petition No.50 of 2021 is allowed, as the fourth respondent/contemnor [or all the respondents] has committed wilful and deliberate violation of the interim order dated 6.12.2018. (vii) Inasmuch as the order of dismissal dated 15.1.2020 has been set aside, no further orders are required in M.C.No.12 of 2020 and it is accordingly dismissed. (viii) Contempt Petition No.50 of 2021 is allowed, as the fourth respondent/contemnor [or all the respondents] has committed wilful and deliberate violation of the interim order dated 6.12.2018. The matter may be posted on 14.11.2022 for the appearance of the contemnor.